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2025 Supreme(Online)(Ker) 44364
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AMIT RAWAL, P. V. BALAKRISHNAN, JJ
KOZHIKODE CORPORATION – Appellant
Versus
VARGHESE MATHEW – Respondent
WA NO. 1370 OF 2023 | WP(C)NO.9797 OF 2013
For the Appellants/Petitioners: SMT.BINDUMOL JOSEPH
For the Respondents: SRI.S.K.BALACHANDRAN, SHRI.MATHEW CHERIAN
An actionable claim survives despite transfer of property; the municipal corporation is liable to refund excess compensation previously paid, as failure to do so results in unjust enrichment.
Headnote:(A) Transfer of Property Act, 1882 - Sections 3 and 130 - Right to claim excess amount paid by landowners for acquisition of property - 1st respondent claimed refund after selling property; court found that the actionable claim remains valid despite the sale and the municipal corporation is bound to refund amount paid by the 1st respondent as it would be unjust enrichment otherwise - The respondent was not the owner at the time of the consensus between other allottees and CDA. (Paras 9, 15, 17)
(B) Jurisdiction of Ombudsman - The Ombudsman acted within its powers to review and determine claims regarding compensation; the actionable claim was appropriately diagnosed as existing despite the transfer of property. (Para 9)
Facts of the case:
The Kozhikode Corporation challenged the Ombudsman's order allowing the claim of the 1st respondent for reimbursement of an excess amount paid in a land acquisition case, despite the respondent having sold the property in question prior to the relevant claims. The court determined that statutory rights to claims can persist post-sale if not formally transferred.
Findings of Court:
The appeal allowed on the grounds of illegality and unjust enrichment, reversing the impugned judgments.
Issues: The primary questions were whether an actionable claim survives a sale of property and whether the ombudsman possessed jurisdiction to review claims.
Ratio Decidendi: An actionable claim remains valid under the law despite a sale unless expressly transferred; unjust enrichment occurs if the municipal corporation benefits without reimbursement to the claimant.
Result: Appeal allowed.
| Table of Content |
|---|
| 1. land acquisition and compensation issues. (Para 2 , 3) |
| 2. challenging ombudsman’s decision. (Para 4 , 5) |
| 3. rights of landowners per transfer of property act (Para 6 , 7) |
| 4. actionable claim and rights post sale. (Para 9 , 10) |
| 5. court's decision on the appeal. (Para 11) |
JUDGMENT
Amit Rawal, J.
1. The present writ appeal is directed against the judgment of Single Bench dated 29.09.2022, dismissing W.P(C) No.9797 of 2013 preferred by the appellants –
petitioners claiming the following reliefs:
“(I) to issue a writ of certiorari or any other writ, order or direction quashing entire proceedings in Ext.P8 order of the 2n respondent and all further proceedings in pursuant to and in furtherance thereof.
(iII) such other reliefs that may be deemed fit and proper by the Hon’ble Court in the circumstances of this case.”
2. The brief facts leading to the controversy are enumerated hereinbelow:
Calicut Development Authority (hereinafter called ‘CDA’ for short) in the year 1980 acquired 26 Acres of land in ward No.5, in the heart of the city through revenue department for the purpose of development by dividing the entire property into 282 plots. Out of which, half of the property was set apart for road, drainage and park and after development of the area kept for road and drainage, the cost was included in the allotment letters. 282 plots were allotted to individuals permitting them to remit the land value in 120 monthly installments.
3. The land owners preferred Land Acquisition References seeking enhanced compensation for the acquired lands and the amount of compensation was increased. By depositing the amount, steps were taken to implement the clause in the allotment letter to recover from allottees including the respondent No.1, who was also beneficiary/allottee, the excess amount paid to the land owners. 1st Respondent paid a sum of Rs.1,12,612/- as demanded and thereafter, vide sale deed dated 13.10.2003 sold the property in favour of E.Ashraf as per the market value i.e., for Rs.1,50,000/- and transferred all the rights to claim the benefit to the purchaser. Including the 1st respondent, 32 allottees remitted the amount. But few of the allottees, who were still making the payment in installments, filed 42 suits before the civil court and since there was rapprochement between the CDA and allottees, matter was referred to Lok Adalath on 12.03.2005. On the said date, association of allottees and representatives of the Corporation arrived at a consensus to resolve the issue and decided to sell one of the parks having extent of 81.813 cents out of the three parks earmarked for the benefit of allottees for realisation of the excess amount from the allottees in terms of enhanced compensation awarded by the Land Acquisition References Court. Accordingly, a joint affidavit was filed before the Lok Adalath on 22.03.2007. All (41) suits were withdrawn and the cases pending before the High Court were also withdrawn by the authority and the plots have been registered after withdrawing the Revenue Recovery proceedings. A profit of more than Rs.51 lakhs was secured from the aforesaid sale. The aforementioned process of sale conducted by CDA was in terms of the consensus arrived at between the allottees and not with the 1st respondent who had already divested of his title and interest in the property by virtue of sale deed dated 13.10.2003.
4. The act of aggrandizement at the level of the 1st respondent reflected from the application submitted in 2007 to the CDA for refund of the amount already paid by him, was rejected and accordingly, approached the Ombudsman established under the Kerala Panchayat Raj Act . The Ombudsman initially dismissed the aforementioned claim vide Ext.P5 and thereafter, in Review Petition vide Ext.P8 dated 15.11.2012 allowed the claim. The said order was assailed by the Calicut/Kozhikode corporation before the Single Bench of this Court resulted into dismissal of the writ petition. It is in that background, intra co
