IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 WP(C).No. 28441 of 2009(A) -------------------------------- PETITIONER: -------------- SUDHAKARAN, AGED 58 YEARS, S/O.KOCHU KRISHNAN, PUTHUSSERIMANNAL, AYIRAMTHENGU, ALUMPEEDIKA P.O, KOLLAM DISTRICT. BY MR.VINCENT JOSEPH, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, COLLECTORATE, KOLLAM. 3. PRINCIPAL SECRETARY, DISASTER MANAGEMENT (TRP SELL) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. SECRETARY, ALAPPAD GRAMA PANCHAYAT, ALAPPAD, KOLLAM DISTRICT. BY MR.P.K.VIJAYAMOHANAN, ADVOCATE, FOR R4. MR.A.J. VARGHESE, SR. GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.28441/2009 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF POSSESSION CERTIFICATE ISSUED BY VILLAGE OFFICER, ALAPPAD DTD. 19.9.08. EXT. P2 : COPY OF AGREEMENT DTD. 29.9.08 EXECUTED BETWEEN THE PETITIONER AND 4TH RESPONDENT. EXT. P3 : COPY OF PHOTOGRAPHS OF DEMOLISHED RESIDENCE. EXT. P4 : COPY OF REPRESENTATION DTD. 3.11.08 SUBMITTED BY PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA. EXT. P4(a) : COPY OF REPRESENTATION DTD. 27.9.09. EXT. P5 : COPY OF REPRESENTATION FILED BY PETITIONER DTD. 1.10.09 TO R4. EXT. P5(a) : COPY OF POSTAL RECEIPT ISSUED BY POSTAL AUTHORITY. 4TH RESPONDENT'S EXHIBITS: EXT. R4(a) : COPY OF REPORT SUBMITTED BY THIS DEPONENT TO R2 DISTRICT COLLECTOR DTD. 4.7.09. EXT. R4(b) : COPY OF REPORT No.T.R.P.9011/07 DTD. 18.7.09 FROM TAHSILDAR, KARUNAGAPPALLY TO R2 DISTRICT COLLECTOR. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.28441 OF 2009 --------------------------------------- Dated this the 29th day of June, 2010. J U D G M E N T This writ petition is filed seeking for a direction to release the amount covered by the Tsunami Rehabilitation Scheme. The petitioner is a Tsunami affected person who is permanently residing in Azhikkal Ward No.II of Alappad Grama Panchayath. The said area was seriously affected by a drastic disaster named Tsunami which had taken away 131 life and caused damage to properties including residential houses. 2. The Alappad Grama Panchayath is having a project namely, 'Special package for Tsunami Rehabilitation project'. Each of the beneficiaries are entitled for payment of Rs.3 lakhs for the purpose of demolition and reconstruction of the residential house. Exhibit P2 is the agreement executed by the petitioner with the Panchayath for the purpose of reconstruction of his residence. Exhibit P1 is the copy of the possession certificate in W.P.(C) No.28441/2009 2 respect of the properties in resurvey Nos.62/11 and 62/2 of Alappad village which is owned and possessed by the petitioner. There was a house therein numbered as 302. Exhibit P3 is the photograph showing the details of the said house which was damaged in Tsunami. 3. It is submitted that in terms of the agreement, the said building was demolished by the petitioner. Aggrieved by the delay in disbursing the amount to the petitioner on the ground that he has not demolished the entire building in terms of the agreement, this writ petition has been filed. 4. It is the case of the petitioner that apart from the property owned by the petitioner, his wife is also having a small extent of land in resurvey No.62/9 where they have temporarily constructed two rooms and a kitchen for their residence now. It is submitted that six family members including parents are residing in the said temporary building now. The extent of the property is 2.25 Ares. It is submitted that the petitioner has already undertaken the obligation under the agreement to W.P.(C) No.28441/2009 3 demolish the building No.302 situated in resurvey Nos.62/2 and 62/11. 5. The respondents have filed separate counter affidavits. What is revealed from the counter affidavit filed by the Panchayath is that the Monitoring Committee has sanctioned the amount to the petitioner. The petitioner is a beneficiary in the scheme also. The allotment of fund is in four installments at the rate of Rs.50,000/- for laying the foundation, Rs.75,000/- at the stage of the construction reaching the lintel level, Rs.75,000/- at the stage of construction reaching the roof level and Rs.1 lakh upon completion of the construction. There is no scheme for a lumpsum payment of Rs.3 lakhs. 6. Going by the averment in paragraph 5 of the counter affidavit filed by the Panchayath, what is mentioned is that even though in Exhibit P2 agreement the petitioner has undertaken that he will demolish the building No.AP/302, he has not demolished the building and reported the matter to the Panchayath. Exhibit R4(a) is the report forwarded by the W.P.(C) No.28441/2009 4 Panchayath to the District Collector with regard to the claim of the petitioner. What is mentioned in Exhibit R4(a) is that the petitioner has put up an annex to building No.AP/302 which is not demolished so far. Exhibit R4(b) is the report submitted by the Tahsildar to the District Collector. Exhibit R4(b) reveals the fact that the petitioner has demolished the building situated in resurvey No.62/2 and a portion remaining in the property of his wife Sarojini has not been demolished so far. The package is for reconstruction of building No.302/11. It is clear from the said report also that the petitioner is the owner in respect of 2.93 Ares in resurvey No.62/2 and 1.82 Ares in re-survey No.62/11 and his wife is the owner in respect of 2.25 Ares in resurvey No.62/9. 7. The 3rd respondent's counter affidavit shows that the Secretary of the Panchayath will have to release the first instalment after the demolition of the petitioner's existing house. The wife's property is situated beside the petitioner's property and the existing house was constructed in such a way that a part of the house is situated in the petitioner's property and the W.P.(C) No.28441/2009 5 remaining portion (two rooms) in his wife's property. The petitioner has demolished only half portion of the existing house which is situated in his property. Remaining portion (two rooms) situated in his wife's property is still existing. 8. Therefore, the scenario that is evident from the pleadings is that sanction is for reconstruction of the house in the property owned by the petitioner in resurvey Nos.62/2 and 62/11. The building in the said property has been demolished. His wife's property is in re-survey No.62/9. Two rooms in the said property remains to be demolished. The petitioner and his family are residing in the two rooms. The question is whether the petitioner has to be asked to demolish the said building also for the purpose of getting the benefit of the special package. 9. Exhibit P2 is the copy of the agreement. The agreement shows that the package is for construction of a house in resurvey Nos.62/11 and 62/2. Obviously, he has to demolish the building therein. There is no dispute that the building which was remaining in resurvey Nos.62/2 and 62/11 has been demolished. W.P.(C) No.28441/2009 6 Merely because two rooms are remaining in the property of the wife of the petitioner that cannot be termed as a violation of the terms of the agreement. Till reconstruction is over, the petitioner and his family will have to reside somewhere. They have now accommodated themselves in the building in resurvey No.62/9. As rightly pointed out by the learned counsel for the petitioner, if the above portion is demolished, the petitioner and his family will not have any other residence to reside till the construction is over. 10. Therefore, as already noticed, as the building No.302 (AP) has already been demolished, there cannot be any objection for releasing the instalments of the package to the petitioner. The Panchayath cannot compel the petitioner to demolish two rooms in his wife's property because the package is only in respect of the property owned by the petitioner in resurvey Nos.62/2 and 62/11 which alone is covered by the agreement Exhibit P2. Therefore, this writ petition is allowed. There will be a W.P.(C) No.28441/2009 7 direction to the respondents to release the instalments under the Tsunami Rehabilitation Package to the petitioner from time to time upto a maximum of Rs.3 lakhs for enabling the petitioner to construct the building in terms of the package. The first instalment will be released without any delay for starting the reconstruction of the building. This writ petition is allowed as above. T.R. RAMACHANDRAN NAIR JUDGE smp