IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 OP.No. 228 of 1998(B) --------------------- PETITIONER(S): --------------- K. RAMACHANDRAN, THUPPANKULANGARA VEEDU, KANNAMANGALAM SOUTH, MAVELIKKARA. BY ADV. SRI.P.R.VENKATESH RESPONDENT(S): --------------- 1. K. IBRAHIMKUTTY, KALAVELIL PURAYIDOM, MEVANA, OCHIRA. 2. REVENUE DIVISIONAL OFFICER, KOLLAM. 3. STATE OF KERALA,REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.B.SURESH KUMAR GOVERNMENT PLEADER SMT. K.K. DEEPA SMT.K.GIRIJA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/10/2008, ALONG WITH WPC NO. 33990 OF 2003 WPC NO. 34006 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P. NO.228/1998. ------------------------------------------------------------ EXT.P1 TRUE COPY OF PROCEEDINGS DT. 18-1-1991. EXT.P2 JUDGMENT IN O.P. 1692/1991. EXT.P3 PROCEEDINGS DT. 29-9-1993. EXT.P4 JUDGMENT IN O.P.NO. 15548/1993. EXT.P5 ORDER DT. 19-11-1997. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R1(a) REPRESENTATION DT. 23-8-1997. EXT.R1(b) COPY OF PARTITION DEED D5. 22-4-1967. EXT.R1(c) COPY OF RATION CARD. EXT.R1(d) ELECTORAL CARD DT. 14-10-1997. EXT.R1(e) DO. DO. EXT.R1(f) DO. DT. 4-8-2000. EXT.R1(g) DO. DT. 18-4-2001. EXT.R1(h) SETTLEMENT DEED DT. 25-1-2006. EXT.R1(i) ORDER DT. 2-12-1993. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P.No. 228 of 1998 and W. P (C) Nos. 33990 & 34006 of 2003 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 15th October, 2008. J U D G M E N T The original petition and the writ petitions arise from the same set of facts. The main case is O.P.No. 228/1998. In that case, the landlord who sought shifting of kudikidappu of a kudikidappukaran, is challenging Ext. P5 order of the Government, whereby the application filed by the landlord for shifting of the kudikidappu has been rejected on the ground that the landlord does not require that land for construction of a dwelling house for his own, which is a necessary pre-condition for applying for shifting of Kudikidappu under Section 75(3) of the Kerala Land Reforms Act. The other two writ petitions arise from the interim orders of injunction in two civil suits, one filed by the landlord and the other by the kudikidappukaran in respect of the same property. Therefore, once O.P.No. 228/1998 is decided in the other two writ petitions the matter has to be remanded to the civil court for passing appropriate orders in the suits in consonance with the judgment in O.P.No. 228/1998. 2. After several rounds of litigation, the kudikidappukaran approached this court by filing O.P.No. 15548/1993, in which Ext. P4 judgment was passed by this Court . Since the entire facts necessary for disposal of this original petition are available in that judgment, it would be sufficient to quote the entire judgment for the purpose of ascertaining the facts: “A Kudikidappukaran is before this court challenging Ext. P6. The first respondent Landlord filed an application under Section 75(3) of Act 1 of 1964 as amended by Act 35 of 1969 to shift the Kudikidappu of the petitioner situated in 29 cents of land possessed by the first respondent. The application was allowed as per Ext. P1. That was under challenge before this court. This court set aside Ext. P1 as it was issued by an incompetent authority. Ext. P2 is the judgment. Government considered the issue and decided in favour of the petitioner in Ext. P3 Government O.P.No. 228 of 1998 etc.. -: 2 :- Order. The 1st respondent challenged it. Ext. P. 3 was set aside in Ext. P. 4 judgment. The Government in Ext. P. 3 decided that there was no 'dire necessity' to the landlord in order to shift the Kudikidappu. This was not proper. So it was directed in Ext. P. 4 judgment by this court to consider “whether the petitioner requires the land for constructing the building for his own purpose”. Based on that direction the parties were heard. Ext. P. 5 is the hearing note submitted by the petitioner. By Ext. P. 6, the shifting of the Kudikidappu was allowed. 2. It is contended by the counsel for the petitioner that the Government failed to examine an important point as to whether the landlord “requires the land occupied by the Kudikidappukaran for constructing the building for his own residence”. Only when there is such requirement, a landlord can apply under Section 75(3) to shift the Kudikidappu. In the absence of such requirement an application under Sub-section 3 of Section 75 will not lie. 3. A reading on Ext. P. 6 discloses that the only issue considered by the Government were, whether (i) the consent of the Kudikidappukaran is to be obtained before filing an application and (ii) whether 20 cents had to be acquired for shifting two kudikidappus including that of the petitioner. 4. The third respondent did not examine as to whether the first respondent requires the land occupied by the petitioner for constructing the building for his own residence. In support of this, the petitioner relies on the Division Bench decision in Ayyappan V. State of Kerala, reported in 1980 KLT 466. Relying on Sathi Bai Kamath V. Sub Collector, Telligherry and others, 1977 KLT 644, it was held by the Division Bench that, “it is necessary under Section 75(3) to investigate and find one of the necessary ingredients before directing a shifting of the Kukikidappu, the question whether the applicant requires the land for the purpose of constructing the house on the land occupied by the kudikidappukaran. This aspect of the matter is further emphasised by Rule 72 of the Land Reforms (tenancy) Rules (which is the same as what was referred to in the Division Bench Ruling notice)”. In the said Rule, it is provided that upon receipt of an application under Section 75(3), the Government shall make such enquiry and “if satisfied that the applicant requires the land occupied by the Kudikidappukaran for constructing a building for his own residence”, the application shall be allowed. Thus, it is a statutory duty cast on the authority while considering the application before allowing an application that it should be satisfied that the landlord requires the land occupied by the Kudikidappukaran for constructing such building. Ext. P 6 shows O.P.No. 228 of 1998 etc.. -: 3 :- that Government did not consider that aspect. 5. In counter to this, it is contended by the counsel for the first respondent that there was no case for the petitioner before Government or in this Original Petition with reference to such an issue. But it is seen from Ext. P. 5 argument note that the petitioner had contended before Government that “the application never showed that the particular site occupied by the Kudikidappukaran was required for construction of a new residential building”. In the light of these contentions, it was incumbent on the third respondent to consider that aspect as enjoined by Section 75(3) of the Act and Rule 72(2) of the said Rules. 6. Take for a moment that there was no such contention from the Kudikidappukaran. Even then, it is a statutory duty cast on the authority exercising the power under Section 75(3), because such a requirement to construct a building is a pre-condition before applying for shifting of the kudikidappu. Without specifying that requirement, a landlord cannot proceed further. That is the boundain duty of the landlord to prove it, even if there is no contention raised by the kudikidappukaran. That is why when rules were framed in order to effectuate the proceedings under the Land Reforms Act, it was made clear in Rule 72 of the 'Tenancy Rules' that the authority should get satisfied of such requirement of the landlord. That is the duty cast on the authority even without the contention of the Kudikidappukaran. So even if the contention of the first respondent that the petitioner never raised such an issue to be decided by the Government is accepted, the requirement of the landlord to construct the residential building in the land where Kudikidappu is situated has to be specifically considered by Government. In Ext. P. 6 Government did not consider that aspect as enjoined by the Statute. 7. In the above circumstances, I am of the view that Government have not discharged the statutory duty cast on it while passing Ext. P6. Accordingly, I set aside Ext. P6 and direct the Government to consider the matter afresh. As the matter is pending for the last 27 years, Government shall bestow early attention for disposal of the same and shall pass orders, at any rate, within three months from the date of receipt of a copy of this judgment after giving notice to the petitioner and the first respondent and rendering them opportunity of being heard in the matter.” Pursuant to the said judgment, the Government considered the matter afresh and passed Ext. P5 order, whereby it was held that the O.P.No. 228 of 1998 etc.. -: 4 :- landlord has not produced convincing evidence to show that he requires the land for construction of a dwelling house for himself on the land occupied by the kudikidappukaran and therefore rejected the application for shifting of kudikidappu filed by the landlord. That order is under challenge before me. Therefore, what I am called upon to decide is as to whether the finding in Ext. P5 that the landlord has not produced convincing evidence to show that he requires the land for construction of a dwelling house is correct or not? 3. At the outset, I must note that the jurisdiction of this Court in such matters is very limited. Under Articles 226 and 227 of the Constitution, this Court cannot interfere with the findings of fact on evidence entered into by quasi-judicial authorities under a statute. Apart from that, after considering Ext. P5 as also Ext. P1, which was the original Government Order in the matter, which contains some admissions by the landlord, I do not find any merit in the contentions of the landlord. 4. Admittedly, the landlord originally owned a two storeyed building in 40 cents of land. He transferred the same to his wife. He and his wife are living in that house. They have no issues. Further, the kudikidappuaran is occupying only 10 cents out of a large extent of 29 cents of land the balance of which is still available to the petitioner to be used as he likes. In Ext. P1, it is stated that the landlord himself told before the officer who heard the case originally that he holds 22 cents of land, that he had subsequently purchased 62 cents of land, that out of that 60 cents, 40 cents have been given to his wife, that there is a two storeyed building now in the name of his wife, and that at present he is residing in the said house. In such circumstances, I am unable to find any infirmity in Ext. P5 order, which holds that the landlord has not adduced any convincing O.P.No. 228 of 1998 etc.. -: 5 :- evidence to show that he requires the land occupied by the kudikidappukaran for construction of a dwelling house. Therefore, I do not find any merit in the challenge against Ext. P5 order. Accordingly, O.P.No. 228/1998 is dismissed. In view of my finding in O.P.No. 228/1998, Ext. P2 in W.P(C) Nos.33990 & 34006 of 2003 are quashed and the matter is remanded to the lower court for fresh disposal in accordance with the findings in O.P.No. 228/1998. Sd/- S. Siri Jagan, Judge. Tds/ O.P.No. 228 of 1998 etc.. -: 6 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P.No. 228 of 1998 and W. P (C) Nos. 33990 & 34006 of 2003 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T 15th October, 2008.