Decided on June 12,1974



- (1.) In an application filed by an owner of two and odd acres of land for the shifting of a kudikidappu under S.75(2) and (4) of the Kerala Land Reforms Act (shortly stated the Act), the Land Tribunal has denied relief on the grounds that the applicant has not put forward any valid inconvenience which affects him seriously and that on a personal inspection the Land Tribunal is satisfied that there is ample space in the plot for the construction of buildings, if necessary, for the use of the applicant without shifting the kudikidappu. I am afraid that the Tribunal has misunderstood the scope of the enquiry under the relevant provisions resulting in an erroneous decision. It might be noted that the prayer for shifting was made on the allegations that the petitioner wants to construct a building in the plot to attend to the agricultural operations of his paddy lands and paramba in Anthikad, that buildings have to be constructed for his major sons, that kudikidappus in the plot have to be shifted to a portion by the boundary of the property and that the kudikidappukars have been interfering with the enjoyment of the land without the permission of the petitioner - owner. S.75(2) and (4) of the Act are herein below extracted: (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 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 a new 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 land lord 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. (4) Where the person in possession of the land in which there is a kudikidappu considers that the kudikidappu is so located as to cause inconvenience to him, he may require the kudikidappukaran to shift to another part of the land which is fit for the location of the kudikidappu: Provided that the kudikidappukaran shall have the right to opt for the portion to which the kudikidappu may be shifted: Provided further that the kudikidappukaran shall not be entitled to opt for any portion which is not adjoining the boundaries of the land, except with the consent of the person in possess ion of the land: Provided also that if the kudikidappukaran refuses to opt, he shall be bound to shift to the portion to which he is required to shift by the person in possession of the land: Provided also that the person in possession of the land shall transfer to the kudikidappukaran his rights over the land to which the kudikidappu is to be shifted, which shall be equal to the extent of the existing kudikidappu subject to a minimum of three cents if in any city or major municipality or five cents if in any other municipality or ten cents if in any Panchayat area or township, and pay the price of the homestead if any erected by the kudikidappukaran and the cost of shifting the kudikidappu."
(2.) In Janaki v. Land Tribunal, Tellicherry ( 1973 KLT 923 ) Mr. Justice Eradi had considered the scope and ambit of the provision in S.75(2) of the Act. His Lordship, if I may say so, with respect correctly pointed out: "It is not incumbent on the applicant, who moves the Land Tribunal under S.77 of the Act, to establish, in a case falling under clauses (a) to (c) of S.75(2) of the Act, that the member of the family for whose building purpose the application has been filed is in a sorry state without any place wherein he can reside at the time of instituting the application. Of course, it would undoubtedly be open to the Tribunal in testing the bona fides of the plea of requirement put forward by the owner to investigate and determine whether having regard to the ordinary course of events there is a reasonable probability of such an intention being entertained by the applicant, the object of such investigation being only, as already pointed out, to test the bona fides of the plea of requirement put forward by the applicant and not for finding out whether the requirement, even if it exists, can be met otherwise than by shifting the kudikidappukaran. If the requirement does, in fact, exist the owner of the land has the freedom to decide whether he would put up the building in the site where the kudikidappu stands or whether he would rather not disturb the kudikidappukaran." Earlier the learned Judge had stated that the word 'requires' has a totally different content from the expression 'needs', and the section does not require that the applicant should make out a dire necessity or need for recovering possession of the site of the kudikidappu. In the light of this decision, the finding of the Tribunal that the site occupied by the kudikidappukaran is not absolutely necessary for the construction of the buildings is erroneous in law.
(3.) Similarly, under S.75(4) of the Act, the Tribunal is expected only to investigate and determine the question whether a person would have honestly considered that the location of the kudikidappu is such as to cause inconvenience to him. The fact that the Tribunal itself would have taken a different view as to inconvenience is not decisive. On the facts and circumstances of the case, if there is a reasonable probability of a person entertaining such consideration that should preclude the Tribunal from making any further enquiry into the matter. The Tribunal has not obviously proceeded on that basis.;

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