IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 WP(C).No. 24050 of 2007(K) -------------------------- PETITIONER: --------------- S.BEENA BAI, UPPER DIVISION CLERK, KERALA STATE HOUSING BOARD, KOLLAM DIVISION, KOLLAM. BY ADV. SRI.GEORGE MECHERIL SRI.SERGI JOSEPH THOMAS RESPONDENTS: --------------- 1. THE KERALA STATE HOUSING BOARD, SANTHI NAGAR, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER, KERALA STATE HOUSING BOARD, DIVISION OFFICE, KOLLAM. BY ADV. SRI.A.JAYASANKAR, SC, KSHB, TVM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.( C) No. 24050 OF 2007 ......................................................................... Dated this the 7th June , 2011 J U D G M E N T The petitioner, who is stated as an employee of the KSHB is before this Court challenging the action of the Board in proceeding against the petitioner, who was allotted a residential 'flat' in the concerned building by the Board, which was subsequently cancelled for alleged violation of the terms of allotment with regard to the 'use' of the building. 2. The sequence of events is as follows: After the allotment of the residential flat to the petitioner, pursuant to Ext.P1, the petitioner sought for permission of the respondent Board to give it on rent to her brother, which is stated as sanctioned as per Ext. P2, making it clear that the sanction was subject to the condition that the flat was used for residential purpose. Later, the second respondent issued Ext.P3 notice on 26.07.2005 stating that the petitioner had violated the terms of allotment , particularly in causing the flat to be used for non- residential purpose, which was replied as per Ext. P4. 3. Series of notices and replies were issued thereafter and finally, in view of the alleged violation, the petitioner was served W.P.( C) No. 24050 OF 2007 2 with notice to vacate the premises, under which circumstance, the petitioner approached this Court by filing W.P.(C) No.21699/2007 wherein Ext.P11 interim order was passed. According to the petitioner, without giving effect to the interim order, Ext. P12 order was passed by the second respondent cancelling the allotment showing the date as of the previous day of Ext. P11 interim order. The position was seriously taken note of by this Court, pursuant to which, an affidavit was filed by the concerned officer stating that he was not aware of the interim order when he passed Ext. P12 order and it was after issuing the same, that the interim order was received in his office. Thereafter, the writ petition was dismissed as withdrawn without prejudice to the right of the petitioner to approach the Court, if he was aggrieved any further . The petitioner is challenging Ext.P12 cancelling the allotment and Ext. P13 dated 24.07.2007, asking to vacate the premises. 4. The learned Standing Counsel for the respondents submits that the petitioner was a party to O.P.No. 28612 of 2000 (being the 4th respondent therein), which was filed by a person W.P.( C) No. 24050 OF 2007 3 by name Philipose Panicker, alleging that the premises allotted to the petitioner was being made use of for 'non-residential' purposes and interference was sought for. There was an interim order as borne by Ext.R1(a), which was made absolute and the writ petition was disposed of on 12.01.2006, whereby it was held that if the writ petitioner was having any further grievances, he could highlight the same before the first respondent, on which event, appropriate action was to be taken by the Board in accordance with law, ensuring that 'Clause 19' was not violated, as made clear in the interim order dated 11.10.2010. The learned Counsel submits that the petitioner being the 4th respondent in the above proceedings and having suffered the judgment, he is not entitled to have any relief , contrary to the above judgment . 5. The learned Counsel for the petitioner submits that, during the pendency of the proceedings, the entire dues to the Board have been cleared and the petitioner has filed an application to effect transfer of the flat in the name of the brother of the petitioner. Pursuant to the application made, the W.P.( C) No. 24050 OF 2007 4 Board has intimated the petitioner to remit the requisite 'transfer fee', which is stated as complied with by remitting a fee of Rs.5000/-. Pursuant to the above proceedings, the brother of the petitioner was directed to submit the 'draft sale deed' in the form as given and enclosed therein. It is stated that the requirements have been satisfied, but the conveyance is still to be executed and registered, which hence is sought to be effected. 6. Going by the contents of Ext. R2 (a) and R2(b), it is seen that the grievance of the de facto complainant was only with regard to the 'use' of the residential building for non- residential purpose, in violation of 'Clause 19' of the terms of agreement and direction has been given to the Board to ensure that no violation of Clause 19 is resulted under any circumstance. 7. The learned Counsel for the petitioner submits that no such violation is there as on date, but for the fact that the brother of the petitioner happened to be an 'Advocate', who was residing in the said building as permitted by the Board vide Ext. P2. 8. In any view of the matter, since the Board has already W.P.( C) No. 24050 OF 2007 5 taken a decision to transfer the building in the name of the brother of the petitioner and since the entire amount due to the Board has been cleared, this Court finds it fit and proper to have the matter finalised, directing the respondent Board to complete the formalities in connection with the allotment of the building, which shall be finalised, at any rate, within six weeks. In the above circumstance, Exts. P12 and P13 orders impugned in this writ petition will stand set aside. It is made clear that it is for the respondent Board to ensure that no violation of 'Clause 19' of the terms of allotment is made by the allottee concerned and it will be open for the respondent Board to pursue appropriate steps, if there is any violation. The writ petition is disposed of. P.R. RAMACHANDRA MENON, JUDGE. lk