IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 WP(C).No. 31820 of 2005(K) ------------------------------------- PETITIONER(S): ---------------------- * 1. KOVALAM HOTELS LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT,1956, HAVING ITS REGISTERED OFFICE AT GARMENT COMPLEX, PLOT. NO.16A, 3RD FLOOR, COCHIN SPECIAL EXPORT PROCESSING ZONE, KAKKANAD, COCHIN-682 037, REPRESENTED BY ITS DIRECTOR. (DELETED) 2. HOTEL LEELAVENTURE LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT,1956, HAVING ITS REGISTERED OFFICE AT THE LEELA, SAHAR, MUMBAI-400 059, REPRESENTED BY ITS EXECUTIVE DIRECTOR, MR.VENU KRISHNAN. 3. MR. VENU KRISHNAN, DIRECTOR, KOVALAM HOTELS LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT GARMET COMPLEX, PLOT NO.16 A, 3RD FLOOR, COCHIN SPECIAL EXPORT PROCESSING ZONE, KAKKANAD, COCHIN-682 037. *THE IST PETITIONER IS DELETED AS PER ORDER DTD. 29.7.2008 IN IA NO.9866 OF 2008. BY SRI.NAGASHWARA RAO, SENIOR ADVOCATE BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE SMT.SUMATHI DANDAPANI, SENIOR ADVOCATE BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM. 2. THE SECRETARY, DEPARTMENT OF TOURISM, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. tss W.P.(C) NO. 31820/2005 3. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM, KERALA STATE. 4. THE TAHSILDAR, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT, KERALA STATE. 5. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF TOURISM, GOVT. OF INDIA, NEW DELHI. 6. INDIA TOURISM DEVELOPMENT CORPORATION (I.T.D.C), HAVING ITS REGISTERED OFFICE, AT SCOPE COMPLEX, CORE-8, 6TH FLOOR, 7, LODHI ROAD, NEW DELHI-110003. R1 TO R4 BY SR. GOVT. PLEADER SRI.M.P.SREEKRISHNAN R5 BY ADVS. SRI.JOHN VARGHESE, A.S.G. SRI.P.PARAAMESWARAN NAIR, A.S.G. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2008, THE COURT ON 07/01/2011 DELIVERED THE FOLLOWING: tss W.P.(C) NO.31820/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMMUNICATION NO.7II (7) 66 DTD. 26.3.1970 OF DEPUTY SECRETARY OF GOVERNMENT OF INDIA, MINISTRY OF TOURISM & CIVIL AVIATION TO THE SPECIAL SECRETARY (PUBLIC DEPARTMENT) GOVERNMENT OF KERALA. P2:- COPY OF THE ORDER G.O(MS) NO.242/70/PD DTD.18.7.1970 OF THE SPECIAL SECRETARY TO GOVERNMENT OF KERALA. P3:- COPY OF THE PROCEEDINGS DT. 23.10.1970 REFERRED TO IN THE WRIT PETITION (CIVIL). P4:- COPY OF THE COMMUNICATION NO.GENL./146/70-1 DTD.23.10.1970 OF THE MANAGING DIRECTOR, KERALA TOURIST & HANDICRAFTS CORPORATION LTD., TRIVANDRUM TO THE SPECIAL SECRETARY TO GOVERNMENT, PUBLIC (POLITICAL “A” AND MILITARY “A”) DEPARTMENT. P5:- COPY OF THE ORDER, G.O.(MS) 357/70/PD DTD. 22.10.1970 OF THE SPECIAL SECRETARY TO GOVERNMENT. P6:- COPY OF THE ORDER G.O.(MS) NO.145/72/PD DTD. 18.4.1972 OF THE SPECIAL SECRETARY TO GOVERNMENT OF KERALA. P7:- COPY OF THE LETTER NO.K10.27357/72 DTD. 22.1.1974 OF THE 3RD RESPONDENT TO THE ADMINISTRATOR, KOVALAM RESEARCH RESORT PROJECT. P8:- COPY OF THE LETTER NO.PAD.KOV/9/74/34 DTD. 16.11.1974 OF THE 6TH RESPONDENT. P9:- COPY OF THE LETTER NO.DO.PAD/KOV/15/76/1290 DTD. 25.6.1976 OF INDIA TOURISM DEVELOPMENT CORPORATION, KOVALAM. P10:- COPY OF THE LETTER NO.PAD/KOV/15/76/1740 DTD. 19.7.1976 OF THE PROJECT ADMINISTRATOR, TOURISM DEVELOPMENT CORPORATION, KOVALAM, TRIVANDRUM. P11:- COPY OF THE LETTER NO.PAD/KOV/15/76195 DTD. 12.6.1974. P12:- COPY OF THE LETTER NO.K2/8401/74 DTD. 27.3.1976 OF THE DEPUTY COLLECTOR (LA) TO THE PROJECT ADMINISTRATOR, KOVALAM BEACH RESORT PROJECT. P13?- COPY OF THE EXPRESSION OF INTEREST THIRD TRANCHE. P14:- COPY OF THE CONFIDENTIAL INFORMATION MEMORANDUM NUMBER 52 DT. 19.3.2002 REFERRED TO IN THE WRIT PETITION (CIVIL). P15:- COPY OF THE ORDER DTD. 31.5.2002 OF GOVERNMENT OF INDIA, MINISTRY OF LAW, JUSTICE AND COMPANY AFFAIRS, DEPARTMENT OF COMPANY AFFAIR. P16:- COPY OF THE ANNEXURE F WITH RESPECT OF PROPERTY TITLE AND RELATED ISSUES. :2: W.P.(C) NO.31820/200 P17:- COPY OF THE SHARE PURCHASE AGREEMENT A & B DT. 11.7.2002. P18:- COPY OF THE ORDER G.O.(MS) 259/2004 DTD. 18.9.2004 OF THE 2ND RESPONDENT. P19:- COPY OF THE NOTICE NO.K4-64800/03 DTD. 25.9.2004 OF THE 3RD RESPONDENT TO THE IST PETITIONER. P20:- COPY OF THE ORDER G.O.(P) NO.302/2004/RD DTD. 25.9.04 OF THE IST RESPONDENT. P21:- COPY OF THE REPORT IN THE HINDU, DTD. TUESDAY 28TH SEPTEMBER, 2004. P22:- COPY OF THE W.P.(C) NO.28270/2004 M ON THE FILES OF THIS HONOURABLE COURT. P23:- COPY OF THE INTERIM ORDER DTD. 28.9.2004 IN WPC. 28270-/2004M. P24:- COPY OF THE W.A. NO.1796/2004 ON THE FILES OF THIS HONOURABLE COURT. P25:- COPY OF THE INTERIM ORDER DT. 1.10.2004 IN W.A. NO.1796/04 OF THIS HONOURABLE COURT. P26: COPY OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF 5TH RESPONDENT IN W.P.(C) NO.28270/2004. P27:- COPY OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF IST RESPONDENT IN WPC. 28270/2004. P28:- COPY OF THE COUNTER AFFIDAVIT ON BEHALF OF 2ND RESPONDENT IN WPC. 28270/2004. P29:- COPY OF THE COMMON JUDGMENT, DTD. 8.4.2005 RENDERED BY THIS HONOURABLE COURT IN W.A. 1796/2004 AND W.P.(C) 28270/2004, REPORTED IN 2005 (1) KLJ 819. P30:- COPY OF THE IA. NO.5982/2005 IN WP(C) NO.28270/2004 FILED BY GOVERNMENT OF KERALA AND OTHERS BEFORE THIS HONOURABLE COURT. P31:- COPY OF THE LETER DTD. 29.4.2005 ADDRESSED TO THE REGISTRAR, SUPREME COURT OF INDIA NEW DELHI BY ADVOCATE RAMESH BABU M.R. DELHI. P32:- COPY OF THE ORDER DT. 2.5.2005 IN PETITIONS FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO.8603-8604/2005 ON THE FILED OF THE HONOURABLE SUPREME COURT OF INDIA. 3/- :3: W.P.(C) NO.31820/2005 P33:- COPY OF THE OFFICE REPORT IN PETITIONS FOR SPECIAL LEAVE TO APPEAL (CIVIL)NO.8603-8604/2005 ON THE FILE OF THE HONOURABLE SUPREME COURT OF INDIA, DT.D 9.5.2005. P34:- COPY OF THE ORDINANCE NO.6/2005 KOVALAM PALACE TAKING OVER BY RESUMPTION) ORDINANCE 2005. P35:- COPY OF THE ORDER DTD. 10.5.2005 IN PETITIONS FOR SPECIAL LEAVE TO APPEAL NO.8603-8604/2005 OF THE HONOURABLE SUPREME COURT OF INDIA, P36:- COPY OF THE ACT NO.6 OF 2005 KOVALAM PALACE TAKING OVER BY RESUMPTION ACT, 2005. P36:- COPY OF THE ACT NO.25/05 KOVALAM PALACE (TAKING OVER BY RESUMPTION ® ACT, 2005. P37:- COPY OF THE LIST OF PROTECTED MONUMENTS NOTIFIED BY THE GOVERNMENT OF KERALA. RESPONDENT'S EXHIBITS R(a):- COPY OF THE G.O.(MS) 242/70/PD DTD. 18.7.1970. R2(b):- COPY OF THE G.O.(MS) 357/70/PD DTD. 22.10.1970. R2(c):- COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM BEARING NO.K4/30636/2000 DTD. 23.5.2000. R2(d):- COPY OF THE POSSESSION CERTIFICTE TO ITDC ON 18.4.2002 GIVEN BY ADDITIONAL TAHSILDAR FOR AN EXTENT OF 13.47.95 HECTARES OF LAND. R2(e):- COPY OF THE G.O.(MS) 259/04/GAD DTD. 18.9.2004. R2(f):- COPY OF THE G.O.(P) 302/2004/RD DTD. 25.9.2004 . R2(g):- COPY OF THE D.O.LETTER NO.1-JST / 2000, DTD. 8.3.2002 FROM SHRI, AMITHABH KANT, JOINT SECRETARY, MINISTRY OF TOURISM , GOVERNMENT OF INDIA. R2(h):- COPY OF THE LETTER NO.CMD/ITDC/2000 DTD. 3.5.2002 FROM SHRI. ASWANI LOHANI, CMD, ITDC. R6(a):- COPY OF THE CORRESPONDENCE BEARING NO.7 TP II (7)/66 DTD. 26.3.1970. R6(b):- COPY OF THE GOVERNMENT ORDER NO.GO(MS) NO.242/70/PDS DTD. 18.7.1970. R6(c):- COPY OF THE AGREEMENT WHICH EVIDENCES THE TAKE OVER. R6(d):- COPY OF THE REPORT FILED BY THE IST RESPONDENT DTD. 23.10.1970. R6(e):- COPY OF THE GO(MS) NO.145/72/PD DTD. 18.4.1972. :4: W.P.(C) NO.31820/2005 R6(f):- COPY OF THE LETTER DTD. 22.1.1974 BY THE DISTRICT COLLECTOR TRIVANDRUM DTD. 22.1.1974. R6(g):- COPY OF THE LETTER DTD. 16.11.1974 OF THE PROJECT ADMINISTRATOR OF SIXTH RESPONDENT. R6(h):- COPY OF THE LETTER DTD. 25.6.1976 EVIDENCING ACQUIRING OF 2 HECTARES OF LAND. R6(i):- COPY OF THE LETTER NO.KOV/15/76/1740 DTD. 19.7.1996. R6(j):- COPY OF THE LETTER DTD.12.6.1974 EVIDENCING PROPOSAL FOR ACUIRING A8 ACRES OF LAND. R6(k):- COPY OF THE LETTER DTD. 27.3.1976 EVIDENCES THE RECEIPT OF RS. 10 LAKHS BY THE DEPUTY COLLECTOR (LA). R6(l):- COPY OF THE THANDAPER REGISTER WITH THANDAPER ACCOUNT NO.17653. R6(m):- COPY OF THE BASIC TAX REGISTER IN FORM F DTD. 19.6.2000. R6(n):- COPY OF THE ORDER OF DISTRICT COLLECTOR DTD. 23.5.2000. R6(o):- COPY OF THE POSSESSION CERTIFICATE DTD. 16.4.2002. R6(p):- COPY OF THE CERTIFICATE DTD. 18.4.2002 AS REFERRED TO THE WRIT PETITION. TRUE COPY P.A. TO JUDGE tss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.31820 OF 2005 ------------------------------------------- Dated this the 7th day of January, 2011 JUDGMENT “C.R.” 1.This writ petition is filed challenging the validity of the Kovalam Palace (Taking Over By Resumption) Act, 2005 enacted by the State of Kerala. Petitioners seek a declaration that the said statute is ultra vires and unconstitutional. They also seek ancillary reliefs. Background of the impugned enactment. 2.At the outset, for sake of brevity, it can be noted that the impugned legislation was brought in, in the wake of the judgment of this Court in W.A.No.1796/04 and connected case, even going by the preamble to the Act. The disputes between the State Government on the one hand and the Union Government and the India Tourism Development Corporation (ITDC) on the other gathered momentum with the ITDC and the Union of India proceeding with the proposal for WPC.31820/05 2 disinvestment and in such process of disinvestment and re- structuring, the Kovalam Asoka Beach Resort was transfered to M/s.Kovalam Hotels Private Ltd., which, in turn, brought in M. Far Hotels Ltd, the appellant in W.A.1796/04 and Hotel Leelaventure Ltd., the second petitioner in this writ petition. 3.In terms of the directions contained in the judgment in W.A.1796/04 (Ext.P29), the State of Kerala and its Revenue officials stood obliged under that judicial order to put the writ petitioners in that case back in possession of the items of properties taken over from them. The Government applied before this Court for enlargement of time to do so and moved the Apex Court for special leave to appeal against that judgment and then brought in an ordinance (Ext.P34) as a forerunner; followed by the impugned statute (Ext.P36) being published on 12.8.2005, which provides for taking over Kovalam Palace by resumption notwithstanding anything contained in any other law, for the time being in force or in any judgment, decree or order of any court or in any contract WPC.31820/05 3 or other document. It also provides that the dispossession of the writ petitioners in Ext.P29 on 27.9.2004 which was annulled by this Court by quashing the Government Order dated 25.9.2004 shall be deemed to have been taking over of possession under the provisions of the impugned Act and such possession shall be deemed to have been validly taken under the provisions of that Act, on and from 27.9.2004. The impugned legislation also provides for a general vesting of the Kovalam Palace notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any court or in any contract or other arrangement. It also contains a deeming provision that all persons in charge of that site have vacated their charge of management on such commencement of vesting. The impugned statute provides for payment for any improvement made in Kovalam Palace on or after 1970 to date of resumption as per the Act and the principles to be observed in payment of such compensation are also provided for. The impugned statute also enjoins that the provisions thereof shall have WPC.31820/05 4 effect notwithstanding anything inconsistent therewith contained in any law other than the said Act. The jurisdiction of the civil court to determine any matter is also barred except to the extent of any provision in that regard in the Act. Petitioners' contentions and arguments. 4.The petitioners contend and it is argued on their behalf that the impugned legislation is unconstitutional on the ground of lack of legislative competence and of being one in violation of Articles 14 and 19 of the Constitution of India. It is also argued that it infracts Articles 300A and 301 of the Constitution. The further contention is that in view of Ext.P29 judgment of the Division Bench, the State of Kerala, if at all entitled and interested to further pursue its claim, ought to pursue judicial remedies against that judgment or resort to legal proceedings that would resolve the disputes as to title between the Union of India, State of Kerala, ITDC and the petitioners. It is contended that the impugned legislation is WPC.31820/05 5 arbitrary, illegal and a malafide exercise, nothing short of an action by the State amounting to a fraud on its constitutional power. The impugned legislation is criticized as ultra vires the Constitution and hence invalid and inoperative. It is also argued that the Act is an instance where the State of Kerala refuses to accept the executive power of the Union and openly defies the executive power exercised by the President of India and is one, in pith and substance, seeking to sub-silencio declare, as it were, that it is the State of Kerala and not the Union of India (and its successors in interest) who are the legal owners of the property. Even as regards the provision for compensation, it is pointed out that having laid down the yardsticks for fixing the compensation, there is no provision for any compensation for any abolition of ownership rights, any abolition or extinction of possessory title and any abolition or extinguishment of any management rights. It is argued that no public interest is sought to be served by the impugned legislation, which is an intrusion into the process of disinvestment by the Union of India and ITDC. It is further WPC.31820/05 6 argued on the basis of materials placed that on the face of the stand of the Union of India and the ITDC asserting title as against the State of Kerala and vesting of interest in property with the Union of India, ITDC and its successors, the State of Kerala acted beyond authority in making the impugned legislation. At any rate, the same is unenforceable, it is contended. Pleadings and arguments of Union of India & ITDC 5. The 5th respondent Union of India and the 6th respondent ITDC stand supporting the writ petitioners and have filed affidavits in support of such stand. They have also produced materials, on the basis of which, they respectively assert the antecedent title in re the writ petitioners. Having regard to the nature of the lis, it is appropriate that advertence is made to those pleadings before to the contentious one, that is offered by the State of Kerala. WPC.31820/05 7 6. The 5th respondent Union of India(UOI) has filed a counter affidavit stating that it had requested the State of Kerala to acquire land in order to develop the same as an international tourist resort and the land was acquired from Shree Makayiram Thirunal Rama Verma Valiyakoyil Thampuran upon payment of compensation and UOI acquired free hold land to the extent of 43 acres against a payment of Rs.9,50,534.39 to the State of Kerala vide Exts.P1 and P2. Besides that, a balance of 21 acres was also acquired from the State Government over a period of time thereby totalling 64.5 acres. The UOI states that ITDC began to operate the property as a resort in the year 1972 and that ITDC was in un-interrupted possession of that property which was transferred to it by the UOI for valid consideration and ITDC had acquired absolute, clear and marketable title and enjoyed an exclusive and peaceful possession of the properties with a valid title for the period commencing from 1970 till 2002. The UOI further makes reference to different documents including the Thandaper Register of the Vizhinjam Village Office, showing WPC.31820/05 8 the General Manager, ITDC as the registered owner in the Thandaper Account and the Settlement Register prepared on the basis of re-survey showing ITDC property. The Puramboke Register is also referred to, to show that the item is shown as ITDC puramboke. Different other materials are also referred to in the counter affidavit of the UOI to conclude its stand that ITDC had valid title to the said property at all times. 7.In continuation of the aforesaid assertion of the title of ITDC, the UOI proceeds to state in its counter affidavit that in furtherance of the disinvestment policy, all the business including all assets which includes Schedule land was transferred by ITDC to the writ petitioner as per the sale by transfer of shares and such transfer is perfectly valid. In terms of the transfer documents, the business including all liabilities of Kovalam Ashoka Beach Resort was transferred to the petitioners during July, 2002 and no objections were received against disinvestment process either form the State of Kerala or any one else. The UOI further proceeds to state that the WPC.31820/05 9 President of India, acting through representation by the Joint Secretary, Ministry of Tourism and M. Far Hotels Ltd. And Kovalam Hotels (P) Ltd. entered into a share purchase agreement on 11.7.2002. The UOI has produced a document as Ext.R5(a), on the basis of which, it asserts that it is not merely in possession but had valid title to the possession of the property and this was never questioned by the State of Kerala at any point of time. It thus refutes even the statement in the preamble to Ext.P34 ordinance that preceded the impugned Ext.P36 Act. It is further stated by the UOI that from 1970 to 2002, when ITDC was in possession and in occupation of 64.5 acres, the State of Kerala had never raised any objection or claim with respect to the title or possession or its enjoyment by ITDC. The UOI further pointed out that even during the much publicized sale of the property to the petitioners, the State of Kerala had never objected. It is also asserted that the petitioners, at present, hold full title and ownership of the property which was transferred by the UOI to it and that in Ext.P29 judgment by the Division Bench, it has been WPC.31820/05 10 recognised that possession was with the UOI and ITDC for over 3 decades and that the Hotel was being conducted in the Kovalam Palace for over several years without any complaint from any quarters. The UOI states that the petitioners came into possession through a process known to law and they are not trespassers and orders may therefore be granted to safeguard the interest of justice and the Rule of Law. 8. The 6th respondent ITDC has filed an affidavit through its company secretary, exhibiting therewith different documents enlisted as Exts.R6(a) to R6(p), some of which are there among the documents produced by the writ petitioners. ITDC states, among other things, that it is functioning under the aegis of the UOI and as part of its functions, it identified Kovalam as a premier tourist spot and made various plans to develop Kovalam at par with major international tourist destinations, pursuant to which, the UOI had requested the State of Kerala regarding requisition of some land for the construction of a five star hotel and related tourist facilities. The response was WPC.31820/05 11 positive. The State of Kerala expressed its willingness and agreed to hand over Kovalam Palace and adjoining land for consideration. It says that pursuant to the afore-stated proposal and a series of deliberations and correspondence, Ext.P1 was issued by the UOI to the State of Kerala, conveying sanction of the President of India for payment of Rs.9,50,534.30 and this was on account of the transfer of palace property and land along the beach at Kovalam and the area measured was about 43 acres. ITDC takes the stand that the said document Ext.P1 [Ext.R6(a)] evinces transfer of property for valuable consideration. It refutes the allegation in the counter affidavit of the first respondent State of Kerala that ITDC is only in permissive possession of the palace and allied land. It also pointed out that had it been in permissive possession, it is only normal to have some rental arrangements. Relying on Ext.R6(b), ITDC asserts that the land acquired for the Kovalam Project, including the Kovalam Palace and the adjacent property, was handed over to the UOI. It states that Exts.R6(a) and R6(b) would show that the State WPC.31820/05 12 of Kerala had surrendered all its rights in the Palace and its adjacent property to ITDC for mutually agreed adequate consideration in implementation whereof, the property was taken over as evidenced by Ext.R6(c) and Ext.R6(d) report was filed in that regard by the concerned officer of the State of Kerala on 23.10.1970. ITDC further says that the State of Kerala is now attempting to build up a case on the inadvertent usage in Ext.R6(b) “pending finalisation of the terms and conditions of transfer”. It further says that in furtherance of the aforesaid, additional properties for the execution of the large scale Kovalam Integrated Development Project was acquired by the State of Kerala for ITDC. Materials commencing from Ext.R6(e) are placed to show the different official transactions in that regard, including as regards payment of money. It states that the exercises undertaken in Ext.R6(a) to R6(d) and the relationship thereby is not different from that evidenced by Exts.R6(e) to R6(k). ITDC further states that it enjoyed exclusive possession of the entire land with valid title between 1970 to 2002 and when the UOI WPC.31820/05 13 purchased the property from the State of Kerala, no registration of document was compulsory and it was hence that no document similar to sale deed was entered into between the two governments. Exts.R6(a) to R6(d) evidences creation of interest in the aforesaid lands which refers to Ext.R6(l) onwards. Thandaper Register, Basic Tax Register, Possession certificate from the Tahsildar etc. were produced to show that ITDC was always treated as the owner in possession and Ext.R6(e) was issued by the additional Tahsildar contrary to the possession certificate issued by him earlier and also the decision of the superior authority, the District Collector. It reiterates the stand taken by the UOI and asserts that pursuant to the policy decision of the UOI to disinvest certain public sector undertakings, it was directed to make arrangements for the privatization of ITDC hotels and properties at Kovalam and that is how the petitioners came into possession. ITDC asserts that there is no agreement between it and the State of Kerala and it had paid the entire consideration to the State of Kerala and in furtherance of such WPC.31820/05 14 contract, ITDC was put in legal possession of the property, it will get indelible right as against the State of Kerala and hence it cannot be dispossessed. It also referred to the rights under Section 53A of the Transfer of Property Act. Contentions and arguments of State of Kerala 9. Having noted the contentions of the UOI and ITDC in support of the writ petitioners' stand, the pleadings and arguments on behalf of the State of Kerala can now be adverted to. 10.The State of Kerala and its Secretary in the Department of Tourism, respondents 1 and 2, have placed a counter affidavit on record, dated 15.1.2006, exhibiting therewith certain documents as Ext.R2(a) to R2(h), contending that no ground have been made out to declare the impugned legislation as invalid or unconstitutional and that the said enactment is within the legislative competence of the State Legislature land it does not violate any of the provisions of the Constitution. It WPC.31820/05 15 is contended that the impugned legislation does not impinch the fundamental rights of the petitioner under Part III of the Constitution. It is contended that the legislation is within the competence in terms of Article 213 (1) of the Constitution and the ordinance was promulgated lawfully, followed by the enactment. According to those respondents, the Kovalam Palace and the land appurtenant thereto measuring 4.13.30 hectares taken over as per G.O.(P) No.302/2004/RD dated 25.09.2004 and later retained as per the provisions contained in Kovalam Palace (Taking over by Resumption) Ordinance, 2005 which paved way for the enactment of Kovalam Palace (Taking over by Resumption ) Act of 2005 (Act 25 of 2005). The land measuring 19.13.782 acres including 10.18.993 acres in Sy.No.385/1 of Kottukal Village where the Haleyon Castle (Kovalam Palace) is situated was specifically acquired for the Department of Tourism, Government of Kerala as per the LAC No.207/64. This clearly shows that the commercial property of the 1st petitioner does not comprise approximately 64 acres as stated in this para. It is true that some extent of land was WPC.31820/05 16 acquired for ITDC. But as per LAC No.207/64, 19.13.782 acres of land including 10.18.993 acres of land in Sy.No.385/1 of Kottukal Village (later bifurcated into Kottukal and Vizhinjam Villages) was specifically acquired for the Department of Tourism, Government of Kerala for setting up of the Kovalam Tourist Centre. The 10.18.993 acres of land in Sy.No.385/1 of Kottukal Village where the Haleyon Castle (Kovalam