HIGH COURT OF KERALA
Click here to view full judgement.
(1.) ONE of the objections that the petitioner had raised before the Tribunal was that the petitioner was a licensee, whose license was not revocable under S. 60 of the Indian Easements Act, 1882, and that he was not, therefore, liable to be shifted. The Tribunal held that the said provision had no application to the case, since the matter was exclusively governed by the provisions of the Kerala Land Reforms Act. The only point raised before me by the petitioner's counsel relates to the above finding of the Tribunal. The other objections raised in the petition relate to the findings of the Tribunal on questions of fact; and counsel for the petitioner has not rightly urged them at the tearing. Two contentions were raised before me on the above point. The first is that the Tribunal has no jurisdiction to decide the question whether a licensee is liable for being shifted or not. The second contention is that, even assuming that the Tribunal is competent to decide it, his decision is wrong under law.
(2.) I do not think that the first contention of the petitioner's counsel deserves serious consideration. Every kudikidappukaran is a licensee. S. 75 (1) of the Land Reforms Act gives fixity of occupation for the kudikidappu, subject to the provisions of Sub-sections (2), (3) and (4) of s. 75. S. 77 (1) of the Act confers the jurisdiction to entertain an application for eviction of a kudikidappukaran under Sub-section (2) or (4) of S. 75 on the land Tribunal. S. 125 (1) takes away the jurisdiction of Civil Courts to entertain and decide such matters. So the jurisdiction to entertain an application for eviction of a kudikidappukaran under S. 75 (2) is exclusively vested in the Land Tribunal, and the contention that the land Tribunal is incompetent to deal with such an application, when the kudikidappukaran claims a right of occupation by virtue of S. 60 of the Indian Easements Act would be contrary to the aforesaid provisions of the Land Reforms Act.
The next question for consideration is whether a kudikidappukaran has fixity of occupation by virtue of S. 60 of the Easements act. That section reads: "60. A licence may be revoked by the grantor, unless (a) it is coupled with a transfer of property and such transfer is in force; (b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution. " It cannot be disputed that a person, who has put up a house for his residence in another person's land with the latter's permission, would fall under clause (b) of the above section. Then it follows that the licence granted to such person cannot be revoked. But the question is whether such a person can be evicted from the land which he was permitted to occupy on payment of compensation for his improvements, though the license is irrevocable. Counsel for the petitioner referred me to a few decisions in support of his contention that such a licensee cannot be evicted. Reliance was first made on a Division Bench decision of the Allahabad High Court in Hafis manzoor v. Mohamad Abdul, AIR. 1933 Allahabad 842 wherein the court said "it seems to us that it would be a contradiction in terms to hold that a license is irrevocable under S. 60 of the Easements Act if a work of a permanent character has been executed, and at the same time to lay down that the grantor can revoke the licence provided he is willing to pay compensation. " The same view has been taken by the Chief Court of Oudh in Hashmat Johar v. Sheo Dularey, AIR. 1942 Oudh 180 and by the Judicial commissioner's Court of Tripura in Suresh Chandra v. Rakhal Chandra, AIR. 1957 tripura 44.
With great respect, I am unable to subscribe to the above view. It has always been taken as axiomatic by the public and the legislature that a kudikidappukaran is always liable for eviction at will, though he is a licensee whose license cannot be revoked by virtue of S. 60 of the Easements Act. The courts in this part of the country have always acted on that basis. It is to give some amount of protection to kudikidappukars under such a situation that the legislature has enacted several measures from time to time, and it has finally made the necessary provisions in the Land Reforms Act. I am not able to accept a contention that a licensee whose license is not revocable has a better or larger right in the land than a lessee. When a license is revoked, the licensee has thereafter no right to enter on the land except to remove the things which he has brought into the land. The fact that the license cannot be revoked gives the licensee the right to use the land for the purpose for which it was licensed; but in my view it cannot affect the right of the landowner to evict the licensee from the land on payment of compensation for the structure which the licensee has constructed on the land pursuant to the license. The petitioner's contention that he cannot be evicted from his kudikidappu, under the provisions of the Kerala Land Reforms Act, since he has an irrevocable license, cannot, therefore, be accepted.
(3.) I am also of the opinion that the provision in S. 60 of the Indian Easements Act cannot prevail over the provisions contained in the kerala Land Reforms Act regarding the rights and liabilities of a kudikidappukaran. The Land Reforms Act is a law enacted by the State legislature with respect to the matter mentioned in item 18 in List II of the seventh Schedule to the Constitution. That item reads, "land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. " The Indian Easements Act is also a law with respect to a matter falling under the same entry. After the commencement of the constitution, the power to make a law with respect to such a matter is exclusively vested in the legislature of the State. But an existing law is continued in force by virtue of Art. 372 of the Constitution; and the continuation is only until it is altered or repealed or amended by the competent legislature. The result is that any provision in the Easements Act to the extent it is inconsistent with the provisions of the Land Reforms Act stands repealed. In other words, the provisions of the Easements Act cannot prevail over the provisions in the Land Reforms Act. The relation between a kudikidappukaran and his land owner, and their respective rights and liabilities are now completely governed by the provisions contained in the Land Reforms Act. S. 60 of the easements Act cannot, therefore, be availed of by a kudikidappukaran.
In the result, this Original Petition is dismissed. There will be no order as to costs. . .;
Copyright © Regent Computronics Pvt.Ltd.