K. Ibrahimkutty vs K. Ramachandran and Others

K.A. Abdul Gafoor, J.—A Kudikidappukaran is before this Court challenging Ext. P-6. The first Respondent landlord filed an application u/s 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. P-1. That was under challenge before this Court. This Court set aside Ext. P-1 as it was issued by an incompetent authority. Ext. P-2 is that judgment. Government considered the issue and decided in favour of the Petitioner in Ext. P-3 Government Order. The first 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.

It is contented 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 u/s 75(3) to shift the Kudikidappu. In the absence of such requirement an application under Sub-Section 3 of Section 75 will not lie.

A reading on Ext. P-6 discloses that the only issues 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.

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 1980 KLT 466. Relying on Sathi Bai Kamath v. Sub Collector, Tellicherry and Ors. 1977 KLT 644, it was held by the Division Bench that:

it is necessary u/s 75(3) to investigate and find one of the necessary ingredients before directing a shifting of the Kudikidappu, 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 u/s 75(3), the Government shall make such enquiry and 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 that Government did not consider that aspect.

In counter to this, it is contented 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 not 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.

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 u/s 75(3), because such a requirement to construct a building is a pre-condition before applying for shifting of the Kudikidappu. Without specifying that requirements landlord cannot proceed further. That is the bounden 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.

In the above circumstances, I am of the view that Government have not discharged the statutory duty cast on it while passing Ext. P-6. Accordingly, I set aside Ext. P-6 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.