IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 OP.No. 4054 of 1997(G) ---------------------- PETITIONER(S): --------------- MUNDERI KANNAN, S/O.RAMAN, CHELARI AMSOM, CHELARI P.O., KANNUR DISTRICT. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENT(S): --------------- 1. KUNHAMBOO, AREEKKAL PUTHEN VEEDU, CHELARI P.O., VIA.,KANNADIPARAMBU, KANNUR DIST. 2. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 3. R.D.O., THALASSERY. GOVERNMENT PLEADER SMT.SMITHA SUKUMAR SRI.GRASHIOUS KURIAKOSE FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 4054/1997. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE NOTICE DTD.15.11.74 BY R3. P2. COPY OF THE NOTICE DTD.16.1.75 BY R3. P3. COPY OF THE GOVT. ORDER DTD.31.8.88. P4. COPY OF THE ORDER DTD.4.11.90 OF THE SUB COLLECTOR. P5. COPY OF THE GOVT. ORDER DTD.3.7.91. P6. COPY OF THE JUDGMENT IN O.P.No. 8374/91 OF THIS COURT. P7. COPY OF THE ORDER OF THE SUB COLLECTOR, THALASSERY, DTD.19.5.93. P8. COPY OF THE JUDGEMENT IN O.P.No. 8687/93 DTD.10.3.93 OF THIS COURT. P9. COPY OF THE APPLICATION DTD.2.2.94 OF THE SUB COLLECTOR, THALASSERY. P10. COPY OF THE ORDER DTD.24.1.97 BY R3. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 4054 of 1997 ================== Dated this the 24th day of February, 2009 J U D G M E N T The petitioner is the owner of 44 cents of land. In part of that land, the 1st respondent obtained Kudikidappu right under the Kerala Land Reforms Act. The petitioner filed an application under Section 75(3) of the Kerala Land Reforms Act for shifting of the Kudikidappu. The petitioner's application was processed by the Revenue Divisional Officer, who issued Ext.P1 communication dated 15.11.1974 to the petitioner directing the petitioner to deposit an amount of Rs.500/- as land value for shifting of the Kudikidappu. Subsequently, by Ext.P2 communication dated 16.1.1975, the petitioner was again directed to pay further amount to make up the amount of Rs.935/- as the land value, which also was deposited by the petitioner. Subsequently, since, by that time, the law changed and the shifting of Kudikidappu had to be considered by the Government, the matter was referred to the Government and, by Ext.P3 order dated 31.8.1988, the Government allowed the application of the petitioner. By Ext.P4 dated 4.11.1990, the petitioner was directed to pay an amount of Rs.32,315/- as land value to be deposited by the petitioner for shifting of the Kudikidappu. The petitioner did not deposit that amount. By Ext.P5 order dated 3.7.1991, Ext.P3 order was cancelled for non-deposit of the amount. The petitioner challenged Ext.P5 order in O.P.No. 8374/1991. By Ext.P6 judgment, that original petition was disposed of by this Court as follows: o.p.4054/97 2 “4. Taking into account consideration of all the circumstances I feel that an opportunity should be given to the petitioner to comply with the direction contained in Ext.P4. If the petitioner is able to point out a suitable alternate site for lesser price that also can be considered. I direct the 3rd respondent to give 2 months time either to find out an alternate site or to deposit the amount demanded. I also direct the authorities that Ext.P5 will be kept in abeyance in the meanwhile. If the petitioner fails to deposit the amount within the specified time then the order Ext.P5 will stand. Deposit within the period will be treated as valid deposit and the authorities will proceed to acquire the land.” Subsequently by Ext.P7 dated 19.5.1993, the Sub Collector directed as follows: “Accordingly, the petitioner, Munderi Kannan Nair proposed 10 Cents of land in R.S.No.38/1 of Chelari Village owned by Sri.M.Narayanan to shift the Kudikidappu. Enquiry shows that the proposed site is suitable for shifting the Kudikidappu. Hence the land in R.S.No.38/1 of Chelari village measuring 10 cents owned by M.Narayanan is hereby selected for shifting the Kudikidappu. The Thahasildar, Kannur is hereby directed to submit the L.A. Proposals to acquire the above land urgently.” The 1st respondent challenged the same in O.P.No. 8687/1993. By Ext.P8 judgment, that original petition was dismissed. Later on, by Ext.P9 communication dated 2.2.1994, the petitioner requested the Sub Collector to take necessary action to acquire the proposed site in R.S.No.38/1 of Chelari Village for shifting the Kudikidappu as expeditiously as possible. The petitioner alleges that nothing was done pursuant thereto. But, by Ext.P10 dated 24.1.1997, the petitioner was informed that since the petitioner has not pointed out any suitable land or has paid the amount for acquisition, Ext.P5 order has given effect to and therefore, further proceedings for shifting of Kudikidappu have beeb abandoned. The petitioner is challenging Ext.P10 order in this original petition. o.p.4054/97 3 2. The contention of the petitioner is that by Ext.P7, the Sub Collector had accepted the site pointed out by the petitioner as suitable for shifting of Kudikidappu. Thereafter, the petitioner was not informed about the amount the petitioner has to deposit for acquisition of that land and, without any such communication issued to the petitioner, the 3rd respondent could not have issued Ext.P10. 3. The counsel for the 1st respondent would submit that earlier there was a suggestion to shift Kudikidappu to any other part of the 44 cents, which was not accepted by the petitioner. He would, therefore, submit that he is prepared to move over to any other part of the 44 cents. 4. The learned Government Pleader with the help of the counter affidavit stated to have been filed, which does not find a place in the case file, submit that Ext.P7 could not be proceeded with since the owner of the said land, viz., one Narayanan, transferred the land to his wife, the said Narayanan is no more and Narayanan's wife did not agree to acquisition of ten cents of and therefore, further steps pursuant to Ext.P7 could not be taken. It is further pointed out that the petitioner has subsequently pointed out two other lands which were not found suitable. That is why Ext.P10 order has been issued is the contention of the learned Government Pleader. 5. I have considered the rival contentions in detail. 6. After having issued Ext.P7 approving the site pointed out o.p.4054/97 4 by the petitioner as directed by this Court, the 3rd respondent was duty bound to inform the petitioner as to what further steps the petitioner has to take pursuant thereto. The petitioner had not been directed to pay any amount pursuant to Ext.P7. Since the petitioner had pointed out a suitable land which has been accepted and the petitioner had not been informed about the amount he has to pay for acquisition of the same, the reasons mentioned in Ext.P10 are clearly unsustainable. Further, acquisition of the site cannot be dropped merely because the owner of the land has objected to the same. A considered decision has to be taken whether to acquire the land or not after considering the objections of the owner also, which has not been done in this case, without which the proposal for acquisition cannot be abandoned. That being so, Ext.P10 is liable to be quashed. I do so. Further I direct the 3rd respondent to take all proceedings to complete the shifting of Kudikidappu as per the request of the petitioner to its logical conclusion either by acquiring the land already approved or by acquiring other land at the expense of the petitioner, as expeditiously as possible, at any rate, within six months from the date of receipt of a certified copy of this judgment. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================= O.P.No. 4054 of 1997-G ================= J U D G M E N T 24th February, 2009