KOCHI: A Division Bench of the Kerala High Court on Monday upheld the judgment of a Single Judge declaring that the Kovalam Palace (Taking over by resumption) Act, 2005, as unconstitutional and inoperative.
The Bench comprising Acting Chief Justice Ashok Bhushan and Justice A M Shaffique passed the judgment while dismissing the appeal filed by the state government.
The Bench observed that taking possession of the property by an enactment with retrospective effect indicates that the enactment is arbitrary and unreasonable. “A sudden decision to take over the property without payment of compensation is nothing but an arbitrary exercise of power,” the Bench observed.
The owners of the hotel submitted that the Act is beyond the legislative competence of the state government and is violative of the fundamental rights guaranteed under the Constitution. “Kovalam Palace is not a heritage site and even if it were a heritage site, the government had no power to take it over,” the petitioners contended. The Government of India and the India Tourism Development Corporation had clarified that the Kerala Government has no title, possession or right in the palace, the petition said.
The Kovalam Palace, adjoining the Kovalam Hotel at the famous beach resort in Thiruvananthapuram, has been a place of dispute after the ITDC handed over the hotel and the possession of the palace to the Gulfar Group. The Gulfar Group later sold the property to Leela Venture Ltd. The state government took over the Kovalam Palace on 2005 claiming it as a heritage site.
The Bench observed that the state itself through the Kerala Tourism Department has been running hotel business since 1964. It does not appeal to reason that suddenly after three decades the state decided to resume possession to maintain it as a heritage property, the court said.
The petitioners pointed out that there are 3,269 properties which are listed as the heritage properties of the state, including several palaces, but the government did not take possession of any of the listed monuments. The Kovalam palace and the property measuring 43 acres has no historical significance, the petitioners submitted.