Authority Can't Reclaim Recreational Land In Housing Scheme By Citing Expiry Of Lease: Kerala High Court

The Kerala High Court recently held that public authority cannot initiate eviction proceedings over areas offered for recreational purposes through housing scheme, by citing expiry of lease deed.Justice P.M. Manoj was considering a writ petition challenging the proceedings initiated under the Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968 for evicting persons of the Mavelipuram Residents Association from the recreation hall constructed by them.The erstwhile Cochin Town Planning Trust (presently, Greater Cochin Development Authority – GCDA) had issued a notice inviting bona fide purchasers for a project, through a Town Planning Scheme. As per the Town Planning Scheme, 70 hectares of land were offered and 20 hectres were earmarked for common amenities like schools, hospitals, shopping centres, parks, open spaces, and recreation centres. This was later replaced with the Mavelipuram Housing Scheme, which also contemplated common spaces and the cost for maintain them was collected from the petitioner association. Subsequently, the members of the association bought plots and constructed residential buildings upon it. The association also felt it necessary to construct a recreation hall and decided to raise funds for the same by approaching the Ministry of Human Resource Development under the Department of Culture of Government of India. Since this required certain documentation, a lease deed was executed for 30 years with respect to the area earmarked for children's park in the scheme. Thereafter, the recreation hall was constructed using the central government subsidy plus the association's own fund.The lease deed expired thereafter, and the association requested the GCDA for renewing the same. However, the GCDA directed the association to vacate the hall and to hand over the keys to it. The association replied to this outlining the factual aspects but it was responded to with a show cause notice under the Act. This was also replied to but the GCDA issued order declining the contentions, necessitating the petitioner to approach the High Court challenging the orders and seeking a direction for consideration of their representation.The petitioner contended that the lease deed was a sham document intended for the purpose of getting subsidy. It also relied on decisions which emphasised that plots earmarked in housing schemes for common purposes can't be converted for any other purpose. Further, it was pointed out that statute mandates 10% of the total area has to be recreational open spaces.The association told that already the GCDA sold property developed using association funds to the EMS Library and Onam Park with their consent but the proceeds of the sale were taken by the GCDA without giving a share to them.The GCDA opposed the plea and argued that since proceedings were initiated under the Act, the remedy available is an appeal, not a writ petition under Article 226 of the Constitution. With respect to the averment that the lease deed executed was a sham document, it was contented that the same has to be decided in a civil suit.After hearing the parties, the Court felt that there is merit in the writ petition and observed:“There is no dispute with respect to the funds raised by the petitioner for constructing the recreational hall, namely the MRA Hall, with financial assistance from the Central Government. Merely due to the non-renewal of the lease, it is not proper on the part of a public authority like the GCDA to adopt a Shylockian attitude and take possession of the recreational area meant for the development project…Since the area in which the construction was effected was earmarked for public or recreational purposes in the original scheme, the GCDA cannot claim ownership of the said land or the building constructed therein at the cost of the Association merely on the ground that the lease deed has expired, and that too without considering the request made by the petitioner for renewal of the lease deed.The Court did not consider the question of whether the lease deed was a sham document or not. It opined that the eviction proceedings amounted to an arbitrary action on the part of the GCDA, especially since the area was offered for recreational purposes for attracting purchasers under the scheme.Thus, the Court set aside the orders and notices issued by the GCDA.Case No: WP(C) No. 33150 of 2017Case Title: Mavelipuram Resident's Association v. GCDA and Ors.Citation: 2026 LiveLaw (Ker) 234Counsel for the petitioner: Babu Joseph Kuruvathazha, P.T. AbhilashCounsel for the respondents: Vipin P. Varghese – Standing Counsel – Greater Cochin Development Authority, Adarsh Mathew, Kevin Mathew George, Meera Elsa George, Merline MathewClick to Read/Download Judgment

Authority Can't Reclaim Recreational Land In Housing Scheme By Citing Expiry Of Lease: Kerala High Court

K. Salma Jennath

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