29 Jun 2021 7:58 AM GMT
A Single Bench of the Kerala High Court comprising Justice Raja Vijayaraghavan has stayed all further proceedings pursuant to a show cause notice issued by the Lakshadweep Administration ordering for the demolition of the petitioners' dwellings pending disposal of the writ petition. The petition was preferred by two natives of Kavarratti Island living traditionally in the coastal...
A Single Bench of the Kerala High Court comprising Justice Raja Vijayaraghavan has stayed all further proceedings pursuant to a show cause notice issued by the Lakshadweep Administration ordering for the demolition of the petitioners' dwellings pending disposal of the writ petition.
The petition was preferred by two natives of Kavarratti Island living traditionally in the coastal area claiming that the show cause notices issued to them constituted an atrocious executive action coloured with malafides and illegality.
The show cause notices were issued to the petitioners on the ground that their dwelling houses were constructed without diversion certificate as per Laccadive Minicoy and Amini Islands Land Revenue and Tenancy Regulation.
The notice also alleged that the structures contravened Integrated Island Management Plan since they lie within 20m from the High Tide line, which is declared as a No development Zone. Accordingly, the structures were directed to be removed.
The petitioners sought to quash the aforementioned notices, a declaration that 'diversion certificate' was only applicable to the lands where the government had absolute title, and a direction to the respondents that the petitioners being scheduled tribes in Lakshadweep shall not be evicted from their residential houses.
Adv. R. Rohith while appearing for the petitioners submitted that the said dwellings were constructed before the enactment of the statute, and highlighted that the statute did not have retrospective effect. It was also argued that no permission was necessary to construct any building on their land in Lakshadweep. As such, the action of the respondents was alleged to be illogical, unjust, arbitrary and with ulterior motives.
The petitioners admitted that they were only challenging show cause notices, for which the Administration has given five days to reply. However, they urged that the show cause notices were a clear infringement of the constitutional rights of schedules tribes to possess and occupying in their land with dwelling houses.
Likewise, it was submitted in the petition that all steps taken by the Lakshadweep Administration regarding notices to demolish structures were not in due process of law. To support this argument, the petitioners cited a recent incident where a very similar notice was issue to fishermen of the Kavaratti Islands. When the notice was challenged, the Court had directed the petitioners to file a reply.
However, the petitioners submitted that after filing reply and hearing, the respondents issued an order to demolish their sheds and subsequently cleared a large area. The petitioners submitted that they apprehended that the same strategy will be followed by the Administration in this case as well, hence justifying this petition.
Another argument on the petition was that the Integrated Island Management Plan does not empower any authority to demolish the schedule tribe's houses already constructed on the Islands decades ago. A notification issued by the respondent clearly mandated that dwelling houses of traditional coastal communities should be regularized on conditions.
Additionally, the petitioners submitted that due to sea erosion, the area from High Tide line differs from time to time. No strait jacket formula could hence be applied to identify the distance of building from High Tide line.
However, the respondents had deliberately included the subject of distance of houses from Hide Tide line in the notice to curtail the rights of the petitioners, since u/s 112 of the Regulation there is a bar for every person to move the Civil Court.
Moreover, the petition put forth that the mandatory diversion is applicable to allotted lands for various purposes. As per Section 20 of the Regulations, if a person holding the allotted land wishes to use it for any other purpose, then he shall apply for a diversion certificate.
In the present petition, the disputed land was not an allotted land and hence the petition argued that the diversion certificate had no relevance at all. Furthermore, it was argued that no authority has a right to demolish buildings solely for lack of Diversion certificate. If there is any construction without diversion certificate in the government land then authority can only initiate the steps to recover the arrears of land revenue.
Finally, the petitioners pointed out how the authority has no legal power to club the issue of Diversion certificate and distance of houses from High Tide line in a show cause notice under a statute which is purely applicable only in the lands wherein the government has exclusive rights. On similar lines, it was contended that the impugned orders were issued by Block Development Officers, who were not competent u/s 2(6) r/w section 4 of the Regulations.
For all the aforementioned reasons, the petitioners sought a direction to not evict the petitioners and to quash the show cause notice issued to them.
Title: Ubaid Kunhiyammakada & Anr v. The Administrator U.T of Lakshadweep & Ors