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2025 Supreme(Online)(Ker) 12522
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.M. MANOJ, J
P.KESAVAN – Appellant
Versus
A.S.NAISAM – Respondent
Con.Case(C) 751/2022
SRI.ANIL SIVARAMAN, SRI.ASHWIN SETHUMADAHVAN, GOVERNMENT PLEADER, SMT.ACHU SUBHA ABRAHAM, SRI.S.SUDHISH KUMAR, SRI.C.N.PRABHAKARAN, SRI.V.V.NANDAGOPAL NAMBIAR, M/S.K.P. SREEKUMAR & PRAKASH PUTHEIDOM, SRI.S.SREEKUMAR (SENIOR), M/S.P.MARTIN JOSE, PRIJITH.P & THOMAS P. URUVILLA, SRI.PRAKASH KESHAVAN, M/S.B.N SHIVA SHANKER and ANJALI THOMAS, SMT.LATHA KRISHNAN, M/S.SANTHOSH MATHEW, ARUN THOMAS & JENNIS STEPHEN, SRI.MILLU DANDAPANI, M/S.PHILIP.T.VARGHESE, THOMAS.T.VARGHESE & ACHU SUBHA ABRAHAM, SRI.JOSE JACOB, SRI.SANTHEEP ANAKARATH, STANDING COUNSEL, SRI.P JAYABAL MENON, M/S.SAJI VARGHESE & MARIAM MATHAI, SRI.PEEYUS.A KOTTAM, SRI.ANIL KUMAR SREEDHARAN, M/S.NIRMAL.V.NAIR, ANEESH JOSEPH & RILGIN.V.VARGHESE, SRI.GEORGE POONTHOTTAM, M/S.RAJU JOSEPH (SENIOR), K.T.POULOSE, M/S.IPE JOSEPH & V. MANOJ KUMAR, M/S.A.P.SUBASH & AJESH S A S I D H A R A N, SMT.LIFFY.P.FRANCIS, M/S.JOBY JACOB PULICKEKUDY & ANIL GEORGE, M/S.M.G.SREEJITH & LUKE J CHIRAYIL, SRI.P.SUJIT MENON (R-167, Party in-person) who is also appearing on behalf of R128
The court ruled that the original purpose of land assignment for residential use has been fulfilled, allowing for mixed-use development in urban areas, while emphasizing the need for petitioners to exhaust alternative remedies before seeking judicial intervention.
Headnote:(A) Kerala Land Assignment Act, 1960 - Sections 8 and 10 - Writ petition challenging conversion of residential plots to commercial use in Giri Nagar Housing Colony - Petitioners argue violation of assignment terms and statutory provisions - Court finds that the original purpose of assignment has been completed and the society has fulfilled its obligations - The petitioners lack locus standi to challenge the actions of the society and the authorities - The court emphasizes the need for balance between residential and commercial use in urban areas. (Paras 1, 38, 46)
(B) Jurisdiction under Article 226 - The court holds that the existence of alternative remedies under the Co-operative Societies Act must be exhausted before seeking writ relief - The petitioners' claims regarding violation of rights under Articles 14 and 21 are not sufficient to bypass this requirement. (Paras 42, 43)
(C) Doctrine of Desuetude - The court discusses the applicability of the doctrine, stating that mere neglect of a statute does not suffice for its repeal; specific pleadings are required. (Paras 27, 32)
(D) Mixed-use development - The court acknowledges the practical realities of urban living, where residential areas increasingly accommodate commercial establishments, reflecting changing societal needs. (Paras 45, 46)
JUDGMENT
Dated this the 10th day of April, 2025
The writ petition is preferred by some of the residents of Giri Nagar Housing Colony, being aggrieved by the conversion of the Colony into commercial area by several other residents of the Housing Society. This is due to the inaction and tacit collaboration on the part of the respondents, especially the 4th respondent, which is contrary to the scheme under which the Colony was formed.
2. According to the petitioners, the Giri Nagar Housing Society is the first planned housing scheme in the State of Kerala, envisioned by some of the prominent citizens of Ernakulam as early as in 1960s. Thereby they formed a Co-operative Society under the name and style “the Ernakulam Co-operative House Construction Society”, the 6th respondent. The said Society approached the Government for allotment of suitable lands for the construction of houses in order to meet the requirements of the then town population. By order dated 25.01.1965, Government accorded sanction to assign 17.86 Acres of land, which is already acquired and developed by the Government under the Land Acquisition and Development Scheme at Ernakulam. Thereafter, a further extent of land, which was originally allotted for Staff Quarters for the Indian Central Coconut Committee, left unused, was resumed by the Government vide order dated 11.01.1968. The said land was also allotted to the 6th respondent. Thereby the total area handed over to create house plots to the 6th respondent Society became 22.82 Acres. Even thereafter, a further extent of around 10 Acres was also handed over to the 6th respondent for providing roads and common amenities such as Parks, Community Hall etc. Thereby, the total extent of land in the possession of 6th respondent came to 33.183 Acres. Later, Government ordered to issue patta to the land handed over to the Society. Accordingly, the 5th respondent issued Ext.P5 patta to the 6th respondent.
3. Going by Ext.P5, it can be seen that the lands allotted by the Government were on the express terms that, the same shall only be used for the purpose of constructing residential buildings for the members of the Society and it shall be utilised for the said purpose within a period of two years.The houses constructed on the said land were allotted to the members of the Society who come within the income range under the middle- income group and low-income group. Under such premises, on the strength of a reported decision inBhasakaran Pillai v. State of Kerala [1991 KHC 408] it is contended that the assignment made in favour of the 6th respondent was under the provisions of Land Assignment Act and such transactions are regulated by the Land Assignment Act and Rules.
4. The 6th respondent Society, as per its objective, had constructed 279 houses and handed over the same to the member allottees on obtaining the due amount. On the strength of patta granted in favour of 6th respondent, title deeds were created as in the form of Ext.P6 and the properties were transferred to respective allottees. According to the petitioners, Ext.P6 sale deed stipulates that the vendee shall use the land and building for residential purposes and shall not do or cause to be done anything likely to cause danger, discomfort, obstruction, annoyance or nuisance to other residents of the colony or shall not do or cause to be done anything likely to hamper the welfare activities of the respondent society for the common good. The Vendee shall not sell or otherwise dispose of the plot to anyone unless that person is or becomes a member of the vendor society and without intimation to the vendor society. Non-observance of Clauses (7) and (8) in Ext.P6 sale deed enables the vendor society to appropriately proceed against the vendor in accordance with law as the vendor society may deem fit. Thereby, it is contended by the petitioners that residents of Giri Nagar Colony, whether original allottees or transferees from the original allottees, are bound by the te
