AMMALU Vs. MATHU AMMA

JUDGEMENT

(1.) THE petitioners in this original petition are kudikidappukars who were respondents in O. A. 145 of 1973, an application for shifting filed by respondents 1 and 2 before the 3rd respondent-Land Tribunal, panthalayini. By Ext. P-2 order the 3rd respondent allowed the above application for shifting. THE petitioners challenge the above order of the 3rd respondent in this original petition. Though a number of contentions are raised, the fate of this original petition depends upon the question whether an application for shifting under S. 77 (1) of the Kerala Land Reforms Act,1 of 1964, for short the Act, will lie if the bona fide requirement is for putting up a building for the land holder's mother.

(2.) THE petitioners are kudikidappukars in the land owned and possessed by the 2nd respondent. THE said land was gifted to the 2nd respondent by the 1st respondent who is none other than the 2nd respondent's mother. O. A. No. 145 of 1973 was filed by the 2nd respondent as the land in which the kudikidappu of the petitioners is situated was required for the purpose of constructing a house for the 1st respondent. THE petitioners contested and one of the contentions taken by the petitioners before the 3rd respondent was that the petition itself is not maintainable as the bona fide requirement is for putting up a house for the mother who will not be either a member of the 2nd respondent's family or one coming under S. 75 (2) (a) of the act. But the 3rd respondent by Ext. P2 order dated 28-11-1974 allowed the application for shifting.

(3.) THERE is considerable force in the contentions of the learned counsel for the petitioners. S. 75 (2) (a) of the Act reads: 7 5. (2) Notwithstanding anything contained in sub-section (1), the person in possession of the land on which there is a homestead or but (hereinafter in this sub-section referred to as the landholder) in the occupation as a kudikidappukaran may, if he bonafide requires the land (a) for building purposes for himself or any member of his family including major sons and daughters; or" It is clear that under S. 75 (2) (a) the bona fide requirement must be for building a house for the landholder or any member of his family including major sons. If the purpose for which the building is to be put up is not for the residence of the landholder or any member of his family including major sons and daughters then, a kudikidappukaran can be shifted even if the landholder requires the land for building a house for letting it out on rent. In that case, every kudikidappukaran in the State can be asked to shift from his kudikidappu and that will be virtually denying the valuable rights conferred upon kudikidappukars by the Act. If the provision is interpreted in consonance with the object of the Act an application for shifting for building purposes can be maintained under S. 75 (2) (a) of the Act only if the building to be put up by shifting the kudikidappukaran is for the residence of the landholder or any member of his family including major sons and daughters. It is true that in S. 75 (3) of the Act there is a difference in the wording. But the absence of the words 'for his own residence' in S. 75 (2) (a) of the Act cannot be a reason for holding that under S. 75 (2) (a) the building purposes can be for purposes other than the residence of the landholder or others mentioned therein. Hence it goes without saying that a kudikidappukaran cannot be asked to shift if the bona fide requirement is to put up a building for the residence of the landholder's mother.