ORDER K.K. Narendran, J. 1. These civil revisions were filed by a Kudikidappukari. On her death, now : her legal representatives have impleaded themselves as additional petitioners in the revisions. The respondents in both the revisions are the land-owners. The respondents filed an application for shifting the Kudikidappu under S.77 of Kerala Act of 1964, for short the Act, on the ground that the land in which the kudikidappu is situated, 71 cents in extent, is bona fide required for putting up a house for the 2nd respondent, son of the 1st respondent. The Kudikidappukari contested the application and disputed the bona fides of the respondents. She also filed an application for purchase of the kudikidappu under S.80B of the Act. The Land Tribunal allowed the application for shifting and then dismissed the purchase application for that reason. 2. The Kudikidappukari filed appeals against the orders in both applications. The Appellate Authority (Land Reforms) dismissed the appeal against the order allowing the application for shifting and, for that reason, dismissed the appeal against the order dismissing the application for purchase also. The Kudikidappukari has challenged the decisions of the Appellate Authority in both appeals in these civil revisions. C. R. P. No. 745 of 1980 is against the decision in the shifting case while C.R.P. No. 751 of 1980 is against the decision in the purchase case. 3. The purchase case was decided against the Kudikidappukari since the Appellate Authority rejected her appeal against the order of the Land Tribunal allowing the application for shifting. So, the question that arises for consideration in these revisions is whether the judgment of the Appellate Authority dismissing the appeal of the Kudikidappukari against the order of the Land Tribunal allowing shifting calls for any interference by this Court. 4.
So, the question that arises for consideration in these revisions is whether the judgment of the Appellate Authority dismissing the appeal of the Kudikidappukari against the order of the Land Tribunal allowing shifting calls for any interference by this Court. 4. S.75(2) of the Kerala Land Reforms Act 1 of 1964 reads: "(2) Notwithstanding anything contained in sub-s.(1), the person in possession of the land on which there is a homestead or hut (hereinafter in this sub-section referred to as the landholder) in the occupation of a kudikidappukaran may, if he bona fide requires the land- (a) for constructing a building for his own residence or for the residence of 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 kudikidappukaran, 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 home-Stead, 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 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 in any panchayat area or township; (iv) the landholder 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 new site. Where the above conditions are complied with, the kudikidappukaran shall be bound to shift to the new site." It goes without saying that in a shifting application the main point that arises for consideration is the bona fides of the landowner. Both the Land Tribunal and the Appellate Authority will have to advert to this aspect of the matter and give a finding because only when bona fides is found, the question of compliance of the conditions insisted by the sub-section arises. But, for reasons not known, the judgment of the Appellate Authority is silent on this aspect of the matter.
Both the Land Tribunal and the Appellate Authority will have to advert to this aspect of the matter and give a finding because only when bona fides is found, the question of compliance of the conditions insisted by the sub-section arises. But, for reasons not known, the judgment of the Appellate Authority is silent on this aspect of the matter. In an appeal in a shifting case it is imperative that the Appellate Authority should consider the question of bona fides of the landowner's demand for shifting the kudikidappu. If it is found that the demand of the landowner is lacking in bona fides, the application for shifting will have to be dismissed and the other aspects of the matter need not be considered. There is no reason to believe that the Kudikidappukari did not challenge the finding of the Land Tribunal on the question of bona fides. The Appellate Authority has not stated in the judgment that the appellant did not press her contentions on the question of bona fides. So, without giving a decision on the question of bona fides, the Appellate Authority should not have dismissed the appeal upholding the finding of the Land Tribunal regarding the suitability of the alternate site. In the above view I am taking, the judgment of the Appellate Authority in A.A. No. 3342 of 1978 challenged in C.R.P. No. 745 of 1980 is tainted with illegality and hence the same is set aside. As the judgment in A.S. No. 3343 of 1978 was simply based on the judgment in A.A. No. 3342 of 1978 that also is set aside. The appeals are remanded to the Appellate Authority for fresh hearing and disposal. 5. The learned counsel on both sides referred to a number of decisions of this Court on S.75(2) of Kerala Act 1 of 1964. But I have not referred to any of those decisions in the order because in the above view I have taken, it is not necessary to say anything on the question of bona fides at this stage. 6. The civil revisions are allowed to the extent indicated above. No costs.