JANAKY Vs. ADDL LAND TRIBUNAL KUTHUPARAMBA
LAWS(KER)-1978-10-14
HIGH COURT OF KERALA
Decided on October 27,1978

JANAKY Appellant
VERSUS
ADDL. LAND TRIBUNAL, KUTHUPARAMBA Respondents

JUDGEMENT

- (1.) The appeal is against the judgment of a learned Judge who dismissed the appellant's writ petition to quash the order of the Land Tribunal, Kuthuparamba, dismissing the appellant's application to shift a kudikidappukaran under S.75(2) of the Land Reforms Act. The shifting was prayed for on the ground that the applicant required the land bona fide for constructing a residence for herself and children. The Revenue Inspector inspected the kudikidappu, and the alternative site offered to the kudikidappukaran, and filed a report regarding the two sites. The report was kept for objections. The Tribunal records that no claim or objections to the report was received. The Special Revenue Inspector reported that the alternative site offered for shifting was suitable. He further reported that the appellant had 1.20 acres of land in Ambilad desom (same desom as the one where the kudikidappu sought to be shifted is situated), and that her husband had a joint right of an extent of 61 cents and 79 cents of land in Naravoor desom. Considering the Report and the other circumstances, the Tribunal recorded that the appellant had not shown why she required the site of the kudikidappu for building the house for herself and her children, and that if she wanted to build a house for the said purpose, she could as well build in the remaining 36 cents of the property after excluding the ten cents occupied by the kudikidappu, or in the 1.20 cents of the other property in the same desom, referred to in the Revenue Inspector's Report. It was on these considerations that the Land Tribunal dismissed the appellant's application.
(2.) In the writ petition filed to quash the Land Tribunal's order serious objection was raised to the Land Tribunal's statement that no objection was filed to the Revenue Inspector's Report. That is supported by an affidavit of the Advocate who appeared before the Tribunal to the effect that the Report was posted for objections on 11-12-1974 and that on the very same day, the Tribunal disposed of the matter without allowing the appellant an opportunity to file his objections. The learned Judge had noticed this plea raised by the appellant, but failed to express any opinion on the same. The learned Judge was of the view that as the Tribunal had stated that the appellant could well build on the other land in respect of which she was shown to have rights, or on the remaining portion of the land sought to be recovered after excluding ten cents for the kudikidappu, there was no ground to interfere as there was no jurisdictional error, nor any patent error of law to warrant interference under Art.226.
(3.) We are unable to agree with the learned Judge. We think the approach made by the Tribunal to the consideration of the question of bona fide requirement of the appellant was completely wrong and vitiated its conclusion on the question. Recently, on more than one occasion, Division Benches of this court have emphasised, the principles to be followed by the Land Tribunal and the approach to be made by it in dealing with applications for shifting kudikidappu. One such decision is reported in Kochu Narayanan v. Kunji Moidu & others ( 1978 KLT 67 ). It was there observed: As we have had occasion repeatedly to point out, the right of shifting a kudikidappukaran is a statutory right conceded "to a person in possession of land on which there is a home stead or a hut" under S.75(2) of the Land Reforms Act, provided the conditions required by the Section are complied with and a suitable alternate site is provided for the kudikidappukaran to shift. Once these are complied with, we do not see any room for the Tribunal to state that the kudikidappukaran may well continue on ten cents of land in the property and the applicant may content himself with the rest, in satisfaction of his bona fide requirement. It is not the province of the Land Tribunal to dictate the measure or the extent of land on which an applicant in possession is to build his residential house for which he alleged bona fide requirement. The applicant is not to tailor his requirements to suit the tastes and specifications of the Tribunal. These are matters for the applicant to decide for himself. It is of course open to the Tribunal, taking into account the proved facts and circumstances to decide whether the alleged bona fide requirement has been made out, and either to reject or to allow the application. But there is no right on the Tribunal to yoke an unwilling applicant with a kudikidappukaran and direct both to continue on the Tribunal's fanciful notions of peaceful coexistence or otherwise. The very object of the provision is to enable the applicant to get right of the kudikidappu and seek to live in peace. That can be had at a certain price, and on certain terms and conditions which it is for the Tribunal to adjudge. We have had occasion to emphasise this aspect of the matter more than once." From the point of view of the principles thus laid down by the Division Bench, it seems to us clear that the approach made by the Tribunal in the instant case was wrong. We are also of the view that the learned Judge was wrong in having refused to exercise his jurisdiction under Art.226 of the Constitution, to interfere with the order of the Tribunal.;


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