IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 WA.No. 785 of 2008() -------------------- AGAINST THE JUDGEMENT IN WPC.1181/2008 Dated 10/01/2008 .................... APPELLANT(S): PETITIONER -------------------- JESSIE B. MATTOM, AGED 44 YEARS W/O. JACOB, TEACHER, RESIDING AT BETHEL, OTTAKKANDATHIL, MALAPARAMBA, KOZHIKODE-9 BY ADV. SRI.SIVAN MADATHIL RESPONDENT(S): RESPONDENT ------------------------- 1. KERALA STATE HOUSING BOARD REPRESENTED BY ITS SECRETARY, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER KERALA STATE HOUSING BOARD DIVISION KOZHIKODE, CHAKKARATHKULAM CALICUT 673 006 3. STATE OF KERALA REPRESENTED BY THE SECRETARY TI GIVERNEMTN, HOUSING DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. POOVAPPALLY M.RAMACHANDRAN NAIR,SC.KSHB FOR R1TO3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN, Ag.C.J. & C.N.RAMACHANDRAN NAIR, J. ------------------------------- W.A.No. 785 OF 2008 ------------------------------- Dated this the 15th day of February, 2010 J U D G M E N T Ramachandran Nair, J. Appeal is filed against the judgment of the learned Single Judge declining to interfere with the additional demand raised by the Housing Board for sale of the flat to the appellant in 1993. 2. We have heard the learned counsel appearing for the appellant as also learned Standing Counsel appearing for the Housing Board. 3. Admittedly, the flat allotted to the appellant was constructed by the Housing Board in the land acquired under land acquisition proceedings. There is a provision in the agreement between the Housing Board and the appellant-allottee that the escalation will be demanded, if the court awards enhanced WA.No.785 of 2008 2 compensation for the acquired land. Even though flat was constructed and possession handed over to the appellant-allottee in 1993, in the course of several years, the Housing Board demanded various additional amounts payable under the agreement. The demand raised vide Ext.P7 dated 26.11.2004, shows that the total outstanding of Rs.1,05,014/-, is additionally due from the appellant, out of which final cost itself is Rs.37,426/- and the balance is attributable to interest and other charges payable. 4. Appellant filed writ petition before this Court for direction to the Housing Board to execute sale deed in her favour without insisting any payment. The learned Single Judge found that the additional demands are based on escalation clause in the agreement, and therefore, declined to interfere with the additional demand, payment of which was made as a condition by the Housing Board for execution of the sale deed. 5. After hearing both sides, we are of the view that there is no scope for interference in the judgment of the learned WA.No.785 of 2008 3 Single Judge, because agreement admittedly provides for escalation clause authorising the Housing Board to demand additional charges payable towards land acquisition cost and other charges. Therefore, the balance dispute is only on the quantification of the additional charges, the correctness of the said demand could not be settled by this Court in writ proceedings. The appropriate remedy for the appellant on quantum dispute is in the Civil Court and the dispute also arises under agreement executed between the parties for construction and sale of the flat. However, having regard to the long years taken by the Housing Board and their failure so far to recover the amount, and since possession of the flat itself was given to the appellant 17 years back, we feel, future interest and other charges could be waived, provided the appellant remits Rs.1,05,014/- on or before 31st March, 2010. We make it clear that besides this amount to be paid by the appellant, the Housing Board will be entitled to charge the stamp duty/registration fee and other incidental charges required for execution of the sale deed, which the appellant-allottee is bound WA.No.785 of 2008 4 to remit for execution of the sale deed. If the appellant does not remit the above stated amount on or before 31st March, 2010, the waiver of future interest granted by us will stand automatically vacated and it will be open to the appellant to file Civil Suit, if she wants to contest the liability and the Housing Board will be free to proceed with recovery, subject to Civil Court orders, if any, obtained. If payment is not made, sale deed also need not be executed until Civil Court settles the dispute. The writ appeal is disposed of as above. P.R.RAMAN Ag. CHIEF JUSTICE C.N.RAMACHANDRAN NAIR JUDGE nj.