ABDUL REHIMAN Vs. RAMU
LAWS(KER)-1974-2-12
HIGH COURT OF KERALA
Decided on February 25,1974

ABDUL REHIMAN Appellant
VERSUS
RAMU Respondents

JUDGEMENT

- (1.) The challenge in this writ petition is directed against the order Ext. P1 passed by the Land Tribunal, Anthikad rejecting an application O. A. No. 506 of 1972 filed by the writ petitioner before the said Land Tribunal under S.75 and 77 of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) praying that a kudikidappu in the occupation of the 1st respondent herein should be directed to be shifted from its existing site described in the A schedule to the petition to an alternative site mentioned in the B schedule to the said application. The ground on which the petitioner sought the relief of shifting of the kudikidappu is that he requires A schedule land bona fide for the purpose of putting up a residential building for himself. The Tribunal found on a detailed consideration of the evidence adduced in the case that the A schedule land on which the kudikidappu is situated is a narrow elongated strip of 'chira' having a maximum width of only 3 dhannus and that too only in certain places, its width in the remaining portions being only one dhannu. Having regard to the said nature of the property and also of the fact that the B schedule land which the petitioner admittedly owns and which was offered to the kudikidappukaran as an alternative Site, is a good building site having direct road access, the Tribunal was of the opinion that the plea of bona fide requirement put forward by the petitioner was not satisfactorily made out. It is mainly on this ground that the Tribunal rejected the petitioner's prayer for shifting of the 1st respondent's kudikidappu.
(2.) Although the order passed by the Tribunal is not very happily worded and contains several grammatical and other mistakes, it is clear on a perusal thereof that what it intended to express was that it is not at all likely that a person situated like the petitioner the petitioner is a merchant carrying on business in copra and he is apparently in affluent circumstances would entertain a genuine intention to construct a residential house in the A schedule land which is only a narrow strip of 'chira', particularly when be has in his possession the B schedule land which is eminently suitable for use as a building site and lies adjoining a main road. The learned advocate" appearing for the writ petitioner sought to rely on certain observations contained in a judgment of mine reported in Janaki v. Land Tribunal, Tellicherry, 1973 KLT 923 , as lending support to the petitioner's contention that it was not open to the Land Tribunal to say that the B schedule property is much more suitable for construction of a residential building for the petitioner and to reject the prayer for shifting on such a ground. What has been laid down by me in that decision is only that in cases where the owner of the land who has applied for relief under S.75 and 77 has satisfactorily established that he bona fide requires the land on which the kudikidappu is situated for building purposes it is not open to the Tribunal to reject the prayer for shifting on the ground that the applicant is in possession of some other property which is better suited for serving the said requirement. Care was taken by me to make it clear in the said judgment that it will be perfectly open to the Land Tribunal to take into account the existence of such other suitable sites while considering the question whether the plea of bona fide requirement put forward by the owner can be accepted as true. If the owner satisfies the Tribunal that he genuinely intends to construct a residential building on the land where the kudikidappu is situated in such a case the Tribunal cannot thereafter disallow the prayer for shifting on the ground that in its opinion, it will be more advantageous for the land owner to construct the building on some other land belonging to himself which it may regard as most suitable for the said purpose. The prayer for shifting is liable to be granted only after the Tribunal is satisfied that the land holder requires the land, viz., the site of the homestead occupied by the kudikidappukaran, for the purpose of erecting a residential house for himself. In adjudicating upon the plea put forward by the landlord that he bona fide requires the said land for the said purpose the Land Tribunal can certainly take into account the nature of the property where the kudikidappu is situated, the existence of other alternative sites belonging to the landlord and consider whether, in the ordinary course of circumstances, a reasonable person situated in the position of the land owner in the case before it would ordinarily entertain a genuine intention to construct a residential house on the site of the kudikidappu. Nothing contained in my decision afore cited precludes the Land Tribunal from conducting such investigation; as already indicated, in the present case, what the Land Tribunal has stated in its order is that judged by the ordinary and reasonable probabilities it is not at all likely that the petitioner would have a genuine or bona fide intention to put up a residential house in the A schedule property having regard to the nature and lie of the said land and also the availability of a much better site in his possession, viz., the B schedule property. It was perfectly competent for the Tribunal to arrive at such a finding and it being a question of pure fact there is no scope at all for any interference therewith by this court either under Art.226 or Art.227 of the Constitution.
(3.) The result is that this writ petition fails and is dismissed. The parties will bear their respective costs.;


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