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Mrs. B.A. Cornel Vs. Miss M. Rodrigues and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 619 of 1977
Judge
Reported inAIR1981Ker144
ActsKerala Land Reforms Act, 1964 - Sections 2(25) and 80B; Kerala Land Reforms (Amendment) Act, 1969
AppellantMrs. B.A. Cornel
RespondentMiss M. Rodrigues and ors.
Appellant Advocate P.A. Mohammad, Adv.
Respondent Advocate V.R. Venkitakrishnan, Adv. and;Govt. Pleader
DispositionPetition allowed
Cases ReferredIn Sadhu Singh S. Mulla Singh v. District Board
Excerpt:
.....by court below - held, matter remitted back to be decided on said question. - - if the cost of construction of the building as well as its probable rental yield are to be reckoned with reference to the date on which the building was permitted to be occupied by the applicant's father as per ext. otherwise, the landlord can in given cases succeed in getting the valuable right of the kudikidappukaran defeated by making him fall into the trap of inducement of modification of or addition to the hut without his knowing that he was in that process to lose his very right to exist in the kudikidappu. 6. the learned counsel for the respondent submits that the cost of construction as well as the probable rentalyield are to be reckoned with reference to the date of reconstruction of the..........within the meaning of the act as amended for the reason that the building is a hut, the cost of construction of which does not exceed rs. 750/- and that the same at the time of construction would not have yielded a monthly rent exceeding rs. 5/-. the application was opposed by the respondent the owner of the building principally on the ground that the building had been reconstructed in the year 1946 in accordance with ext. b-1 licence issued by the executive officer of the cantonment board. cannanore. the respondent also denied that the building was in the occupation of the applicant's father and the applicant from 1927.2. the land tribunal dismissed the application holding that the building is not a hut within the meaning of the act and hence the applicant is not a.....
Judgment:

Balakrishna Menon, J.

1. This revision is under Section 103 of the Kerala Land Reforms Act 1963 (Act 1 of 1964) -- hereinafter referred to as the Act -- against the order of the Appellate Authority (Land Reforms), Kozhikode, confirming the decision of the Land Tribunal, Cannanore, rejecting the petitioner's application under Section 80-B of the Act, for the purchase of kudikidappu in respect of a building T. S. No. 694 of Ward-III of the Cannanore Municipality. The building is situated in the Cantonment area within the Cannanore Municipal limits. The case of the applicant is that the building is a hut within the meaning of the Act, as amended by Act 35 of 1969 and the same is in occupation of her father and herself ever since 1927. Ext. P-2, dated 30-5-1927 is the registered coolichit executed by the applicant's father F. D'souza to the predecessor-in-title of the respondent. Ext. B-2. dated 29-11-1951 is the sale deed as per which the respondent purchased the property from one Karunakaran Vydiar. Ext. P-2 coolichit relates to building No. 893 of the Cantonment Ward in Cannanore Municipality. The applicant claims to be a 'kudikidappukaran' within the meaning of the Act as amended for the reason that the building is a hut, the cost of construction of which does not exceed Rs. 750/- and that the same at the time of construction would not have yielded a monthly rent exceeding Rs. 5/-. The application was opposed by the respondent the owner of the building principally on the ground that the building had been reconstructed in the year 1946 in accordance with Ext. B-1 licence issued by the Executive Officer of the Cantonment Board. Cannanore. The respondent also denied that the building was in the occupation of the applicant's father and the applicant from 1927.

2. The Land Tribunal dismissed the application holding that the building is not a hut within the meaning of the Act and hence the applicant is not a kudikidappukaran as defined in Section 2, clause (25) of the Act. The Land Tribunal found that Ext. P-2 coolichit is not shown as relating to the building in respect of which the application under Section 80-B of the Act is filed. It hasrelied on the report of the Revenue Inspector to show that the building was constructed at a cost of Rs. 1,500/- and that the same would have yielded a monthly rent of Rs. 10/- at the time of its construction.

3. In appeal, the Appellate Authority (Land Reforms) found that Ext. P-2 coolichit relates to the same building as in respect of which the application under Section 80-B of the Act is filed and that the applicant's father and the applicant had been in occupation of the building ever since 1927. It is also found that substantial improvements had been effected to the building by the respondent's predecessor-in-title in the year 1946. According to the Appellate Authority, the question as to whether the building is a hut or not should be decided with reference to its cost and rental yield after the improvements were effected. The appellate authority has relied on the Commissioner's report Ext. C-2 which shows the cost of the old structure at Rs. 379.75 and the cost of the additions effected at Rs. 729.40. The Commissioner has estimated the total cost of construction including the cost of additions and modifications at Rupees 1107.15. The probable rent that the building would have yielded in its original condition is estimated at Rs. 3/- and after its repair and modification at Rs. 20/- per month. On these materials the Appellate Authority has held:

'The repairs effected to the building in question is substantial which has to be regarded as an improvement adding to or enhancing the value of the building as such. By the improvements effected in 1946 the value of the building had been increased. The cost of the same is more than double the cost of construction of the original building as reported in Ext. C-2. Therefore in view of the admitted repairs or improvements done to the building in 1946 which enhanced the value of the building, the cost of the same must necessarily be included in the cost of construction. The appellant is seeking purchase of kudikidappu in respect of the building in its present stage and not the building as it originally stood. The same also indicates that the cost of effecting improvements in 1946 must necessarily be added to the cost of construction. If that is done the cost of construction estimated in Ext C-2 will exceed the limit prescribed inthe Act. The probable monthly rent the building would have fetched will also have to be ascertained after the substantial repairs which according to the Commissioner is Rs. 20/-. The same also exceeds the limit prescribed in the Act, Therefore the building in question cannot be held to be a hut'. It is for the reason of the repairs and improvements effected to the building by the respondent's predecessor-in-title in the year 1946 that the Appellate Authority has held that the building is not a hut and the applicant is not a kudikidappukaran within the meaning of the Act.

4. The expression 'kudikidappukaran' is denned in Section 2, Clause (25) of the Act as amended and the relevant portion of the definition is as follows:

'2. (25). 'Kudikidappukaran' means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and-

(a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead: or

(b) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation, to pay rent, a hut belonging to such person and situate in the said land; and 'kudikidappu' means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto: Explanation II is as follows:

'Explanation II-- For the purposes of this clause.-

(a) 'hut' means any dwelling house constructed by a person other than the person permitted to occupy it -

(i) at a cost at the time of construction not exceeding seven hundred and fifty rupees, or

(ii) which could have at the time of construction yielded a monthly rent not exceeding five rupees, and includes any such dwelling house constructed by the kudikidappukaran in accordance with the provisions of Section 79.'

5. It is not disputed before us that the building which was the subject-matter of Ext. P-2 coolichit executed by the applicant's father was a hut within the meaning of the definition extracted above. The finding of the Appellate Authority is that the applicant's father and the applicant are in occupation of the building as per the entrustment under Ext. P2 coolichit. If the cost of construction of the building as well as its probable rental yield are to be reckoned with reference to the date on which the building was permitted to be occupied by the applicant's father as per Ext. P2 coolichit, there can be no doubt that the applicant is a kudikidappukaran within the meaning of the Act as it is not disputed that he satisfies all the other requirements in the definition of a kudikidappukaran extracted above. The contention of the respondent is that the cost of construction and the probable rental yield are to be reckoned with reference to the date on which substantial improvements and repairs had been effected to the building. The question for consideration therefore is as to the date with respect to which the cost of construction of the building and its probable rental yield are to be reckoned for the purpose of deciding as to whether or not the building in question is a hut within the meaning of the Act. In Lakshmi v. Kunhipperachan (1978 Ker LT 122) Bhaskaran J. has held in paragraph 11 as follows:

'11. If a reasonable interpretation, bearing the legislative intent in mind, is given, the expression 'cost at the time of construction' has to be construed to be the cost at the time of the original construction of the structure, without including therein the cost subsequently incurred by the land owner; otherwise, the landlord can in given cases succeed in getting the valuable right of the kudikidappukaran defeated by making him fall into the trap of inducement of modification of or addition to the hut without his knowing that he was in that process to lose his very right to exist in the kudikidappu. It is to avoid this sort of uncertainties and the resultant evil consequences presumably the legislature wanted to have the riant of the kudikidappukaran fixed with reference to the position as on the date of construction without allowing it to be overtaken by fluctuations that might arise out of modification additions etc.'

In the decision in Mammu v. Ali (1978 Ker LT 629), Viswanatha Iyer J. refersring to the above decision held as follows:

'According to the petitioner the value of the dwelling house at the time of original construction alone should be looked into irrespective of the fact whether that structure had undergone alteration or addition subsequently and in support of this contention he relies on the decision of this Court in Lakshmi v. Kunhipperachan, (1978 Ker LT 122). No doubt in that case it was held that subsequent additions and alterations should be taken only as items of improvements and the landlord paid compensation for them. It is not necessary in this case to consider whether that decision is open to doubt, I understand that decision to mean that if, after a person has been permitted to occupy a dwelling house, there has been additions or alterations effected by the landlord that should be ignored in finding out the value at the time of construction. There are cases where to the dwelling house originally constructed additions or alterations are made before that is permitted to be occupied by another. In such a case the value of such construction existing at the time when the dwelling house was permitted to be occupied will have to be taken into account. This is clear from the definition itself. Section 2 (25) (b) provides that a person who has been permitted by a person in lawful possession of a land to occupy, with or without the obligation to pay rent, a hut belonging to such person will be a kudikidappukaran if he has no land of his own as provided for in the main part of Section 2 (25). The hut there must be understood to be the hut permitted to be occupied and this can be understood only to mean the structure as it is at the time of permission. If the structure at the time of permission is not a hut as per the definition of the word 'hut' in Explanation II it is not possible to take a part of structure alone into consideration in finding out whether it is a hut or not. Even in cases where additions and alterations are made subsequent to the permission to and occupation by another if such alterations and additions have been made by the landlord for the use of the occupier this will really be a case of occupation of these additions on permission. They being part of the dwelling house the cost of their construction may have to be taken into account in finding out whether the dwelling house is a hut or not. As this case does not involve such a question I do not think I should refer this case for decision by a larger Bench.' It is submitted by the learned Counsel on both sides that this case has been referred to the Full Bench on account of the apparent conflict between these two decisions of this Court. We do not find any conflict in the ratio of the decisions aforesaid. There is no ambiguity in the provisions of the Act relating to the definition of a kudikidappukaran, A person satisfying the main part of the definition in Section 2 Clause (25) will be a kudikidappukaran if he falls either in Clause (a) or Clause (b) of Section 2 (25) extracted above. In this case, we are concerned with Clause (b) and the applicant will be kudikidappukaran if he has been permitted by a person in lawful possession of the land to occupy a hut belonging to such person and situate in the said land. The definition requires that the building permitted to be occupied must be a hut on the date of such permission. The crucial date with reference to which whether a building is a hut or not is to be decided is the date on which permission to occupy was granted. As per the definition of 'hut' in Explanation II, it must be a dwelling house constructed at a cost at the time of construction not exceeding Rs. 750/- or which would have at the time of construction yielded a monthly rent not exceeding five rupees. If the construction in any particular case had been at different stages prior to the permission to occupy, the cost of construction is to be reckoned with reference to the different periods of construction, and the rental yield is to be reckoned with reference to the time when the construction had been completed. In the present case there is no such problem of reckoning the cost of consideration at different periods prior to the permission to occupy. According to the finding of the Appellate Authority permission to occupy was granted to the applicant's father in 1927 and the building in 1927 was a hut within the meaning of the Act is not disputed before us. We have therefore no hesitation to hold that the applicant/revision-petitioner is a kudikidappukaran within the meaning of the Act.

6. The learned Counsel for the respondent submits that the cost of construction as well as the probable rentalyield are to be reckoned with reference to the date of reconstruction of the building, He refers to the definition of the expression 'hut', in Explanation II of Section 2 (25) of the Act to mean any dwelling house constructed at a cost at the time of the construction, not exceeding seven hundred and fifty rupees or which could have at the time of construction, yielded a monthly rent not exceeding five rupees. According to the learned Counsel, reconstruction is also construction and the date with reference to which the cost and the rental yield are to be reckoned is the date of reconstruction in cases where there had been a reconstruction of the building. According to Black's Law Dictionary, Fourth Edition, 'construct' means:

Construct. To build; erect; put together; make ready for use. State v. Abele. 119 Ohio St. 210: 162 N E 807, 809. To adjust and join materials or parts of, so as to form a permanent whole. Kinney v. Bhrensperger, 16 Ala, App 289: 77 So 439, 440. To put together constituent parts of something in their proper place and order. State ex rel. St. Luis County v. State Highway Commission, 315 Mol 707: 286 SW. 1, 2.

'Construct' is distinguishable from 'maintain', which means to keep up, to keep from change, to preserve. State v. Olympia Light and Power Co., 91 Wash, 519, 158 P. 85, 89. Under abroad interpretation however, 'construct' may be synonymous with maintain, repair, or improve. Independent Highway Dis. No. 2 of Ada County v. Ada County, 24 Idaho 416: 134 P. 542. 545.And 'construction' inter alia means: The creation of something new, as distinguished from the repair or improvement of something already existing, Cabell v. City of Portland. 153. Or 528: 57 P. 2d. 1292. 1297. The act of fitting an object for use or occupation in the usual way, and for some distinct purpose. Paterson N. and RR. Co. v. City of Paterson, 81 N J Eq 124: 86 A. 68, 69. See Construct.

7. In Sadhu Singh S. Mulla Singh v. District Board, Gurdaspur (AIR 1962 Punj 204), it is stated at page 207;

'21. The next point that now require-ed determination and is common to both the second appeals is whether the reconstruction of the building in dispute in these two cases amounts to construction, within the meaning of theword 'construction', in the notification, exempting buildings constructed in the years 1956, 1957 and 1958 from the operation of the Act for a period of five years from the date of construction.

It may be stated at the very inception that no inflexible rules can be laid down to determine when a reconstructed building can be said to be constructed building within the meaning of the notification. In fact, every reconstruction is construction. The suffix 're' means 'again', but that would not take away reconstructed building from the ambit and scope of the notification because the notification deals with building constructed during certain specified years and gives exemption to them from the operation of the Act. The question whether a building has been constructed so as to attract the exemption from the provisions of the Act by virtue of the notification would depend on the facts and circumstances of each case. What then is construction? 'Construction' according to Webster's New World Dictionary means.

'1. the act or process of constructing.

2. the way in which something is constructed; manner or method of building.

3. something constructed; structure; building;'

Whereas the word 'construct' in the same Dictionary means:

'to pile up, build, to put together systematically, build, frame, or devise.

1. Something built or put together systematically.'

Therefore, it will be apparent that wherever any part of a building is erected afresh it would fall within the phrase 'construction', but in the notification, exemption is to a building constructed and not to a part of a building constructed.'

If there had been a reconstruction in the sense that the original building which was a hut had been pulled down and a new building pot up, the question would arise whether the value of the building is to be reckoned with reference to the date of construction of the new building. We are not called upon to decide any such question, as no such question arises on the facts of the present case. The finding of the Appellate Authority is that there was only substantial repairs and improvements to the existing building effected in the year1946. For the reason that the building permitted to be occupied by the applicant's father as per Ext. P2 Coolichit was a hut and the applicant satisfies all the requirements oi the definition of kudikidappukaran in Section 2, Clause (25) of the Act, we hold that the petitioner is a kudikidappukaran within the meaning of the Kerala Land Reforms Act as amended by Act 35 of 1969 in respect of the building T. S. No. 694 of Ward III of the Cannanore Municipality.

8. The learned Counsel for the respondent has raised another contention that the Kerala Land Reforms Act itself is not applicable to the Cantonment area where the building stands. This question is seen raised before the Appellate Authority. The Appellate Authority however did not consider the question in the view that it took that the applicant is not a kudikidappukaran within the meaning of the Act. Now that we have held that the applicant is a kudikidappukaran as defined in the Act, the question whether the Act is applicable to the Cantonment area requires to be considered before relief can be granted to the applicant under the Act, The learned Counsel for the respondent prays for a remand for consideration of this question by the Appellate Authority. Since this question is not decided by the Appellate Authority it is only appropriate that the case should be remanded to that Authority to consider the question of applicability of the Act to the Cantonment area where the building stands.

9. The result is we set aside the decision of the Appellate Authority and direct that Authority to consider and decide the question whether the Kerala Land Reforms Act applies to the Cantonment area in the Cannanore town where the building stands: If it is found that the Act is applicable, the Appellate Authority will allow the application for purchase of kudikidappu directing also the issue of a certificate of purchase in accordance with the Act.

The Civil Revision Petition is allowed as indicated above. There will be no order as to costs.


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