Laxmi and Others v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` THURSDAY, THE 25[TH] DAY OF MAY 2023 / 4TH JYAISHTA, 1945 ``` ## **`WP(C) NO. 9269 OF 2012`** ## **`PETITIONERS:`** ``` 1LAXMI AGED 42 YEARS W/O.MALAYAN KANNAN, R/AT. MALIGA VALAPPU, NAYAKS ROAD, KASARGOD KASBA VILLAGE, KASARGOD DISTRICT. ``` - `2 ROHINI D/O.MALAYAN KANNAN, R/AT. MALIGA VALAPPU, NAYAKS ROAD, KASARGOD KASBA VILLAGE, KASARGOD DISTRICT.` ``` 3SRIDEVI D/O.MALAYAN KANNAN, R/AT. MALIGA VALAPPU, NAYAKS ROAD, KASARGOD KASBA VILLAGE, KASARGOD DISTRICT. ``` - `4 MANI D/O.MALAYAN KANNAN, R/AT. MALIGA VALAPPU, NAYAKS ROAD, KASARGOD KASBA VILLAGE, KASARGOD DISTRICT.` ``` 5KAMALAKSHI D/O.MALAYAN KANNAN, R/AT. MALIGA VALAPPU, NAYAKS ROAD, KASARGOD KASBA VILLAGE, KASARGOD DISTRICT. ``` ``` 6NANDINI W/O.LATE GANGADHARAN, R/AT. MALIGA VALAPPU, NAYAKS ROAD, KASARGOD KASBA VILLAGE, KASARGOD DISTRICT. ``` - `7 SHAILAJA` - `W/O.LATE SURENDRAN, R/AT. MALIGA VALAPPU, NAYAKS ROAD, KASARGOD KASBA VILLAGE, KASARGOD DISTRICT.` - `8 CHITHRA` ``` W/O.LATE KAMALAKSHA, R/AT. MALIGA VALAPPU, NAYAKS ROAD, KASARGOD KASBA VILLAGE, KASARGOD DISTRICT. ``` ``` BY ADV ``` ``` SRI.KODOTH SREEDHARAN ``` ``` WP(C) NO. 9269 OF 2012 -2- ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, SECRETARIATE, THIRUVANANTHAPURAM 01.` - `2 THE REVENUE DIVISIONAL OFFICER KASARAGOD 671 121.` ``` 3THE TAHSILDAR KASARAGOD 671 121. ``` - `4 SULOCHANA D/O.LATE KORAGA,R/AT. ANEBAGILU, KASARGOD P.O, 671 121.` ``` 5K.A.VASU -DO- BY ADVS. SRI.V.V.ASOKAN SRI.JUSTIN JACOB, SR.GOVERNMENT PLEADER SMT.RUKHIYABI MOHD KUNHI ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 9269 OF 2012 -3- ``` ## **`JUDGMENT`** Orders of the Revenue Divisional Officer Exts.P1 dated 30.04.1973 and Ext.P3 dated 28.05.2002 regarding the Kudikidappu for shifting of the same from Re-survey No.89/11 to Re-survey No.122/1Pt of Kasargod village, are under challenge. 2. Learned counsel appearing on behalf of the petitioner submitted that as per the provisions of Section 75(3) of the Kerala Land Reforms Act, 1963 and amended in 1969 an application on behalf of the landlord who is the owner the land less than one acre, can submit an application within two years of the commencement of the Act for shifting of the kudikidappu for the purpose of constructing residence and is also required to deposit certain amount. However in the instant case, submitted an application to the Revenue Divisional Officer(RDO). 3. RDO cannot decide on behalf of the ``` WP(C) NO. 9269 OF 2012 -4- ``` Government and this question has already been decided in favour of the petitioner in view of the judgment of the Full Bench of this Court in **George** ## **V. State of Kerala (1981 KHC 112).** “9. S.75 (3) plainly speaks of applying to the Government for acquisition of land. This is naturally so, for, it is the Government which would normally determine whether land of another should be compulsorily acquired under the scheme of the Kerala Land Acquisition Act. Though, in terms, S.75(3) does not mention that it is the Government that has to decide on the application, so long as it does not contemplate a decision by any other authority, the plain meaning of the Section appears to us to be that the Government should decide the application. Though a Rule may not normally lend colour to the construction of the parent statute, that the Government also was of the same view is evident from Form No. 35, which indicates that the applicant requests the Government to decide the question. We cannot consider the statute as having not provided for a decision on the application under S 75(3), for, without such a decision the further provision as to acquisition of land and shifting of kudikidappukaran to such land would become unworkable. Therefore subs.(3), when it refers to an application to ``` WP(C) NO. 9269 OF 2012 -5- ``` Government, contemplates a decision on that application and so long as it does not indicate any other authority who could take such derision the plain meaning of the sub-section is that the Government to whom the application is made should take the decision. Even the question whether Government could delegate the functions under sub-s (3) to an authority may not arise in this case because the Revenue Divisional Officers empowered under the notification, dated 15th September 1970 have been so empowered only to act under sub-s(3B) and (3C) and not under sub-s (3). Perhaps had the Government chosen to delegate its power of decision to the Revenue Divisional Officers we would have been called upon to consider the propriety and the validity of such delegation. It appears to us that such delegation, when on a proper reading of the section, the authority has been vested in the Government would not be possible. Therefore as matters stand though the Revenue Divisional Officer could exercise the powers envisaged by sub-s.(3B) and (3C) of S 75 they will not be competent to exercise any function in relation to the decision on matters about which satisfaction should necessarily be reached before acquisition is ordered namely, the matters referred to in S 75(3) of the Act. We do not find any warrant in the provision in sub-s (3B) and (3C) to justify a reading of such power in the Revenue Divisional Officers. ``` WP(C) NO. 9269 OF 2012 -6- ``` 10. No rule could override the provision of the Act and confer on subordinate officers of Government functions which, under the Act are to be performed by the Government. It is no doubt true that R 72 which we have extracted in this judgment envisages the officer authorised by the Government in that behalf to make an enquiry and to be satisfied that the applicant requires the land occupied by the kudikidappukaran for constructing a building for his own residence and that the total extent of land held by him on 1st July 1969 is less than 1 acre R (2A) provides that in case the officer is satisfied that the applicant does not require the land for that purpose or the total extent is more than the minimum or that the applicant is not prepared to deposit the compensation amount which he is obliged 10, the officer is to forward a report of his enquiry to the Government. The scheme in R 72 appears to he that where the acquisition is to be proceeded with the officer could himself takes decision on all matters without reference to the Government but if for some reason or other the landlord’s application cannot be proceeded with so as to effectuate the shifting the matter has to be reported to the Government so that the Government may take a decision. We can see no justification in the Act for this approach. Evidently the rule is framed on the mistaken assumption that the enactment empowers the conferment of the power to ``` WP(C) NO. 9269 OF 2012 -7- ``` decide under S.75(3) of the Act on an officer of Government. Now that we construe S 75(3) of the Act as not conferring power in any officer of the Government there is no question of any officer of Government being empowered by any rule to make a decision as contemplated in R 72(3) of the Rules. The rule to that extent is repugnant to the Act and cannot therefore operate. 11. As we have indicated, in the decisions in O. P. No 2934 of 1975 and 1265 of 1976 there has not been a detailed examination of this question. The Division Bench in Sathi Bai Kammath v. Sub Collector (1977 KLT 644) no doubt has adverted to all these provisions The Division Bench in Para 2 is seen to observe thus: “It will be noticed from this rule and from the sub-sections that we had extracted that the object of S.75(3) is to enable the Government to acquire the land to which the kudikidappu may be shifted. The acquisition is to be directed if the Government is satisfied in regard to the requirements mentioned in sub-s (3) of S 75, namely, that the applicant had only less than one acre of land, and that there is a kudikidappu on the same, and that he requires the land occupied by the kudikidappu for constructing a building for his own residence” (emphasis supplied) But in the same para after referring to the ``` WP(C) NO. 9269 OF 2012 -8- ``` argument that the Government alone had to be satisfied about the matters mentioned in S 75(3) the learned Ag Chief Justice observes: “Looking through the scheme and the purpose of sub-s (3) and having regard to the fact that the Government in these matters can only function, and must necessarily function, through some ministerial agency or officer of the Government, we are of the opinion that the provisions of sub-s (3A) and sub-s (3B) are meant to provide the machinery for implementing the purposes of the application mentioned in sub-s (3). . It appears to us this has been provided for by R 72 as it stood prior to its substitution in 1975”. We are afraid we cannot, with great respect to the learned Judges of the Division Bench, agree. That is because, despite the fact the Government acts through its officers to collect information and data, when, by a statute, it is called upon to exercise functions such functions cannot be delegated to any of its officers. There is a manner and method by which Government speaks for itself. Of course it must be through a human agency. Rules of business of the Government determine the form in which the Government is to speak. When it is so spoken it is the Government that speaks. If it is otherwise, and if a subordinate officer speaks it is not the Government’s voice but the voice of the officer ``` WP(C) NO. 9269 OF 2012 -9- ``` who so speaks. We find nothing in the scheme and purpose of sub-s.(3) which justifies the view expressed by the learned Judges of the Division Bench nor do we consider sub-s.(3A) and (3B) of S.75 as of any consequence in reading the powers of the Revenue Divisional Officers as extended to matters falling within the scope of sub-s (3) of S.75. With great respect we do not find our way to agree with the view expressed in Sathi Bai Kamath v. Sub Collector (1977 KLT 644). The function of deciding on the question whether an applicant under S. 75(3) requires the land occupied by kudikidappukaran or whether the total extent of land held by the applicant is less than 1 acre is that to be exercised by the Government and the Government alone and not by the Revenue Divisional Officers. Notification S.R.O. 368 of 1970 cannot and does not empower such officers to exercise such functions.” In this view of the matter Exts.P1 and the consequential order Ext.P3 are not sustainable. Orders Exts.P1 and P3 are quashed. Writ petition is allowed. ``` Sd/- AMIT RAWAL,JUDGE ``` ``` vv ``` ``` WP(C) NO. 9269 OF 2012 -10- ``` ## **`APPENDIX OF WP(C) 9269/2012`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1TRUE COPY OF THE ORDER DATED 30/4/1973 ISSUED BY THE 2ND RESPONDENT ``` - `EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN O.S.317/1988 BY THE MUNSIFF COURT KASARAGOD` - `EXHIBIT P2(a) TRUE COPY OF THE JUDGMENT IN A.S. NO.55/1992 BY THE SUBORDINATE JUDGE, KASARAGOD` - `EXHIBIT P2(b) TRUE COPY OF THE JUDGMENT IN SA NO.360/1996 BY THIS HON’BLE COURT` ``` EXHIBIT P3TRUE COPY OF THE ORDER DATED 28/5/2002 ISSUED BY THE 2ND RESPONDENT ``` ``` EXHIBIT P4TRUE COPY OF THE PETITION DATED 29/8/2000 BEFORE THE 2ND RESPONDENT ```