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1978 DIGILAW 321 (KER)

LAKSHMANAN v. ARIYAYI

1978-11-29

GEORGE VADAKKEL, V.BALAKRISHNA ERADI, V.P.GOPALAN NAMBIYAR

body1978
Judgment :- 1. This Revision Petition has been referred to a Full Bench to consider the correctness of the ruling of a Division Bench of this Court in Kumaran v. Prabhakaran Pillai (1977 KLT. 53). The matter arises out of an application for purchase of the kudikidappu under S.80-B of the Land Reforms Act. The respondent to that application, whom we may call the 'landlord' is the revision petitioner before us. The application. (O.A. 290 of 1971) was filed on 19-10-1971 by one Malothparambil Ariyayi before the Land Tribunal, Chelannur. In the relevant column the right on which she claimed was described as: right of succession ]n3XpSkmhImiw . This has given rise to a contention on behalf of the revision petitioner that the claim of the applicant was as heir of her mother, Mangot Vayalil Ariyayi, who died only on 9-1-1976, and that an application as heir, on succession to the mother, was not maintainable, when made. The mother was in possession of the properties in question with the permission of the landlord. She had obtained an assignment from the District Welfare Officer, Calicut, on 16-7-1969, of an extent of land, which the revision petitioner claimed to be of an extent of 101/2 cents, and which, the Land Tribunal and the appellate authority concurred in finding to be only ten cents. They have further found that the 10 cents of land so assigned to the applicants mother was fit for putting up a homestead. On these facts, the Land Tribunal and the appellate authority allowed the application for purchase, overruling the only; objection which seems to have raised before them, that the applicant was disqualified by reason of possession of land in excess of the limit indicated by S.2 (25) of the Land Reforms Act. In addition to this objection it was urged before us that the application itself was not maintainable as heir of the applicant's mother, as the mother herself was alive on the date of the application. This latter ground of objection was not raised either before the Land Tribunal, or before the appellate authority and it is manifestly unjust to allow the revision petitioner to raise this objection for the first time at this stage. We are also satisfied that the same should not come within the scope of the limited grounds of challenge available to the revision-petitioner under S 103 of the Land Reforms Act. We are also satisfied that the same should not come within the scope of the limited grounds of challenge available to the revision-petitioner under S 103 of the Land Reforms Act. On these grounds, we overrule this objection. 2. That leaves us with the next ground of objection that the applicant was in possession of lands in excess of the statutory limit fixed by S.2 (25) of the Land Reforms Act. That clause defines "kudikidappukaran". The definition in so far as it is material reads: "(25) "kudikidappukaran" means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any; other municipality or ten cents in any Panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and x x x Explanation II For the purposes of this clause, (a) 'hut' means any dwelling house constructed by a person other than the person permitted to occupy it (i) at a cost, at the time of construction, not exceeding seven hundred and fifty rupees; or (ii) which could have at the time of construction yielded a monthly rent not exceeding five rupees, and includes any such dwelling house reconstructed by the kudikidappukaran in accordance with the provisions of S.79; and (d) 'homestead' means, unless the context otherwise requires, any dwelling house erected by the person permitted to have the use and occupation of any land for the purpose of such erection, and includes any such dwelling house reconstructed by the kudikidappukaran in accordance with the provisions of S.79. The opening paragraph of the definition, on its plain language, seems to require that in order to entitle a person to the status of a kudikidappukaran he should not, interalia, have any land, "exceeding" for the purposes of this case ten cents on which he could erect a homestead. (We are concerned with a Panchayat area). The expression 'homestead' is defined in clause (b) of Explanation II. In term of this Explanation, the applicant was sought to be disqualified as having land 'exceeding' ten cents obtained from the District Welfare Officer. That the land in question did not constitute a'homestead' is clear enough as neither a dwelling house nor any other structure for occupation was erected on it. In term of this Explanation, the applicant was sought to be disqualified as having land 'exceeding' ten cents obtained from the District Welfare Officer. That the land in question did not constitute a'homestead' is clear enough as neither a dwelling house nor any other structure for occupation was erected on it. But it was said that the mere possession of land of an extent of 10 cents would be sufficient to disqualify the applicant. This seems to be difficult, if not impossible, to accept on the language of S.2(25), which requires land "exceeding" ten cents to disqualify the applicant in the instant case. But our attention was called to the Division Bench ruling in Kumaran v. Prabhakaran Pillai (1977 KLT. 53), which construed the clause in the light of certain other provisions of the Act and ruled that even possession of 10 cents of land (to confine to this case) would be sufficient to disqualify an applicant from claiming the status of a kudikidappukaran. The Division Bench expressed itself thus: "The expression "any land exceeding in extent 10 cents in any Panchayat area or township on which he could erect a homestead" in S.2(25) taken in the literal sense supports the petitioner. But a reference to the other sections dealing with kudikidappu as also the scheme of the Act may be necessary in arriving at a final decision." (Para. 4) It then surveyed the provisions of S.75(1)(iv) which fixed the limit of possession of 10 cents of land in a Panchayat or township by a kudikidappukaran as a ground for eviction; S.75(2) which fixed the limit of 10 cents of land for the alternate site to be provided by the landlord for evicting a kudikidappukaran; S.75(4) dealing with shifting of the kudikidappu, where again, the extent of the alternate site was fixed at 10 cents in a Panchayat area; S.80-A dealing with the purchase of kudikidappu and S.80-A(3) providing the extent of land which a kudikidappukaran is entitled to purchase, again at 10 cents in a Panchayat area or township; S.80A(4) which provides the maximum extent for purchase as ten cents in cases where there are more than one kudikidappukars. From a survey of these provisions, the Division Bench reasoned as follows: '6. The Legislative purpose in enacting the provisions relating to kudikidappukars is to see that every person in the State is provided with land for erecting a homestead. From a survey of these provisions, the Division Bench reasoned as follows: '6. The Legislative purpose in enacting the provisions relating to kudikidappukars is to see that every person in the State is provided with land for erecting a homestead. The underlying principle is that three cents of land in a City or major Municipality, 5 cents of land in any other Municipality and 10 cents of land in a Panchayat area or township would be sufficient for erecting a homestead and for the convenient enjoyment thereof. The attempt or endeavour of the law-makers has been to provide the above extent to the needy wherever possible. While this social welfare aspect of the Land Reforms Act should be borne in mind, it should not be forgotten that the Statute is also expropriatory in character so far as land-owners are concerned. It follows that the interpretation to be put to the several provisions should be neither too strict nor too liberal and should be such as to give effect to the purpose of the Statute." By way of further amplifying the point of view, the Bench stated: "9. In the instant case, if the contention of the petitioner is accepted, it would, mean that a person having several blocks of land in a Panchayat each having an extent of ten cents will be a kudikidappukaran entitled to purchase ten cents of land from another person who may possibly own only an extent of less than one acre or even 15 cents or 20 cents. Such a construction is obviously unreasonable. A legislature which considers that in the case of persons living in cities and municipalities an extent of three cents or five cents and in cases falling under S.80A(4) (a), an extent of even less than 3 cents is sufficient for erecting a homestead could not have intended that an extent of over ten cents would be required for putting up a homestead in a Panchayat. It is impossible to contend that 10 cents of land is not sufficient to put up a homestead. Hardly ever 10 cents are taken up for putting up a homestead or but as envisaged by the Act. It is impossible to contend that 10 cents of land is not sufficient to put up a homestead. Hardly ever 10 cents are taken up for putting up a homestead or but as envisaged by the Act. In this case, the alleged Kudikidappukaran has 10 full cents of land which will be quite sufficient for putting up a homestead with enough land to spare as appurtenant lands for the needs of a Kudikidappukaran who is expected to live in a homestead or but of the value mentioned in the statute itself. In these circumstances, it will be impossible to ignore the existence of over 10 cents of paddy land in deciding whether the provisions of S.2 (25) have been attracted or not. An insistence that the land on which the Kudikidappu is to be situate should exceed 10 cents will lead to an ambiguous and an unrealistic position. If a person has 9.999 cents or even 10 cents, he will be a Kudikidappukaran but if he has 10.001 cents he will not be a kudikidappukaran. Such an interpretation no court can accept; it is not warranted by the provisions of the Act to which reference has already been made in the judgment." 3. We are unable to agree with the interpretation placed by the Division Bench on the provisions of S.2 (25) of the Land Reforms Act. We may point out that the first proviso to S.75 (1) of the Act saves a kudikidappukaran from eviction only if the land over which he has ownership and possession is "not more than" 10 cents in a Panchayat area or township". This apart, we do not think we would be justified in attempting to divine the legislative intent by ignoring the clear language of the statutory provision. We are unable to read the words in S.2 (25) which speaks of land exceeding in extent ten cents" as amounting, in effect and in substance, if not in fact, to either ten cents, or not less than ten cents. We are quite unable to agree with the principle of interpretation adopted by the Division Bench, of construing S.2 (25) in the light of the legislative policy discernible from other sections. We would gather the legislative policy from the clear and expressed language of the statutory provision; and cannot allow the clear language to be controlled by considerations of legislative policy. We would gather the legislative policy from the clear and expressed language of the statutory provision; and cannot allow the clear language to be controlled by considerations of legislative policy. We are therefore of the opinion that the decision in 1977 KLT. 53 cannot be taken as laying down correct law on this aspect. We hold that the disqualification to the status of a kudikidappukaran would be attracted only if it is shown that the person concerned is in possession of land exceeding ten cents, on which he could erect a homestead. The said disqualification is not satisfied in the instant case. We see no ground to interfere in revision with the finding of the Land Tribunal and the appellate authority to that effect. 4. We had issued notice to the learned Advocate-General to decide the question of law involved. The learned Advocate-General appeared in response to the notice, and we record our thanks for the assistance offered by him. He supported the stand that has found acceptance. He stated that he cannot support the interpretation placed by the Division Bench in 1977 KLT. 53 on the construction of S.2 (25) of the Act vis-a-vis the extent of land needed to visit a disqualification on the status of 'kudikidappukaran'. We dismiss this revision petition, but in the circumstances, without costs. Dismissed.