GOPALAN Vs. OOMMEN

JUDGEMENT

(1.) The respondent to an application under S.77 of the Kerala Land Reforms Act, 1963, for short the Act, to enforce compliance with the requisition of the first petitioner in the application, has filed this original petition challenging the order of the Land Tribunal, directing the petitioner before us to shift his kudiyirippu from the 'A' schedule property to the 'B' schedule property in the petition before the Land Tribunal. The order of the Land Tribunal is Ext. P1. Bhaskaran J., when the matter was heard by him, felt that there was an "apparent conflict between the decisions of this Court in Damodaran v. Raghavan & Others ( 1973 KLT 655 ); Ayyakutty v. George & Others ( 1974 KLT 127 ); Janaki v. Land Tribunal, Vaikom ( 1974 KLT 706 ); and Varkey Thomas v. Land Tribunal, Pampakuda ( 1974 KLT 759 ) on the one hand and the decision in Sreedharan v. 2nd Addl. Land Tribunal, Pattanakad ( 1974 KLT 764 ) on the other", and has therefore referred the case to the Division Bench for decision.

(2.) The apparent conflict is in understanding the provisions in S.75(2) read with S.77(1) of the Act. We shall extract these two sub-sections:

(3.) It has been held in Damodaran v. Raghavan and Others, 1973 KLT 655 by Nambiyar J. and in Janaki v. Land Tribunal, Tellicherry 1973 KLT 923 by Eradi J. that the new site to which an applicant under S.77(1) required the kudikidappukaran to shift must belong to the applicant at the time the application was moved before the Land Tribunal. What Isaac J. considered was a case where a coowner of a property wanted the kudikidappukaran to shift from the property jointly owned by him and others to another site which belonged to the applicant. The case is easily distinguishable from the earlier two decisions referred to, decided by Nambiyar J. and Eradi J. respectively, wherein a request was made to shift to a property not belonging to the applicant but to some other. A joint ownership, as that of a tenant in common, which was the case considered by Isaac J., is an ownership which will extend to the entire property, though such a joint owner could not claim any specific part of the property as exclusively belonging to him. Since he had interest in the entire property as a coowner, he was interested in asking for the shifting of the ' kudikidappu situated in that property and we think that such interest was sufficient to sustain the application and the obligations arising in cases where the shifting is sought to a property not belonging to the applicant but to some one else did not arise in the case dealt with by Isaac J. On the facts of that case therefore, if we may say so with respect, the conclusion reached by the learned Judge is correct. There were of course observations in the judgment that, when the law requires a person to do something, it is not necessary that he himself should do that, but it will be open to that person obliged by law to act in a particular way to get some one else as an agent to do what he himself would have done for and on his behalf and, it was observed by the learned Judge, is substantial compliance with the provisions of law. On this matter we feel great doubt and with respect we have to say that the provisions of the statute would not justify such an interpretation. The wording of the section, sub-s.(2) of S.75, clearly and in an unambiguous language states that the applicant or the landlord, or to be more exact and to use the language of the section, the person in possession of the land on which the kudikidappu is situated, may require the kudikidappukaran to shift to a new site belonging to him. It is, therefore, clear that the site to which the kudikidappukaran is required to shift is one that belonged to the person requiring him to shift. We see no reason either, from the subject or the context to read these words whose import, as we said, is clear, in any other manner as not to give effect to the statutory provisions. Apparently the provision is to enable the kudikidappukaran to make up his mind when he is required to shift whether he should agree or not. A kudikidappukaran, it must be remembered, has been given, by virtue of the provisions in the Act, fixity of tenure, a fixity which enables him not only to stay in the hut in which he had been staying with . permission but also the right and title to a minimum of 3 cents of land inside a city or major municipality, 5 cents inside a municipality and 10 cents inside any panchayat area or township. The provision in sub-s.(2) of S.75 is an exception to the statutorily conferred right and is a provision in favour of the owner of the land in possession, but subject to the conditions mentioned in sub-section (2) that he must need it for building purposes for himself or any member of his family or for purposes in connection with a town planning scheme approved by the competent authority or for any industrial purposes and further that (1) he is willing to pay to the kudikidappukaran the price of the homestead, if any, erected by the kudikidappukaran; (2) that the new site shall be fit for erecting a homestead and shall be within a distance of one mile from the existing kudikidappu; (3) that the extent of the new site shall be the extent of the existing kudikidappu, subject to a minimum of 3 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 and (4) that the landholder 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 a new site. The proviso to sub-s. (1) of S.77 states that "no application under the sub-section shall be made without giving the kudikidappukaran one month's notice by registered post". The provision in condition (4) of S: 75(2), to which we have already referred, that 'the landholder shall transfer ownership and possession of the new site to the kudikidappukaran' and the proviso to S.77(1) that notice should be given one month before the application is made under S.77(1) clearly indicate that the requisition should be to shift to a land belonging to the landlord and that he must be in a position to transfer ownership and possession of that land. We see no reason why the clear wording of the sections should be changed to accommodate an agent of the landlord or a third party. Being an exception to the rule, those claiming the exception must satisfy the conditions provided by the statute strictly. With respect, we think that the view taken by Justice Nambiyar and Justice Eradi in the decisions reported in 1973 KLT 655 and 1973 KLT 923 respectively and the view taken by Justice Bhaskaran in the decision reported in Janaki v. Land Tribunal, Vaikom 1974 KLT 706 is the correct view to be taken on the sections.