K SANKUNNY Vs. KALI
LAWS(KER)-1974-9-18
HIGH COURT OF KERALA
Decided on September 13,1974

K. SANKUNNY Appellant
VERSUS
KALI Respondents

JUDGEMENT

- (1.) The first petitioner is the owner of a school building and the property in which it is situate. The second petitioner is the first petitioner's nephew and the manager of the school. The first petitioner filed O. A. No. 40 of 1972 on the file of the second respondent, Land Tribunal, Mullassery, under S.75(2) and 77 of the Kerala Land Reforms Act, Act 1 of 1964 as amended by Act 35 of 1969, for shifting the first respondent kudikidappukari who is residing in the property in which the school building is situate, to another property in which an alternate site is offered by the first petitioner.
(2.) The first respondent resisted the petition before the Tribunal mainly on three grounds: (1) the new site is not fit for erecting a homestead; (2) the applicant is not the manager of the school; and (3) shifting is not the bona fide requirement of the applicant. On the first point, namely, the new site offered was not fit for erecting a homestead, the Revenue Inspector reported that the site was suitable for erecting a homestead though from the point of fertility it is inferior to the site on which the existing kudikidappu is situate. On the second point the Tribunal found that inasmuch as the first petitioner who alone among the writ petitioners was party before the Tribunal, the petition was not maintainable. Sri. V. Sankara Menon, counsel for the petitioners, submits that this view taken by the Land Tribunal is untenable. According to him, the right to expand the building is vested in the owner of the building, not in the manager of the school who has no right to the building except the occupancy right for conducting the school. No doubt, for, ascertaining whether there is bona fide requirement for shifting the kudikidappukari (for expanding the existing school building), the manager's evidence may be relevant, inasmuch as it is only where there was real need and scope for expansion of the building in the light of the directions given by the controlling officers of the Education Department, that the question of expansion of the school building arises. However, merely for the reason that the manager was not an applicant before the Tribunal, the relief sought for cannot be denied if there is evidence to establish that there was actual bona fide requirement for shifting the kudikidappu. It is a matter on which there should be better evidence; and all the possible and relevant evidence does not appear to have been adduced before the Land Tribunal.
(3.) Sri K. C. Sankaran, counsel for the first respondent has raised yet another important contention with respect to the applicability of sub-s.(2) of S.75 of the Kerala Land Reforms Act in a matter where the purpose for which shifting is sought is one for completing or expanding a school building. Counsel places reliance on the wording of the Section and the decision of Eradi J. in Rev. Fr. Mathew Fabian v. Addl. Land Tribunal ( 1973 KLT 423 ). What came up for consideration in the case cited was whether the expansion of a church compound and widening of a cemetery invoking the provisions of S.75(2) were allowable. There cannot be any doubt that the expansion of the church compound and the widening of the cemetery do not fall within the ambit of sub-s.(2) of S.75. Whether the "building purposes" referred to in sub-s.(2) of S.75 confine to residential building did not come up for consideration of the Court in that case. Counsel points out that from the statement of facts in Para.1 of the judgment it would appear that the purpose was for the expansion of the church as well the widening of the cemetery. Whatever that be, what was considered by the Court was whether the requirement of expansion of the church compound and the widening of the cemetery would fall within the scope of sub-s.(2) of S.75. The legislature has chosen to use the word "building" without any qualification, and there cannot be any doubt that if it was the intention of the legislature to confine the word "building" to residential building alone, that expression would have been used to give it a restricted meaning in its contemplation. That not having been used, I am afraid, the Court will not be justified in importing the idea that the "building" referred to in sub-s.(2) of S.75 has reference only to residential building. In this view I am of the opinion that in the absence of any contrary intention contained in the provisions of the Act, the "building purposes" referred to in sub-s.(2) can take in within its ambit buildings other than residential buildings even though the primary object appears to have been to serve the purpose of construction of residential buildings. If the legislature really meant only residential buildings to fall within the ambit of the provisions, it is a matter for suitable amendment, and until that is done, I am of the opinion, the provisions have to be construed as to have application to the purpose of constructing buildings other than residential buildings also. The position may differ from case to case depending upon the facts of each case.;


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