JOY THOMAS Vs. STATE OF KERALA

JUDGEMENT

(1.) We propose by this order to dispose of three connected matters wherein common questions of law and facts are involved. The bare minimum facts have, however, been extracted from W.P.(C) No. 6459 of 2005 (Joy Thomas & Another v. State of Kerala & Others) which has been filed by way of a public interest litigation, as it is in this ease that the pleadings are complete in all regards.

(2.) The case of the petitioners is that they are residents of Akalakunnam Grama Panchayat and are vitally interested in the welfare of the residents of the Panchayat. The writ has been preferred for the benefit of the people for whom land has been set apart for constructing houses free of cost. The writ has thus been filed for the benefit of the residents of Akalakunnam Grama Panchayat and for those people who have been selected for being given free houses under the "Rajeev 10 Lakh House Construction Scheme". In the year 1993 as an act of altruism, Dr. Thomas George, the 5th respondent, gifted the land measuring 2.75 acres in Sy. No. 222/3 and 222/7 of Block 45 of Akalakunnam Village, Kottayam District to the Kerala State Housing Board, the second respondent herein by virtue of a registered gift deed. A copy of the said gift deed. A copy of the said gift deed was made for a specific purpose, i.e. the schedule properties would be utilised for constructing houses for the poor and homeless and named as "Sri. M. T. George Maillady Memorial Housing Complex" under the "Rajeev Ten Lakh House Construction Scheme". Even though Ext. P1 was styled as a gift deed, it is in effect a trust, created by the 5th respondent for the benefit of the poor and the homeless and the second respondent was the trustee. Prior to the creation/execution of Ext. P1 the Grama Panchayat, the third respondent herein, had found after inspection that the property covered by Ext. P1 was ideally suited for construing about 200 houses for the homeless and that had sufficient trees, water, light road and other basic amenities. A resolution was in fact moved by the third respondent Panchayat on 27-7-1993 resolving to initiate appropriate steps for obtaining the property for constructing houses for the homeless agriculturists. By letter dated 2-11-1993 the third respondent requested the second respondent to take immediate steps for taking over the property. The second respondent, after inspecting the property that was proposed to be given in trust, agreed to abide by the condition required by the 5th respondent that the housing complex should be named as "Sri. M. T. George Maillady Memorial Housing Complex:". Pursuant to execution of Ext. P1, possession of the property was handed over to the second respondent. Anticipating immediate construction of houses, the local anxiously waited, the homeless eagerly expected their dream to turn into a reality. Little did they realise that their hopes would be washed away due to misfeasance in public offices of second and third respondents. It is the case of the petitioners that the second respondent immediately after taking possession cut and removed the rubber trees and the coconut trees standing on the property covered by Ext. P1 for a total amount of Rs. 56,000. The trees were cut and removed apparently with the intention of constructing the houses immediately. Thereafter the Panchayat invited applications and is even known to have selected 200 homeless families to be allotted free houses under the Scheme. An amount of Rs. 7 lakhs was also deposited by the Panchayat with the Housing Board. Unfortunately, however, none of the houses under the Scheme has been constructed and the second respondent is retaining the amount of Rs. 7 lakhs without constructing the houses and the "Rajeev Ten Lakh House Construction Scheme" still remains a paper scheme. A couple of years ago P. T. Thomas, the 4th respondent herein, a businessman, purchased the property adjacent to the property covered by Ext. P1 and set up a quarry in the property purchased by him and obtained lease. It is even doubtful whether the 4th respondent has all the licences to run the quarry. The 4th respondent soon realised that the setting up of the Housing Scheme in the property covered by Ext. P1 would probably impair the growth and potential of his business. Respondents 2 and 3, solely for benefiting the 4th respondent's interest, started delaying the House Construction Scheme. The public offices of the second and third respondents started aiding the 4th respondent in his illegal activities. Second and third respondents thus by not implementing the project and by retaining the money set apart for the project committed misfeasance in public office. The local residents of the Panchayat and the beneficiaries of the proposed housing scheme soon realised that the Panchayat was committing a volte face and was trying to avoid the housing scheme completely atleast on the property covered by Ext. P1. The 4th respondent is also known to have made several attempts to impress upon the Panchayat members to shift the housing scheme from the property in Ext. P1. It is further the case of the petitioners that the 4th respondent has in fact impressed the Panchayat members that the property under Ext. P1 is not suitable for constructing houses and the third respondent has even gone to the extent of passing a resolution stating that the property in Ext. P1 is not at all suitable for constructing houses. The Panchayat had also conceded the 4th respondent to shift the Housing Scheme t an alternate site and t exchange or sell the property in Ext. P1 to the 4th respondent. A resolution to that effect was passed by the third respondent on 13-1-2005. When the residents of the Panchayat came to know of passing of the resolution Ext. P5 and the illegal attempts as also the unholy nexus of respondents 3 and 4, they formed an Action Council. They pointed out to the authorities concerned the attempt of the 4th respondent to get the third respondent exchanging the extremely valuable property in Ext. P1 now has a minimum value of Rs.30,000/- per cent while the property purposed to be exchanged has only a value of Rs. 5,000/- per cent. Over and above the financial advantage, the illegal business interest of the 4th respondent is also intended to be satisfied. Such an exchange of property created as a trust or donated as a gift is impermissible and illegal. Pointing out the illegality the residents of the Panchayat including the petitioners filed representations before respondents 1 to 3 apart from other officials. A copy of the representation was sent to respondents 1 to 3 but despite that second and third respondents are now taking hasty steps to exchange the property covered by Ext. P1 with some other property. The beneficiaries of the Housing Scheme are afraid to challenge the proposal lest they be denied the benefit. It is in the wake of the facts and circumstances as mentioned above, that the petitioners have sought for issuance of a writ in the nature of declaration that the property covered by Ext. P1 cannot be utilised for any purpose other than for constructing houses for the homeless under "Rajeev Ten Lakh House Construction Scheme" and also to issue a writ of certiorari to quash Ext. P5 and all proceedings initiated by second and third respondents to exchange the land covered by Ext. P1 with any other land and further to issue a writ of mandamus or other appropriate writ order or direction commanding the second and third respondents to implement the "Rajeev Ten Lakh House Construction Scheme" immediately in a time bound manner.

(3.) Pursuant to the notice issued, the respondents have entered appearance and contested the cause of the petitioners by filing written statements. In so far as Dr. Thomas George, the 5th respondent is concerned, he has however, supported the petitioners and prayed that the reliefs asked for by the petitioners be granted and the second respondent be asked to implement the "Rajeev Ten Lakh House Construction Scheme" in the property gifted as per Ext. P1 within a time limit to be fixed by this Court. He has averred in the counter affidavit filed by him that 2.75 acres of land was gifted to the second respondent for constructing Houses for the poor and homeless under the "Rajeev Ten Lakh House Construction Scheme". It was specifically admitted that it would be named after his father as "Sri. M. T. Maillady Memorial Housing Complex". The respondents satisfied the suitability of the land for the said purpose before executing Ext. P1. He was given an impression about the status of the project that the same is in process and would be starting after completion of certain formalities. He was however, shocked to hear that the Panchayat is intending to exchange the said property for some other property to favour some people of their choice. It is for the remembrance of his father's magnanimous attitude towards his fellow beings and for the benefit of landless people that he purchased the schedule property and gifted to the second respondent. He had gifted the property as he was satisfied that it had all facilities like water, road, etc. for the occupation of houses for many number of homeless people. The said respondent had gifted the property for the purpose of building houses under the "Rajeev Ten Lakh House Construction Scheme". It was a conditional gift. It could not be used for a purpose other than for which it was made. The second and third respondents would have absolutely no authority to use the said property for any purpose other than construction of houses under the "Rajeev Ten Lakh House Construction Scheme".