KANNAN v. LAND TRIBUNAL — 1978 DIGILAW 160 (KER)

Judgment :- 1. Two questions arise for determination in this writ petition. The petitioner is a kudikidappukaran. The first respondent is the Land Tribunal, Shertallai. The 2nd respondent is now the owner of the property. The kudikidappu is situated in a property jointly owned by him and his mother The mother is no more now. He and his mother filed O S No. 447 of 1970 on the file of the Munsiff's Court, Shertallai under S.77 of the Kerala Land Reforms Act, for short, the Act, to shift the kudikidappu to another site, for the bona fide requirement of constructing a building on the property, for his eldest son. 2. The petitioner contended that the requirement is not bona fide, that the new site offered is not fit for erecting a homestead and that the same is more than one mile away from the kudikidappu property. It was further contended that he belongs to the Pulaya community, a scheduled caste, and that therefore he cannot be evicted under S.3 of the Kerala Prevention of Eviction Act, Act 12 of 1966, notwithstanding S.77 of the Act. 3. During the pendency of the suit, the case was transferred to the Land Tribunal and it was re-numbered as O A. No. 439 of 1971. The Land Tribunal passed Ext.P-1 order upholding the bona fide requirement urged, directing the petitioner to shift. This writ petition is directed against Ext. P-1 order. 4. Two grounds are pressed before me by the petitioner's counsel. The first is that the petitioner cannot be evicted under S.3 of Act 12 of 1966 since he is a member of scheduled caste. According to him, this contention is based on the plea that shifting tantamounts to eviction. The bar against eviction of members of the scheduled castes contained in S 3 Act 12 of 1966 has not been taken away by the Land Reforms Act. Hence Ext. P-1 violates S.3 of Act 12 of 1966. 5. The second point, which was not taken before the Land Tribunal, is based on S 75(2) of the Act. This section provides for the making of an application for shifting "for his own residence", or for the residence of any member of his family including major sons and daughters. The contention is that the bona fide requirement urged is for the son of the 2nd respondent. This section provides for the making of an application for shifting "for his own residence", or for the residence of any member of his family including major sons and daughters. The contention is that the bona fide requirement urged is for the son of the 2nd respondent. The property belonged at the time when the petition was filed to the 2nd respondent and his mother The 2nd respondent's son cannot be said to be a member of 2nd respondent's mother's family and therefore the shifting petition should have been dismissed. 6. The first question discussed by the Land Tribunal as issue No. 5 was disposed of as follows: "I am of the opinion that Act 12 of 1966 prohibits eviction, whereas S.75 (1) of the KLR. Act permits only shifting which is only transplantation, so this issue is found in favour of the applicant". 7. S.3 of Act 12 of 1966 reads at follows: "3. Prevention of eviction. Notwithstanding anything to the contrary contained in any other law or in any contract, custom or usage, or in any judgment, decree or order of Court, no person shall evict or attempt to evict a cultivating tenant or holder of a kudiyiruppu or kudikidappukaran from his holding, kudiyiruppu or kudikidappu if such tenant or holder is a member of any scheduled caste or scheduled tribe; Provided that nothing in this section shall apply to (i) lands or buildings or both belonging to or vested in the Government of Kerala or the Government of any other State in India or the Government of India or a local authority or a Corporation owned or controlled by the Government of Kerala or the Government of any other State in India or the Government of India. (ii) any lease of land or building or both granted by the Administrator-General, Official Trustee or Official Receiver". 8. It is not disputed that the petitioner is a member of a scheduled caste. If shitting is the same thing as eviction, the petitioner is entitled to succeed If shifting and eviction are not the same, this contention has to fail. Under S.2 of Act 12 of 1966, "eviction" shall have the meaning assigned to it in the Kerala Land Reforms Act, 1963, Act I of 1964 S.2 (12) of the Act defines "eviction" as the recovery of. Under S.2 of Act 12 of 1966, "eviction" shall have the meaning assigned to it in the Kerala Land Reforms Act, 1963, Act I of 1964 S.2 (12) of the Act defines "eviction" as the recovery of. possession of land from a tenant or the recovery of a kudikidappu from the occupation of a kudikidappukaran. The above definition, if properly construed, clearly creates a dichotomy between possession of land by a tenant and the occupation of land by a kudikidappukaran In other words, the kudikidappukaran's right in the property is referred as occupation, which in law is different from possession. The rights conferred on a kudikidappukaran by the Act are special rights, which under the general law, he has not. Eviction generally is a right which a person owning land has, to recover the property from his tenant or a trespasser on the strength of his title. The right to shift a kudikidappukaran is not on the strength of such title. It is by virtue of the statutory provision contained in S.75(2) That shifting is not the same thing as eviction is clear from the procedure laid down in S.77. S.77 (3) provides that if the kudikidappukaran does not shift pursuant to the order of the Tribunal, the Land Tribunal shall cause the kudikidappukaran to be evicted from the kudikidappu. Thus the Act deliberately makes a distinction between shifting and eviction. R.72A of the Kerala Land Reforms (Tenancy) Rules also brings out this distinction. What is more, in the case of eviction a person who is evicted loses the right which he had on the property. The paramount title-holder, on the strength of his title, recovers the property, from the person in possession and thereafter a person who is evicted does not get any right in the property so evicted. But a kudikidappukaran, who is ordered to be shifted, has to be given a new site, belonging to him. In other words, S.75 (2) provides for the rehabilitation of the kudikidappukaran ordered to be shifted, to a new site with full ownership. Therefore, the consequence of eviction under the general law, is not available when an order for shifting is passed. Thus, the concept of eviction and that of shifting in the Act are entirely different and cannot be equated with one another. 9. Therefore, the consequence of eviction under the general law, is not available when an order for shifting is passed. Thus, the concept of eviction and that of shifting in the Act are entirely different and cannot be equated with one another. 9. The petitioner's counsel would contend that S.75 (1) provides that a kudikidappukaran shall not be evicted except on the grounds mentioned therein. So what? S.75 (2) also contains a non obstante clause enabling a person in the possession of the land in which there is a homestead or but to file an application to shift the kudikidappukaran. 10. It was contended by the respondents' counsel that the Legislature was aware of the existence of S 3 of Act 12 of 1966 when it enacted S.75 (2) of the Act. S.75 (2) does not exempt a person, who is a member of the scheduled castes, from being shifted to another site The two sections must be read harmoniously and if so read, there is no conflict in their operation, since the areas of operation of the two sections are different. One concerns with eviction while the other with shifting One protects him from eviction, while the other confers on him a right in an alternate site. The consequences of the two sections are different. 11. The apparent conflicts between the two statutes of a State Legislature fell for consideration by the Supreme Court in Swaran Singh v. Kasturi Lal (AIR. 1977 SC. 265) It was held that when such conflicts occur, it is the object and purpose of a legislation that should assume greater relevance if the language of the law is obscure and ambiguous If the language of the law is not ambiguous, the law as it speaks should prevail. Here the language of the law is clear and the object and purpose of the legislation are seen clearly reflected in the scheme of the two sections of the two Acts. In resolving such interse conflicts, one other test to be applied is that the later enactment must prevail over the earlier. 12. The second point urged for the first time before me, is that a grandson cannot be said to be a member of the grandmother's family and that the joint application by the mother and the son for the bona fide requirement of the grandson cannot be brought within the ambit of S.75(2) of the Act. 12. The second point urged for the first time before me, is that a grandson cannot be said to be a member of the grandmother's family and that the joint application by the mother and the son for the bona fide requirement of the grandson cannot be brought within the ambit of S.75(2) of the Act. Before considering the legal aspect, it is necessary to refer to the facts of the case. The suit was filed by the mother and the 2nd respondent. The bona fide requirement was for the 2nd respondent's son. By the time Ext. P-1 order was passed, the mother died and the 2nd respondent became the sole owner of the property. The contention now raised can be easily met by saying that at the time the application was disposed of, the only party before the Land Tribunal was the 2nd respondent. He was the absolute owner of the property. His major son can clearly come within the expression "a member of his family". The petitioner's counsel would contend that the proper time to be reckoned for consideration of the applicability of the section is not when the matter was disposed of, but when the application was filed. According to him, subsequent events cannot be taken note of, to defeat the claim of a kudikidappukaran. For the purpose of this petition, I do not want to rest my judgment on this short point, though I am inclined to hold that in such cases subsequent events like the death of the mother leaving the son alone as absolute owner of the property, can be taken note of. 13. I will therefore proceed on the footing that the property belonged to the mother and the son. They are co-owners. Under the general law, if a property is owned by co-owners, each co-owner is presumed to own every part of the property; not so when the property is owned by joint tenants. But even in cases of joint family it has been held that one member of the joint family can seek eviction of a tenant for the bona fide requirement of one of the members. Regarding co-owners, the said rule should apply more. It has been held in Teg Singh . Charan Singh (AIR. 1977 SC. But even in cases of joint family it has been held that one member of the joint family can seek eviction of a tenant for the bona fide requirement of one of the members. Regarding co-owners, the said rule should apply more. It has been held in Teg Singh . Charan Singh (AIR. 1977 SC. 1699), which was a case under the Rent Control Act, that an application for the bona fide requirement for eviction of a tenant by one co-owner can be maintained though the other co-owner does not need the property. Therefore, it does not He in the mouth of the petitioner to contend that simply because the property was owned by the grandmother at the time the petition was filed, the bona fide requirement cannot be urged by her son for the latter's son. It cannot be denied that the 2nd respondent's son is a member of his family. S.75(2) clearly provides that the bona fide requirement can be of himself or the adult members of his family. I hold that an application for the bona fide requirement of a member of a family of one of the owners is maintainable under S.75(2). The second contention also has therefore to fail. 14. There was a fervent appeal by the petitioner's 'counsel that the second point which he raised may be allowed to be agitated before the Land Tribunal. In ray view it will only be putting off the evil day. I therefore decline the request. In the result, the writ petition has to fail and is dismissed. No costs. Dismissed.