Kerala High Court
K.Anilkumar vs State Of Kerala on 15 February, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
WP(C) NO. 28880 OF 2013
PETITIONERS:
1 K.ANILKUMAR
S/O.KARUNAKARAN SREEVILASAM, AMBALAKKARA HOUSE,
PULAMON.P.O., KOTTARAKKARA, KOLLAM DISTRICT-691506.
2 K. BAIJU
SREEVILASAM, AMBALAKKARA, BUNGLOW, KOTTARAKKARA, KOLLAM
DIDSTRICT - 691 506.
BY ADV. SRI.M.G.KARTHIKEYAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, GOVT.
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE DISTRICT COLLECTOR
KOLLAM-691001.
3 THE TAHSILDAR
KOTTARAKKARA TALUK, KOLLAM DISTRICT-691506.
BY ADV.
SRI. B.S SYAMANTAK, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 28880 OF 2013
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C). No.28880 of 2013
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Dated this the 15th day of February, 2024
JUDGMENT
Petitioners are brothers and they constructed a
three star classified hotel in their property having an
extent of 27.5 cents of land. Out of which, 5.5 cents of
land was purchased from a party as per sale deed dated
14.08.1995. The petitioners started construction after
getting necessary building permits from the Kottarakkara
Grama Panchayath is the submission. At the instance of
the rival bar licensee, it is submitted that proceedings are
initiated by the Tahsildar on the allegation that the 5.5
cents of land purchased by the petitioners lying
contiguous to 22 cents is Thodu purambokku. After
series of litigation, it is submitted that the District
WP(C) NO. 28880 OF 2013
Collector passed an order after conducting a re-survey by
the resurvey department and concluded that only 2.5
cents of land is encroached while constructing the hotel.
It is submitted that several writ petitions are filed for
various reliefs and ultimately this Court by Ext.P1
common judgment declared that if the petitioners pay
Rs.50 lakhs towards value of 2.5 cents of alleged
purambakku land and also compounding fee for the
alleged unauthorized construction of one floor above the
hotel in addition to the permitted plan, the Government
will assign the land and also regularize the unauthorized
construction. There are other directions also. An SLP was
filed against Ext.P1 judgment and the same is dismissed
by the Supreme Court as per Ext.P2. Thereafter,
Kottarakkara Grama Panchayath, District collector and
others filed SLPs before the Supreme Court and the
Supreme Court disposed of the same upholding Ext.P1
WP(C) NO. 28880 OF 2013
judgment on condition that the petitioners shall pay
another sum of Rs.15 lakhs with the District Collector,
Kollam within eight weeks. It is submitted that the
petitioners paid the entire amounts of Rs.65 lakhs. On the
basis of the said compliance, the Government regularized
the unauthorized construction vide Ext.P4 is the
submission. The Tahsildar vide Ext.P5 assigned the land.
It is also submitted that the petitioners settled the
disputes with the State Bank of India after series of
litigation and closed the loan by paying Rs.5.4 crores on
31.03.2013. The said amount is paid to avoid the taking
over possession of the hotel is the submission. The said
amount is availed from a private financial institution on
condition that it shall be repaid within two months is the
further submission. The documents of all the properties
are returned from the DRT and the petitioners
approached for another loan from a Nationalised Bank.
WP(C) NO. 28880 OF 2013
When the documents are scrutinized, it is noted that in
Ext.P5 assignment of land, as per the directions in Ext.P1
judgment, there is a condition restricting the petitioners
from alienating the property for 25 years use of land. The
said restriction for alienating the property in Ext.P5
assignment order in pursuance to Ext.P1 judgment of this
Court is against the directions and spirit of Ext.P1
judgment is the submission. The petitioners submitted
Ext.P6 for deleting the said restrictions before the 3 rd
respondent Tahsildar. The Tahsildar furnished a copy of
the letter, Ext.P7, sent by him to the District Collector
and informed the petitioners that the request in Ext.P6
can be considered only at Government level. According to
the petitioners, if the restrictions in Ext.P5 are not
deleted, the purpose or the spirit of the directions in
Ext.P1 judgment will be defeated. The petitioners noticed
the said restrictions only when approached for a loan
WP(C) NO. 28880 OF 2013
amount from a Nationalised Bank is the submission. In
Ext.P1, it is clearly held at page 15, that if the amount is
paid as directed by the Court, it shall be treated as
consolidated amount payable by the petitioners for the
value of 2.5 cents of purambokku land assigned to the
petitioners and the compounding fee payable for the
regularization of the alleged unauthorized construction by
the petitioners. Hence it is submitted that all the
restrictions in Ext.P5 with regard to alienation and use of
land are directed to be held as unenforceable or rather
liable to be deleted. The petitioners filed W.P.(C).
No.12946/2013 before this Court and this Court vide
Ext.P8 directed the 2nd respondent to forward the
application as evident by Ext.P6 along with Ext.P7
remarks to the 1st respondent, within 2 weeks and the
first respondent after receiving the said remarks was
directed to consider and pass appropriate orders on
WP(C) NO. 28880 OF 2013
Exts.P6 and P7 within 3 weeks thereafter. Since no orders
are passed by the 1st respondent, the petitioners filed
Contempt Case and this Court by order dated 11.11.2013
directed the Government Pleader to get instructions and
posted the contempt case after three weeks. Then the
petitioners received Ext.P9 order whereby the requests of
the petitioners are rejected. Aggrieved by the same, this
writ petition is filed.
2. Heard the learned Senior Counsel
Sri. C.C.Thomas, as instructed by Sri.M.G.Karthikeyan. I
also heard the learned Government Pleader.
3. The counsel for the petitioner submitted that
Ext.P9 is an order against the spirit of Exts.P1 and P8
judgments. It is also submitted by the Senior Counsel
that now the Land Assignment Rules is amended and
notified as the Kerala Land Assignment (Amendment)
Rules, 2017 by which the 25 years' alienation prohibition
WP(C) NO. 28880 OF 2013
is reduced to 12 years. The Senior Counsel also
submitted that the above 12 years is already over after
the assignment. The Government Pleader, on the other
hand, relied on the judgment of this Court in Joby
Mathew v. State of Kerala and Others [2019 (1) KLT
260] and submitted that the Rule which is in existence at
the time of assignment is to be considered.
4. This Court considered the contentions of the
petitioners and the respondents. As per Ext.P1 judgment,
this Court observed like this:
"Considering the interest of the hotel owners, the
Panchayat and the Revenue authorities and the
public at large, we allow the above W.P.(C)s and the
Writ Appeal filed by the hotel owners by directing
the District Collector, Kollam to assign 2.5 cents of
land found as encroached vide Ext.P20 and the
Government to approve the unauthorised
construction on petitioners depositing Rs.50 lakhs
to the District Collector, Kollam, and producing
receipt for the same. The amount so paid shall be
treated as consolidated amount payable by the
WP(C) NO. 28880 OF 2013
petitioners for the value of 2.5 cents of puramboke
land assigned to the petitioners and the
compounding fee payable for the regularisation of
the alleged unauthorised construction by the
petitioners. The District Collector, Kollam will keep
Rs.50 lakhs in a separate account for construction
of Hospital Ward Building in the Kottarakkara Taluk
Government Hospital in accordance with the
directions separately issued by this court. Since the
amount involved is substantial, the petitioners are
granted time till 30th November to deposit the
amount with the District Collector. However,
assignment will be made and unauthorised
construction will be regularised only after payment
and production of receipt. If amount is not
deposited as above, the relief granted above will
stand vacated and the W.P.(C)s. except W.P.(C)
Nos.33960/2010 and 6384/2011 and Writ Appeal
will stand dismissed. The assignment of land and
regularisation of unauthorised construction should
be done within thirty days from date of deposit of
the amount and on production of orders on
assignment and regularisation, the Panchayat shall
number the building, make assessment of property
tax and regularise the provisional licence issued for
running the restaurant. The Classification and
WP(C) NO. 28880 OF 2013
Approval Committee of the Tourism Department
will consider petitioners' application thereafter.
Petitioners are free to apply for FL-3 Licence in
accordance with the Rules."
5. The above judgment was taken up before the
Apex Court. The Apex Court disposed the SLP with
following directions:
"Delay condoned.
We have heard the learned counsel for the parties.
We are not inclined to interfere with the impugned
judgment. However, in the peculiar facts and
circumstances of this case, we deem it appropriate
to direct the respondents to deposit another sum of
Rs.15 lakhs with the District Collector, Kollam,
within eight weeks from today.
With these observation and direction, these
special leave petitions are disposed of."
6. From the above direction it is clear that the
petitioner obtained 2.5 cents of Puramboke land.
Thereafter, as per Ext.P8 judgment, this Court directed to
WP(C) NO. 28880 OF 2013
take a decision regarding the request of the petitioners.
It will be better to extract the relevant portion:
"8. Mr. C.C Thomas, the Learned Senior Counsel
appearing for the petitioner submits that, many of
the conditions stipulated in Ext.P5, particularly
under clause 3,8 and 9 are having absolutely nexus
or relevance with regard to the assignment ordered
to be made as per Ext.P1 judgment and that the
said conditions can only form part of the general
conditions applicable in cases of assignment under
ordinary circumstances. The learned counsel also
refers to the contents of the report sent by the
Tahsildar to the District Collector, as borne by
Ext.P7 dated 16.05.2013, wherein it is stated that,
the relevant conditions appear in all printed forms
of 'patta' issued; that it is the usual format issued
in all cases and that, if at all any such condition is
to be deleted (in view of the difficulty for availing
financial assistance), the matter could be caused to
be considered by the Government. Nothing is
brought on record as to the further course of action
pursued by the District Collector on Ext.P7, in the
statement filed by the 3 rd respondent in this
regard.
9. In the said circumstance there will be a direction
WP(C) NO. 28880 OF 2013
to the 2nd respondent, District Collector to forward
the relevant proceedings, Exts.P6 and P7 along
with remarks, to the 1st respondent forthwith, at
any rate, within 'two weeks' from the date of
receipt of a copy of this judgment. On receipt of
the proceeding as above, the matter shall be
considered and appropriate orders shall be passed
by the 1st respondent, in accordance with law, at
the earliest, at any rate, within 'three weeks'
thereafter."
7. Thereafter Ext.P9 order is passed. I am of the
considered opinion that in the light of Exts.P1 and P3
judgments, the petitioners are the absolute owners of the
property. It is not a regular assignment as per the Land
Assignment Act and Rules. But, based on the directions
of this Court and the Apex Court, the assignment is
effected after paying an amount of Rs.65 lakhs. In such
situation, I am of the considered opinion that condition
No.(3) in Ext.P5 is unreasonable. Therefore the matter is
to be reconsidered by the Government.
WP(C) NO. 28880 OF 2013
Therefore, this writ petition is disposed of with
following directions:
1. Ext.P9 is set aside.
2. The 1st respondent is directed to
reconsider the matter, in the light of the
observation in this case, as expeditiously
as possible, at any rate, within one month
from the date of receipt of a copy of this
judgment.
sd/-
P.V.KUNHIKRISHNAN
DM/JV JUDGE
WP(C) NO. 28880 OF 2013
APPENDIX OF WP(C) 28880/2013
PETITIONER EXHIBITS
P1. PHOTOCOPY OF THE JUDGMENT DATED 3-10-
2011 IN WA NO. 1251/2011 PASSED BY THIS
HON'BLE COURT.
P2. PHOTOCOPY OF THE ORDER DATED 28-11-11 IN
SLP (C) NO. 30738-30739/2011 PASSED BY THE
HON'BLE SUPREME COURT.
P3. PHOTOCOPY OF THE ORDER DATED 27-1-2012
IN SLP(C) NO. 1113/12 PASSED BY THE HON'BLE
SUPREME COURT.
P4. PHOTOCOPY OF THE ORDER GO (RT) NO.
100/2012/LSGD DATED 10-1-2012 ISSUED BY THE
GOVT. OF KERALA.
P5. PHOTOCOPY OF THE PATTA DATED 6-12-11
ISSUED BY THE TAHASILDAR KOTTARAKKARA.
P6. PHOTOCOPY OF THE LETTER NIL DATED
SUBMITTED BEFORE THE TAHSILDAR,
KOTTARAKKARA.
P7. PHOTOCOPY OF THE LETTER DATED 16-5-2013
ISSUED BY THE 3RD RESPONDENT.
P8. PHOTOCOPY OF THE JUDGMENT DATED 6-6-2013
IN WPC NO. 12946/2013 PASSED BY THIS HON'BLE
COURT.
P9. PHOTOCOPY OF THE ORDER NO.
29139/U3/2013/RD DATED 6-11-2013 PASSED BY
THE SECRETARY, REVENUE (S) DEPARTMENT.
