IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8003 of 2006(C)
1. P.A.JOLLY ABRAHAM, PEDIANCHERIL HOUSE,
... Petitioner
Vs
1. THE LAND TRIBUNAL,
... Respondent
2. THE REVENUE INSPECTOR,
3. MADHAVI, W/O.NARAYANAN,
4. M.S.SIVANANDAN, HEAD CONSTABLE,
5. VIJAYAN, S/O.NARAYANAN, MAVUNGAL,
6. MINI PRASAD, W/O.PRASAD, C/O.RAMESAN,
7. THE SUB INSPECTOR OF POLICE,
For Petitioner :SRI.S.RAMESH BABU
For Respondent :SRI.M.R.SUDHEENDRAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :20/10/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C.) No.8003 of 2006 (C)
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Dated, this the 20th day of October, 2010
J U D G M E N T
Petitioner’s deceased father, late Shri.P.A.Abraham, was the
applicant in O.A.No.825/1971 filed under Section 75(2) of the
Kerala Land Reforms Act for shifting the Kudikidappu of
respondents 3 to 6 from the property in survey No.136/1 of
Kumbalam Village to 10 cents of land in survey No.151/1 of the
same village. That application was filed before the Land Tribunal,
Ernakulam, and on 26/07/1972, the Kudikidappu was ordered to be
shifted. This order was challenged by respondents 3 to 6 in
O.P.No.4960/72 before this Court, and this Court by judgment
dated 19/07/1974, the O.P. was disposed of remanding the matter
to the Land Tribunal, Ernakulam for fresh consideration as to
whether the site offered by the petitioner’s deceased father was
adequate.
2. The Land Tribunal thereupon re-numbered the case as
O.A.No.613/77, and passed order dated 24/07/1978 upholding the
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suitability of the land offered and ordering shifting of the
Kudikidappu. Against this order, the respondents 3 to 6 filed an
appeal as LRAS No.924/78, which was dismissed by the appellate
authority by order dated 06/06/1981. This order was challenged by
the tenants in revision before this Court as CRP No.3059/81. The
CRP was disposed of by order dated 03/07/1984, remanding the
matter again to the Land Tribunal and directing it to consider
whether the access to the plot offered was proper.
3. Again the Land Tribunal renumbered the case as
O.A.No.300/84, and after enquiry, passed order dated 07/01/1985,
finding the access to be proper and confirming the order of shifting.
This order of the Tribunal was appealed by the tenants by filing
LRAS No.45/85, which was dismissed by order dated 15/02/1986.
The appellate authority’s order was the subject matter of CRP
No.2393/86 filed by the tenants, which was also dismissed by
Ext.P1 order dated 18/11/1987.
4. According to the petitioner, the tenants thereafter
sought time and undertook to vacate from the premises, and twice
the request made by them for extension of time were also allowed.
In the meantime, in respect of the plot to which the tenants were
ordered to be shifted, the petitioner’s deceased father executed
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document No.2574/72 in favour of the tenants. He also remitted
price of homestead and shifting charges, which also were collected
by the tenants. Even thereafter they did not shift to the new
premises, although they took possession of the plot of land as well.
5. Despite all these, the tenants continued to occupy not
only the original plot but also the new plot, but however they did
not shift to the new premises. In the meanwhile, the petitioner’s
father expired and in 2002 the petitioner filed I.A.No.3/02 before
the Land Tribunal seeking orders for implementation of its order of
shifting. In that application, the tenants, took up a contention that
the price of homestead and shifting charges remitted were
inadequate, and considering this plea, the Tribunal passed Ext.P2
order directing the petitioner to pay an additional amount of
Rs.10,000/-. This amount was also paid and in spite of having
received payment, the tenants did not shift to the new premises.
Against Ext.P2 order, the tenants filed an appeal before the
appellate authority numbered as AA No.27/02, which was also
dismissed by Ext.P3 order dated 09/01/2004.
6. Thus in spite of the lapse of more than 20 years, the
tenants did not shift from the premises and in those circumstances,
the petitioner filed Ext.P4 application before the 1st respondent
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invoking its power under section 77 of the Kerala Land Reforms Act
read with Rule 72A of the Kerala Land Reforms (Tenancy) Rules,
1970. Orders have not been passed on Ext.P4, and therefore, this
writ petition has been filed to require the 1st respondent to take
steps in terms of the provisions contained in Section 77 read with
Rule 72A of the Tenancy Rules.
7. I heard the learned counsel appearing for the petitioner,
learned Government Pleader appearing for respondents 1, 2 & 7 and
also learned counsel for respondents 3, 4 & 5.
8. Admittedly, the order passed by the Land Tribunal
exercising its powers under Section 75(2) has become final, at least
with the dismissal of CRP No.2395/86 as per Ext.P1 order. Once
such an order has become final, it is incumbent on the part of the
tenants to shift as ordered by the Land Tribunal, and if that order of
the Tribunal is not complied with, it is open to the Land Lord to
move the Tribunal under Section 77 read with Rule 72A of the
Tenancy Rules. Section 77 provides the procedure to enforce
shifting of Kudikidappu, and sub section (3) thereof provides that if
the Kudikidappukaran does not shift the Kudikidappu before the
date specified in the order, the Land Tribunal shall cause the
Kudikidappukaran to be evicted from the Kudikidappu. Rule 72A
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provides the manner in which the Kudikidappukaran is to be
evicted. It is this power of the Land Tribunal, which is sought to be
invoked by the petitioner by filing Ext.P4.
9. Admittedly, this is a case in which provisions of Section
77 and Rule 72A are attracted, and when an application is made by
the Land Lord or his legal representative, the Land Tribunal is
obliged to entertain the application and pass orders exercising its
powers under Section 77 and Rule 72A.
In that view of the matter, I dispose of the writ petition
directing the Land Tribunal to deal with Ext.P4 application made by
the petitioner and take steps for the implementation of its order by
eviction of the tenants from the property comprised in Survey
No.136/1 of Kumbalam Village. Orders in that behalf shall be
passed by the Land Tribunal as expeditiously as possible, at any
rate, within six weeks of production of a copy of this judgment.
This writ petition is disposed of as above.
(ANTONY DOMINIC, JUDGE)
jg