THOMAS MATHEW Vs. JOSEPH MANI

JUDGEMENT

(1.) BY its judgment dated 28 -12 -1978 made in L.R.A.S. No. 939 of 1979 disposed of along with L.R.A.S. No. 1071 of 1976 the Appellate Authority (Land Reforms), Ernakulam, reversed the order of the Land Tribunal, Vaikom, dated 5 -4 -1976, made in O.A. No. 686 of 1976 (previously numbered as O.A. No. 6 of 1971) which was an application presented by the petitioner Sri Thomas Mathew for the purchase of the kudikidappu in his occupation in the land in the lawful possession of the 1st Respondent Sri Joseph Mani under Section 80B of the Kerala Land Reforms Act, Act 1 of 1964, as amended by Act 35 of 1969, hereinafter referred to as the Act. The revision is directed against the judgment of the Appellate Authority. The 1st Respondent in his written statement had stated, inter alia, that the petitioner was not a kudikidappukaran, the cost of construction of the building was more than Rs. 9000/ -, and the entrustment of the building to the petitioner was on a monthly rent of Rs. 20| -. This was as against the contention of the petitioner that the cost of the structure at the time of its construction would not have exceeded Rs. 200/ -. Ext. -C1 report of the Commissioner showed that the cost of the original construction was Rs. 373.71; the cost of modification and additions made to the structure subsequently, like cementing the floor, tiling the roof and the construction of the kitchen, was Rs. 193| -, bringing the total costs of construction to Rs. 566.71; and the rent it could have yielded at the time of construction was Rs. 2/ - per month. Accepting the above date furnished by the Commissioner, the Land Tribunal on 3 -8 -1972 passed preliminary order allowing the petitioner to purchase the kudikidappu. The appeal L. R. A. S. No. 1386 of 1972 filed by the 1st respondent against the preliminary finding was dismissed by the Appellate Authority following the ruling in Sankaran v. Kochukutty (1974 K.L.T. 563). It was thereafter that the Land Tribunal passed the final order dated 5 -4 -1976 allowing the petitioner to purchase 10 cents of land including the structure and the improvements thereon. The 1st respondent preferred L.R.A.S. No. 939 of 1976 aggrieved by the finding that the structure was a hut, and the petitioner was Kudikidappukaran; and the petitioner filed L.R.A.S. No. 1071 of 1976 as he felt aggrieved about the purchase price fixed. The appellate authority disposed of the two appeals as per its common judgment dated 28 -12 -1978; L.R.A.S. No. 939 of 1976 filed by the 1st Respondent was allowed resulting in the dismissal of the petitioner's application O.A. No. 686 of 1976; and L.R.A.S. No. 1071 of 1976 was dismissed without considering the merits of the case in view of the dismissal of O.A. No. 686 of 1976.

(2.) TWO questions of general importance arise for decision in this revision (1) in case where there had been additions and modifications made to the dwelling house after its original construction, what should be the method of valuing it to fix its cost at the time of the construction in terms of clause (a) (i) of Explanation II to Section 2(25) of the Act; and (2) what are the criteria for fixing the rent that the dwelling house could have yielded at the time of its construction in terms of clause (a)(ii) of Explanation II to section 2(25) of the Act in a case where there had been modification and additions to it after its original construction.

(3.) THE extreme stand taken either by the petitioner or the 1st respondent does not appear to represent the correct position in law on the point, as settled by the decision of the Full Bench of this Court in Cornel v. Rodrigues (1981 K.L.T. 302 1981 (1) ILR Kerala 669). The Full Bench did not find any conflict in the ratio of the decisions in Lakshmi's case and Mammu's case. Assuming that there appeared to exist some apparent conflict between the two decisions, the Full Bench has resolved it by making a reconciliatory approach and giving a harmonious construction to the relevant provisions of the section to give effect to the true intention of the legislature. In the light of the guideline given by the Full Bench, the cost of the dwelling house has to be assessed as at the time of its construction; if the construction had been at different stages prior to the granting of permission to occupy it, the cost of construction has to be reckoned with reference to the different periods of construction. This principle laid down by the full Bench with respect to construction at different stages could reasonably be presumed to extend to cases of modifications and additions to the structure effected before it was permitted to be occupied by another. In an attempt to convince me that for the purpose of clause (a)(ii) of Explanation II to Section 2 (25) of the Act, the structure has to be valued as on the date on which permission to occupy was granted, Sri Parameswaran drew my attention to the following passage in paragraph 5 of the Full Bench Decision at page 305 of the report: