Research › Search › Judgment

Kerala High Court · body

2011 DIGILAW 1025 (KER)

Baiju K, Kollam v. Government of India

2011-10-03

C.N.RAMACHANDRAN NAIR, P.S.GOPINATHAN

body2011
Judgment : RAMACHANDRAN NAIR, J. 1. When Writ Appeal No.1251/2011 was heard before this Bench, all the parties agreed that the issue raised in the Writ Appeal is the same as raised in the connected W.P.(C) s. and, therefore, at the request of parties all the cases are posted together and heard by us. The issue raised in the connected cases is whether there is encroachment of land by the hotel owners and whether the construction of the building is in violation of the building permit issued by the Panchayat. We have heard Senior Counsel Sri. C.C. Thomas appearing for the hotel owners, Standing Counsel appearing for the Panchayat, Government Pleader for the State authorities and Senior Counsel Sri. Darmadan appearing for the public interest litigant who filed W.P.(C) No.6384/2011. 2. Before proceeding to consider the issues raised in the separate cases filed, we have to consider the broad facts and controversy arising in the cases. The petitioners in W.P. (C) Nos.17074/2010, 34130/2010 and 3422/2011 and the appellant in W.A.No.1251/2011 are two brothers who constructed a Three Star Hotel at a cost of Rs.10 crores on the side of the MC Road in Kottarakkara Village. The annexures referred to in this judgment are those produced in W.P.(C) No.17074/2010. The hotel owners namely, the petitioners in this W.P.(C) constructed the hotel building on 27.5 cents of land, out of which 5.5 cents of land was purchased vide Ext.P1 sale deed dated 14.8.1995. The petitioners applied for building permit for construction of Three Star Hotel from the Panchayat, which vide Ext.P2 dated 23.2.1998 granted the permit. Admittedly while approving the plan for the construction of the Three Star Hotel at a massive cost of Rs.10 crores, the Panchayat did not find any encroachment of Government land by the Hoteliers and construction was permitted in the land covered by the documents produced. However, the Tahsildar vide Ext.P4 proceedings informed the petitioners that they have encroached on thodu puramboke i.e. Government land on the side of the water canal. The petitioners disputed the claim of the Tahsildar and the dispute dragged for some time before different authorities. However, under Ext.P7 judgment this court directed the District Collector to settle the dispute. The District Collector directed by Deputy Director of resurvey and the Tahsildar to resurvey the land and find out encroachment, if any. The petitioners disputed the claim of the Tahsildar and the dispute dragged for some time before different authorities. However, under Ext.P7 judgment this court directed the District Collector to settle the dispute. The District Collector directed by Deputy Director of resurvey and the Tahsildar to resurvey the land and find out encroachment, if any. Ultimately vide Ext.P20 the District Collector found that nearly 2.5 cents of land on the side of the thodu (canal) is encroached upon by the petitioners while construction the hotel. It is to be noticed that the respondents have no case that the encroachment is on the canal or there is any reduction in width of the canal on account of the alleged encroachment. It is this proceedings issued by the District Collector that is under challenge in W.P.(C) No.17074/2010. This court issued interim orders directing the Panchayat to issue licence provisionally permitting the petitioners to start the hotel. However, petitioners’ request for classification of the hotel as Star Hotel is not considered for want of building number which the Panchayat has declined to issue on account of the alleged encroachment of land and violation of Building Rules. The Panchayat has a further case that there is violation of the Building Rules in regard to height of the building and according to the Panchayat, the petitioners have made construction of partly one floor over and above the plan approved. Even though the allegation of the Panchayat against Building Rule violation is contested by the petitioners in the writ petition filed in this court, the petitioner approached the Government for regularization of the extra construction by filing application under Rule 3 of the Kerala Building (Regulation of Unauthorised Construction) Rules, 2010. The petitioners have produced communication No.29218/RA3/2011 LSGD dated 29.7.2011 issued by the Government stating that the matter can be considered only after disposal of the W.P.(C)s. pending in this court. In other words, Government withheld decision on petitioners’ application because the matter is sub-judice. 3. W.P.(C) No.3422/2011 was filed by the petitioners for a direction to the Regional Director, India Tourism Department, Chennai, for classification of the hotel as a Three Star Hotel. In other words, Government withheld decision on petitioners’ application because the matter is sub-judice. 3. W.P.(C) No.3422/2011 was filed by the petitioners for a direction to the Regional Director, India Tourism Department, Chennai, for classification of the hotel as a Three Star Hotel. Even though this court allowed the W.P.(C) by judgment dated 14.2.2011, the judgment was recalled and W.P.(C) was reposted based on the submission made by counsel for the Panchayat that there is encroachment of puramboke land by the petitioners and violation of Building Rules in the construction of the hotel. The order issued by the learned Single Judge recalling the judgment is the subject matter of Writ Appeal No.1251/2011. So far as W.P.(C) No.33960/2010 is concerned, the same is filed by the Panchayat for direction to the Excise Commissioner not to issue FL-3 licence to the petitioners’ hotel. W.P.(C) No.34130/2010 is filed by the petitioners for direction to the Panchayat to issue licence for starting the restaurant and this court through an interim order permitted it. W.P.(C) No.6847/2011 is filed by the petitioners for direction to the Panchayat and to the Government to regularize the unauthorised construction. The last W.P.(C) No.6384/2011 is filed in public interest by a local resident against issuance of Bar Licence to the petitioners’ hotel on the ground that there is encroachment of puramboke land and unauthorised construction by the petitioners owning the hotel. Government Pleader submitted that Government’s involvement is mainly with regard to the application filed by the petitioners for regularization of unauthorised construction which can be considered only after this court dispose of the W.P.(C)s. Further submission of the Government Pleader is that on verification by the concerned authorities, there is encroachment of 2.5 cents on the side of the canal by the petitioners. 4. Senior counsel appearing for the petitioners submitted that the property allegedly encroached by them is part of 5.5 cents of land purchased by the petitioners vide Ext.P1 sale deed dated 14.8.1995. It is specifically brought to our notice that the prior document of the sellers was of the year 1969. Further, counsel referred to Ext.P4 issued by the Tahsildar wherein it is clearly stated that the alleged encroachment happened on account of mistake in resurvey by the Survey authorities. It is specifically brought to our notice that the prior document of the sellers was of the year 1969. Further, counsel referred to Ext.P4 issued by the Tahsildar wherein it is clearly stated that the alleged encroachment happened on account of mistake in resurvey by the Survey authorities. Based on the findings of the Tahsildar in Ext.P4 we have to necessarily hold that there is no deliberate encroachment of the land by the petitioners which is covered by the document of title held by them. If at all the finding in Ext.P20 that around 2.5 cents of puramboke land is held by the petitioners is correct, in the first place, in Panchayat which has now raised serious objection against commencement of business in the hotel after it’s construction is completed has never bothered to find out whether there is encroachment of puramboke land by the petitioners when they considered approval of the building plan submitted by the petitioners which contains entire details of the property. Even though Panchayat has a case that under the provisions of the Kerala Panchayat Raj Act puramboke land in the Panchayat will vest in the Panchayat, strangely the Panchayat while considering the building plan which was approved vide Ext.P2 on 19.2.1998 has not considered whether there is any encroachment of the puramboke land held by the Panchayat by the petitioners. What we notice is that the building is constructed in the corner of a road junction and the back side of the property is a public canal. Therefore, the Panchayat was well aware that three sides of the property is Government land in the form of public roads and thodu (canal) and in our view, while approving building plan it was the duty of the Panchayat to verify the correctness of the title of the properties claimed by the petitioners which was 27.5 cents under more than one document. However, the Panchayat without any objection whatsoever approved the building plan vide Ext.P2 on 19.2.1998, based on which the petitioners constructed the hotel building at a heavy cost of Rs.10 cores. The demand now raised by the Panchayat is to demolish the construction in the alleged encroached land which is found out by the Revenue authorities to be 2.5 cents. However, the Panchayat without any objection whatsoever approved the building plan vide Ext.P2 on 19.2.1998, based on which the petitioners constructed the hotel building at a heavy cost of Rs.10 cores. The demand now raised by the Panchayat is to demolish the construction in the alleged encroached land which is found out by the Revenue authorities to be 2.5 cents. Counsel for the petitioners rightly contended that if the Revenue authorities had not noticed the alleged encroachment at the time of mutation, the Panchayat would have issued licence to start the hotel. So far as the approval of the alleged unauthorised construction which is partial construction on the roof top is concerned, petitioners’ application is before the Government and the Government has to consider the same after disposal of the Writ Petitions. 5. After hearing all the parties and after seeing the photographs of the area and the hotel building produced in court, we find that the hotel is constructed at a massive cost of Rs.10 crores and if demolition is ordered in the encroached land, the hotel building will loose it’s stability as one side pillars of the building are partly in the 2.5 cents of puramboke. Further we notice that petitioners completed the construction based on the building permit issued by the Panchayat bonafide believing that their title deeds obtained 16 years back are correct. Above all, in Ext.P4 the Tahsildar himself stated that mistake happened in the Re-survey proceedings. We also queried with the counsel appearing for all, if the building is partially demolished on the encroached land and the same is given to the Panchayat or the Revenue authorities, whether the land can be utilized for any useful purpose. However, nobody has a case that demolition and release of the 2.5 cents of land will lead to any benefit, either to the Panchayat or to the Government or to the public at large. Therefore, we feel that the encroached land can be ordered to be assigned to the petitioners on petitioners meeting cost of a project for the benefit of the public. We fixed the compensation payable by the petitioners for the value of 2.5 cents of land in Panchayat area and for regularizing the unauthorised construction on roof top at a huge amount of Rs.50 lakhs. We fixed the compensation payable by the petitioners for the value of 2.5 cents of land in Panchayat area and for regularizing the unauthorised construction on roof top at a huge amount of Rs.50 lakhs. The petitioners willingly accepted our offer because the same will save them from massive loss of investment of Rs.10 crores otherwise locked up in litigation. Even though we queried with the Panchayat as to whether the Panchayat can take up the project utilizing Rs.50 lakhs ordered to be paid by the petitioners for the benefit of the public, the Panchayat did not show any interest. Therefore, through a separate order dated 27.9.2011 we directed the District Collector, Kollam, in consultation with the District Medical Officer and the Superintendent of the Taluk Government Hospital, Kottarakkara, to prepare a plan for construction of a Hospital Ward Building at a cost of Rs.50 lakhs for the benefit of the poor patients availing medical assistance there. We have specifically stated in the said order that the relief to be granted to the petitioners in the W.P.(C)s. will be on condition of their depositing Rs.50 lakhs with the District Collector for construction of the Hospital Ward Building for the benefit of the local public. We are yet to get report from the District Collector about the plan for construction of the building. This court will ensure that the amount of Rs.50 lakhs deposited by the petitioners under this judgment will be usefully utilized for the projects as stated above. 6. The public interest litigant has opposed the issuance of Bar Licence to the petitioners’ hotel. Senior counsel appearing for the petitioner in this W.P.(C) namely, 6384/2011, submitted that the encroachment of the puramboke land by the petitioners will affect road widening. Senior counsel appearing for the petitioners submitted that the public interest litigant is an employee of a rival hotel in the area and he is promoting private interest of another hotelier against petitioners starting a hotel. However, the petitioner has denied this allegation. We do not think there is any need for us to consider the credentials of the petitioners who filed the public interest litigation because we notice that the alleged encroachment is not on the road side, but behind the hotel on the side of the canal and so much so, road widening is not affected by the hotel building. We do not think there is any need for us to consider the credentials of the petitioners who filed the public interest litigation because we notice that the alleged encroachment is not on the road side, but behind the hotel on the side of the canal and so much so, road widening is not affected by the hotel building. Further, the road in front of the hotel is recently widened to large extent and is now one of the best roads in the State. Further, it is seen that public interest litigant is essentially opposing issuance of Bar Licence to a Star Hotel and not against anything else. Petitioners have not got classification of the hotel from the Indian Tourism Department and eligibility of Bar Licence is controlled by the Foreign Liquor Rules wherein public interest is taken care of. We, therefore, do not find any merit in W.P.(C) No.6384/2011 and the same is accordingly dismissed. 7. Relief sought by the Panchayat in W.P.(C) No.33960/2010 filed by them is one and the same i.e. against issuance of FL-3 licence to the petitioners. We do not think the Panchayat can raise objection against issuance of FL-3 licence to a Star Hotel because the Foreign Liquor Rules as of now permit issuance of Bar Licence to Star Hotels for promotion of tourism. In any case we feel eligibility for Abkari Licence for the petitioners is a matter so far not considered by the Excise Commissioner because Hotel classification is not so far done by the Indian Tourism Department on account of pendency of these cases. W.P.(C) No.33960/2010 is also accordingly dismissed. 8. So far as W.P.(C) Nos.17074/2010, 34130/2010, 3422/2011, 6847/2011 and W.A.No.1251/2011 are concerned the reliefs sought in effect are for declaration that there is no encroachment or violation of the Building rules and in the alternative, for assignment of 2.5 cents of land and for regularization of the unauthorised construction for the petitioners to apply for classification of the hotel with the Indian Tourism Department and for commencement of business in the Star Hotel after applying for an obtaining FL-3 Licence for the Bar. We have already found that if the partial demolition is done of the pillars of the building constructed partly in the 2.5 cents of land, the same will affect the structure leading to complete loss and destruction to the building. We have already found that if the partial demolition is done of the pillars of the building constructed partly in the 2.5 cents of land, the same will affect the structure leading to complete loss and destruction to the building. We also found that there is no corresponding benefit either to the Panchayat or to the Revenue authorities or to the public at large by causing this massive destruction to petitioners’ building. From the proceedings issued by the Government, Government also does not oppose regularization of the partial construction made on roof top by the petitioners, probably on terms. We are amazed to note the destructive approach of the Panchayat because petitioners’ hotel, if starts functioning, will bring regular revenue to the Panchayat by way of taxes and will certainly provide employment to minimum 50 people in the area. Further, the Panchayat and the Revenue authorities are not going to be benefited by the partial demolition of petitioners’ hotel and restoration of a little land on the side of a public canal. Above all, we notice that there is mistake on the side of the Panchayat as well as Revenue authorities in as much as Panchayat approved the building plan vide Ext.P2 way back in 1998 without noticing the alleged encroachment and the Revenue authorities have stated that the mistake in Re-survey led to the inclusion of 2.5 cents of puramboke land in the control of private persons. In fact, it is seen from the previous documents that even the previous owner obtained the property including 2.5 cents by document of 1969. 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.P2 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 petitioners for the value of 2.5 cents of puramboke land assigned to the petitioners and the compounding fee payable for the regularization of the alleged unauthorised construction by the petitioners. The amount so paid shall be treated as consolidated amount payable by the petitioners for the value of 2.5 cents of puramboke land assigned to the petitioners and the compounding fee payable for the regularization 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 regularized 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 638/2011 and Writ Appeal will stand dismissed. The assignment of land and regularization of unauthorised construction should be done within thirty days from date of deposit of the amount and on production or orders on assignment and regularization, the Panchayat shall number the building, make assessment of property tax and regularize the provisional licence issued for running the restaurant. The Classification and 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.