BAIJU K Vs. GOVERNMENT OF INDIA

JUDGEMENT

(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 WP (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 WP (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 WP (C) Nos. 17074/2010, 34130/2010 and 3422/2011 and the appellant in WA 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 WP (C) No. 17074/2010. The hotel owners namely, the petitioners in this WP (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 14/08/1995. The petitioners applied for building permit for construction of Three Star Hotel from the Panchayat, which vide Ext. P2 dated 23/02/1998 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 the 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 constructing 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 WP (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 regularisation of the extra construction by filing application under R.3 of the Kerala Building (Regularisation of Unauthorised Construction) Rules, 2010. The petitioners have produced communication No. 29218 / RA3/2011 / LSGD dated 29/07/2011 issued by the Government stating that the matter can be considered only after disposal of the WP (C)s. pending in this Court. In other words, Government withheld decision on petitioners' application because the matter is sub-judice.

(3.) WP (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 WP (C) by judgment dated 14/02/2011, the judgment was recalled and WP (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 WP (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. WP (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. WP (C) No. 6847/2011 is filed by the petitioners for direction to the Panchayat and to the Government to regularise the unauthorised construction. The last WP (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 regularisation of the unauthorised construction which can be considered only after this Court dispose of the WP (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.