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2022 Supreme(Ker) 944
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. Kunhikrishnan, J.
George Chummar, S/o. Chummar – Petitioners
Versus
Greater Cochin Development Authority, Represented By Its Secretary - Respondent
W.P.(C) Nos.12757, 17911 of 2010, 25809, 27050 of 2011 and 16440, 21468 of 2013
Decided On : 08-12-2022
For the Petitioner: Sri. T.K. Venugopalan, Sri. Shibu Joseph.
For the Respondents: Sri. C.A. Majeed, Greater Cochin Development Authority, Sri. M.K. Thankappan, Sri. T.R. Rajan.
Point of Law: S.54 of the Transfer of Property Act, 1882 provides as under 'Sale' defined.—'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised.
Headnote:
Transfer of Property Act, 1882 - Section 54, 55, 11, 32 - Constitution of India, 1950 - Article 300A - Plots - Registered Sale Deeds - Notices Claiming Additional Amount - Petitioners are allottees of certain plots from GCDA - Plots were assigned in name of petitioners by registered sale deeds - Thereafter, notices were issued by GCDA claiming additional amount - Whether such a claim is sustainable or not is question to be decided in these cases – "Damocles sword" should be cut and removed forthwith and allottees should be declared as absolute owners of properties - Para 21.
Finding of the Court: In sale deed, there are clauses which says that amount of consideration is tentative - For example, in case dealt with by this Court earlier in W.P. there was a clause which says that GCDA can claim excess amount even after sale deed - Whether that clause is sustainable or not is a different question and Court leave open that question to be decided in appropriate cases – Court is surprised to see such a sale deed in which GCDA says that even at time of execution of sale deed, GCDA is of opinion that there would be some excess payment to be paid by allottees - If that is case, why is such a clause is not inserted in sale deeds is a question to be investigated – Court is of opinion that, that government must find if there is any foul play on part of officials of GCDA in charge at that time - For that purpose, Registry can be directed to forward a copy of this judgment to Secretary, Local Self Government Department, State who will conduct an enquiry and if it is found that there is any misconduct from then office bearers or officials of GCDA, money lost by GCDA should be recovered from those persons by resorting to revenue recovery proceedings, after giving them an opportunity of being heard.
Result: Petitions allowed.
JUDGMENT :
1. “The sword of Damocles” was a real sword hung over the head of Damocles in the court of King Dionysius II in Sicily in the 4th century B.C. Since then, this is an idiom used by all. If the case of the Greater Cochin Development Authority (hereinafter referred to as, “GCDA”) is accepted, “the sword of Damocles” will be hanging over everyone who purchases properties from GCDA, even if they have obtained the properties through registered sale deeds. The petitioners herein are the allottees of certain plots from GCDA. The plots were assigned in the name of the petitioners by registered sale deeds. Thereafter, notices were issued by the GCDA claiming additional amount. Whether such a claim is sustainable or not is the question to be decided in these cases. Since common issue is raised in all these writ petitions, I will dispose of these writ petitions by a common judgment.
2. The 1st petitioner, George Chummar in W.P.(C.) No. 12757/2010 was allotted plot No.49 by the GCDA under the Town Planning Scheme for Thottakkattukara, Aluva (hereinafter referred to as the “scheme”) in Survey Nos. 305, 306 and 308. Ext.P1 is the registered sale deed executed in favour of the 1st petitioner on 29.3.1983. The plot No.41 of the scheme was allotted originally to one Kumari Xavier by Ext.P2 registered sale deed executed on 23.11.1982. The 2nd petitioner, Fouziya Aboobacker in the above writ petition purchased the above plot from Kumari Xavier as per Ext.P3 registered assignment deed dated 18.2.1992. Subsequent to the registered sale deeds, after several years, the petitioners are served with Ext.P4 and P5 notices by the GCDA, claiming an additional amount of Rs.4,18,664/-and Rs.3,43,971/- respectively.
3. The petitioner, K.S Abdul in W.P.(C.) No. 21468/2013 purchased plot No.51 of the scheme from GCDA as per Ext.P1 registered sale deed dated 12.10.1983. Subsequent to this after about 30 years, the petitioner is served with Ext.P2 and P4 notices by the GCDA, claiming an additional amount. In W.P. (C.) No. 27050/2011, the 2nd petitioner, K.S Gopalakrishnan died pending the writ petition. His legal heir was impleaded as additional 3rd petitioner. The 1st petitioner, M.V Cherian and the deceased 2nd petitioner were allotted plot Nos. 31 and 54 of the scheme as per Exts.P1 and P2 registered sale deeds dated 10.6.1983 and 31.7.1987. Subsequent to this after several years the petitioners are served with Ext.P12 to P14 notices from the GCDA, claiming additional amount. The petitioner, Mary Philip in W.P.(C.) No. 16440/2013 was allotted plot No.36 of the scheme as per Ext.P1 registered sale deed dated 20.11.1982. Subsequent to this after 30 years, the petitioner was served with Ext.P3 notice by the GCDA, claiming an additional amount of Rs.3,18,576/-. The petitioner, Dr. P.S. Herbert in W.P.(C.) No. 17911/2010 was allotted plot No. 7 of the scheme. As per Ext.P1 communication, the petitioner was informed that the full cost of the plot was paid and there was an excess amount of Rs. 215.31/-paid by the petitioner and the same was refunded to the petitioner. The property was assigned to the petitioner based on a registered sale deed. Exts.P2 and P3 are the tax receipts evidencing the payment of tax in the year 1999 and 2009. Ext.P6 is the sale deed. Subsequent to this after several years, the petitioner was served with Ext.P4 notice by the GCDA, claiming an additional amount of Rs.2,80,595/-. The petitioner, G.Krishnakumari in W.P.(C.) No. 25809/2011 was allotted plot No. 37 of the scheme and the property was assigned in the name of the petitioner, as per Ext.P1 sale deed in that writ petition dated 10.12.1982. Subsequent to this, after several years, the petitioner was served with Ext.P15 notice by the GCDA, claiming an additional amount of Rs.2,71,968/-.
4. In all these cases, the grievance of the petitioners is that after executing a registered sale deed in the name of the allottees, GCDA issued notices to the allottees claiming additional amo
