Kerala High Court
Mathew Ittycheria vs State Of Kerala on 9 November, 2009
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15376 of 2008(E)
1. MATHEW ITTYCHERIA, S/O.MATHAI ITTYCHERIA
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE PRINCIPAL SECRETARY, REVENUE (R)
3. THE REVENUE DIVISIONAL OFFICER,
4. P.P.RAJAPPAN, S/O.MARIAM,
5. K.L.MARY, W/O.JOHN,
For Petitioner :SRI.PHILIP T.VARGHESE
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :09/11/2009
O R D E R
P.N.RAVINDRAN, J
.......................
W.P.(C).15376/2008
.......................
Dated this the 9th day of November, 2009
JUDGMENT
The petitioner's father owned 17.50 cents of land situated in Survey Nos.105/5/1 (9cents) and 105/5/2(8.50 cents) of Vijayapuram Village, Kottayam District. Late Paulose Pathrose, the predecessor-in-interest of respondents 4 and 5 had kudikidappu right over a portion of the sand lands. On 13.6.1970, the petitioner's father (late Mathai Itticheria) filed an application for shifting of the kudikidappu of Paulose Pathrose, under Section 75(3) of the Kerala Land Reforms Act, 1963. The Revenue Divisional Officer conducted an enquiry and by order passed on 8.7.1996, ordered shifting of kudikidappu to an alternate site which was identified and acquired. The kudikidappukaran died thereafter. His wife and son filed O.P.2998 of 1984 in this Court challenging the order passed by the Revenue Divisional Officer. This Court disposed of O.P.No.2998 of 1984 with a direction to the Government to consider the application for shifting of the kudikidappu. The Government considered the said application and passed an order rejecting the application submitted by the petitioner's father. The W.P.(C).15376/2008 2 petitioner's father there upon filed O.P.10780 of 1989 in this Court. By Ext.P1 judgment delivered on 22.2.1991, this Court quashed the Government order dated 19.9.1989. In Ext.P1 judgment this Court held as follows.
Admittedly petitioner is having only 16.25 cents of property. The application was dismissed holding that the petitioner has constructed a building in the property. Learned counsel for the petitioner pointed out that only a temporary and incomplete building has been constructed in the property and that was on account of pressing necessity and this should not have been taken as a ground to reject the petition especially when the Act does not envisage any bonafides in the application. Petitioner filed objection Ext.P2 detailing the circumstances under which he was forced to construct a temporary building. It is stated in the objection (Ext.P2) that petitioner's wife retired on 31.8.1987 and he was forced to shift his residence in the temporary incomplete building in a portion of land. Counsel further pointed out that as the kudikidappu is situated in the property in such a position it would not be possible for the petitioner to have a comfortable living in the house. It is pointed out that there would be no privacy for the petitioner and his family if the kudikidappu is not shifted from the W.P.(C).15376/2008 3 property. As the property has only an extent of 16.25 cents and as the petitioner has no other property in the world, first respondent should not have passed Ext.P4 order in such a mechanical manner. As it is the specific case of the petitioner that without shifting the kudikidappu it would not be possible to complete the construction of the building with toilet facilities and other amenities, I hold that the application should have been allowed by the first respondent. The very purpose of the application is to construct a building for the residential purpose of the petitioner and merely because the petitioner has constructed a building out of sheer necessity his application should not have been dismissed by the first respondent. This Court accordingly directed the Government to proceed with the matter in accordance with law.
2. The Government thereafter passed an order dated 14.5.1992 again rejecting the application filed by the petitioner's father. The petitioner's father thereupon filed O.P.No.10275 of 1992 in this Court. By Ext.P2 judgment delivered on 18.6.2003, this Court quashed the Government order dated 14.5.1992 and directed the Government to pass orders in the light of the findings and observations in Ext.P1 judgment. It was held that as Ext.P1 judgment has become W.P.(C).15376/2008 4 final, it was not open to the Government to go into the bonafides of the landowner's request and that the application filed by the landlord should have been allowed. The Government thereafter passed Ext.P3 order dated 3.3.2004, allowing the application for shifting filed by the petitioner's father. The Revenue Divisional Officer, Kottayam, was directed to take steps to acquire alternate site afresh for shifting the kudikidappu observing the conditions stipulated in Rule 72 of the Kerala Land Reforms (Tenancy) Rules, 1970. The Revenue Divisional Officer thereafter, sent Ext.P4 report to the Principal Secretary, Revenue Department stating that the land for shifting the Kudikidappu was acquired in the year 1981, that though there was no access to the land, the petitioner had offered to buy the land required for the pathway and that he has already paid the entire sale consideration for the pathway. This writ petition was thereafter filed on 22.5.2008 since there was no progress in the matter. The petitioner contends that as the order directing shifting has become final, the respondents cannot delay shifting of the kudikidappu.
3. Though the party respondents have been served, they have not entered appearance. A counter affidavit has been W.P.(C).15376/2008 5 filed on behalf of the third respondent contending inter alia that there was no feasible pathway in the site already acquired and that the pathway is through the narrow courtyard of a house obstructed by a well and a compound wall. It is also stated that the legal heirs of the kudikidappukaran have objected to the shifting. The petitioner has filed a reply affidavit wherein he has averred that the deponent of the counter affidavit is a close associate of the fifth respondent. The petitioner contended that the third respondent may be directed to personally file a counter affidavit. The third respondent has thereupon filed a counter affidavit. Paragraphs 1 and 2 thereof read as follows;
In para (6) of the writ petition, the writ petitioner submitted that he entered into an agreement for purchase of such a property required for the pathway. As per the reference 2nd cited he informed this office that he has taken necessary steps for getting a new pathway to the site. An enquiry was conducted through the Village Officer muttambalam regarding his statement. The Village Officer reported that a pathway is formed at the site having a width of 2 = feet.
The above matter has not been submitted in the affidavit filed on 14.8.08. As the writ W.P.(C).15376/2008 6 petitioner has made necessary arrangement for a pathway, this fact is brought to the notice of the Honourable High Court. The 3rd respondent is prepared to reopen the case in view of the possible pathway to the site.
4. It is evident from the statement made by the third respondent that a pathway having a width of 2= feet provides access to the site acquired in the year 1981 for the purpose of shifting the kudikidappu. Rule 72 of the Kerala Land Reforms (Tenancy) Rules does not stipulate the width of the pathway. The Rule only prescribes that the land acquired should be fit for erecting house. It is evident from the stand taken in the affidavit filed by the third respondent that a pathway having a width of 2= feet provides access to the land acquired for shifting the Kudikidappu. This Court has in Ext.P1 judgment held that the claim of the land owner for shifting the kudikidappu does not lack bonafides. In Ext.P2 judgment, this Court has held that the application for shifting should be allowed. The respondents are parties to the judgments as evidenced by Exts.P1 and P2. Therefore, at this distance of time, they cannot contend that the petitioner is not entitled to have the kudikidappu shifted. Ext.P3 order directing shifting of the kudikidappu was passed more than five years back. W.P.(C).15376/2008 7 The land was acquired 28 years back, in the year 1981. In such circumstances, I find no justification on the part of the official respondents in not implementing Ext.P3. It is evident from the fact that respondents 4 and 5 have not chosen to enter appearance that they are only interested in protracting the proceedings.
I accordingly dispose of this writ petition with a direction to the official respondents to give effect to Ext.P3 order passed by the Government by shifting the kudikidappu of respondents 4 and 5 to the land acquired in the year 1981. Necessary steps in that regard shall be taken and completed within three months from the date on which the petitioner produces a certified copy of this judgment before the Revenue Divisional Officer, Kottayam.
P.N.RAVINDRAN, Judge mrcs