Allowed

Prasanna A.D v. Vinod Babu

Kerala HC1 Jun 2020RP/876/2012

Case brief

AI extract

What is this about?

This review petition vacated a direction requiring an alternate site for kudikidappu shifting when no residence existed at the original site. The court held that the right under Section 75 of the Kerala Land Reforms Act is strictly for residential building construction.

What did the court decide?

The direction in the impugned judgment requiring an alternate site was vacated and the writ petition was dismissed.

Prasanna A.D Vs Vinod Babu — Land Acquisition | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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MONDAY, THE 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942

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RP.No.876 OF 2012(B) IN WP(C). 13040/2006

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AGAINST THE ORDER/JUDGMENT IN WPC 13040/2006 OF HIGH COURT OF KERALA

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REVIEW PETITIONER:

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PRASANNA A.D. AGED 54 YEARS, HOUSEWIFE, PANDIYALA HOUSE, CHALAD P.O., KANNUR 670014

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BY ADVS. SRI.GEORGE THOMAS (MEVADA)(SR.) SRI.AMAL GEORGE SRI.MANU GEORGE KURUVILLA SRI.N.RAYNOLD FERNANDEZ SMT.RINU JOSE

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RESPONDENTS:

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1 VINOD BABU AGED 58 YEARS

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S/O.LATE KUTTICHI BALAN, PALLIKUNNU AMSOM CHALAD DESOM, PALIKUNNU P.O, KANNUR

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2 DAYAROTH RADHA (DIED)

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ALAKKAL HOUSE, THILANNOOR P.O, KANNUR 670702

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3 THE REVENUE DIVISIONAL OFFICER THALASSERRY PIN 670101

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4 GOVERNMENT OF KERALA REPRESENTED BY SECRETARY, REVENUE (T) DEPARTMENT TRIVANDRUM

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5 ADDL. 4 THE PALLIKUNNU GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, PALLIKUNNU P.O KANNUR PIN 670004

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6 ADDL.R6 SHEEBA W/O LATE VINOD BABU, N.K NIVAS, PALLIKUNNU P.O., AZHEKODAN ROAD, KANNUR-670004.

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RP.No.876 OF 2012

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7 ADDL.R7 SREEPRIYA (MINOR REPRESENTED BY HER MOTHER AND GUARDIAN 6TH ADDL.RESPONDENT SMT.SHEEBA) D/O LATE VINOD BABU, N.K NIVAS, PALLIKUNNU P.O., AZHEKODAN ROAD, KANNUR-670004.

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8 ADDL.R8 NIDHEESH (MINOR REPRESENTED BY HER MOTHER AND GUARDIAN 6TH ADDL.RESPONDENT SMT.SHEEBA) D/O LATE VINOD BABU, N.K NIVAS, PALLIKUNNU P.O., AZHEKODAN ROAD, KANNUR-670004.

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9 ADDL.R9 VIJEESH (MINOR REPRESENTED BY HER MOTHER AND GUARDIAN 6TH ADDL.RESPONDENT SMT.SHEEBA) D/O LATE VINOD BABU, N.K NIVAS, PALLIKUNNU P.O., AZHEKODAN ROAD, KANNUR670004.

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(ADDL.R6 TO R9 ARE ADDED AS PER ORDER DATED 09/04/2013 IN IA.321/2013.

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10 ADDL.R10 KANNUR MUNICIPAL CORPORATION CORPORATION OFFICE, KANNUR-01, REPRESENTED BY ITS SECRETARY. (ADDL.R10 IS IMPLEADED AS PER ORDER DATED 17/10/2016 IN IA.05/2016)

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R1 BY ADV. SMT.S.AMBILY R1 BY ADV. SRI.ABILASH THOMAS R1 BY ADV. SRI.K.K.CHANDRAN PILLAI SR. R1 BY ADV. SMT.ELSA DENNY PINDIS R1 BY ADV. SRI.GRASHIOUS KURIAKOSE SR. R1 BY ADV. SRI.GEORGE MATHEWS R1 BY ADV. SRI.P.R.HARI KISHAN R1 BY ADV. SRI.K.V.KRISHNAKUMAR R1, R5 BY ADV. SMT.M.MEENA JOHN R1 BY ADV. SMT.NAMITHA NAMBIAR R10 BY ADV. SMT.M.MEENA JOHN, SC, KANNUR MUNICIPAL CORPORATION

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 14-022020, THE COURT ON 01-06-2020 PASSED THE FOLLOWING:

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RP.No.876 OF 2012

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ANU SIVARAMAN, J

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= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = R.P.No.876 of 2012

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= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1^st day of June, 2020

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ORDER

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This review petition is filed by the daughter of the 1^st respondent landowner seeking to delete the direction in the judgment to the effect that the landowner must point out an alternate site for shifting of the kudikidappu, if the property purchased for the purpose is found objectionable. The writ petition was filed by one Vinod Babu, son of Kuttichi Balan, a kudikidappukaran. The review petitioner's mother was the 1^st respondent in the writ petition. Challenge was against Ext.P6 order in the writ petition which was passed by the Government. The order directed the shifting of the kudikidappu to the 10 cents of land purchased for the purpose.

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The writ petition was filed by Vinod Babu claiming to be the son of Kuttichi Balan and contending that the property purchased for shifting of the kudikidappu was abutting the seashore and that, since there is a prohibition for construction of building in the CRZ area, the shifting would not be possible. The writ petition was disposed of directing the

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RP.No.876 OF 2012

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Grama Panchayat to consider the objection against construction of the house by the petitioner and to grant permission if there is no objection under the coastal regulation. It was further stated that if construction is not permissible in the area, it is for the 1^st respondent to identify another place where construction is permissible so that the petitioner would be shifted to such place. It is submitted that though the decision was directed to be taken within one month, no further steps were taken and that on the strength of the said direction, the shifting has not been effected till date.

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Heard the learned Senior Counsel appearing for the petitioner,

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the learned Senior Counsel appearing for respondents 6 to 9, learned Government Pleader and the learned Standing Counsel appearing for the 10^th respondent Municipality.

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It is submitted by the learned Senior Counsel for the petitioner that the writ petition itself could not have been filed by Vinod Babu, who was only one of the legal heirs of Sri.Kuttichi Balan, who was the kudikidappukaran. It is submitted that Sri.Vinod Babu had purchased a house with five rooms in Ward No.XVI of Azheekode Panchayat and mutation thereof was effected in the Panchayat records on 13.09.2007. It is stated that Sri.Vinod Babu was also granted building permit for

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RP.No.876 OF 2012

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construction of a house having an area of 252.66 Sq. mtrs by the Panchayat and that Vinod Babu, who had such landed properties and residential house in his possession would not be entitled to challenge the order of shifting of kudikidappu and that therefore the direction issued in his favour was completely unjustified.

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It is further contended that from the year 2000 onwards, there was no person residing in the hutment claimed to be a kudikidappu and none of the legal heirs of the kudikidappukaran have any right to challenge the shifting in the absence of occupation of the kudikidappu for residential purpose. It is further contended that the direction to locate an alternate site is completely unjustified in the factual situation and that the construction of residential house in the property earmarked for the purpose is not injuncted by the CRZ regulations since it would be on the landward side of a road and several building permits had already been issued by the local authority in question.

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Sri.Vinod Babu, who was the petitioner in the writ petition, passed away during the pendency of the proceedings and his legal heirs have been impleaded as additional respondents. The additional 8^th respondent has filed an affidavit stating that Kuttichi Balan had 10 children of whom Vinod Babu was one. It is stated that the original

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RP.No.876 OF 2012

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kudikidappukaran died after disposal of O.P.No.15775/1994 and Vinod Babu, one of the children of the deceased had challenged the direction to shift the kudikidappu by filing W.P.(C). No.13040/2016. It is further stated that the legal heirs of Vinod Babu are now residing in the family house of his wife and the kudikidappu property is occupied by Sridu, who is another son of Kuttichi Balan. He is occupying the land and staying in a shed in the property and is doing hiring of goods business in another shed in the very same property. It is stated that none of the legal heirs of Kuttichi Balan have a house of their own and that the construction of a building started by Vinod Babu is incomplete and the property was attached and sold by a Co-operative Bank in auction.

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A detailed reply affidavit has been filed by the review petitioner disputing the facts pleaded by the 8^th respondent. Photographs and materials have been produced to show that there is absolutely no residence by any person in the property in question.

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A statement has also been placed on record by the additional 10^th respondent stating that No Objection Certificate from the Coastal Zone Management Authority is required for the construction of a building in the site identified for shifting of the kudikidappu.

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I have heard the counsel and considered the contentions

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RP.No.876 OF 2012

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advanced. The review petition is filed aggrieved by the direction in the judgment that in case the site for shifting of the kudikidappu is found objectionable, the landowner shall provide an alternate site. It is relevant to note that the original kudikidappukars of Dayaroth Radha according to the records were one Mullen Janaki and Kuttichi Balan. Shifting of the kudikidappu was ordered as early as in 1974. Government Order under Section 75(3) of the Kerala Land Reforms Act was issued as early as on 14.12.1993. Kuttichi Balan filed O.P.No.15775/1994 challenging the order of shifting. The issue was considered in detail and Ext.P6 order was passed finding that the request of Dayaroth Radha that the land is required for construction of a house of her own was genuine and that the kudikidappukar are entitled to get only 10 cents of land. It was also found that the land provided for shifting in the case of Kuttichi Balan is situated on the landward side of a road lying adjacent to the seashore and that as such, the site is unobjectionable. This order was challenged only by one of the legal heirs of Kuttichi Balan. There was no finding that the property is unsuitable for the shifting.

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In any view of the matter, it is an admitted fact that the other legal heirs of the kudikidappukaran did not join the writ petition to challenge Ext.P6 order. It is also clear from the pleadings that, what remains in the property is only a shed where some materials are stored

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RP.No.876 OF 2012

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and that there is no residence in the said property. This is clear from the report submitted by the Advocate Commissioner as well.

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The review petitioner, who is the daughter of the 1^st respondent in the writ petition had been attempting to get the kudikidappu shifted so as to construct a residential house in the property. It appears that the legal heirs of the original kudikidappukaran whose circumstances had changed during the pendency of the proceedings have succeeded in preventing their attempts for the past 36 years. I am of the opinion that the direction contained in the judgment to the effect that the landowner will have to provide an alternate site for shifting of the kudikidappu is completely unjustified in the facts and circumstances of the case. In case there is any objection to the construction of a residence house in the property, it is for the legal heirs of the original kudikidappukaran to get appropriate sanctions from the authorities in question. The right under Section 75 of the Kerala Land Reforms Act for shifting of kudikidappu is only for the construction of a residential building.

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In the above view of the matter, I am of the opinion that the direction contained in the judgment under review that landowner will have to provide an alternate site if the property to which the shifting is ordered is not found suitable is completely unjustified. The review

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RP.No.876 OF 2012

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petition is therefore bound to succeed. The direction in the judgment

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under review is vacated and the writ petition is dismissed.

Sd/-

ANU SIVARAMAN

JUDGE

Prasanna A.D v. Vinod Babu

Case brief

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Prasanna A.D v. Vinod Babu

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