BEEPATHUMMA Vs. PONNAMMA

JUDGEMENT

(1.) WE regret our inability to agree with the views of the learned judge in his judgment which has given rise to this appeal. The appellant's writ petition was to quash Ext. P5 order of the Revenue Divisional officer, Kasaragod informing the appellant that as her mother Khadeejumma was dead, further action in respect of the application under S. 75 (3) of the Land reforms Act, preferred by the mother Khadeejumma had been dropped by the government. Khadeejumma filed Ext. P1 application on 10-6-1961 to shift the 1st respondent from the Kudikidappu and to acquire land for the purpose of shifting as she was possessed only of less than 1 acre of land. (The 1st Respondent died and Respondents Nos. 2 to 4 are the legal representatives ). The application was allowed by Ex. P2 order dated 5-4-1973 of the Revenue Divisional Officer which stated: "4. In view of the facts stated above, the shifting of Kudikidappu in this case is allowed. The kudikidappu will be shifted to the proposed plot, R. S. No. 93/2 of Kudlu Village of Kasaragod Taluk. An extent of 0-10 acre (ten cents) from R. S. No. 93/2 of Kudlu Village will be acquired for the purpose subject to the condition that the petitioner deposit 871/2% of the land value of the land measuring 0-10 acre and the expense reasonably required to shift the kudikidappu and also towards the encharged. The total amount to be deposited towards land value and towards the expenses for shifting the kudikidappu shall be deposited on further intimation from this office. " After the passing of the said order, mother Khadeejumma died on 22-5-1974. A memorandum was filed to implead the writ-petitioner her only daughter as heir and legal representative of Khadeejumma. Ext. P4 application was made by the writ petitioner to the Land Board, Trivandrum, for expediting the matter. It was by way of response to the said application and after receipt of the relevant proceedings that Ex. P5 order was passed stating that as the mother Khadeejumma was dead further action had been dropped by the government.

(2.) IN dismissing the writ petition, the learned judge observed: "i may straight away say that an order of this nature cannot be equated with a decree in a civil suit. Whether it could be placed on par with an order passed under the Rent Control Act also is beset with difficulties. Where an order of eviction under the Rent Control Act is passed a right to property is created. An order of shifting does not create such a right. It has to be followed by other procedures, the scheme of which is contained in S. 75 (3a) to (31)) when alone the kudikidappukaran becomes entitled to the property acquired and shifting becomes a reality. It is only then that the legal representatives could be said to have acquired any right. Till then the said right remains inchoate. IN dealing with applications for shifting, one has to bear in mind the special safeguards built in the Act to protect the kudikidappukars. To allow the present petition to remove the kudikidappukaran at the instance of a person who owns a house and is possessed of three acres and more on 1-9-1969 would be to defeat the provisions in the act. IN my judgment therefore Ex. P2 cannot be equated to an order under the rent Control Act or a decree in a civil suit. It is only when an alternate site is acquired, compensation paid, expenses given and the kudikidappukaran transplanted in the acquired property that the scheme of shifting becomes complete, creating right in property which could be inherited. "