IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 WA.No. 2174 of 2009 ----------- --------------------- AGAINST THE JUDGEMENT IN OP.228/1998 Dated 15/10/2008 .................... APPELLANT/PETITIONER: ------------------------------------- K.RAMACHANDRAN, THUPPANKULANGARA VEEDU, KANNAMANGALAM SOUTH, MAVELIKKARA. BY ADV. SRI.P.R.VENKETESH SRI.R.AZAD BABU RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. K.IBRAHIMKUTTY, KALAVELIL PURAYIDOM, MEVANA, OACHIRA. 2. REVENUE DIVISIONAL OFFICER, KOLLAM. 3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.B.SURESH KUMAR FOR R1 R2 & R3 BY SR.GOVERNMENT PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.Bannurmath, C.J. & A.K. Basheer, J. ------------------------------------------ W.A. No.2174 of 2009 ------------------------------------------ Dated this the 13th day of October, 2009 JUDGMENT A.K.Basheer, J. Is the appellant entitled to get the benefit of Section 75(3) of the Kerala Land Reforms Act, 1963 and get the kudikidappukaran shifted from his property? The fact finding authority and the learned Single Judge have answered the above question in the negative. It is thus the appellant is before us impugning the judgment passed by the learned Single Judge. 2. The appellant moved an application under Section 75 (3) of the Kerala Land Reforms Act, 1963 (for short 'the Act') way back in the year 1970. The said proceeding has had a long and chequered career. Initially the application filed by the appellant was allowed. It is on record that the appellant had in fact remitted the requisite amount as directed by the Government. However, the said order was set aside by this Court and the Government was directed to W.A.No.2174 of 2009 - 2 - reconsider the matter. Thereafter, the Government allowed the application for shifting. But the said order was set aside by this Court and the Government was directed to reconsider the matter again. Though on this occasion Government ordered shifting of Kudikidappu, the said order was set aside by this Court at the instance of respondent No.1, the Kudikidappukaran. The Government considered the matter afresh, as directed by this Court and held under Ext.P5 order that the appellant was not entitled to get the kudikidappukaran shifted from his land under Section 75(3) of the Act. The above order was challenged in the original petition. However, as mentioned earlier, the learned Single Judge upheld the view taken by the Government. Hence this appeal. 3. It is contended by Sri.R.Azad Babu, learned counsel for the appellant, that the authority concerned has committed manifest illegality and irregularity in holding that his application for shifting was liable to be rejected since he had failed to substantiate his claim by producing the relevant plan and licence of the residential building which he intended to construct in the property. W.A.No.2174 of 2009 - 3 - The other contention raised by the learned counsel is that the view taken by the Government that even if the kudikidappukaran is allowed to remain in the property without shifting him, there still remains 19 cents of land with the appellant which he can utilise for constructing his own residential building. It is the contention of the learned counsel that these two criteria which have weighed not only with the Government but also with the learned Single Judge, are alien to Section 75(3) of the Act. He points out that Section 75(3) of the Act does not envisage or contemplate that the landlord should produce any material to show that he has already obtained a plan and licence to construct a residential building before applying for shifting the kudikidappukaran. 4. The above contention raised by the learned counsel is undoubtedly impressive in first blush. However, it has to be noticed that Section 75(3) of the Act is intended to benefit those landowners who have no other land of their own to construct a residential building for their occupation. Yet again Section 75(3) of the Act would apply only in cases where the total extent of the holding is W.A.No.2174 of 2009 - 4 - below one acre. In the case on hand, the appellant admittedly is in possession of 29 cents out of which the kudikidappukaran occupies 10 cents in one corner. It had further come out in evidence that the appellant/landlord has constructed four shop rooms and one godown in that property and let out on rent. Apart from the above it was admitted by the appellant himself that he owned 62 cents of land out of which he transferred 40 cents to the name of his wife. He has been admittedly residing in a two storeyed residential building with his wife in that property. 5. Be that as it may, the authority concerned had adverted to all the relevant aspects. It was noticed that the property from which he wanted to shift the Kudikidappukaran is not the only land in his possession. More importantly he was in possession of a two storeyed residential building in a nearby property. Of course, it was contended by the appellant that the said property stands in the name of his wife. But it is admitted by the appellant himself that he had transferred the said property from his name to the name of his wife, later. Apart from that, he is also in possession W.A.No.2174 of 2009 - 5 - of 22 cents of land in which he has constructed another building and let it out for commercial purpose. 6. All the above aspects had weighed with the Government while rejecting the application submitted by the appellant. The learned Single Judge had adverted to all the material aspects and held that there was no illegality in the order passed by the Government under Ext.P5. Further, the respondent has during the pendency of the original petition raised a contention that the land which was sought to be acquired as the alternate site to shift the Kudikidappu is no more available now. He has pressed into service Exts.R1(b) to R1(i) series in support of the above contention. Though we do not propose to deal with that issue in view of the discussion made above, we have only incidentally referred to the above aspect only to indicate that the long delay has already taken its toll. 7. We have also perused the entire materials available on record. We do not find any illegality either in Ext.P5 order passed by the Government or in the order passed by the learned W.A.No.2174 of 2009 - 6 - Single Judge. In that view of the matter, we do not find any reason to entertain this writ appeal. In our view, a quietus has to be given to this protracted litigation of over 39 years. Therefore, the writ appeal is dismissed. S.R.Bannurmath, Chief Justice A.K. Basheer, Judge vns