Assankunhi Haji vs Rugmini Amma and Others

L. Manoharan, J.—The question that calls for decision in this C.R.P. is whether a person who was permitted to occupy a cow shed is a kudikidappukaran within the meaning of Section 2(25) of the Kerala Land Reforms Act, 1963 (for short ''the Act'').

A destitute maid servant who had no abode to stay had to reside in a cow shed as per permission of her master to whom it belonged, was fighting to retain that shelter over after 1977 before the Land Tribunal, the Appellate Authority and now before this Court. Facts in brief are as follows:

First Respondent instituted O.A. 272 of 1977 u/s 80-B of the Act for purchase of kudikidappu, She was the maid servant of the 2nd Respondent. In 1967 the second Respondent permitted her to occupy a cow shed that belonged to him, she made suitable alterations in the same and started to reside therein. Second Respondent later sold the property under Ext. B-1 to the 3rd Respondent. Pending the O.A. the revision Petitioner purchased the same. Revision Petitioner and the 3rd. Respondent contested the claim of the first Respondent. Land Tribunal dismissed the O.A., against the decision first Respondent preferred A.A. 98 of 1979 before the appellate authority. Appellate authority allowed the appeal and remanded the O.A. for fresh disposal. Again the Land Tribunal dismissed the O.A. She went in appeal; A.A. 18 of 1984 was allowed. This Civil Revision Petition is directed against the said judgment.

The main argument of the learned Counsel for the revision Petitioner is, since the case of the first Respondent is, she was permitted to occupy a cow shed and since a cow shed is not a hut or dwelling house within the meaning of Section 2(25) of the Act, she is not entitled to claim the benefit of kudikidappukaran. Learned Counsel relied on Section 2(25)(b) of the Act and explanation II to Section 2(25) in support of the said contention. On the other hand the learned Counsel for the first Respondent contended, on a correct interpretation of the said provisions with due regard to the intention of the legislature, the character of a dwelling house would depend upon the actual user of the same, therefore though what was permitted to be occupied was a cow shed since admittedly same was used for dwelling the same is a dwelling house. Consequently it is a hut within the meaning of Explanation II of Section 2(25) of the Act. It was also alternatively contended by the learned Counsel, since admittedly she was in occupation on 16th August 1968 and. continued to be in such occupation on 1st January 1970 as per Explanation II-A of Section 2(25) of the Act, she has to be deemed to be a kudikidappukari as the cost at the time of construction did not exceed Rs. 750. To appreciate the rival arguments it is necessary to read the relevant provisions in Section 2(25) of the Act.

2 (25) ''kudikidappukaran'' means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and--

(a)....

(b) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land; and ''kudikidappu'' means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto:

Explanation I--

Explanation II.--For the purpose of this clause--

(a) ''hut'' means any dwelling house constructed by a person other than the person permitted to occupy it--

(i) at a cost, at the time of construction, not exceeding seven hundred and fifty rupees; or

(ii) which could have at the time of construction yielded a monthly rent not exceeding five rupees, and includes any such dwelling house reconstructed by the kudikidappukaran in accordance with the provisions of Section 79:

(b)....

Explanation IIA.--Notwithstanding any judgment, decree or order of any court, a person, who, on the 16th day of August 1968, was in occupation of any land and the dwelling house thereon (whether constructed by him or by any of his predecessors-in-interest or belonging to any other person) and continued to be in such occupation till the 1st day of January 1970, shall be deemed to be a kudikidappukaran:

Provided that no such person shall be deemed to be a kudikidappukaran--

(a) in cases where the dwelling house has not been constructed by such person or by any of his predecessors-in-interest, if--

(i) such dwelling house was constructed at a cost, at the time of construction, exceeding seven hundred and fifty rupees; or

(ii) such dwelling house could have, at the time of construction, yielded a monthly rent exceeding five rupees; or

....

The Special Revenue Inspector''s report dated 20th October 1983 states that, the cost at the time of construction could not have been more than Rs. 750 and would not have fetched more than Rs. 5 as monthly rent. The judgment of the appellate authority states that the Appellant is recipient of a destitute pension. It is not disputed that she has no other building or land.

According to the learned Counsel for the Petitioner as per Explanation II, hut should be a dwelling house and since cattle shed or cow shed neither is structurally suitable nor is it intended for human habitation; it cannot answer the description of "dwelling house" consequently it is not a dwelling house within the meaning of Section 2(25) of the Act. The emphasis was on the literal meaning of "dwelling house". With reference to an argument that, if only the building was intended to be a dwelling house when it was constructed, can it be a kudikidappu; in the decision in Joseph v. Antony 1970 KLT 534, it is observed in para 6:

...The reasoning that only if the building was intended to be a dwelling house when constructed can it be a kudikidappu appears to be fallacious.... Of course, the meaning to be attributed to words of common use but elastic import depends on the context and statutory purpose. Having due regard to the beneficient object of this provision, I think it right to accept the view that a house is a dwelling house if it is used for dwelling and not only if, to begin with, it was built for a dwelling house. The expression is descriptive of existing use and not indicative of original purpose.

Learned Counsel for the revision Petitioner maintained that, in view of the definition of "hut" in Explanation II to Section 2(25) of the Act, an interpretation as is evolved in the decision in Joseph''s case 1970 KLT 534 is not possible and therefore the said decision requires reconsideration. According to the learned Counsel what is necessary to be considered as per Section 2(25)(b) of the Act is the nature of the structure at the time of granting permission. Learned Counsel maintained, that, though the first Respondent has made structural changes to suit her residence and converted the same into a residential house later, that cannot have any relevance in considering whether at the time of granting permission, the structure was a hut. According to the learned Counsel if at the time of granting permission the structure did not answer the character of a hut as understood in Explanation II to Section 2(25) of the Act, the said person is not entitled to the benefit of kudikidappukaran.

P.W. 2 the second Respondent supported P.W. 1 the first Respondent''s case that she was permitted to occupy the structure in 1967, she made certain alternations and continues to reside therein. When a person is permitted to occupy a cow shed that should necessarily imply permission to make necessary modification to use it as a dwelling house because the permission granted was for the residence; to user intended thereby being dwelling or residence and not to use it as a cattle shed, the permission certainly should imply consent and permission to use it as a dwelling with necessary structural modifications so that the permission to use it as a dwelling house could be given effect. The natural consequence and effect of the permission cannot be withheld. Irrespective of the shape and nature of the structure at the initial construction, its character is decided by the user.

The words employed in statute would acquire meaning and content from the context in which they are used. A statutory provision should not be read and understood in isolation, but has to be understood with due regard to the context and legislative intent. A construction which would destroy the legislative intent should not be adopted. The object of interpretation is to discover the intention of the legislature. Of course, the intention has to be deduced from the language used. At page 45 of Maxwell on Interpretation of Statutes-12th Edition it is stated:

If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.

There can be no doubt as to the legislative purpose of the Act particularly Section 2(25) of the Act. It is intended to secure shelter to those who have no place to reside. The zeal, concern and anxiety to protect the hearth and shelter of the homeless is the seal of this beneficial provision. The very fact that she opted to reside in a cow shed, in the circumstance, shows she is one among those who are intended to be benefitted by the said provision. A narrow interpretation rooted in the literal meaning of "dwelling house" perhaps may not take in a cow shed. In the circumstances such an interpretation is quite out of place. The permission granted was to reside-to live; that means to live with the human dignity, not mere survival or animal existence. The ecstasy in the realisation of the object of a benevolent legislation like the Land Reforms Act would make justice sublime when it coincides with legislative intent. In the circumstance an interpretation that would subvert the purpose of the legislation certainly is not justified.

As is held in Joseph''s case 1970 KLT 534, it is the actual user that determines the character of the structure. Whatever be the shape and model, if the structure is used for human residence and it satisfies the other conditions it will be a dwelling house within the meaning of Section 2(25) of the Act.

In the decision in Gopalan v. Lekshmi Amma 1977 KLT 807 though the permission granted was to put up a building to be used as tea shop, since he was occupying the building as a dwelling house on 16th August 1968 and such occupation continued till January 1970 it was held he is entitled to the benefit of kudikidappukaran. In the circumstance since the 1st Respondent admittedly was occupying the said structure on 16th August 1968 which, as noted, is a dwelling house and continued to be in such occupation on 1st January 1970, she is entitled to the benefit of Explanation II-A to Section 2(25) of the Act also.

I respectfully agree with the view expressed in Joseph''s case 1970 KLT 534. Thus, there is no merit in the Civil, Revision Petition and the same is liable to be dismissed, which accordingly is dismissed.