Point of Law: Section 3 of Act, 1882 defines ‘actionable claim’ means a claim to any debt, other than a debt secured by mortgage of 9 immovable property.

JUDGMENT :

SHAJI P. CHALY, J.

1. This writ petition is filed by the Kozhikode Corporation and its Secretary challenging Exhibit P8 order dated 15.11.2012 passed by the Ombudsman for Local Self Government Institutions, Thiruvananthapuram in O.P. No. 710 of 2011, whereby the petition filed by the first respondent herein was allowed, and the Corporation was directed to reimburse Rs. 1,12,612/- paid against enhanced compensation for the plot allotted, to the first respondent within two months from the date of order, and in case of failure to pay the same within the period above, to pay interest at the rate of 7.5% from the date of the order till realization from the Corporation.

2. Brief material facts for the disposal of the writ petition are as follows:

The first respondent has purchased a plot bearing No. B-37 in a Jawahar Nagar Housing Scheme launched by the Corporation having an extent of Rs. 4.568 cents for a total consideration of Rs. 73,063/-. However, due to the enhancement of the compensation by the land acquisition reference court and by virtue of the provisions of the agreement of transfer and transfer deed, first respondent was compelled to pay a further amount of Rs. 1,12,612/-. In the meanwhile, the first respondent was constrained to sell the said plot to purchase a property somewhere else. Subsequently, there was a litigation between the Corporation and the allottees of the plot; and ultimately by virtue of a compromise, it was decided not to collect the excess amount. Therefore, the first respondent moved an application for return of an amount of Rs. 1,12,612/- on 23.09.2007, and as per a reply dated 01.01.2010, he was informed that the same was under consideration. According to the first respondent, since no action was taken, he filed a petition before the Ombudsman alleging maladministration on the part of the petitioners.

3. On the other hand, the petitioner Corporation contended that the first respondent is not entitled to get any benefit of the settlement for the reason that he sold out the land as early in 2003 at a higher value and the benefit should go only to those persons who have the property on the date of settlement. The jurisdiction of the Ombudsman and the delay in filing the petition were also raised.

4. The Ombudsman, after considering the issues, held that it has got jurisdiction to entertain the petition, since there is inaction on the part of the Corporation in not granting amounts to the first respondent, which amounts to maladministration. It was further held that despite submission of application in the year 2007, the Corporation did not take a decision and instead, the first respondent was informed that the complaint is under consideration on 23.09.2007 and 01.01.2010. Accordingly, it was held that the cause of action would arise only when the Corporation and the Housing society decided to settle the matter, and ultimately when the matter was settled, the petitioner moved the application and therefore, there was no delay on the part of the first respondent in filing the application.

5. Accordingly, the subject matter was considered on its merit and held that the first respondent was the allottee and it was he who had deposited the excess amount asked for and therefore, the assignment of the property to a third party does not take away his right; and the first respondent cannot be isolated from enjoying the benefit given to the other allottees. It was further observed that on account of the intervention of the land acquisition reference court, the owners of the properties were liable to be paid an excess amount of Rs. 1,73,97,260/- and therefore, when the requisitioning authority has spent more amounts, certainly it has to be realised from the purchasers and therefore, the action of the Corporation cannot be found fault with; but subsequently, as per the compromise entered into, it was decided to sell 81.813 cents of property and it was sold by the Corporation to Lakshadweep Public Works Departmen