[Lakshadweep] Kerala High Court stays Administration's notice to demolish traditional coastal dwellings

The Kerala High Court on Tuesday restrained the Lakshadweep administration from demolishing the coastal dwellings belonging to two residents of Lakshadweep (UbaidullaKunhiyammakkada v. The Administrator, Union Territory of Lakshadweep). .Single-judge, Justice Raja Vijayaraghavan V directed the Administration to file its counter-affidavit within four weeks on a plea by the residents challenging the show cause notices issued to them by the Lakshadweep Administration."Till such time, the respondents shall not make any attempt to interfere with the possession of the petitioners over the properties ..., nor shall they demolish any structures situated therein," the Court directed. .Two residents of Kavaratti Island, living in coastal areas, filed the petition challenging the show cause notices issued to them by the Lakshadweep Administration stating that their houses are liable to be removed since they were allegedly constructed without diversion certificate as per Laccadive Minicoy and Amini Islands Land Revenue And Tenancy Regulation, 1965 (the Regulation) and in contravention with Integrated Island Management Plan (IIMP).Advocate R Rohith, appearing for the petitioners, submitted that the dwellings belonging to the petitioners were constructed by their fathers in 1960 and 1963 on land belonging to them . The Administration issued show cause notices to the petitioners stating that their buildings are without any diversion certificate as per section 20 (1) of the Regulation. The Administration further contented that the structure lies within 20 Mts from HighTide line, which is declared as No development Zone..Advocate Rohith argued that that the Regulation is a prospective enactment and does not explicitly, or by necessary implication, provide for any retrospective operations. Hence, he submitted that the issuance of notice under any provision of said regulation towards a construction which was completed prior to the commencement of the regulation is not maintainable..Additionally he submitted that as per Section 20 of the Regulation, if a person holding allotted land wishes to use it for any other purpose, he shall apply for diversion. Since the disputed land is not allotted land, he contended that certificate under this regulation would not have any relevance in this case..The question of applicability of diversion certificate is currently pending in petitions filed before the Kerala High Court. The Court had earlier granted interim orders in favour of the petitioners in such cases..Regarding the allegation that the dwellings fell in the No Development Zone, he stated that as per the relevant notification, no authority is empowered to demolish existing dwellings built prior to the existence of the Land Laws and notification of IIMP.Furthermore, he pointed out that due to sea erosion, the area that falls within the zone has changed over time, especially since the dwellings were built nearly 60 years ago. Therefore, no strait-jacket formula must be applied in this regard, he asserted..The petitioners further submitted that Lakshadweep is a scheduled area declared as per the Scheduled Areas (Part A - States) Order 1950 and inhabitants or Islanders are commonly treated as Scheduled Tribes as per the Constitution (Scheduled Tribes) (Union Territories) Order, 195.The petitioners contended that the Laccadive, Minicoy and Amindivi Islands (Protection of Scheduled Tribes) Regulation, 1964 promulgated by the President of India under Article 240 is intended to prevent the transfer of land from Scheduled tribe to non-scheduled tribe. .The petitioners admitted that they are challenging only show cause notices and that the Administration gave them only five days to time to reply to the same. However, they contended that even the show cause notice is a clear infringement of the constitutional rights of schedules tribes to possess and occupy their land with dwelling houses..Pertinently, the petitioners pointed out that the impugned orders are issued by Block Development Officers and they are not competent authority as per 2 (6) r/w Section 4 of the Regulation. .However, advocate S Manu, Standing Counsel for the respondents, submitted that powers have been conferred on the Block Development Officer to issue notices in this regard. He contended that the petitioners can appear before the 4th respondent and state their version and produce records and appropriate orders shall be passed. .Justice Rajavijayaraghavan, however, issued the interim order staying any demolition of the petitioners' dwellings noting that "now that the petitioners have been served with notice, they can very well appear before the said respondent (Block Development Officer) and raise all their legitimate legal contentions including the lack of authority of the 4th respondent in issuing such notice. The 4th respondent shall consider the materials produced by the petitioners and take a decision in accordance with law" .The case will be heard again after three weeks..[Read Order]