IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 WP(C).No. 3500 of 2006(N) ------------------------- PETITIONER(S): --------------- JESSY JOBY, W/O.JOBY XAVIER, AGED 27 YEARS, KALAMPARAMBIL HOUSE, MAMPARA SOUTH, ANGAMALY. BY ADVS. SRI.T.V.GEORGE SMT.LINDA GEORGE RESPONDENTS: --------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI. 3. THE VILLAGE OFFICER, PARAKKADAVU VILLAGE PARAKKADAVU, ANGAMALY. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO AGRICULTRE DEPARTMENT, THIRUVANANTHAPURAM. R1 TO R4 BY GOVT. PLEADER SRI. NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMG W.P (C) No. 3500/2006 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF SALE DEED No.4224/2004 OF SUB REGISTRY OFFICE, CHENGAMANADU. EXT.P2 : TRUE COPY OF STOP MEMO ISSUED BY THE 3RD RESPONDENT - VILLAGE OFFICER TO THE PETITIONER. EXT.P3 : TRUE COPY OF REPRESENTATION DATED 05-01-2006 PREFERRED BY PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P4 : TRUE COPY OF THE REPRESENTATION DATED 05-01-2006 PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P5 : TRUE COPY OF ORDER No.GO (Rt) No.157/2002/Ad. DTD. 05-02-2002. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE AMG S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.3500 of 2006 ---------------------------------------------- Dated this the 28th day of October, 2011 JUDGMENT The petitioner is the wife of Sri. Joby Xavier, who is employed in the Gulf countries. Sri. Joby Xavier purchased 7 and 3/8 cents of land in Survey Nos.61/20, 61/21, 61/22 and 61/23 in Parakadavu Village, by Sale Deed No.4224/04 of Chengamanadu Sub Registry Office. He started construction of a small house therein. By Ext.P2 dated 30.12.2005, the Village Officer, Parakadavu directed the petitioner to stop construction on the ground that the construction is in violation of the Kerala Land Utilisation Order, insofar as wet land has been converted into dry land for the construction without permission. The petitioner filed Ext.P3 petition before the District Collector and Ext.P4 before the Revenue Divisional Officer. Finding no response to the same, the petitioner has filed this writ petition seeking the following reliefs: “(i) call for the entire records relating to the above case; (ii) issue a writ of certiorari or any other appropriate writ, direction or roder, quashing Ext-P2 W.P.(C)No.3500/06 2 stop memo, issued by the 3rd respondent, as the same is highly illegal, wrong and unauthorised. (iii) issue a writ of mandamus or any other appropriate writ, direction or order commanding respondents 1 and 2 to pass appropriate orders on Exts- P3 and P4 – representations preferred by the petitioner in compliance with the directions contained in Ext-P5 – order, and thereby permit the petitioner to resume the construction of her house.” The petitioner's contention is that the land in question is a dry land and properties lying adjacent on all sides are dry lands. Therefore, the Kerala Land Utilisation Order is not applicable to the said land. It is the further contention of the petitioner that even assuming that it is wet land, insofar as the construction is only within five cents out of 7 and 3/8 cents, the construction is within the parameters fixed by the Government by Ext.P5 order, wherein conversion of land for construction of house for individuals, up to five cents should generally be allowed. The petitioner therefore submits that the stop memo is without jurisdiction and unsustainable. 2. A statement has been filed by the 2nd respondent taking the stand that the land is wet land and therefore, without prior permission from the Revenue Divisional Officer, the said land cannot be converted into dry land to make constructions therein. W.P.(C)No.3500/06 3 3. I have considered the rival contentions in detail. In Ext.P1 sale deed in favour of the petitioner's husband, the land is described as dry land. The petitioner has specifically averred in the writ petition that all around the said property the lands are dry lands. Of course, the mere fact that the sale deed mentions the land as dry land will not ipso facto make it dry land provided the basic records maintained by the revenue authorities describe the same as wet land. But, in this case, in the statement filed by the 2nd respondent, although it is stated that it is wet land, there is no specific averment that as per the revenue records the land is wet land. Further, the specific averment of the petitioner that the nearby properties are also dry land is not controverted in the statement. Apart from all these, in clause 4 of Ext.P5 Government Order, it is stated thus: “4. Conversion of land for construction of houses for individuals, upto 5 cents should generally be allowed. However, large-scale conversion o land by artificial partitioning into small plots of less than 5 cents should be detected and disallowed.” The land in which the petitioner has started construction comprises of 7 and 3/8 cents. Out of the same, going by Ext.P5, five cents can be used for construction. W.P.(C)No.3500/06 4 4. In view of the above findings, I am of opinion that Ext.P2 stop memo requires to be quashed. Accordingly, I quash Ext.P2 and direct the respondents not to interfere with the petitioner's construction of the house, provided the petitioner confines the construction within five cents. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.3500/06 5