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1987 DIGILAW 647 (KER)

SURENDRAN v. STATE OF KERALA

1987-12-15

G.VISWANATHA.IYER

body1987
Judgment :- 1. Though the petitioner challenges the orders Exts. P-1 and P-4, the challenge to Ext. P-1 cannot be entertained for more than one reason. Firstly Ext. P1 is dated 16-7-1983. This Original Petition has been filed only on 11-4-1986 nearly 33 months thereafter. The challenge to Ext. P-1 has to fail on the ground of belatedness. In any case there is also no merit in the ground of challenge to Ext. P-1. The said order has been passed after notice to and hearing the petitioner. The petitioner appeared himself at the time the matter was posted for bearing on 21-6-1983. His contention as now put forward in the Original Petition is that the 4th respondent was in possession of more than one acre of land so that he was not entitled to make an application under S.75 (3) of the Land Reforms Act. However, his contention before the 1st respondent Government when the proceedings were taken up was that the 4th respondent land owner was in possession of 69-1/2 cents of land only including the 19 cents on which the kudikidappu stood. His contention was that the landlord had put up a building for his residence in the other lands and that he need not therefore disturb the petitioner. He also raised before the Government at the time of hearing that the 4th respondent owned other lands in Kumarakam and Chingavanam, but nothing was done to substantiate this contention. 2. Government had examined the contentions put forward by the petitioner and found that the 4th respondent land owner satisfied all the conditions prescribed under S.75(3) of the Act. There is no denial of opportunity to the petitioner. The case is only one where he did not adduce any evidence in support of his claims. 3. The challenge to Ext. P-1 has therefore to fail en both the above grounds. 4. After allowing the application under S.75 (3) of the Land Reforms Act, Government ordered the Revenue Divisional Officer to take necessary steps to acquire the land for shifting the kudikidappu. It is stated that the necessary land was acquired from Survey No. 171/5-1 of Kumarakam village belonging to one Mathew Punnose and that the award was passed on 26-3-1986. 4. After allowing the application under S.75 (3) of the Land Reforms Act, Government ordered the Revenue Divisional Officer to take necessary steps to acquire the land for shifting the kudikidappu. It is stated that the necessary land was acquired from Survey No. 171/5-1 of Kumarakam village belonging to one Mathew Punnose and that the award was passed on 26-3-1986. Thereafter the petitioner was served with a copy of the letter sent by the Revenue Divisional Officer to the District Collector, Kottayam regarding the passing of the award with an endorsement directing him to shift the kudikidappu to the land acquired at once and that the shifting charges will be given to him from the Revenue Divisional Office in person. The petitioner immediately protested to this notice by Ext. P-5. He also moved this Original Petition seeking relief in relation to the shifting. The Petitioner contends that the land to which he has been directed to shift is not fit for erecting a home-stead, being, according to him a water-logged area without any improvements. He submits that he has had no opportunity to challenge the unsuitability of this site for erecting a home-stead. He also points out that the shifting charges have also not been determined with opportunity to him to put forward bis case. 5. R.72 (5) of the Kerala Land Reforms (Tenancy) Rules, 1970 stipulates that the land to be acquired shall be fit for erecting a home-stead. The petitioner's case is that the land in Survey No. 171/5-1 is not fit for erecting a home-stead. He would submit that he had not been heard in the matter and he had not been afforded an opportunity to point out that it was not fit for erecting a home-stead. The petitioner in fact refers to Exts P-2 and P-3, by which be was given notice in relation to the proposed acquisition of two other items of land for shifting the kudikidappu. He points out that the authorities have thought it fit to afford an opportunity to the kudikidappukaran to state his case in relation to the alternate site on earlier occasions but when it came to implementation of Ext.P-1 they omitted to take him into confidence with the result he is being shifted to a place unsuitable for the purpose. 6. He points out that the authorities have thought it fit to afford an opportunity to the kudikidappukaran to state his case in relation to the alternate site on earlier occasions but when it came to implementation of Ext.P-1 they omitted to take him into confidence with the result he is being shifted to a place unsuitable for the purpose. 6. Similarly he also points out that the non-determination of the shifting charges prior to the shifting and his being directed to receive the amount, whatever that be, from the Revenue Divisional Officer is also in violation of the principles of natural justice. 7. I find considerable force in these submissions. So far as the kudikidappukaran is concerned the valuable right of his to continue in his existing place and to purchase the eligible extent of land is being taken away by the order of shifting. Two of the important elements in the matter of shifting are that the alternate site should be suitable for erecting a home-stead and the kudikidappukaran should also get sufficient amount as the shifting expenses. It is imperative therefore that the kudikidappukaran should have an opportunity to put forward his case in relation to these aspects of the matter. S.75(3) cannot be construed as limiting his objections merely to the eligibility of the landlord to seek acquisition of the land for shifting. The further aspects are equally important. In fact it was so recognised atleast so far as the suitability of the land is concerned by the Revenue Divisional Officer when he gave notices Exts.P-2 and P-3 to the petitioner when other pieces of land were proposed to be acquired. In the absence of opportunity to the petitioner, he loses all right to point out the unsuitability of the land or the inadequacy of the shifting charges before the authorities concerned. Such valuable rights of the kudikidappukaran cannot be defeated without his being afforded an opportunity of being heard. There is no case for the respondents that the petitioner had been afforded any opportunity before the alternate site in Survey No. 171/5-1 was acquired or about the determination of the shifting charges. The proceedings Ext.P-4 by which the petitioner had been directed to shift to the acquired land are therefore invalid. As stated earlier Ext.P-1 order is beyond challenge. Only the subsequent proceedings including the direction in Ext.P-4 are liable to be quashed by this court. The proceedings Ext.P-4 by which the petitioner had been directed to shift to the acquired land are therefore invalid. As stated earlier Ext.P-1 order is beyond challenge. Only the subsequent proceedings including the direction in Ext.P-4 are liable to be quashed by this court. 8. The petitioner has filed an objection Ext.P5 to the proceedings Ext.P-4. The proceedings under S.75(3) have themselves been pending since the year 1970. It is necessary that there should be an expeditious disposal of the proceedings. Accordingly and to avoid further delay I direct the respondents to afford adequate opportunity to the petitioner to state his case in relation to the suitability of Survey No.171/5-1 of Kumarakam Village for the purpose of erecting a home-stead and also in relation to the shifting charges payable to the petitioner. It is only after these questions are decided and if only the alternate land is found suitable for erecting a home-stead and has an extent equal to the extent eligible to be purchased by the petitioner, can the petitioner be directed to shift. The direction contained in Ext. P-4 so far as the petitioner is concerned is quashed and respondents 1 to 3 are directed to pass fresh orders in the matter relating to the alternate land and the shifting charges as expeditiously as possible and at any rate within a period of three months from the date of receipt of a copy of this judgment after affording an opportunity to the petitioner to state his case. Ext.P-1 order is held valid and it is net interfered with. The Original Petition is allowed to the above extent and in the above terms. There will be no order as to costs. Allowed.