VARKEY THOMAS Vs. LAND TRIBUNAL PAMPAKUDA
LAWS(KER)-1974-7-11
HIGH COURT OF KERALA
Decided on July 12,1974

VARKEY THOMAS Appellant
VERSUS
LAND TRIBUNAL, PAMPAKUDA Respondents

JUDGEMENT

- (1.) The Land Tribunal, Pampakuda by the order impugned in this petition held that the application for shifting of a kudikidappa moved by the petitioner under S.77 of the Kerala Land Reforms Act 1963, Act 1 of 1964, had to be dismissed since the landlord had not established the requirement of the site of the kudikidappa for the construction of building for his residence. The landlord is admittedly in possession of 7 acres of land including the property of 2 acres and 39 cents in a corner of which the kudikidappa is situate. According to the kudikidappukaran the area in the possession of the landlord is more extensive, but on that there is no evidence. The Tribunal found that even on the facts admitted it must be found that there is necessary space available in the property wherein the landlord wants to construct the building even without disturbing the residence of the kudikidappukaran. The Tribunal therefore took the view that the need for displacing the kudikidappukaran from the site which he is occupying had not been established and the claim in that behalf by the petitioner has not been shown to be bona fide. This is a finding on facts reached on very relevant considerations and so it is not for this Court to interfere. Normally the matter should have come to rest at that. But the learned counsel Sri. P. N. Sankaranarayana Pillai, appearing for the landlord, the petitioner herein, took up the stand that it is not for the kudikidappukaran to remind the landlord that he had other land in which he could conveniently construct a building and that it was not open to the kudikidappukaran to dictate to the landlord as to where the latter should construct the building. In other words the stand taken by the learned counsel is that any landlord could, notwithstanding the fact that he might have other land in his possession equally or more suitable for putting up a building claim that he wants the site of the kudikidappu for the building. The choice in that behalf, counsel contends, must be left to the sweet will and pleasure of the landlord.
(2.) S.75(2) of the Kerala Land Reforms Act deals with the rights and liabilities of Kudikidappukars. That reads: "(2) Notwithstanding anything contained in sub-s.(1), the person in possession of the land on which there is a home-stead or hut (hereinafter in this sub-section referred to as the landlord) in the occupation as a kudikidappukaran may, if he bona fide requires the land -- (a) for building purposes for himself or 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 anew site belonging to him subject to the following conditions, namely: (i) the landholder shall pay to the kudikidappukaran the price of the homestead, 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 landlord 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." Evidently what is urged is that it is sufficient if the person in possession of the land in which there is a homestead or a hut in the occupation of a kudikidappukaran shows that he bona fide requires the land for building purpose or other purposes mentioned in the section. This should, according to counsel, be understood as meaning that once the requirement of a site for the purposes mentioned in the sub-section is established choice of the site must be with the person mentioned in the section, namely, the landlord, and he can reasonably or unreasonably seek the very site in which the kudikidappu is situate irrespective of availability with him even of more suitable sites, or, to put it in another way, what is required to be established is merely the necessity of a plot of land for the construction or for the other purposes mentioned in the sub-section and once this is established there is nothing more remaining to be shown since automatically the kudikidappu will have to be shifted if it is so desired by the landlord. I am afraid, to read this section in this manner would render the right conferred on a kudikidappukaran under S.80A of the Kerala Land Reforms Act to purchase the kudikidappu illusory. The right conferred by the Section is a very substantial and valuable one. Notwithstanding anything to the contrary contained in any law for the time being in force the kudikidappukaran is enabled, subject to the further provisions of that section, to have the right to purchase the kudikidappu occupied by him and the lands adjoining thereto. I may also refer in this context to S.75 which confers fixity on a kudikidappukaran. That provides that he is not liable to be evicted except on certain specified grounds. By way of exception to this rule provision for the shifting of a kudikidappu has been made in sub-s.2 of the very same section and that would be on the showing of certain conditions. In other words while the normal rule is that the kudikidappukaran cannot be evicted, in certain cases the landlord may be entitled to seek the shifting of the site of the kudikidappu, on certain requirements being satisfied, to other suitable land. To read S.75(2) of the Act as one enabling a landlord to seek the shifting of the site of a kudikidappu merely on showing that the landlord requires some land for the purposes mentioned in the sub-section would be to make serious inroad into the right of the kudikidappukaran to fixity, for, the question of shifting would then depend not upon the necessity of the particular site in which the kudikidappu is situate, nor upon the availability of other suitable sites in the possession of the landlord, but merely upon the will of the landlord to displace the kudikidappukaran. To construe the section in that manner would be to jeopardise the right of the kudikidappukaran to fixity contemplated by the Act. Not that this result should persuade the court to construe the provision in a manner different from what it plainly speaks to. But I am referring to this only as a prelude to reading and understanding S.75(2) as it should be.
(3.) It is not difficult to notice the emphasis in sub-s.(2) to the requirement of "the land". That section indicates that the person in possession of the land on which there is a homestead or but in the occupation of a kudikidappukaran may, if he bona fide requires the land for certain purposes apply for shifting. The reference to the possession of the land on which there is a homestead or hut is followed by the reference to requirement of the land. In other words, the requirement must be of the land on which there is a homestead or hut. It can admit of no serious doubt that the landlord should establish not only that he bona fide requires some land for one or other of the purposes mentioned in the section, but that he bona fide requires "the land" for that purpose. In the context of the earlier reference to the land as that in which there is a homestead or hut, the words "the land" occurring again in the sub-section can mean and can only mean the site of the homestead or hut. May be, the site on which the kudikidappu is situate is required by the landlord for the purpose of construction particularly because of its location. Or its situation may have relevance to his profession. It is possible to conceive of many such similar situations. The section enables the landlord in such cases to seek shifting. In other words, it is open to the landlord to show that, notwithstanding the fact that he possesses other lands on which he could have constructed buildings for the purposes mentioned, the land on which the kudikidappu is situate is the most suitable site. In such cases, notwithstanding the possession of other land he will be able to establish that he requires "the land". Once it is shown that his requirement will be satisfied only by the land on which the kudikidappu is situate or that it is that land which will meet his requirement most satisfactorily it will not be an answer to say that the landlord should nevertheless choose some other land in his possession. This I understand to be the position and this, according to me, would be consistent with the scheme of the provisions relating to fixity granted to the kudikidappukaran under the Kerala Land Reforms Act 1 of 1964.;


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