GOPALAN Vs. MAMMADKUTTY HAJI

JUDGEMENT

(1.) The petitioner in this original petition is a kudikidappukaran whose . grievance is against Ext. P2 order of the 3rd respondent Land Tribunal, Tirurangadi allowing the application filed by respondents 1 and 2 for shifting his kudikidappu under S.75(2) and 77 of the Kerala Land Reforms Act 1 of 1964, for short the Act. The petitioner filed O. A. No. 504 of 1972, an application under S.80B of the Act for the purchase of his kudikidappu before the 3rd respondent. In the above application respondents 1 and 2 requested for shifting the petitioner's kudikidappu to another portion of the same property under S.80A(9) of the Act. The 3rd respondent by Ext. P1 order dated 14-6-1973 accepted the option of the petitioner to shift to the north eastern corner of the property and allowed the purchase of that portion.

(2.) The petitioner did not deposit the first instalment of the purchase price as directed by the 3rd respondent. He also did not accept the shifting charges tendered by the 1st respondent. Thereupon, respondents 1 and 2 filed O. A. No. 253 of 1974 under S.75(2) read with S.77 of the Act before the 3rd respondent for shifting the kudikidappu of the petitioner. The petitioner opposed the above application for shifting, but the 3rd respondent by Ext. P2 order dated 31-12-1974 allowed the said O. A. The petitioner has come up with this original petition against the above order. The question that arises for consideration is whether an application for shifting the kudikidappu under S.75(2) read with S.77 of the Act will lie in a case where the application for purchase under S.80B of the Act filed by the kudikidappukaran was allowed.

(3.) Shri P. G. Rajagopalan, learned counsel for the petitioner, contends that the second application for shifting the petitioner's kudikidappu is not maintainable in view of the fact that the petitioner's application for purchase of his kudikidappu was already allowed by the 3rd respondent. Learned counsel further contends that even if the application for shifting lies, it can only be under S.75(4) of the Act and not under S.75(2) of the Act in view of the fact that in the application for purchase, the respondents landlords wanted the petitioner to purchase another portion of the property under S.80A(9) of the Act. The petitioner, as a matter of fact, opted for another portion of the property and the 3rd respondent allowed him to purchase that portion of the property. Learned counsel has also a contention that Ext. P-2 is not a speaking order. Learned counsel further contends that the non deposit of the first instalment of the purchase price by the petitioner is immaterial in this case because the same can be set off against the shifting charges to be paid to the petitioner. In support of this contention, learned counsel refers to S.80C(2) of the Act. Learned counsel also refers to S.80C(4A) which reads: