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1978 DIGILAW 287 (KER)

JANAKY v. ADDL. LAND TRIBUNAL, KUTHUPARAMBA

1978-10-27

G.BALAGANGADHARAN NAIR, V.P.GOPALAN NAMBIYAR

body1978
Judgment :- 1. The appeal is against the judgment of a learned judge who dismissed the appellant's writ petition to quash the order of the Land Tribunal, Kuthuparamba, dismissing the appellant's application to shift a kudikidappukaran under S.75(2) of the Land Reforms Act. The shifting was prayed for on the ground that the applicant required the land bonafide for constructing a residence for herself and children. The Revenue Inspector inspected the kudikidappu, and the alternative site offered to the kudikidappukaran, and filed a report regarding the two sites. The report was kept for objections. The Tribunal records that no claim or objections to the report was received. The Special Revenue Inspector reported that the alternative site offered for shifting was suitable. He further reported that the appellant had 1.20 acres of land in Ambilad desom (same desom as the one where the kudikidappu sought to be shifted is situated), and that her husband had a joint right of an extent of 61 cents and 79 cents of land in Naravoor desom. Considering the Report and the other circumstances, the Tribunal recorded that the appellant had not shown why she required the site of the kudikidappu for building the house for herself and her children, and that if she wanted to build a house for the said purpose, she could as well build in the remaining 36 cents of the property after excluding the ten cents occupied by the kudikidappu, or in the 1.20 cents of the other property in the same desom, referred to in the Revenue Inspector's Report. It was on these considerations that the Land Tribunal dismissed the appellant's application. 2. In the writ petition filed to quash the Land Tribunal's order serious objection was raised to the Land Tribunal's statement that no objection was filed to the Revenue Inspector's Report. That is supported by an affidavit of the Advocate who appeared before the Tribunal to the effect that the Report was posted for objections on 1112 1974 and that on the very same day, the Tribunal disposed of the matter without allowing the appellant an opportunity to file his objections. The learned judge had noticed this plea raised by the appellant, but failed to express any opinion on the same. The learned judge had noticed this plea raised by the appellant, but failed to express any opinion on the same. The learned judge was of the view that as the Tribunal had stated that the appellant could well build on the other land in respect of which she was shown to have rights, or on the remaining portion of the land sought to be recovered after excluding ten cents for the kudikidappu, there was no ground to interfere as there was no jurisdictional error, nor any patent error of law to warrant interference under Art.226. 3. We are unable to agree with the learned Judge. We think the approach made by the Tribunal to the consideration of the question of bonafide requirement of the appellant was completely wrong and vitiated its conclusion on the question. Recently, on more than one occasion, Division Benches of this court have emphasised, the principles to be followed by the Land Tribunal and the approach to be made by it in dealing with applications for shifting kudikidappu. One such decision is reported in Kochu Narayanan v. Kunji Moidu & others (1978 KLT. 67). It was there observed: 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 home-stead 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 bonafide 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 bonafide requirement. The applicant is not to tailor his 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 his 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 bonafide 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 co-existence or otherwise. The very object of the provision is to enable the applicant to get right 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 the point of view of the principles thus laid down by the Division Bench, it seems to us clear that the approach made by the Tribunal in the instant case was wrong. We are also of the view that the learned Judge was wrong in having refused to exercise his jurisdiction under Art.226 of the Constitution, to interfere with the order of the Tribunal. 4. Counsel for the appellant called our attention to a recent decision of our learned brother Poti J. in Govindankutty Menon v. State & Others (1978 KLT. 488) and canvassed the correctness of the said decision. The learned judge there referred to the provisions of the Land Reforms Act and to certain decisions leading up to the Full Bench decision in Korumban v. Land Tribunal, Tellicherry & Others (1976 KLT. 765). 488) and canvassed the correctness of the said decision. The learned judge there referred to the provisions of the Land Reforms Act and to certain decisions leading up to the Full Bench decision in Korumban v. Land Tribunal, Tellicherry & Others (1976 KLT. 765). After quoting the majority judgment of Chief Justice Govindan Nair and Justice P. Narayana Pillai, and the separate concurring judgment of himself, the learned judge observed at page 493 (para 3): "I think, in the light (?) 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." The observations of the Full Bench are to the effect that the, bona fide requirement should be established with respect to the whole land, including the site of the kudikidappu, or any part of it situate on the land. Govindan Nair C. J. in his judgment further observed: "If the entire land including the site of the kudikidappu or any pari of it is not required bona fide, the application will have to be rejected". The relevant passage is noticed by Poti J. in Para.3 of his judgment in Govindankutty Menon v. State & Others (1978 KLT. 488). We are not reproducing the same. It was with due regard to the above principle that the Division Bench stated that "it is not the province of the Tribunal to dictate the measure or the extent of the land on which the applicant in possession is to build his house, and for which he alleged bona fide requirement". We do not find this in any way inconsistent with the principle stated by the Full Bench, as Poti J. seems to think in Para.5 of his judgment, which we extract. Observed Poti J.: "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. T, for one, cannot subscribe to the view that the law makers were inspired by the need to allow a landowner to "live in peace" in making the provision for shifting. T, for one, cannot subscribe to the view that the law makers 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 house for which he alleged bona fide requirement". If as contended by learned Counsel that is 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 view 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." We have given this matter our careful consideration. We feel that the learned judge has misunderstood the Division Bench ruling and was wrong in not following the same. We regret that the learned judge confounded a statement of the law with as exposition of philosophy. We do not find any inconsistency between the principle of the Full Bench and Division Bench rulings. Both recognize the right of the Tribunal to decide the bona fide requirement with respect to the whole land, and the Tribunal's right to reject the application if it finds the bona fide requirement not "established. But how does the Tribunal get the right, in an application to recover possession for bona fide requirement of the the whole land, to confine the requirement to the whole minus the site of the kudikidappu? But how does the Tribunal get the right, in an application to recover possession for bona fide requirement of the the whole land, to confine the requirement to the whole minus the site of the kudikidappu? That Would be, not to deal with the applicant's requirement pleaded, but to make out a new requirement for him which the Tribunal has no right to do except with the applicant's consent. It has, of course the right to find or negative the bona fide requirement and deal with the application accordingly. This the Full Bench recognized in the passage which we have stressed, and so did the Division Bench in the passage cited by Poti J in Para.4 of 1978 KLT. 488. We think that the learned judge was wrong in holding that the Division Bench ruling was opposed to, or inconsistent with the principle of the Full Bench decision. Numerous decisions were rendered at or about the time of the Division Bench judgment in Kochu Narayanan v. Kunji Moidu & Others (1978 KLT. 67), dealing with this aspect; There was occasion for the Division Bench, on behalf of which I spoke, sitting with different brother judges, to notice the Full Bench judgment, and to observe that the principle laid down by the Division Bench was quite consistent with what had been stated by the Full Bench. Both these judgments were referred to in many decisions as recent expositions of the principles of law, in the light of which, a re-approach to the questions had to be made by the Tribunal. In none of these, was it even suggested that the principle of the Division Bench judgment was inconsistent with that of the Full Bench. We may refer to the judgments in W. A. Nos. 308 of 1975 (Myself and M. P. Menon J.), W. A. 298 of 1975 (Myself and Narendran J.), W.A. No. 181 of 1975 (Myself and M.P. Menon J.), W. A. No. 442 of 1975 (Myself and Kader J.) and W. A. 287 of 1975 by, the same Division Bench. These are only by way of example, and do not exhaust the catalogue of decisions. 5. These are only by way of example, and do not exhaust the catalogue of decisions. 5. The Land Reforms Act recognises; at least three different types of rights: that of a kudikidappukaran to purchase the kudikidappu ( S.80B ); that of the landlord to shift the kudikidappukaran to a corner of the very same plot on which the kudikidappu is situate (S. 75(1) ) and that of the landlord to recover possession on the ground of bona fide requirement, of the land on which the kudikidappu is situate ( S.75(2) ) after offering a suitable alternative site. The right of purchase of the kudikidappu by the tenant, and the right of recovery of the land by landlord, are both to enable the one to enjoy his rights without being subject or subordinate, to the rights of the other. In that sense "living in peace" by the landlord, on the land recovered, or by the tenant on the kudikidappu purchased, are to us, understandable underlying policies of the law. Our experience would not justify our stating, whatever be the reason, that landlords and kudikidappukars have exhibited a willingness, much the less a desire or fondness to live together on the same land. We allow this appeal, and set aside the judgment of the learned Judge. The result is that the O.P. will stand allowed and the application for shifting will stand remitted back to the Tribunal for fresh disposal in accordance with law and in the light of the observations contained in this judgment. There will be no order as to costs.