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Sathi Bai Kamath v. Sub Collector, Tellicherry And Others
Structured Summary of the Provided Opinion
Factual and Procedural Background
The matter arose from an application made under section 75(3) of the Kerala Land Reforms Act, 1963 by the third respondent seeking to shift a kudikidappu and to acquire alternative land to which the appellants (who were respondents before the collector) might be shifted. The application was inquired into by the Sub-Collector, Tellicherry (the authorised officer). By ext. P1 the officer found that the applicant had less than one acre of land as on 1969, that he had established his bona fides for constructing a house for his own residence on the kudikidappu site, and allowed the application for shifting the kudikidappu. The officer directed the applicant to deposit 87.5% of the cost of acquisition of alternative land and found the applicant liable to pay shifting charges to be determined after acquisition of the site.
The appellants challenged the Sub-Collector's order by filing a writ petition, which was dismissed in limine by a learned single judge. The appellants then preferred the present appeal against that dismissal.
Legal Issues Presented
- Whether the officer authorised by the Government under section 75(3a) and 75(3b) (for example the Sub-Collector or Revenue Divisional Officer) had jurisdiction to hear and finally dispose of an application under section 75(3) of the Kerala Land Reforms Act, 1963, or whether only the Government could satisfy itself on the pre-conditions specified in section 75(3) and pass the final order.
- Whether the authorised officer had judicially and adequately adverted his mind to the statutory requirements (the ingredients of section 75(3)) before passing the impugned order, and if not, whether the court should interfere with the decision under Article 226 of the Constitution.
Arguments of the Parties
Appellants' Arguments
- The appellants contended that the limited power of the officer authorised by the Government extended only to directing the kudikidappukaran to shift to a site acquired by the Government, and did not extend to determining the initial statutory pre-conditions in section 75(3) (such as whether the applicant had less than one acre, whether a kudikidappu existed, and whether the applicant required the land for his own residence); those matters, it was argued, required satisfaction by the Government itself.
- Counsel for the appellants relied on earlier decisions of this Court (including the judgment of Bhaskaran J. in O.P. No. 1938 of 1973) said to support the view that the officer authorised under sub-sections (3a) or (3b) had no jurisdiction to finally dispose of applications under section 75(3).
Respondents' / Government's Arguments
- Counsel for the respondents and the Government Pleader pointed out that the appellants had not raised an objection to the jurisdiction of the officer before the officer himself or before the learned single judge, a contention bearing on the procedural propriety of raising jurisdiction only in the writ court.
- The learned single judge (whose dismissal of the writ petition is under appeal) had held that the authority was satisfied on the evidence that the statutory requirements were made out; the respondents relied on this finding and contended that there was little scope for interference under Article 226 with the sufficiency of evidence or correctness of such a factual conclusion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| O.P. No. 1938 of 1973 (Bhaskaran J.) | Held that the Revenue Divisional Officer (RDO) had no authority to pass the order in the nature of ext. P3 and quashed that order; directed the State to consider and dispose of the matter after necessary enquiries. | The court stated that the learned judge in that earlier decision had not addressed the scheme of the statute or SRO No. 368/70 and, with respect, could not be accepted as a correct exposition on this point. The present court declined to follow that decision. |
| O.P. 3269 of 1974 (Balakrishna Eradi J.) | The opinion indicates this decision was called to the court's attention but that the aspect of RDO jurisdiction was not specifically dealt with in that judgment. | The court noted that this judgment did not specifically address the jurisdictional point and therefore did not treat it as authoritative on that question. |
| O.P. No. 2934 of 1975 (Chandrasekhara Menon J.) | Considered the statutory provisions and rules and repelled the contention that the Revenue Divisional Officer lacked jurisdiction to deal with applications under section 75(3). | The present court recorded agreement with the principle of that decision and relied on it in support of the conclusion that the authorised officer has jurisdiction to dispose of the application when the statutory conditions are satisfied. |
Court's Reasoning and Analysis
The court’s analysis proceeded from the text and scheme of section 75(3) together with subsections (3a) and (3b) and Rule 72 of the Kerala Land Reforms (Tenancy) Rules as it stood at the relevant time and as later substituted.
Key steps in the court's reasoning:
- Statutory purpose: The court observed that the object of section 75(3) is to enable the Government to acquire land to which the kudikidappu may be shifted, conditioned upon satisfaction of the statutory requirements (that the applicant had less than one acre, that a kudikidappu existed on the land, and that the applicant required the land for his own residence).
- Machinery provisions: The court examined subsections (3a) and (3b) which contemplate action by "an officer authorised by the Government" to collect deposit amounts and to acquire the necessary land and give possession to the kudikidappukaran. The court treated these subsections as providing the machinery for implementation of the statutory object.
- Rule 72 (pre-1975) and substituted Rule 72: The court compared the original Rule 72 (as it stood prior to substitution) and the substituted Rule 72 (post-1975). The earlier rule plainly contemplated the authorised officer making such enquiries as he deemed fit and, if satisfied, requiring the deposit and taking steps to acquire land. The substituted rule added an express sub-rule (2a) and (2b) creating a mechanism by which, if the officer is not satisfied or if the applicant refuses to comply, the officer must forward a report to the Government who would then pass orders after affording opportunity to affected persons. The substitution also contained a protection (sub-rule (2c)) that an order of the Government shall not be questioned solely because the inquiry was conducted by the officer and not by the Government itself.
- Effect on jurisdiction: From the text of the section and rules, the court concluded that where the authorised officer is satisfied after inquiry about the statutory pre-conditions, the officer has authority to require deposit and to proceed with acquisition and transfer of possession, i.e., the rules and section contemplate authority in the authorised officer to dispose of the application in such circumstances. Only when the officer is not satisfied or when the applicant refuses deposit/agreement does the rule require forwarding of a report to the Government.
- Treatment of contrary decisions and statutory authorization: The court considered the earlier decision of Bhaskaran J. holding that the RDO lacked power to pass the order and stated that that judge’s attention had not been directed to the scheme of the Act or to SRO No. 368/70 (dated 13-9-1970) which authorises Revenue Divisional Officers to exercise powers under sub-sections (3b) and (3c). Given that SRO and the statutory scheme, the court did not accept the earlier contrary decision as a correct exposition.
- Reliance on supporting decision: The court noted that one of the bench (Chandrasekhara Menon J.) had already repelled the jurisdictional objection in O.P. No. 2934 of 1975 and recorded agreement with that principle.
- Procedural point: The court observed that the appellants had not objected to the officer's jurisdiction before the officer or before the learned single judge, but dealt with the jurisdictional objection on its merits nevertheless.
- Merits and scope of judicial review: On merits, the court found little scope for interference under Article 226. The court agreed with the learned single judge that the authority was satisfied on the evidence that the statutory requirements were made out; the court held that the sufficiency of the evidence and the correctness of the conclusion were hardly open to review in the writ proceedings before it.
Holding and Implications
DISMISSED.
Implications:
- The appeal was dismissed and the impugned order of the authorised officer (Sub-Collector) was upheld; the appellant's challenge to jurisdiction and to the merits failed.
- The court concluded that the statutory scheme (section 75 and Rule 72) and SRO No. 368/70 envisage and authorise the officer authorised by the Government to inquire into and, where satisfied, to require deposit and take steps to acquire and transfer land for shifting a kudikidappukaran — i.e., the authorised officer can dispose of an application in appropriate circumstances rather than the Government alone having to make the final decision.
- The court found little scope for interference under Article 226 with a factual satisfaction recorded by the authorised officer; consequently the sufficiency of evidence and correctness of such factual conclusions are not apt for re-evaluation in the writ jurisdiction in this matter.
- The appeal was dismissed without costs.
Note: This summary is derived exclusively from the content of the provided opinion. No information has been added beyond what appears in that text.
1. The appellants were the respondents in an application made to the collector, Under s. 75 (3) of the kerala land reforms act, 1963, By the 3rd respondent herein, For shifting the kudikidappu, And for the purpose of acquiring land to provide an alternative site to the appellants, To which they might be shifted. The application was enquired into by the sub collector, Tellicherry, And by ext. P1 order that officer found that the applicant had less than one acre of land as on 17 1969 and that he had established his bona fides for constructing a house for his own residence in the kudikidappu. Hence the application for shifting the kudikidappu was allowed. The applicant was directed to deposit 871/2% of the cost of acquisition of alternative land for providing kudikidappu to the appellants herein, And was also found to be liable to deposit the shifting charges to be determined after the acquisition of the site. This order was challenged by the appellants in the writ petition which was dismissed in limine by a learned judge, Against whose judgment this appeal is preferred.
2. Attack has been directed against the impugned order on the ground that the sub collector had no jurisdiction to deal with the application. Attack has been also directed to the merits of the order on the ground that the officer had not judicially disposed of the application. Dealing first with the point of jurisdiction, We may extract s. 75 (3a) and (3b) of the act, Which are as follows:
" (3a) in an application under sub section (3), The applicant shall offer to deposit, Whenever called for eighty - seven and a half per cent of the amount of compensation payable for acquisition of land equal to the extent of the existing kudikidappu subject to a minimum of three cents if within the limits of a city or major municipality or five cents if within the limits of any other municipality or ten cents if in any panchayat area or township.
(3b) an officer authorised by the government in this behalf may, After collecting the amount referred to in sub - section (3a) from the applicant, Acquire the necessary land under the kerala land acquisition act, 1961, Give possession of the land to the kudikidappukaran and require him to shift to the said land, And thereupon the kudikidappukaran shall be bound to shift to the new site "
we may next turn to r. 72 of the kerala land reforms (tenancy) rules as it stood at the relevant time, And before its substitution on 27 111975. The said rule reads as follows:
72. Form of application for shifting kudikidappukaran. (i) the application to the government by a holder of land for acquisition of land for shifting a kudikidappukaran shall be in form no. 35.
(2) upon receipt of such an application, The officer authorised by the government in this behalf shall make such enquiry as he may deem fit, And if he is satisfied that the applicant requires the land occupied by the kudikidappu for constructing a building for the applicant's own residence and that the total extent of land held by him on the 1st day of july, 1969, As owner or as tenant was less than one acre, Shall require the applicant to deposit eighty - seven and a half per cent of the cost of acquisition of the land to be acquired and to execute an agreement undertaking to pay the same percentage of any increase in the compensation for the land acquired.
(3) as soon as may after the applicant deposits his share of the cost of acquisition, The officer shall take steps to acquire the necessary land, Transfer possession of such land to the kudikidappukaran and require him to shift to the said land.
(4) in choosing me necessary land for acquisition, The following order of preference shall, As far as possible, Be observed, Namely.
(a) land in the vicinity of the kudikidappu;
(b) land situate within the jurisdiction of the same local authority within whose jurisdiction the kudikidappu is situate;
(c) land situate within the jurisdiction of any adjacent local authority.
(5) the lard to be acquired shall be fit for erecting a homestead and shall, As far as possible, Be not greater in value than the land on which the kudikidappu is situate.
(6) where the kudikidappukaran shifts to the land so acquired, The officer shall arrange for the issue of a patta in form no. 36 to the kudikidappukaran in respect of such land. "
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 bad 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. These requirements may, Under sub - s. (3a) or (3b) be investigated by an officer authorised by the government, Who, Under that sub - section is to direct that possession of the land acquired be given to the kudikidappukaran and he be required to shift to the said land. It was argued by counsel for the appellants that the limited power of the officer authorised by the government was only what is provided for in the latter part of sub - s. (3) of s. 75, Namely, To direct the kudikidappukaran to shift to the site acquired; and not to deal with the earlier part of the requirements of the section regarding the limit of land held by the applicant, Existence of the kudikidappu, And the requirement of the land on which the kudikidappu is situate for residential purposes. These, It was said, Are matters in regard to which the government, And the government alone had to be satisfied. 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 roust necessarily function, Through some ministerial agency or officer of the government, We are of the opinion that the provisions of subsection 3 (a) and sub - s. 3 (b) 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. It does not contemplate a report by the officer to the government or a consideration by the government of the report and the passing of a final order by the government on such report. On the other hand, It seems to contemplate an outright dealing of the application by the authorised officer. Counsel for the appellants stated that this interpretation is opposed to the current of decisions of this court. Our attention was called to the judgment of a learned judge (bhaskaran j.) of this court in o. P. No. 1938 of 1973, In which the validity of an order passed on an application under s. 75 (3) of the land reforms act by the revenue divisional officer, Tellicherry, Was challenged. Dealing with the point now raised before us. The learned judge observed:
1 have not been shown any authority by which power is conferred to the second respondent to pass an order in the nature of ext. P3. Ext. P3 is therefore, Quashed and the third respondent, The state of kerala is directed to consider and dispose of the matter after holding the necessary enquiries in accordance with the provisions of the act and the rules framed thereunder. "
it is obvious that the learned judge's attention was not directed to the object, Or the scheme, Or framework of the provisions of the act; nor was the learned judge's attention called to sro. No. 368/70 dated 13 9 1970 which reads as follows:
"sro no. 368/70: under sub - section (3b) of s 75 of the kerala land reforms act, 1963 (i of 1964), The government of kerala hereby authorise the revenue divisional officers to exercise the powers conferred, And discharge the duties imposed, By sub - sections (3b) and (3c) of the said section, Within their respective jurisdiction."
in these circumstances, We cannot, With respect, Accept the decision as a correct exposition of the principles, Dealing with this aspect of the matter. We are informed by counsel for the appellants that on the basis of this decision or on the same principle as was indicated in the above decision, In a number of writ petitions filed in this court, It had been ruled that the officer authorised under sub - section (3a) or (3b) of s. 75 bad no jurisdiction to deal with the application and finally dispose of the same made under s. 75 (3) of the act. Our attention was called to the judgment in o. P. 3269 of 1974 by our learned brother balakrishna eradi j. We find this aspect of the matter is not specifically dealt with.
3. At against the above decisions, On the other hand, One of us (chandrasekhara menon j) had dealt with that question in o. P. No. 2934 of 1975. After noticing the provisions of the act, And the rules, The contention that the revenue divisional officer had no jurisdiction to deal with the application under s. 75 (3) of the act, Was repelled. We record our agreement with the principle of the said decision.
4. Attention was called to r. 72 as substituted after 1975. The said rule reads.
72. Form of application for shifting kudikidappukaran (i) the application to the government by a holder of land for acquisition of land for shifting a kudikidappukaran shall be in form no. 35.
(2) upon receipt of such an application, The officer authorised by the government in this behalf shall make such enquiry as he may deem fit after giving the applicant as well as the kudikidappukaran an opportunity of being heard and after giving them copies of documents on which reliance is placed by him and if be is satisfied that the applicant requires the land occupied by the kudikidappu for constructing a building for his own residence and that the total extent of land held by him on the 1st day of july, 1969, Either as owner or as tenant was less than one acre, He shall require the applicant to deposit eighty seven and a half per cent of the cost of acquisition of the land to be acquired and to execute as agreement undertaking to pay the same percentage of any increase in the compensation for the land acquired.
(2a) if the officer is satisfied after the enquiry referred to in sub rule (2) that the applicant does not require the land occupied by the kudikidappu for constructing a building for his own residence or that the total extent of land held by the applicant on the. 1st day of july, 1969, Either as owner, Or as tenant was one acre or more or if the applicant is not prepared to deposit eighty seven and a half per cent of the cost of acquisition of the land to be acquired or to execute an agreement undertaking to pay the same percentage of any increase in the compensation for the land to be acquired, The officer shall forward a report of his enquiry together with his conclusion thereon to the government for their orders.
(2b) the government shall, After considering the report and the conclusion of the officer and after affording an opportunity to the person affected to state his case, Pass such order thereon as they think fit.
(2c) the order of the government under sub - rule (2b) shall not be called in question in any court solely on the ground that the inquiry by hearing the parties and furnishing relevant records was conducted by the officer and not the government.
(3) as soon as may be after the applicant deposits his share of the cost of acquisition, The officer shall take steps to acquire the necessary land, Transfer possession of such land to the kudikidappukaran and require him to shift to the said land.
(4) ia choosing the necessary land for acquisition, The following order of preference shall, As far as possible, Be observed, Namely:
(a) land in the vicinity of the kudikidappu;
(b) land situate within the jurisdiction of the same local authority within whose jurisdiction the kudikidappu is situate;
(c) land situate within the jurisdiction of any adjacent local authority.
(5) the land to be acquired shall be fit for erecting a homestead and shall, As far as possible, Be not greater in value than the land on which the kudikidappu is situate.
(6) where the kudikidappukaran shifts to the land so acquired, The officer shall arrange for the issue of a patta in form no. 36 to the kudikidappukaran in respect of such land. "
under this rule, The report of this officer to the government and an order by the government is contemplated only under sub - rule (2a) of r. 72 where the officer is not satisfied about the requirements of the land occupied by the kudikidappukaran. On the other hand, If he is satisfied about this requirement, Sub - rule (2) provides that he is to require the applicant to deposit the requisite cost of acquisition and to execute an agreement, Etc. These are sufficient indications that the section and the rule, Themselves contemplate authority and power in the officer authorised, To dispose of the application. We are, In the circumstances, Unable to entertain the objection to jurisdiction raised by counsel for the appellants.
5. Objection was raised by counsel for the respondents, And by the government pleader, That the appellants bad not objected to the jurisdiction of the officer either before that authority or even before the learned single judge. Being a basic objection we have chosen to deal with the objection on its merits.
6. The order was attacked on merits. But we can find little scope for interference under art. 226 of the constitution. It was argued that the authority bad not adverted its mind to the question of the requirements or ingredients to be satisfied under s. 75 (3) of the act before an order contemplated by the section is passed. As rightly pointed out by the learned single judge who dismissed the writ petition, The authority in question was satisfied on the evidence that the requirements have been made out; and the sufficiency of the evidence and the correctness of the conclusion are hardly open to review in these proceedings. We dismiss this writ appeal, But in the circumstances, Without costs.
dismissed.
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