THRIKKARUVA KUTTYAZHIKOM DEVASWAM Vs. ALIYUMMER ASAN

JUDGEMENT

(1.) The meaning to be attributed to the words "the person in possession of the land" occurring in sub-s.(2) of S.75 of the Kerala Land Reforms Act, 1963, for short, the Act, is the question that arises in this Original Petition, a case which has been referred to a Division Bench by Bhaskaran J., on the submission of counsel that the decision in Rev. Fr. Mathew Fabian v. Additional Land Tribunal, Quilon and Others 1973 KLT 423 requires reconsideration.

(2.) The petitioner is the Thrikkaruva Kuttiyazhikom Devaswom represented by its Joint Secretaries. They sought the shifting of three kudikidappus situated in the land belonging to the Devaswom to a new site belonging to the Devaswom under sub-s.(2) of S.75 of the Act. Respondents 1 and 2, the kudikidappukars, objected on various grounds: (1) The application was lacking in bona fides, (2) the alternate site offered was unsuitable for erecting of homestead and (3) that the Devaswom is not a "person" within the meaning of that expression in S.75(2) of the Act. The contentions of the 1st and 2nd respondents on points (1) and (2) above have been found against by the Land Tribunal but the 3rd contention has been accepted by reason of the ruling in Rev. Fr. Mathew Fabian v. Additional Land Tribunal, Quilon and Others 1973 KLT 423. The question that arose before the court in that decision was whether an application made by a religious institution for the purpose of expansion of the church compound and of a cemetery would fall under S.75(2) of the Act. It was held that the section would not apply and the following observation in the judgment has been relied on in support of the submission that this application by the Devaswom is also not maintainable:

(3.) When "the person in possession of the land" is read with "if he bona fide requires the land for building purposes for himself or any member of his family including major sons and daughters" unless 'person' is read distributively as applicable to all those that have been included in the definition of 'person' in S.2(43) of the Act as applicable to the first part of S.75(2)(a), and 'person' meaning only an individual, as applicable to the latter part, "for building purposes for any member of his family including major sons and daughters", the sub-section creates some difficulty of interpretation. Perhaps to some extent there is impropriety that the first part of the clause must apply to every person coming within the definition in S.2(43) and the second part should apply only to an individual and bis major sons and daughters or his family. We shall at this stage read the definition of "person" in S.2(43) of the Act: