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V.J. Mathukutty Vs. Ouseph Thomas and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 102 of 1975
Judge
Reported inAIR1976Ker115
ActsKerala Land Reforms Act, 1964 - Sections 75(1) and (2)
AppellantV.J. Mathukutty
RespondentOuseph Thomas and ors.
Appellant Advocate V.N. Swaminathan, Adv.
Respondent Advocate M. Krishnan Nair and; N.A. Augustine, Advs.
DispositionAppeal allowed
Cases ReferredAbdul Rahiman v. Ramu
Excerpt:
.....land reforms act, 1964 - appellant applied under section 75 (2) for shifting 'kudaikidappu' - land tribunal disallowed shifting - under section 75 (1) a person in possession of land by virtue section 75 (2) can ask for shifting if requirement of that section was satisfied - whether land is bona fide required for building purpose - tribunal held that most part of land was bona fidely required - to prove bona fide requirement availability of no other land to be proved - claim of shifting to be allowed unless demand indicated an extravagant disposition on part of person or an unreasonable and unfair attitude - applicant was unreasonable in demanding and demand not supported by bona fides - decision of tribunal set aside and matter referred back for reconsidering question and to pass..........1964 the appellant moved the original petition no. 2702 of 1973 seeking to quash the order of the land tribunal ext. p. 1 on the ground that the approach made by the land tribunal was wrong and the view taken on the interpretation of section 75 (2) of the act was erroneous. the learned judge who heard the petition dismissed it observing that 'all these facts and circumstances have been taken into consideration by the 6th respondent, land tribunal, in arriving at its conclusion that the shifting cannot be allowed'. 2. the land tribunal in dealing with issue no, iii made the following observations.'hence the petitioner's requirement to have a separate residence of his own cannot be said to be not bona fide. the petitioner has sworn that he has otherlands but they are not suitable for.....
Judgment:

Govindan Nair, C.J.

1. The question is whether the appellant, a 'person in possession of the land', can be said bona fide to require the land for build-Ing purposes as envisaged by Sub-section (2) of Section 75 of the Kerala Land Reforms Act, 1963, for short the Act. The appellant applied under Section 75 (2) of the Act for shifting the kudikidappu. One of the issues framed for consideration in the proceedings, issue No. iii was in these terms:

'Is the requirement stated in the application bona fide? the finding on that issue is:

'that the petitioner does not bona fide require the land in the occupation of the kudikidappukars for building purpose for himself and the petition for shifting the respondents from A schedule property must therefore fail as per Section 75 (2) of the Act 1 of 1964 The appellant moved the original petition No. 2702 of 1973 seeking to quash the order of the Land Tribunal Ext. P. 1 on the ground that the approach made by the Land Tribunal was wrong and the view taken on the interpretation of Section 75 (2) of the Act was erroneous. The learned Judge who heard the petition dismissed it observing that 'all these facts and circumstances have been taken into consideration by the 6th respondent, Land Tribunal, in arriving at its conclusion that the shifting cannot be allowed'.

2. The Land Tribunal in dealing with issue No, iii made the following observations.

'Hence the petitioner's requirement to have a separate residence of his own cannot be said to be not bona fide. The petitioner has sworn that he has otherlands but they are not suitable for constructing a residential building for him for one reason or other. The respondents have not seriously disputed this point. According to the petitioner the land most suitable for his dwelling purpose is the A schedule property'. Having said so the Tribunal then observed :

'Hence the question to be decided is whether the petitioner requires the entire area of A schedule property including the kudikidappu site for constructing a residential building for him'.

3. The A Schedule property from which the kudikidappukars were sought to be shifted has a total extent of 95 cents. There is an important road running along the northern boundary of this property east west. The property seems to be lying east west. The kudikidappu is more or less on the eastern corner of the property, being 20 feet to 30 feet from the eastern boundary and 50 feet to 55 feet from the southern boundary. The basement of the kudikidappu is 22 feet by 10 feet. There was an earlier application to shift the existing kudikidappu to another part of the land apparently under Sub-section (4) of Section 76 of the Act. That application had been allowed. The Tribunal after discussing all these aspect came to the conclusion that the 85 cents left after leaving 10 cents to the kudikidappukars would be sufficient for constructing a house and therefore entered the finding which we have already extracted.

4. Section 75 (2) of the Act is in these terms:

'75 (2) Notwithstanding anything contained in Sub-section (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 of a kudikidap-pukaran 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 home-stead, 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 exist' ing 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 landlord 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'.

5. We shall also read Section 75 (4) of the Act.

'75 (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 possession 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 br 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 kudikidan-pu'.

6. Though the Act has introduced various restrictions in the matter of holding land and has conferred fixity of tenure on tenants and kudikidappukars it has not taken away the right to hold substantial property. Section 75 (1) confers fixity of tenure on a kudikidappu-karan. He is also entitled to the ownership of three or five or ten cents depending on whether the kudikidappu is within a panchayat, municipality or corporation area. Notwithstanding the conferment of the fixity of tenure under Section 75 (1) of the Act, a person in possession of the land can by virtue of Section 75 (2) ask for shifting if the requirements of that section had been satisfied.

7. The question that would arise under Section 75 (2) (a) would be whether a land is bona fide required for building purposes. The Tribunal has held that most part of the land is bona fide required for building purpose. The Tribunal however felt that the whole of the land was not required and that 10 cents for the kudikidappu could be left out. The question is whether the Tribunal could justifiably substitute its ideas of requirements for deciding the bona fides or otherwise of the requirement of the person in possession of the land.

8. The question has risen on several occasions before this Court whether the existence of other land is a relevant consideration for determining whether the land was bona fide required for building purposes. Justice Eradi dealt with this matter in Janaki v. Land Tribunal, Tellicherry (1973 Ker LT 923) = (AIR 1974 Ker 104) and clarified what he meant in that judgment by a later decision in Abdul Rehiman v. Ramu, (1974 Ker LT 741). Justice Bhaskaran has dealt with the same question in the decision in Janaki v. Land Tribunal, Vaikom (1974 Ker LT 706) and Isaac J. has dealt with the matter in Sreedharan v. 2nd Addl. Land Tribunal, Pattanakad, (1974 Ker LT 764) and Justice Poti has also dealt with the same question in Varkey Thomas v. Land Tribunal, Pam-pakuda (1974 Ker LT 769). We may more or less safely state that the general view now established by this Court is that the existence of other land is a relevant consideration that may be taken into account in deciding whether the claim put forward by a person in possession of the land that he required the land for building purposes is bona fide or not. Justice Eradi stated thus in Abdul Rahiman v. Ramu (19-74 Ker LT 741J:

'In adjudicating upon the plea put forward by the landlord that he bona fide requires the said land for the said purpose the Land Tribunal can certainly take into account the nature of the property where the kudikidappu is situated, the existence of other alternative sites belonging to the landlord and consider whether, in the ordinary course of circumstances, a reasonable person situated in the position of the land-owner in the case before it would ordinarily entertain a genuine intention to construct a residential house on the site of the kudikidappu'.

We think that this is the approach that should be made in regard to the consideration of the question of bona fides when the requirement is stated to be that the land in which the kudikidappu is situate is wanted for building purposes or for any other purposes mentioned to Section 75 (2) of the Act. In determining the bona fides the extent of the land on which the kudikidappu is situate is not an irrelevant consideration; on the other hand it is a very relevant consideration. There may be cases where the land is so extensive that it would be unreasonable to expect any person bona fide to require the entire land for building purposes. In such cases the obvious answer to be given by the Land Tribunal would be that it had not been established that the person in possession of the land required the land for building purposes. But when the area diminishes from a very large extent to a reasonable holding the question becomes much more difficult to answer. It may be that one person may take the view that he wanted an acre of land where his residential house should be. Another may be content with 50 cents or less. The Tribunal may think that 25 cents would be enough. It is not the subjective view-points that should govern the matter. What is reasonable in the context must be the principle that should be applied. The location of the land would be a relevant factor. It may be situate inside the corporation or the municipality or within the panchayat in an Agricultural area. It is normal for people to have larger extents of lands for building purposes in a rural set up. It may not be unreasonable to state that one acre land is required in a rural area for building purposes. The same certainly cannot be said if the land is inside the corporation or municipality. Along with this aspect must be considered the question whether it should not normallybe left to the person in possession of the land to decide how much of land is required for the purpose of constructing a building or for the other purposes mentioned by the section. In other words when once it is established that land is required for building purposes, the extent of the land required as stated by the appellant should be given due consideration and unless his claim is found to be unreasonable as to spell lack of bona fides it should be allowed. Certainly the initial burden under Section 75 (2) of the Act is on the applicant to establish bona fide requirement. Once it is shown that no other land is available and there was bona fide requirement of the land on which the kudikidappu is situate the claim for shifting should be allowed unless the demand indicated an extravagant disposition on the part of the per|son or an unreasonable and unfair attitude. What has been stated above should be the proper approach in deciding when other factors required by the section are established. In determining whether the demand for a particular extent of land is reasonable the provision in Section 75 (3) is helpful. That Sub-section indicates that if the person in possession of land has only an acre or less of land on the whole he can seek acquisition A other land. This shows that the Act contemplates that having an acre to oneself Is permissible. Ordinarily therefore, if the extent of the land in which the kudi-kidappu is situate is not more than an acre the claim for shifting it from the land has to be held to be reasonable.

9. In this case the finding that has been entered by the Land Tribunal which we have extracted holds that 'the land in the occupation of the kudikidap-pukars' is not bona fide required by the applicant for shifting. This is not the finding that is contemplated by the section. 'The land' in the section refers to the whole of the land on which the kudi-kidappu is situate. In this case 'the land' would be the extent of the 96 cents and not the 10 cents out of it to which the kudikidappukaran is entitled to. So the question should be whether the applicant was being unreasonable in demanding that the whole of the 95 cents is required for building purposes, so as to make his requirement as one not supported by bona fides. This must be decided on the basis of what we have stated earlier in the judgment. We do not think the correct approach has beenmade by the Land Tribunal. We therefore allow this appeal, set aside, the judgment and set aside the order Ext P. 1 of the Land Tribunal and direct the Land Tribunal to reconsider the question and pass appropriate orders. There will be no direction regarding costs.


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