KUNHIMAMA Vs. VASU

JUDGEMENT

(1.) This revision is referred to a Division Bench to settle the correctness of the decision in Chacko v. Paul ( 1974 KLT 743 ), in view of the contrary observations made in Purushan v. Prakasan ( 1977 KLT 10 ) and the observations in Padmanabhan v. Kunhalikutty ( 1978 KLT 140 ).

(2.) An application for purchase of Kudikidappu under S.80-B of the Act was dismissed by the Tribunal on the ground that the kudikidappukaran was one who derived rights after 1-1-1970. On appeal, the Appellate Tribunal held that that circumstance alone would not disentitle the kudikidappukaran to apply for purchase under S.80-B of the Act. The Tribunal relied on the observations in 1977 KLT 10.

(3.) We have issued notice to the learned Advocate General to settle the question of the scope of the definition of kudikidappukaran in S.2(25) of the Act. We record our thanks to the learned Advocate General for the assistance offered in deciding the question. The stand taken by the learned Advocate General was that on the scheme and conspectus of the provisions of the Act, it cannot be said that a kudikidappukaran brought into existence after 1-1-1970 is not entitled, on that ground, to the right of purchase under S.80-B of the Act. He would still be entitled to purchase, provided the other requirements of the definition of a kudikidappukaran in S.2(25) stand satisfied. Giving the matter our careful attention, we think that this stand taken by the learned Advocate General is correct. Counsel for the petitioner had himself fairly conceded that no prohibition either express or implicit on the kudikidappukaran coming into existence after 1-1-1970 can be spelt out from the definition in S.2(25) of the Act. But such a requirement was sought to be gathered from the other sections of the Act, such, for instance, as S.75(3), S.80-A, S.76, 79, 83, 84 etc. We have found it difficult from a survey of these Sections to import into the definition of S.2(25) of the Act a limitation that the kudikidappu should have been in existence on 1-1-1970. As we stated, the definition itself gives no clue to any such construction; and, as pointed out by the learned Advocate General, there seems to be enough in some of the other sections of the Act to indicate that the Act envisaged the coming into existence of a kudikidappu even after 1-1-1970. The learned Advocate General drew our attention to S.72 of the Act, which provides for the vesting of the landlord's rights in Government; and the consequential provision contained in S.74 of the Act which forbids the creation of tenancies subsequent to the commencement of the Act, That provision is understandable. But neither on principle nor on the policy of the Act is it possible to spell out a prohibition against the creation or the springing into existence of a kudikidappu subsequent to 1-1-1970. S.75 provides the grounds for eviction of a kudikidappukaran. S.75(1)(iv) lists one of the grounds as the kudikidappukaran having another kudikidappu or having obtained ownership and possession of land which is fit for erecting a homestead within a certain distance of the kudikidappu. It was pointed out that the Section contains some indication that the creation or the coming into existence of a kudikidappu, even subsequent to 1-1-1970 was contemplated or envisaged by the Act. A similar indication is also available from S.75(1) clauses (a) and (b) which provided for contingencies under which a kudikidappukaran as on 1-1-1970 is liable to be evicted by his landlord on certain grounds. Attention was called to sub-s.(2) and (3) of S.75, to S.79 and to S.80, 80-A(iv), all of which seem to be inspired by the same principle or consideration. 'Clause (iv) of S.80-A and clause (iv) of S.109, to our mind offer clear indication that the Legislature did not rule out the creation or the springing into existence of a kudikidappu even after 1-1-1970. We are of the opinion, that the mere fact that the kudikidappu sprang into existence only subsequent to 1-1-1970 would not disentitle the kudikidappukaran to the status or the privileges conferred by the Act, so long as the other conditions of the definition stand satisfied. In other words, we record our agreement with the observations in 1977 KLT 10 and with the decision in 1978 KLT 140. We cannot accept as correct the decision in 1974 KLT 743.