SAPHIYA UMMA Vs. LAND TRIBUNAL CANNANORE

JUDGEMENT

(1.) The writ petitioner is the owner of a plot of 55 cents of land comprised in R. S. No. 595/5 of Azhikode Village in Cannanore District. The 2nd respondent is a kudikidappukaran residing in the said plot. On the ground that the petitioner required the land bona fide for constructing a house for her son the petitioner filed O. A. No 208 of 1972 before the Land Tribunal, Cannanore praying that the 2nd respondent should be directed to shift his kudikidappu from the A schedule property where it now exists to the B schedule property which the petitioner has offered as an alternate site for locating the kudikidappu. That application was dismissed by the Land Tribunal as per its order Ext. P1 dated 29th August, 1972. This writ petition has been filed by the petitioner seeking to quash Ext. P1.

(2.) The writ petitioner's application for shifting the kudikidappukaran was dismissed by the Land Tribunal mainly on the basis of its findings entered on points Nos. (i) and (vi) set out for decision in the order Ext. P1. Point No. (i) concerned the question whether the applicant bona fide, required the A schedule property for building purposes for her son. The Land Tribunal has decided this point against the writ petitioner principally on two grounds. Firstly, it held that the petitioner's son is now having a joint interest in the house where he is residing along with, the petitioner and her other children. The second aspect put against the petitioner by the Land Tribunal is that even after setting apart 10 cents for the kudikidappukaran there is a balance of 45 cents of land in the A schedule property and this portion could be utilised by the petitioner for the construction of the building for her son. Though the Special Revenue Inspector who had submitted a report after inspecting the property had stated in that report that the said balance area of 45 cents lies on three sides of the kudikidappu and hence it will not be possible to construct another, building there, the Land Tribunal expressed its inability to agree with the said report stating that "an extant of 45 cents of land is fairly a big plot and by making structural adjustments a building could be constructed there without shifting the kudikidappu". On these two grounds the Land Tribunal proceeded to hold that "the applicant does not bona fide require the portion of the land in the occupation of the kudikidappukaran for the purpose of constructing a building to her son". The finding entered by the Land Tribunal on points Nos. (vi) and (viii) is that the writ petitioner bad only a leasehold right in the B schedule property and that hence the mandatory requirement of S.75 of the Kerala Land Reforms Act, 1963 (hereinafter referred to as the Act) that the alternative plot should have belonged to the person seeking to shift the kudikidappukaran on the date of issue of the notice is not satisfied in the present case. On points Nos. (iii) to (v) the Land Tribunal found that the B schedule land is fit for erecting a homestead, that its extent is equal to the extent of the existing kudikidappu and that it is within a distance of one mile from the kudikidappu situated in the A schedule property.

(3.) In my opinion, the petitioner is well founded in his contention that the findings entered by the Land Tribunal on points Nos. (i), (vi) and (viii) are unsustainable in law and that the dismissal of the writ petitioner's application for the shifting of the kudikidappu on the basis of those findings was without jurisdiction. It has been repeatedly pointed out by this court that it is unnecessary for a person who applies under S.75(2) of the Act to shift a kudikidappukaran to establish that either he or the member of the family for whom the requirement of construction of the building is pleaded, is completely without any roof over his or her head and is thus in dire need of being provided with a building. All that is required to be established under the Section is that the applicant bona fide requires the land for the purpose of putting up a building for himself or a member of his family and this condition will be satisfied if it is shown by satisfactory evidence that the circumstances are such as to justify a reasonable and honest desire and intention to construct a building for the applicant or the particular member of the family The existence of a facility for the applicant or the member of the family to reside in a building belonging to some one also or to himself jointly along with others is not, therefore, a ground on which the plea of bona fide requirement can be negatived. Hence the first reason stated by the Land Tribunal for finding point No. (i) against the writ petitioner is unsustainable.