KOCHU NARAYANAN Vs. KUNJI MOIDU

JUDGEMENT

(1.) We regret to observe that the relevant considerations and statutory provisions in the light of which the application filed by the appellant for shifting the Kudikidappukaran had to be disposed of, had not been kept in mind, and that the Tribunal's order for shifting was very perfunctory and unsatisfactory. We cannot agree with the learned Judge who sustained the order. The application related to an extent of about 2.14 acres of land. The ground alleged for shifting was the bona fide requirement of the applicant for constructing a building for one of his minor sons. The Tribunal gave two grounds for rejecting the application: first that as the son whose bona fide requirement was pleaded by the applicant was a minor, the necessity for evicting the kudikidappukaran was not immediate; and second, that as the property was of an extent of 2 acres and 14 cents, it was possible to accommodate the kudikidappukaran on ten cents of it and build a residence on the rest. The learned Judge dismissed the writ petition filed to quash the Tribunal's order sustaining the reasons given by the Tribunal.

(2.) Neither of the reasons stated by the Tribunal can be sustained. Both disclose patent errors of law and a fundamentally wrong approach to the question. As we have had occasion repeatedly to point out, the right of shifting a kudikidappukaran is a statutory right conceded "to a person in possession of land on which there is a homestead or a but" under S.75(2) of the Land Reforms Act, provided the conditions required by the Section are complied with and a suitable alternate site is provided for the kudikidappukaran to shift. Once these are complied with, we do not see any room for the Tribunal to state that the kudikidappukaran may well continue on ten cents of land in the property and the applicant may content himself with the rest, in satisfaction of his bona fide requirement. It is not the province of the Land Tribunal to dictate the measure or the extent of land on which an applicant in possession is to build his residential house for which he alleged bona fide requirement. The applicant is not to tailor his requirements to suit the tastes and specifications of the Tribunal. These are matters for the applicant to decide for himself. It is of course open to the Tribunal, taking into account the proved facts and circumstances to decide whether the alleged bona fide requirement has been made out, and either to reject or to allow the application. But there is no right on the Tribunal to an unwilling applicant with a kudikidappukaran and direct both to continue, on the Tribunal's fanciful notions of peaceful coexistence or otherwise. The very object of the provision is to enable the applicant to get rid of the kudikidappu and seek to live in peace. That can be had at a certain price, and on certain terms and conditions which it is for the Tribunal to adjudge. We have had occasion to emphasise this aspect of the matter more than once. From that point of view it appears to us that the Land Tribunal and the learned Judge were wrong in directing that the applicant may well content himself with the land left after giving ten cents of land to the kudikidappukaran and that there was no need for him to seek a shifting from the entire extent of 2 acres and 14 cents.

(3.) Counsel for the appellant very pertinently drew our attention to the evidence of Pw. 1, the only witness examined before the Tribunal to the effect that there are seven kudikidappukars in the property, that two of them bad been shifted by persuasion to corner positions and therefore the question of shifting them under S.75(2) had not been thought of; and that against the respondent herein and the remaining four kudikidappukars applications for shifting had been filed before the Tribunal. This again is an extremely relevant aspect which has been missed by the Tribunal and the learned Judge.