IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 WP(C).No. 16676 of 2010(H) ----------------------------------------- PETITIONER(S): ------------------------ 1. AISHA SALAM , W/O.DR.K.K.ABDUL SALAM, KIZHAKKEVEETTIL, MALA PO, PIN 680 732. 2. DR.K.K.ABDUL SALAM,S/O.KUNJU MUHAMMED HAJI, KIZHAKKEVEETTIL,MALA PO, PIN 680 732. BY ADVS. SRI.P.B.SAHASRANAMAN, SRI.T.S.HARIKUMAR, SRI.K.JAGADEESH. RESPONDENT(S): ---------------------------- GREATER COCHIN DEVELOPMENT AUTHORITY, KADAVANTHRA ,KOCHI -20, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.M.K.THANKAPPAN, SC, GCDA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.16676/2010 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LETTER NO.C2/HIG/THK/12 DTD. ....10/1993 ISSUED BY THE RESPONDENT. P2: COPY OF THE LETTER ISSUED BY THE RESPONDENT TO THE 2ND PETITIONER DTD. 25/04/2007. P3: COPY OF THE SALE DEED NO.2060/2009 DTD. 01/12/2009. P4: COPY OF THE LAWYERS NOTICE ISSUED ON BEHALF OF THE 2ND PETITIONER, DTD. 25/01/2010 BY REGISTERED POST. P5: COPY OF THE RECEIPT ISSUED BY THE RESPONDENT IN FAVOUR OF THE 2ND PETITIONER DTD. 24/11/1993. RESPONDENT'S EXHIBITS: R(A): COPY OF THE AGREEMENT DTD. 16/07/91. R(B): COPY OF THE APPLICATION DTD. 19/12/2008 (IN FORM NO.I). R(C): COPY OF THE APPLICATION DTD. 19/12/2008 (IN FORM NO.2). R(D): COPY OF THE ALLOTMENT ORDER DTD. 27/08/09. R(E): COPY OF THE SURVEY REPORT DTD. 11/04/07. /TRUE COPY/ P.A.TO JUDGE Kss T.R.RAMACHANDRAN NAIR, J. -------------------------- WP(C) No.16676 of 2010 (H) -------------------------- Dated, this the 18th day of October, 2010 J U D G M E N T Petitioners are respectively the wife and husband. 2. This writ petition is filed praying for a direction to the respondent to assign 0.259 cents of land in survey No.319/4B1 under the HIG Housing Scheme at Thrikkakkara. There is an alternate prayer to direct the respondent to return the present market value of 0.259 cents of land in survey No.319/4B1 along with applicable interest from October, 1993 to the 1st petitioner. 3. The dispute herein arose in the following circumstances:- The 2nd petitioner entered into an agreement with the respondent for the purchase of 172.140 sq.m. of land and a house having a plinth area of 132.40 sq.m. in survey No.391/4B1 under the HIG Housing Scheme at Thrikkakkara. The date of the agreement is 16/07/1991. Thereafter, by Ext.P1, the 2nd petitioner was informed that an extent of 0.259 cents of land in excess is lying adjacent to WP(C) No.16676/2010 -2- his plot and he was directed to remit an amount of Rs.2413.88 towards the cost of the excess area, and the 2nd petitioner thereafter remitted the amount. Ext.P2 is a further letter directing him to remit an excess amount of Rs.2,895/- towards the cost of the excess area of 0.0979 cents of land, which was also remitted by him. Thus the case of the petitioners is that apart from 172.140 sq.m. of land, the extent of the property covered by Exts.P1 & P2 are also liable to be transferred to them. Ext.P3 is the sale deed whereby 176.1 sq.m. of land equivalent to 4.351 cents of land has been assigned to the 1st petitioner as per the consent executed by the 2nd petitioner. The contention raised is that the balance extent of 0.259 cents has not been transferred so far in spite of Ext.P4 lawyer notice issued to the respondent. 4. On behalf of the respondent, a detailed counter affidavit has been filed. The respondent admits the issuance of Exts.P1 & P2 and the payments made in terms of Exts.P1 & P2. It is pointed out that the 2nd petitioner has no locus standi as the property has been transferred to the 1st petitioner and the 1st petitioner has not made any request so far to assign any balance extent. Ext.R(d) is the WP(C) No.16676/2010 -3- proceedings whereby the GCDA accepted the request of the 2nd petitioner to transfer the plot and the building to the 1st petitioner. Further it is pointed out that before the sale deed was registered, the GCDA conducted a survey, a copy of which available as Ext.R(e) which shows that the total area of the land is 176.1 sq.m.. Ext.P2 relates to the cost of the excess land, namely 4.00 sq.m., which is in the possession of the allottee. The contention raised by the GCDA in the counter affidavit is that the sale deed has been executed in terms of the area available after measurements have been taken. It is further submitted by the learned Standing Counsel for the GCDA that they are prepared to pay back the amount remitted as per Ext.P1, to the 2nd petitioner, since in the absence of availability of land at site, they are unable to execute any sale deed. 5. In view of the above, the 1st petitioner will have to approach the GCDA. Learned counsel for the petitioners submitted that Ext.P1 was issued after taking measurement at that point of time. But, learned Standing Counsel for the GCDA submitted that actually the 2nd petitioner will have to explain the reduction in the extent of the property since the property was in his possession for WP(C) No.16676/2010 -4- 18 years. This will be a matter for consideration by the competent authority of the GCDA, once the 1st petitioner files an appropriate representation in the matter. Therefore, it is directed that if the 1st petitioner files an appropriate representation before the competent authority, viz., the executive committee of the GCDA, the same will be considered in accordance with law and will be disposed of after notice to the 1st petitioner, within a period of two months of production of a copy of this judgment. This writ petition is disposed of as above. No costs. (T.R.RAMACHANDRAN NAIR, JUDGE) jg