MANAPPATTI JANAKI Vs. LAND TRIBUNAL TELLICHERRY

JUDGEMENT

(1.) The challenge in this writ petition is directed against the order Ext. P1 passed by the Land Tribunal, Tellicherry (1st respondent) dismissing an application O. A. No. 828 of 1972 filed before it by the writ petitioner under S.77 of the Kerala Land Reforms Act, 1963 (hereinafter referred to as the Act) for shifting the kudikidappu of respondents Nos. 2 and 3 from R. S. No. 38/9 of Dharmadom Amsom and Desom to another property comprised in R. S. No. 41/3B of the same Amsom and Desom details of which were mentioned in the B Schedule to the petition.

(2.) The ground on which shifting of the kudikidappu was prayed for by the writ petitioner was that the site of the kudikidappu was required for constructing a building for her daughter Prema. In order to substantiate this case the petitioner's husband gave evidence before the Land Tribunal as the first witness examined on the side of the applicant. Strangely enough, there is no reference at all in the order passed by the Land Tribunal to the testimony of this witness and the appendix to the said order has been drawn up on the basis that no witness was examined in the case either on the side of the applicant or on the side of the respondents. This, however, is not the only error vitiating the order passed by the Tribunal. The Land Tribunal has rejected the application of the writ petitioner on grounds which cannot be regarded as relevant or germane in deciding an application for shifting of a kudikidappu made under S.77 of the Act. In such an application the principal points to be considered by the Land Tribunal are whether the applicant bona fide requires the land for any of the purposes mentioned in clauses (a) to (c) of S.75(2) of the Act, whether the alternate site offered by the applicant to the kudikidappukaran is suitable for erecting a homestead and whether the procedural requirements incorporated in the said S.75 and 77 have been complied with by the owner of the land before approaching the Tribunal for relief. In the present case, the Tribunal has proceeded as if it is incumbent on the owner of the land to establish a dire or absolute necessity for recovering possession of the site of the kudikidappu before an order for shifting can be passed. This is a totally erroneous approach.

(3.) Under the scheme of the Act the owner of the land is entitled to be granted relief under S.77 of the Act on his satisfying the Land Tribunal that he "requires" the land for one or other of the purposes enumerated in clauses (a) to (c) of S.75(2) of the Act and that he is willing to transfer to the kudikidappukaran an alternate site suitable for erecting a homestead and pay the cost of shifting inclusive of the value of the existing homestead if it is one put up by the kudikidappukaran. The word "requires" has a totally different content from the expression "needs". See Narikkal Chathan v. Kesavan Namboodiri, AIR 1942 Mad. 242 (2). If the applicant proves before the Tribunal that be has a genuine and honest intention to utilise the land for one or other of the purposes mentioned in clauses (a) to (c) and there is nothing to show that the said plea put forward by the applicant is not bona fide and true, the Tribunal will not be justified in denying to him the relief of shifting so long as the applicant complies with the other provisions regarding offering a suitable alternate site belonging to himself and also the payment of the value of the homestead and the shifting charges to the kudikidappukaran. The section does not require that the applicant should make out a dire necessity or need for recovering possession of the site of the kudikidappu. In other words, it is not incumbent on the applicant, who moves the Land Tribunal under S.77 of the Act, to establish, in a case falling under Clauses (a) to (c) of S.75(2) of the Act, that the member of the family for whose building purpose the application has been filed is in a sorry state without any place wherein he can reside at the time of instituting the application. Of course, it would undoubtedly be open to the Tribunal in testing the bona fides of the plea of requirement put forward by the owner to investigate and determine whether having regard to the ordinary course of events there is a reasonable probability of such an intention being entertained by the applicant the object of such investigation being only, as already pointed out, to test the bona fides of the plea of requirement put forward by the applicant and not for finding out whether there requirement, even if it exists, can be met otherwise than by shifting the kudikidappukaran. If the requirement does, in fact, exist the owner of the land has the freedom to decide whether he would put up the building in the site where the kudikidappu stands or whether be would rather not disturb the kudikidappukaran.