Decided on August 06,1974

JANAKI Appellant


- (1.) In this Writ Petition the petitioners challenge the validity of Ext. P1 order passed by the first respondent Land Tribunal while disposing of an application filed by the petitioners under S.77(1) of the Kerala Land Reforms Act, (Act 1 of 1964 as amended by Act 35 of 1969), for short the Act. The first petitioner is the owner of the land described in Schedule 1 to the application before the Tribunal, in which respondents 2 and 3 have their kudikidappu. The land described in Schedule 2 to the application before the Tribunal, offered as alternate site to respondents 2 and 3 to shift their hut, belongs to the second petitioner who is the husband of the first petitioner After having considered the evidence produced by the petitioners the Tribunal found that the petitioners had not established their bona fide requirement of the land, on which respondents 2 and 3 have their hut, for the purpose of building a house for their (petitioners') daughter, and dismissed the application.
(2.) Sri. V. Vyasan Potti, the counsel for the petitioners, submits that the order under attack is not the result of a proper consideration of the evidence on record or the question of law having bearing on the issue in dispute. The first petitioner, who is the landholder in respect of Schedule 1 land, owns a little over one acre of land, including Schedule 1 land; they lie in several plots; the extent of Schedule 1 land is 27 cents. The Tribunal considered the evidence of A.Ws. 1 to 3 and found that the allegation that the petitioners (A.Ws. 1 and 2) had promised (a house) to Aw. 3 (son inlaw of the petitioners) in 1966-67, about four or five years prior to his marrying their daughter has not been established; it also held that even if the petitioners had the bona fide requirement to construct a house for their daughter there were other plots available for the purpose. The contention raised by Sri. Potti is that the fact that there were other lands in the possession of the petitioners, not shown to be unsuitable for the purpose, was an irrelevant consideration while dealing with an application under S.75(2) read with S.77(1) of the Act. I do not, however, consider the position to be so. As a general rule under sub-s.(1) of S.75 all kudikidappukars enjoy protection from being evicted from the homesteads by the landholders. Sub-s.(2) of the said section in effect operates as an exception to the general rule enunciated in sub-s.(1). There should therefore be acceptable proof of the bona fide requirement of the land on which the kudikidappu is situated, on the part of the landholder to entitle him to invoke the provisions of sub-s.(2). The approach to the problem in the manner contended for by Sri. Potti would run contra to the spirit of the provision. That a landholder has bona fide requirement of land for building purposes generally would not automatically enable him to obtain an order for shifting the kudikidappukaran; it requires something more; and that is the land on which there is the homestead or the hut in the occupation of the kudikidappukaran is bona fide required for that purpose. In that view other lands available with the landholder in the context of his requirement may prove to be a relevant consideration. No penalty or follow up action appears to have been provided in the Act in case the landholder after reducing the kudikidappu site to his possession in pursuance of an order of shifting under S.77 of the Act, does not utilise it for the purpose alleged as a ground for shifting. It is, it seems, not only within his rights not to utilise the land for the alleged purpose, but it would also be within his competence to forget altogether the ground on which the shifting order was passed and dispose of the land the very next moment without the fear of any evil consequence. This immunity enjoyed by the landholder who invokes sub-s.(2) and (4) of S.75 read with S.77 is in contradistinction with the safeguards provided in S.11 of the Kerala Buildings (Lease and Rent Control) Act (Act 2 of 1965) to protect the interest of the tenants against the landlords who secure eviction of buildings alleging ground of bona fide need for occupation or reconstruction and thereafter act in contravention of the terms of the order. The temptation on the part of the landholders to secure orders for the shifting of kudikidappukars putting forward 'bona fide requirement' merely as a ruse has to be checked by the Land Tribunals by properly assessing the genuineness behind the plea of 'bona fide' requirement. Judged in this light, first respondent Tribunal's finding in Ext. P1 cannot be held to be wrong.
(3.) Sri. K. Raman, counsel for respondents 2 and 3, seeks to support Ext. P1 order on yet another ground, though that has not been mentioned in that order. His argument is that in terms of sub-s.2 of S.75 the offer of a new site belonging to the landholder is a condition precedent to the passing of an order of shifting. It is admitted in this case that the first petitioner, the landholder in respect of Schedule 1 land, has no right over the Schedule 2 land; that it belongs to her husband, and he too has joined the application as the second petitioner, would not nevertheless make Schedule 2 land as belonging to the landholder. The contention of the counsel for respondents 2 and 3 also has to be upheld in view of the wording "new site belonging to him" appearing in the relevant clause in sub-s.2 of the Section. I find no scope for interference with Ext. P1 order. The writ petition is therefore dismissed without, however, any order as to costs.;

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