PATHUMMAMA UMMA Vs. SPECIAL TAHSILAR-CUM-LAND TRIBUNAL

JUDGEMENT

(1.) A short question concerning the interpretation of S.75(2) of the Kerala Land Reforms Act, 1963 (hereinafter called the Act) arises for determination in this case. In view of the importance of the said question the Division Bench before which this appeal originally came up for hearing referred the case to a Full Bench, and that is how the matter has come up before us.

(2.) The writ appeal is against the decision of our learned brother Vadakkel, J. allowing O. P. No. 5957 of 1975 filed by respondents Nos. 1 and 2 herein and quashing the order Ext. P3 passed by the Land Tribunal No. II, Ponnani. By the said order the Land Tribunal had allowed an application O. A. No. 1212 of 1971 filed by the appellant herein under S.75(2) of the Act for shifting the kudikidappu of respondents Nos. 1 and 2 from its existing site in R. S. No. 144/2 of Kadavanadu Amsom to another property comprised in R. S. No. 215/5 and 7A of Ponnani Nagaram Amsom. Admittedly the site of the existing kudikidappu of respondents No. 1 and 2 belongs to the appellant and the relief of shifting the same to the alternate site described in the petition was sought by the appellant on the ground that he bona fide required the property to construct a dwelling house for himself. The alternate site in R.S. No. 215/5 and 7A of Ponnani Nagaram Amsom to which the kudikidappu was proposed to be shifted, however, belonged jointly to the appellant and his brother's widow, one Pathavu alias Kunhimol. The appellant had thus only an undivided half right over that property but it was alleged that there was an agreement entered into between himself and Kunhimol for transfer of the latter's right in favour of the appellant and that pursuant thereto the property was in the sole possession of the appellant since 1970. The kudikidappukars, namely, respondents Nos. 1 and 2, opposed the application for shifting by contending that the plea of bona fide requirement put forward by the appellant was not true and that, in any event, the prayer for shifting could not be sustained since one of the vital conditions specified in S.75(2) of the Act, namely, that the new site offered to the kudikidappukaran should be one belonging to the person who seeks the relief of shifting, is not satisfied in this case. The Land Tribunal by its order evidenced by Ext. P3 dated 31st October, 1975 rejected the aforesaid contentions raised by respondents Nos. 1 and 2 and allowed the appellant's application for shifting. It accordingly directed that respondents Nos. 1 and 2 shall shift their kudikidappu to the new site specified in the application within thirty days from the date of its order. Aggrieved by the said decision of the Land Tribunal respondents Nos. 1 and 2 filed O. P. No. 5957 of 1975 before this court seeking to quash Ext. P3, the principal contention raised in the writ petition being that the Land Tribunal had acted illegally and without jurisdiction in allowing the prayer for shifting notwithstanding the fact that the landholder who sought the relief of shifting had not complied with the mandatory requirement contained in S.75(2) that he must offer to the kudikidappukaran a new site "belonging to himself" in respect of which he was legally competent to transfer ownership and possession to the kudikidappukaran. Vadakkel J., allowed the original petition holding that since at the time when the requisition of shifting was made on the kudikidappukaran by the landholder as well as at the time of filing the application under S.77 of the Act the applicant for the relief of shifting (landholder) was legally entitled only to a half share in the alternate site offered to the kudikidappukaran, there was no valid requisition as contemplated by S.75(2) and 77 of the Act and the application for shifting was, therefore, not maintainable. In coming to the said conclusion the learned Judge relied on the ruling of a Division Bench of this court reported in Gopalan v. Oommen 1975 KLT 284 . The order Ext. P3 was accordingly, quashed by the learned Judge. While challenging the correctness of the decision so rendered by Vadakkel, J the appellant contends that the ruling of the Division Bench in Gopalan's case, 1975 KLT 284, requires reconsideration and it is the said plea that has necessitated the reference of the case to a Full Bench.

(3.) Sub-s.(1) of S.75 of the Act lays down that no kudikidappukaran shall be liable to be evicted from his kudikidappu except on the grounds specified in clause.(i) to (iv) thereof. However, sub-s.(2) confers on the landholder a right to require the kudikidappukaran to shift the Kudikidappu to an alternate site subject to the fulfilment of the conditions laid down therein. In case the kudikidappukaran fails to comply with such requisition made by the landholder by a registered notice within a period of one month of such notice the land-holder is given a right under sub-s.(1) of S.77 to apply to the concerned Land Tribunal to enforce compliance with the requisition and to pass an order requiring the kudikidappukaran to shift the kudikidappu before a specified date