Ananda Kumari @ Anandi v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944 ``` ## **`WP(C) NO. 18492 OF 2013`** ## **`PETITIONER:`** ``` ANANDA KUMARI @ANANDI AGED 56 YEARS, D/O.SULOCHANAN, DOOR NO.XL-7174, NAGA NIVAS COMPOUND, NEAR PADMA THEATRE, M.G.ROAD, ERNAKULAM, PIN-682011. BY ADVS. SRI.M.A.ABDUL HAKHIM SRI.R.RAJESH K ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 2CORPORATION OF COCHIN PARK AVENUE, ERNAKULAM, PIN-682011, REPRESENTED BY ITS SECRETARY. 3LAND TRIBUNAL PETTA, THRIPUNITHURA, PIN-682301. 4VARGHESE S/O.MATHAPPAN, PARAYANANTHARA HOUSE, THAMMANAM, PIN-682032. 5MATHEW S/O.MATHAPPAN, PARAYANANTHARA HOUSE, THAMMANAM, PIN-682032. ``` ``` BY ADVS. SRI.S.CHANDRASENAN,SC,COCHIN CORPORATION SRI.MOHAMMED RAFIQ D.G.VIPIN – SC SRI.JIMMY GEORGE - GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 18492 OF 2013 ``` ``` 2 ``` ## **JUDGMENT** Petitioner is the tenant of original landlord (respondents 1 to 3 in O.A.7/1986) since died and now being represented by respondents 4 and 5 and have claimed the assignment rights over the property vis-à-vis the owners under the provisions of Land Reforms Act. Section 2(25) of the Land Reforms Act defines ‘kudikidappukaran’. Explanation IIA is the barometer for entitling a person to be branded as kudikidappukaran, ie., a person in long possession much before, 1968-1970. Procedure for preparation of the register of such person is prescribed under Section 80. The rights and procedure as provided under Sections 80A. Provisions of section 80B would only come into existence when register of Kudikidappukars is maintained as per Section 80. The controversy with regard to the maintainability of a suit under the Kerala Land Reforms Act viz. the provisions regarding a tenant driving a status under the provisions of Land Reforms Act came to be pondered by Supreme Court in _**Madavi Amma and Others**_ v. _**S.Prasannakumari and others**_ [AIR 2013 Supreme Court 1384] wherein paragraph 20, it was held that it is mandatory for the ``` WP(C) NO. 18492 OF 2013 ``` ``` 3 ``` Government to prepare register entitling Kudikidappukaran to purchase extent of land situated either in city, Municipality or Township/Panchayath. It was also directed that the Government is required to maintain a register of Kudikidappukars within its jurisdiction. ## 2. Petitioner has sought the indulgence of this Court by asking the following prayers: a)issue a writ of mandamus or such other writ, order or direction to the 2[nd] respondent to prepare and maintain Register of Kudikidappukars required under Sec.80 of the Kerala Land Reforms Act, 1963 read with Rules 73 to 76 of the Kerala Land Reforms (Tenancy) Rules 1970. b)issue a writ of mandamus or such other writ, order or direction tot eh 2[nd] respondent to consider and dispose of the Application of the petitioner dated 24/4/2013 to include her name in the Register of Kudikidappukars. c)issue a writ of mandamus or such other writ, order or direction to the 3[rd] respondent not to proceed with O.A.No.7/1968 till the disposal of the application of the petitioner dated 24/4/2013 to include her name in the Register of Kudikidappukars by the 2[nd] respondent. 3. In response to the aforementioned prayer, State in the counter affidavit stated that the petitioner do not have a right to maintain the OA for the purpose of purchasing the land until and ``` WP(C) NO. 18492 OF 2013 ``` ``` 4 ``` unless she is declared to be a Kudikidappukaran as per the procedure prescribed under Section 80 of the Land Reforms Act. 4. Learned counsel for the respondents- land owners also supported aforementioned prayer. 5. I have heard the learned counsel for the parties and appraised the paper book. 6. Section 2(25) explanation IIA and Section 80 of the Act reads as under: **2(25)** _"kudikidappukaran"_ means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and - - (a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or - (b) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land; and _"kudikidappu"_ means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto: ``` WP(C) NO. 18492 OF 2013 ``` ``` 5 ``` _**Explanation IIA** ._ - Notwithstanding any judgement, decree or order of any Court, a person, who, on the 16th day of August, 1968, was in occupation of any land and the dwelling house thereon (whether constructed by him or by any of his predecessors-in-interest or belonging to any other person) and continued to be in such occupation till the 1st day of January, 1970, shall be deemed to be a kudikidappukaran; Provided that no such person shall be deemed to be a kudikidappukaran- - (a) in cases where the dwelling house has not been constructed by such person or by any of his predecessors-in-interest, if- - (i) such dwelling house was constructed at a cost, at the time of construction, exceeding seven hundred and fifty rupees; or - (ii) such dwelling house could have, at the time of construction, yielded a monthly rent exceeding five rupees; or - (b) if he has a building or is in possession of any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, either as owner or as tenant, on which he could erect a building. **80** . Register of kudikidappukars. - (1)The Government shall cause a register of kudikidappukars [within the limits of each local authority to be prepared and maintained. - (2) The register shall show- - (a) the description of the land in which the kudikidappu is situate; - (b) the location of the kudikidappu and its extent; ``` WP(C) NO. 18492 OF 2013 ``` ``` 6 ``` - (c) the name of the landowner and of the person in possession of the land in which the kudikidappu is situate; (d) the name and address of the kudikidappukaran; [(dd) the rights referred to in Section 79A; and] (e) such other particulars as may be prescribed. [(3)Subject to such rules as may be made by the Government in this behalf, the local authority shall prepare a register of kudikidappukars within its jurisdiction. (4) The register shall be maintained by the local authority in such manner as may be prescribed. (5) Any person aggrieved by the registration of a kudikiduppu-karan under Sub-section (3) or the refusal to register a person claiming to be a kudikdappukaran may, within ninety days from the date of registration or refusal, as the case may be, appeal- - (a) to the Revenue Divisional Officer having jurisdiction, where the decision appealed against is that of a municipal corporation or a municipal council: (b) to the Tahsildar having jurisdiction, in other cases. (6) On receipt of an appeal under Sub-section (5), the Revenue Divisional Officer or the Tahsildar, as the case may be, may call for the record of any proceeding which has been taken by the local authority under this Section and may make such enquiry or cause such enquiry to be made and may pass such orders thereon as he thinks fit: Provided that no order prejudicial to any person shall be passed without giving him an opportunity of being heard. (7) For the purposes of this Section, "local authority' shall not include a cantonment board. ``` WP(C) NO. 18492 OF 2013 ``` ``` 7 ``` 7. On perusal of the above, a person has to be in long possession since 1968-1970 and can maintain an application under Sections 80 for the purpose of purchasing the right and procedure prescribed therein only when reflected in the register maintained by the authorities in the local area. Since that exercise has not be done, I would be refraining myself from commenting the status of the petitioner as the procedure under Section 80 is yet to be undertaken. Accordingly, I dispose of the writ petition by accepting prayer numbers A and B and direct the 2[nd] respondent to take a call on the application of the petitioner under Section 80 for granting a declaration of Kudikidappukaran by maintaining the register. This exercise should be under taken in accordance with law after affording the opportunity of hearing to petitioner as well as the land owners 4 and 5. Let this exercise be undertaken within a period of six months from the date of receipt of copy of this judgment. ## **Sd/-** ## **AMIT RAWAL** **JUDGE** nak ``` 8 ``` ## **`WP(C) NO. 18492 OF 2013`** ## **`APPENDIX OF WP(C) 18492/2013`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1: COPY OF THE APPLICATION FOR PURCHASE OF KUDIKIDAPPU. ``` ``` EXHIBIT P2: COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. ```