GEORGE Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner in O. P. 1073 of 1976 is a kudikidappukaran in Sy. No. 44/1 and 3 of the Ernakulam Village, in land said to be of an extent of 12 1/2 cents. The 3rd respondent in the petition had purchased the land in court-auction. He then moved an application under Section 75 (3) of the Kerala Land Reforms Act (in short, the Act) to acquire other land for shifting the petitioner's kudi-kidappu so that the 3rd respondent may get possession of land in which the kudikidappu was situate. The petitioner in O. P. 2981 of 1977 is a kudikidappu-karan of land belonging to the first respondent and the first respondent has similarly moved an application under Section 75 (3) of the Act for shifting the kudikidappu to land to be acquired by the Government. Section 75 (3) of the Act enables a person holding land less than 1 acre in extent to apply to Government for acquisition of land to which the kudikidappu in his land may be shifted if he requires the land occupied by such kudikidappu for constructing a building for his residence. The petitioners in both the cases claimed, in the application to the Government that they had land less than 1 acre in extent and that they require land occupied by the kudikidappukars for constructing building for their respective residence. Ext. P2 order in O. F. 1073 of 1976 is one passed by the Revenue Divisional Officer, Fort Cochin holding that since the applicant possessed only 12 1/2 cents of land, that the kudikidappu is situate in the centre of the property there is no convenience to build a house without shifting the kudikidappu and that hence he was allowing the application under Section 75 (3) of the Act. This is the order challenged in the petition. In the other case similar order Ext. P1 passed by the Revenue Divisional Officer, Trichur finding that the applicant and her family possessed less than 1 acre of land, that the site occupied by the kudikidappukaran was really required by the applicant for her residence and that therefore the application under Section 75 (3) of the Act has to be allowed. The Tahsildar was directed to take necessary steps for acquisition of land consequent upon the finding by the Revenue Divisional Officer.

(2.) The ground of challenge in both the petitions is identical. It is that the Revenue Divisional Officer is not an authority competent to adjudicate on an application filed before Government under Section 75 (3) of the Act. In order to find that acquisition of other land was necessary to shift the kudikidappukaran satisfaction that the applicant holds less than 1 acre of land and that he requires the land occupied by the kudikidappukaran for constructing a building for his own residence has to be reached. It is only then that further proceedings would follow. The application being one directed tc Government, could the satisfaction in regard to matters mentioned in Section 75 (3) be reached by any Revenue Officer of the Government or should it be by the Government itself? This is the question on which there is controversy in these cases, a controversy which has caused the reference of these cases to a Full Bench.

(3.) On the language of the section this court had been holding earlier that it is only the Government that can reach the satisfaction on matters envisaged in Sub-section (3) of Section 75 of the Act. Our learned brother Bhaskaran, J. in the judgment in O. P. No. 1938 of 1973 took the view that no power is conferred on the Revenue Divisional Officer, to pass an order under Section 75 (3) of the Act, and therefore quashed the proceedings by the said officer. This view was followed by this court in other cases. A contrary view was adopted by Chandrasekhara Menon, J., in O. P. No. 2934 of 1975 and by Balakrishna Eradi, J. as he then was, in O, P. No. 1265 of 1976. In support of his view our learned brother Chandrasekhara Menon, J. referred to the notification of the Kerala Government in the Gazette No. 40 dated 6-10-1970 authorising the Revenue Divisional Officers to function under sub-sees. (3-B) and (3-C) of Section 75 and also the provisions in Section 75 (3-B) and (3-C) and Rule 72 of the Kerala Land Reforms (Tenancy) Rules. Apart from a reference to these provisions we find no discussion in the judgment of our learned brother. Our learned brother Justice Eradi also referred to the contention raised that the State Government alone was competent under Section 75 (3) of the Act to pass an order sanctioning the acquisition and met this by the following observation: