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1978 DIGILAW 105 (KER)

GOVINDANKUTTY MENON v. STATE

1978-04-05

P.SUBRAMONIAN POTI

body1978
Judgment :- 1. The petitioner before me is the owner of land comprised in Sy. No. 1101/2 in Ayyanthole Village. He is residing in a house of his own in the said land. In the eastern corner of that land there is a Kudikidappu occupied by respondents 3 to 5. The petitioner filed an application for shifting that kudikidappu to 10 cents in Sy No. 1247/1 of the same village. The application was under S.75 (2) and 77 of Act 1 of 1964. The case of the petitioner in that application, O. A. 1092 of 1973, was that the petitioner was living with his children in his house and that he wanted to construct buildings for the separate residence of his children. This application was contested by the kudikidappukars. Among other pleas it was also contended by the kudikidappukars that the land was not bonafide required by the petitioner for construction of buildings for the children. It was also contended that leaving out the site of the kudikidappu there was sufficient area available for construction of building. Though in the petition what was averred was that the petitioner required the land for enabling him to construct buildings for his children, in the evidence his case was that he proposed to construct a building for his daughter who was living with him and whose husband was away at Hyderabad. Ext. P1 is the copy of the shifting application and Exts. P2 and P3 are the objections filed by respondents 3 to 5. It was contended by respondents 3 to 5 that they were living in the kudikidappu for the past 35 years, that the building occupied by the petitioner was big enough to accommodate bis wife and two children and that without disturbing the kudikidappu any building could be constructed in the plot The Land Tribunal came to the conclusion that the evidence indicated that the kudikidappu was situate in the eastern corner and that it has not been shown in the case that the very site of the kudikidappu was required for the purpose of construction. In this view the application was dismissed. That is challenged in this Original Petition by the landlord. 2. In this view the application was dismissed. That is challenged in this Original Petition by the landlord. 2. The right of a landowner to seek shifting of kudikidappu has come up for consideration in a number of cases before this court and differing views have been taken by the learned judges of this court on different occasions. I would assume that the position is more or less well settled now by the Full Bench decision of this Court in Korumban v. Land Tribunal, Tellicherry & others (1976 K.L.T. 765), a case which has reviewed all the earlier decisions on this subject. Of course I notice a decision of the Division Bench speaking on the question again and as I will presently show, with great respect to the learned judges, what has been said by the Division Bench appears to be contrary to the views expressed by the Full Bench of this Court. 3. Before I refer to the decisions I think it will be profitable to refer to the relevant section of the Land Reforms Act. 3. Before I refer to the decisions I think it will be profitable to refer to the relevant section of the Land Reforms Act. S.75 (2) of the Act runs as follows: "(2) Notwithstanding any thing contained in sub-section (1), the person in possession of the land on which there is a homestead or but (hereinafter in this sub-section referred to as the landlord) in the occupation as a kudikidappukaran may, if he bona fide requires the land - (a) for building purposes for himself or any member of his family including major sons and daughters, or (b) for purposes in connection with a town planning scheme approved by the competent authority; or (c) for any industrial purpose, require the kudididappukaran, to shift to a new site belonging to him subject to the following conditions, namely: (i) the landholder shall pay to the kudikidappukaran the price of the homestead, if any erected by the kudikidappukaran; (ii) the new site shall be fit for erecting a homestead and shall be within a distance of one mile from the existing kudikidappu; (iii) the extent of the new site shall be the extent of the existing kudikidappu subject to a minimum of three cents if within the limits of a city or a major municipality, five cents if within the limits of any other municipality and ten cents if any panchayat area or township; (iv) the landlord shall transfer ownership and possession of the new site to the kudikidappukaran and shall pay to him the reasonable cost of shifting the kudikidappu to the now site. Where the above conditions are complied with the kudikidappukaran shall be bound to shift to the new site. In a case where the requirement is for constructing a building for the residence of the landholder or for the residence of any member of his family the landholder will be entitled to seek shifting of the kudikidappu if he shows that he bonafide requires the land for the purpose subject to his offering a new site belonging to him, a site which satisfied the requirements mentioned in that sub-section. In this context 1 may refer to what a Division Bench of this Court said in regard to the right of a kudikidappukaran in the decision in Cheekutty v. Land Tribunal, Alangad (1975 KLT 628). In this context 1 may refer to what a Division Bench of this Court said in regard to the right of a kudikidappukaran in the decision in Cheekutty v. Land Tribunal, Alangad (1975 KLT 628). The Division Bench said thus: "Considering the scheme envisaged in these provisions it cannot be said that the right given to the person in possession of the land on which the kudikidappu is situate (for sake of convenience we may refer to him here as landowner) to move for shifting of a kudikidappu is such that it is fairly destructive of the right conferred on the kudikidappukaran, that of fixity in regard to his kudikidappu. Fixity being the rule, when a person seeks to shift the kudikidappu it is up to him to show the existence of the conditions specified in S.75(2) which gives him the right to move the court for shifting. One of the conditions is that the landowner bonafide requires the land for building purposes for himself or any member of his family including major sons and daughters. It is not sufficient if the landowner claims the land for such purpose but the requirement must be bonafide and if the matter comes before a court or Tribunal and the parties are at issue on this question, this called for a decision. Can it be said that though the landowner is possessed of other lands in which he could conveniently construct buildings if he desires to construct the buildings in the very site where the kudikidappu is situate his requirement is bonafide within the meaning of S.72(2)? Even in the property in which. the kudikidappu is situate there may be sufficient area to construct building without disturbing the a kudikidappu. Could it be said that simply because the landowner really desires to construct a building is the site where the kudikidappu is situate he would be entitled to seek shifting of the kudikidappu. May be the need for construction of a house for himself or for any member of his family is bonafide. The landowner may honestly want to construct a building for such purpose and therefore the requirement of construction could be said to be bonafide. But be may have other available land and there may be no particular reason way he should choose the site of the kudikidappu for constructing the building. The landowner may honestly want to construct a building for such purpose and therefore the requirement of construction could be said to be bonafide. But be may have other available land and there may be no particular reason way he should choose the site of the kudikidappu for constructing the building. In that event though the requirement for construction purpose is bonafide the requirement of the site where the kudikidappu is situate cannot be bonafide." Eradi J. in Abdul Rahiman v. Ramu (1974 KLT 741) had in dealing with the scope of the section said thus: "The prayer for shifting is liable to be granted only after the Tribunal is satisfied that the land holder requires the land, viz., the site of the homestead occupied by the kudikidappukaran, for the purpose of erecting a residential house for himself." The same idea was expressed by me in the decision in Varkey Thomas v. Land Tribunal, Pampakuda (1974 KLT 759) thus: "It is not difficult to notice the emphasis in sub-s. (2) to the requirement of "the land". That section indicates that the person in possession of the land on which there is a homestead or but in the occupation of a kudikidappukaran may, if he bonafide requires the land for certain purposes apply for shifting. The reference to the possession of the land on which there is a homestead or but is followed by the reference to requirement of the land. In other words, the requirement must be of the land on which there is a homestead or hut. It can admit of no serious doubt that the land-lord should establish not only that he bonafide requires some land for one or other of the purposes mentioned in the section, but that he bonafide requires "the land" for that purpose. In the context of the earlier reference to the land as that in which there is a homestead or hut, the words "the land" occurring again in the sub-section can mean and can only mean the site of the homestead or hut. May be, the site on which the kudikidappu is situate is required by the landlord for the purpose of construction particularly because of its location. Or its situation may have relevance to his profession. It is possible to conceive of many such similar situations. The section enables the landlord in such cases to seek shifting. May be, the site on which the kudikidappu is situate is required by the landlord for the purpose of construction particularly because of its location. Or its situation may have relevance to his profession. It is possible to conceive of many such similar situations. The section enables the landlord in such cases to seek shifting. In other words, it is open to the landlord to show that, notwithstanding the fact that he possesses other lands on which be could have constructed buildings for the purposes mentioned, the land on which the kudikidappu is situate is the most suitable site. In such cases, notwithstanding the possession of other land he will be able to establish that he requires "the land". Once it is shown that his requirement will be satisfied only by the land on which the kudikidappu is situate or that it is that land which will meet his requirement most satisfactorily it will not be an answer to say that the landlord should nevertheless choose some other land in his possession This I understand to be the position and this, according to me, would be consistent with the scheme of the provisions relating to fixity granted to the kudikidappukaran under the Kerala Land Reforms Act 1 of 1964," The reference of this question to a Full Bench was necessitated because of what was felt to be an expression of two different views, that in Cheekutty v. Land Tribunal, Alangad (1975 KLT. 628) on the one hand and the views expressed in V. J. Mathukutty v. Ouseph Thomas (1976 K LT. 120) on the other. I was a party to the earlier decision and Govindan Nair C. J. was a party to the later decision and both of us sat in the Full Bench case along with Narayana Piliai, J. We considered the gamut of decisions on this point in the case that arose before the Full Bench. Though what was expressed by the Division Bench in V. J Mathukutty v. Ouseph Thomas (1976 KLT. 120) might have given rise to some doubt, Govindan Nair C. J. explained the position in the Full Bench in Korumban v. Land Tribunal, Tellicherry & Others (1976 KLT. 765). Though what was expressed by the Division Bench in V. J Mathukutty v. Ouseph Thomas (1976 KLT. 120) might have given rise to some doubt, Govindan Nair C. J. explained the position in the Full Bench in Korumban v. Land Tribunal, Tellicherry & Others (1976 KLT. 765). Speaking for himself and Narayana Pillai J. my learned brother Govindan Nair C. J. said thus in that case: "We have already said that a bona fide requirement is not identical with mere honest intention or desire. There must be an element of need from the point of view of the landlord established. This being so, the existence of other suitable sites for building is certainly a factor which the Land Tribunal can take into account in deciding whether the claim of the landlord that be bona fide requires "the land" is acceptable or not." Again the learned judge after quoting a passage from 1976 KLT 120 which had given rise to some doubt, said thus: "This passage has to be read subject to what we have stated is Para.7 above. The landlord will have to establish the element of need of the particular land in which the kudikidappu is situate This need will have to be judged with reference to the needs of the particular landlord for preference of the land in question on understandable grounds. It is not enough if the landlord entertains a genuine intention to construct the building on the land. What is necessary is that there should be an element of need for "the land", for one of the purposes enumerated in clauses (a), (b) and (c) of subsection (2) of S.75 of the Act as far as the landlord was concerned. In the light of what we have already said towards the end of Para.7, the element of need which a landlord must establish has to be viewed also with reference to the peculiar circumstances in which he is placed and not with reference to the needs of a hypothetical reasonable man We have explained this aspect at some length towards the end of Para.7 and the example with reference to the facts in O. P. No 962 of 1975, one of the cases before us for decision, would provide the guideline in determining the question of what is meant by the expression that the landlord "bona fide requires the land". Again in the same judgment the learned judge said in para 14 thus: "Whenever a shifting of a kudikidappu is sought under Sub-section (2) of S.75 it will have to be shown that "the land" is required for one of the purposes in clauses (a), (b) and (c). The land will take in the entire land on which the kudikidappu is situate and necessarily therefore the site of the kudikidappu. If the entire land including the site of the kudikidappu or any part of it is not required bona fide, the application will have to be rejected. So the question will always arise whether the site of the kudikidappu in the sense the plinth area of the but or the homestead as well as the limited portion of the land around it or any part of it is also required along with the other portion of the land. This is a matter that has to be considered and decided. In other words, the applicant will have to show that for the purposes as enumerated in clauses (a), (b) or (c) he requires bona fide the whole of the land including the site of the kudikidappu or any part of it situated in the land. But it is not necessary to establish that the building will have to be erected on the particular portion of the property which is in the occupation of the kudikidappukaran" Dealing with this question, I, speaking for myself, said in the said decision: "It appears to be evident from S.75(2) that in the event of a contest the proof by a landholder must be of the need for shifting the kudikidappu from its existing location to another suitable site in order to satisfy one or other of the purposes mentioned in sub-section (2) of S.75. It would be necessary to show that the whole of the property in which the kudikidappu is situate or part of that property including the site is required for such purposes. The landholder may have extensive lands available for the use for which he seeks shifting of the kudikidappu from its site. Any of such lands might be used with equal advantage. If so one would naturally ask why the site of the kudikidappu is required. It would not be an answer to say that the landholder desires that it should be so. Any of such lands might be used with equal advantage. If so one would naturally ask why the site of the kudikidappu is required. It would not be an answer to say that the landholder desires that it should be so. It will be difficult to read bona fide need in the circumstances unless something more is shown. The preference may be because the other lands in the possession of the landholder may not be suitable and it may be that the site of the kudikidappu is therefore more desirable," I think, in the limit of the Full Bench decision it cannot be said that it is not open to the Land Tribunal to determine whether the site of a kudikidappu is required by an applicant to construct a building of his own. 4. Learned counsel Sri. P. R Nambiyar has relied on a decision of the Division Bench of this court in Kochu Narayanan v. Kunji Moidu & Others (1978 KLT. 67) in which nay learned brother Gopalan Nambiyar C.J. speaking for the Division Bench said thus on this question: 'Neither of the reasons stated by the Tribunal can be sustained. Both disclose patent errors of law and a fundamentally wrong approach to the question. As we have had occasion repeatedly to point out, the right of shifting a kudikidappukaran is a statutory right conceded "to a person in possession of land on which there is a homestead or a hut" under S.75(2) of the Land Reforms Act, provided the conditions required by the Section are complied with and a suitable alternate site is provided for the kudikidappukaran to shift. Once these are complied with, we do not see any room for the Tribunal to state that the kudikidappukaran may well continue on ten cents of land in the property and the applicant may content himself with the rest, in satisfaction of his bona fide requirement. It is not the province of the Land Tribunal to dictate the measure or the extent of land on which an applicant in possession is to build his residential house for which he alleged bona fide requirement. The applicant is not to tailor bis requirements to suit the tastes and specifications of the Tribunal. These are matters for the applicant to decide for himself. The applicant is not to tailor bis requirements to suit the tastes and specifications of the Tribunal. These are matters for the applicant to decide for himself. It is of course open to the Tribunal, taking into account the proved facts and circumstances to decide whether the alleged bona fide requirement has been made out, and either to reject or to allow the application. But there is no right on the Tribunal to yoke an unwilling applicant with a kudikidappukaran and direct both to continue, on the Tribunal's fanciful notions of peaceful coexistence or otherwise. The very object of the provision is to enable the applicant to get rid of the kudikidappu and seek to live in peace. That can be had at a certain price, and on certain terms and conditions which it is for the Tribunal to adjudge. We have had occasion to emphasise this aspect of the matter more than once. From that point of view it appears to us that the Land Tribunal and the learned judge were wrong in directing that the applicant may well content himself with the land left after giving ten cents of land to the kudikidappukaran and that there was no need for him to seek a shifting from the entire extent of 2 acres and 14 cents." The writ appeal before the Division Bench was against the decision of Bhaskaran J. in O. P. 1338 of 1973. The learned single judge observed that, as rightly pointed out by the Land Tribunal, the land available with the petitioner setting apart the ten cents, of land occupied by the kudikidappukaran, will be sufficient to construct a house for his son and in that view it cannot be said that the order passed by the Land Tribunal is wrong. It may be noticed that the case was one where the Land Tribunal rejected the application for shifting the kudikidappu first on the ground that the applicant was a minor and therefore the requirement of eviction of the kudikidappukaran was not immediate and secondly on the ground that since the property was of an extent of 2 acres and 14 cents, it was possible to accommodate the kudikidappukaran on ten cents of it and still construct a building on the land. The learned judge who beard the Original Petition challenging this order of the Land Tribunal did not find any reason to interfere with the order of the Tribunal. But the Division Bench took a different view and allowed the appeal setting aside the order of the learned judge and also of the Tribunal. It was in this context that the above said observations were made by the Division Bench. 5. With great respect to the Division Bench I cannot agree with the observation that "The very object of the provision is to enable the applicant to get rid of the kudikidappu and seek to live in peace." May be this is a matter of a social philosophy. I, for one, cannot subscribe to the view that the lawmakers were inspired by the need to allow a landowner to "live in peace" in making the provision for shifting. The view expressed by the learned judges, with great respect, is I may say, contrary to the view expressed by the Full Bench of this court. The tribunal in the case before the Division Bench had held that out of the 2 acres 14 cents in which the kudikidappu was situate, leaving out the 10 cents for the balance kudikidappu may be sufficient to accommodate a building It was not on the basis of any finding that balance would not be sufficient to conveniently accommodate a new building that the Division Bench has interfered, but on the approach that "it is not the province of the Land Tribunal to dictate the measure or the extent of land on which an applicant in possession is to build his residential bouse for which be alleged bonafide requirement." If as contended by learned counsel that if the principle or rule laid down by the decision of the Division Bench, that goes contrary to what I have said here. With great respect, I disagree and I have necessarily to respect the views of the Full Bench with which I am in agreement. Had it been that on a principle not governed by the Full Bench the learned judges of the Division Bench had spoken I would have referred this case to a Larger Bench. But that evidently is not the case. 6. Had it been that on a principle not governed by the Full Bench the learned judges of the Division Bench had spoken I would have referred this case to a Larger Bench. But that evidently is not the case. 6. The Tribunal in the case before me could not be said to have properly considered the question that arose for decision before it or approached the facts of the case properly. The landowner was possessed of 68 cents of land in addition to wet land. In the 68 cents he is residing. A portion of the eastern side is occupied by the kudikidappukaran. That was what the Tribunal has held as sufficient to dismiss the application. But as to whether in the balance a building could be constructed is a matter to be decided taking into account relevant circumstances. The position in life occupied by the landowner for instance, would be of relevance, for, that would determine the nature of the building that he could normally intend to construct. The situation of the land such as whether it is in a city, a town or a village may also have bearing. The nature and lie of the property in which the kudikidappu is situate is also a relevant factor. That is the reason why I have expressed the view that the ultimate decision must be a question of fact. It is not possible to lay down any hard and fast rule as to the extent of the land in which the kudikidappu is situate which would justify asking the kudikidappu to be retained or to be shifted. In the light of the decision of the Full Bench the question calls for a fresh approach by the Tribunal. That is necessary also because learned counsel Sri. Mohsin seeking to support the order of the Tribunal brought to my notice the case pleaded by his party that the plea of construction of the building for the daughter was not bonafide. If that was the real intention, it is argued, that would have been stated in the petition. Reference in the petition is to 'buildings' in plural. The case of building for a daughter is said to be a subsequent development. The cross examination of the petitioner was also intended to suggest that requirement was not bona fide. That has also not been noticed by the Tribunal. Reference in the petition is to 'buildings' in plural. The case of building for a daughter is said to be a subsequent development. The cross examination of the petitioner was also intended to suggest that requirement was not bona fide. That has also not been noticed by the Tribunal. The question therefore is not only whether in the circumstances taking into account the nature of the holding the kudikidappu has to be shifted but whether there was bonafide requirement for shifting. These are questions on which there has not been a proper approach by the Tribunal and therefore the question calls for fresh consideration. The order of the Tribunal is, therefore, set aside and the matter is remitted back to it for a proper consideration, in the light of my observations in this judgment. Parties are directed to suffer costs. Allowed.