HIGH COURT OF KERALA
Hon'ble Mr. Justice V. Ramkumar and Hon'ble Mr. Justice K. Harilal A.F.A. No. 97 of 1993 Dated this the 5th Day of January, 2012 For Appellants :
For Respondents :
Head Note:- Kerala Land Reforms Act, 1963 - Sections 80C(2) and 112 - Certificate of Purchase of kudikidappu - the Act does not provide for the principle of relating back in respect of an order for purchase of kudikidappu. J U D G M E N T V. Ramkumar, J. 1. In this intra-court appeal filed under Section 5 of the Kerala High Court Act, 1958, the appellant who was the 5th claimant in L.A.R.No.271/1987 on the file of the Subordinate Judge's Court, Payyannur challenges the appellate judgment passed by a learned Single Judge of this Court in L.A.A. No.52/1991. 2. We heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents 2 to 4 and the learned Government Pleader appearing for the 1st respondent. 3. Advocate Smt. A.Parvathy Menon the learned counsel appearing for the appellant made the following submissions before us in support of the appeal: - Even though no certificate of purchase under Section 80C(2) of the Kerala Land Reforms Act, 1963 (the KLR Act for short) had been issued to the appellant, presumably for the reason that the kudikidappu was the subject matter of a compulsory acquisition by the State for the Naval Academy, Ezhimala, in the proceedings initiated by the appellant for purchase of kudikidappu, the status of the appellant as a kudikidappukari had been declared by all the authorities. The matter was fought up to this Court and in the order dated 16/11/89 in CRP No.408/1988 this Court also had recognized the status of the appellant as kudikidappukari and had also observed that she was entitled to make the requisite claim for compensation in the land acquisition proceedings. It is true that no certificate of purchase was granted to the appellant. But the appellant, by virtue of the orders of the statutory authorities as well as this Court, was entitled to claim compensation for the compulsory acquisition of the kudikidappu. On that view of the matter, the claim for compensation made by the appellant not only for the land value but also for the improvements should have been upheld by the reference Court as well as the learned Single Judge in the present proceedings. The deprivation of the value of improvements to the appellant by the courts below has resulted in grave injustice to appellant. 4. We are afraid that we find ourselves unable to accept the above submissions. For a proper comprehension of the rival contentions of the parties, it may be necessary to go into some background facts. 5. Some time in the year 1983, the appellant had filed O.A.No. 17/1983 before the Land Tribunal, Payyannur under Section 80B of the KLR Act seeking the issuance of a certificate of purchase alleging that she is a kudikidappukari under one Ahammmed Haji and others, who were claimants 1 to 4 before the Land Appellate Reference Court. Pending the said O.A., an extent of 0.0405 hectors of land including the kudikidappu in question comprised in R.S.No.32/48 of Ramanthali village, Ettikulam amsom and desom in Taliparamba taluk of Kannur district were compulsorily acquired by the State for the purpose of the Naval Academy, Ezhimala. Since, by the time the Land Tribunal disposed of O.A.No.17/1983 on 16.09.1985 the claimants were already dispossessed of the said land, the Land Tribunal only upheld the status of the appellant (claimant No.5) as a kudikidappukari but did not order the issue of a certificate of purchase to her under Section 80C(2) of the KLR Act in view of the supervening land acquisition proceedings. The Land Tribunal accordingly dismissed the O.A., but giving her liberty to move the land Acquisition Authority for her share of compensation. Dissatisfied with the dismissal of the O.A,. the appellant filed an appeal before the Land Reforms Appellate Authority, Kannur as A.A.No.9/1986. In the meanwhile, on 28.01.1986 the Collector under the Land Acquisition Act passed an award in respect of the aforesaid land. As there was dispute between claimants 1 to 4 on the one side and the 5th claimant (the appellant herein) on the other with regard to the entire compensation due for the compulsory acquisition of land, the Collector made a reference of the case to the Civil Court under Section 31 of the Land Acquistion Act. That is how the matter came before the Sub Court, Payyannur as LAR No.271/87. In the meanwhile on 30.06.1987 the Land Reforms Appellate Authority also dismissed the appeal (A.A.No.9/1986) preferred by the appellant but recognising her right to claim compensation as a kudikidappukari. Aggrieved by the judgment of the Appellate Authority the appellant preferred C.R.P.No.408/88 before this Court. As per order dated 16.11.1989 this Court also concurred with the findings of the Land Reforms Authorities below to hold that the appellant is a kudikidappukari but then since the substratum of the proceedings had been compulsorily acquired by the State she could not seek a certificate of purchase in her name. Her right to claim compensation before the Land Acquisition Authorities was, however, recognised. It was thereafter that the matter was taken up by the Sub Court, Payyannur in LAR No.271/1987. 6. Except for the interested testimony of the appellant examined as PW1, she did not adduce any independent evidence to substantiate her contention that she was not only entitled to the land value in respect of kudikidappu but was also entitled to the value of improvements. Since the appellant was the occupant of a hut constructed by the rival claimants and she was only permitted to occupy the said hut, the Land Acquisition Reforms Court, as per judgment dated 17/11/1990, held that the appellant could claim compensation only with regard to the value of land occupied by the kudikidappu and that the compensation for the hut and other improvements was to be paid to claimants 1 to 4. It was aggrieved by the said judgment that the appellant preferred L.A.A.No.52/1991 before this Court. The learned Judge has also confirmed the findings of the Reference Court. Hence this Second Appeal. 7. After hearing both sides and perusing the records, we are of the view that the findings and conclusions reached by the courts below do not call for any interference at our hands. 8. Here the subject matter of a kudikidappu has been compulsorily acquired by the State during the pendency of O.A.No.17/1983 filed by the appellant for purchase of kudikidappu by her. The guiding principles for award of compensation in such a contingency are to be obtained under Section 112 of the K.L.R Act. For the purpose of this appeal, it will be sufficient if we extract the said section up to sub-section 9. Section 112(1) to (4) read as follows:- 112. Apportionment of land value in case of acquisition:- (1) Where any land is acquired under the law for the time being in force providing for the compulsory acquisition of land for public purposes, the compensation awarded under such law in respect of the land acquired shall be apportioned among the landowner, intermediaries, cultivating tenant and the kudikidappukaran in the manner specified in this section. (2) The compensation for any building or other improvements shall be awarded to the person entitled to such building or other improvements. (3) The kudikidappukaran shall be entitled to the value of the land occupied by his homestead or hut subject to a minimum of - (a) three cents in a city or major municipality or (b) five cents in any other municipality; or (c) ten cents in a panchayat area or township. (4) The difference between the value of three cents or five cents or ten cents, as the case may be, and the value of the extent of the land occupied by the homestead or hut shall, notwithstanding anything contained in the Kerala Land Acquisition Act, 1961, be borne by the Government or the local authority or the company or other person on whose behalf the land is acquired. 10. The kudikidappu in question being in a panchayat area the appellant was entitled to 10 cents. The appellant did not adduce any satisfactory evidence to show that the hut which was situated in the kudikidappu in question or the other improvements standing thereon were put up by her. Hence by virtue of subsection 2 of Section 112 of the KLR Act the courts below held that the compensation for the building and their improvements shall be paid to claimants 1 to 4. With regard to the value of the land occupied by the kudikidappu the appellant has been held entitled to the compensation as provided under subsection 3 of Section 112. It is true that the application for purchase of kudikidappu was filed by the appellant before the commencement of the land acquisition proceedings. But then the fact remains that even before a certificate of purchase could be issued to her under Section 80C(2) of the KLR Act, the supervening land acquisition proceedings divested her of the right to purchase the kudikidappu. Hence it was not permissible for the Land Reforms Authorities to issue a certificate of purchase to her. Unlike certain other statutes, the Kerala Land Reforms Act does not provide for the principle of relating back in respect of an order for purchase of kudikidappu alone could she have claimed that a certificate of purchase should be issued to her with a date as that of her application. Hence we do not find any good reason to interfere with the judgment and decree passed by the learned Judge. This appeal is accordingly dismissed. However, having regard to the facts of the case, particularly, the unfortunate position of the appellant who could not get a certificate of purchase due to the intervening land acquisition proceedings, we direct the parties to bear their respective costs. |
A.F.A. No. 97 of 1993 - Padinhare Purayil Janaki & Anr. Vs. State of Kerala & Ors., 2012 (1) KLT 266 : 2012 (1) KHC 196posted Jan 28, 2012, 11:14 PM by Kerala Law Reporter [ updated Jan 28, 2012, 11:14 PM ] |
