K. Anil Kumar and K. Baiju v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 ``` ## **`WP(C) NO. 28880 OF 2013`** ## **`PETITIONERS:`** ``` 1K.ANILKUMAR S/O.KARUNAKARAN SREEVILASAM, AMBALAKKARA HOUSE, PULAMON.P.O., KOTTARAKKARA, KOLLAM DISTRICT-691506. ``` ``` 2K. BAIJU SREEVILASAM, AMBALAKKARA, BUNGLOW, KOTTARAKKARA, KOLLAM DIDSTRICT – 691 506. ``` ``` BY ADV. SRI.M.G.KARTHIKEYAN ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001. 2THE DISTRICT COLLECTOR KOLLAM-691001. 3THE 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.** **-----------------------------W.P.(C). No.28880 of 2013** **---------------------------------------------Dated this the 15[th] 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 3 ``` 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 4 ``` 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. 5 ``` 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 6 ``` 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 2[nd] respondent to forward the application as evident by Ext.P6 along with Ext.P7 remarks to the 1[st] respondent, within 2 weeks and the first respondent after receiving the said remarks was directed to consider and pass appropriate orders on 7 ``` WP(C) NO. 28880 OF 2013 ``` Exts.P6 and P7 within 3 weeks thereafter. Since no orders are passed by the 1[st] 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 8 ``` 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 ``` 9 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 ``` 10 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 ``` 11 ## 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 ``` 12 to the 2[nd] respondent, District Collector to forward the relevant proceedings, Exts.P6 and P7 along with remarks, to the 1[st] 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 1[st] 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 ``` 13 Therefore, this writ petition is disposed of with following directions: 1. Ext.P9 is set aside. 2. The 1[st] 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 ``` 14 ## **`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 SUBMITTEDBEFORETHETAHSILDAR, 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.PHOTOCOPYOFTHEORDERNO. 29139/U3/2013/RD DATED 6-11-2013 PASSED BY THE SECRETARY, REVENUE (S) DEPARTMENT. ```