M. P. Raman and another vs K. Pathu and another

K.P. Radhakrishna Menon J.

C.R.P. 1603 of 1987 arises from O. A. 135 of 1973, an application filed by the petitioner u/s 80 B K.L.R. Act whereas C.R.P. 1642 of 1987 arises from O.A. 129 of 1979, an application filed by the landlord (first respondent in both the revisions) u/s 75(2) for shifting the kudikidappu to the new site, described in B schedule attached to the application. It is unnecessary to trace the previous history '' of the case because the only question that arises for consideration is whether the landlord has established that he requires the whole of the land including the site of the kudikidappu or land appurtenant thereto or at least apart of the kudikidappu and the land appurtenant thereto for constructing a building for the residence of her son who, going by the evidence on record, at the time of the filing of the shifting application, was residing with his wife and children, with his parents.

The Land Tribunal after evaluating the evidence, the parties had produced in the proceedings, observed that the shifting application is not at all bonafide and that it has been filed to harass a poor kudikidappukaran". Regarding the question as ''to whether the alternate site suggested by the landlord is fit for erecting a homestead, the Tribunal entered the following findings:-

The fact that the B schedule property is a paddy field is evidenced by Ext. PI (document No.401/79) and the statement of Pw2. He has admitted that he has constructed a house there after filling the land. The report of the Special Revenue Inspector also shows that the B schedule property will be submerged during the rainy season. Apart from that there is legal impediment in converting the paddy field to garden for constructing a house as it will contravene the provision of KLU Order. It is also seen that the access to the alternate site is through a small varamba. In view of this I find that the B schedule property is not fit for erecting homestead".

The Land Tribunal consequently allowed O. A. 135 of 1973, filed u/s 80B.

These orders disposing of the above O. As were challenged by the landlord by filing appeals before the Appellate Authority. Regarding the bonafide requirement the Appellate Authority has opined thus:-

As correctly pointed out by the counsel for appellant considering the extent of the property and taking into consideration that the ''A'' schedule property is situated in an interior place it has to be found that the claims for shifting the kudikidappu from ''A'' schedule property has to be held reasonable. Further the argument of the respondent that the applicant''s son is residing in a house at Manjeri with his wife, children and parents will not in any way affect the bonafide requirements to construct a house for his residence at Feroke for himself and his family".

Regarding the question whether the ''new site'' is fit for erecting a homestead, the finding is that inasmuch as the appellant had pointed out that "the paddy field has been filled long ago and a number of houses have sprouted in the locality and as such KLU order is not an obstacle at all", the ''new site'' is fit to erect a homestead.

The common judgment of the Appellate Authority disposing of the appeals is under challenge in these revisions.

That the petitioner is a kudikidappukaran and hence entitled to purchase the kudikidappu right in terras of Section SOB K.L.R. Act, is admitted. Therefore the only question that needs to be considered by this Court is, whether the landlord has established that she bonafide requires the whole of the la d including the site of the kudikidappu, for constructing a building for the residence of her son. The answer to this question depends upon the construction of section 75 (2).

Construing this Section a Full Bench of this Court in Korumban v. Land Tribunal (1976 K. L. T. 765 (F. B) has observed as follows:-

A mere desire or intention honestly held will not amount to ''bonafide requirement''. An element of need must be established.

It has further been observed;-

.the landlord seeking eviction from the land must establish not only that he wants the land in which the kudikidappu is situate for one of the purposes in clauses a, b or c of sub-section 2 of Section 75 but he must establish that he requires the whole of the land, including the site of the kudikidappu or land appurtenant thereto, or at least a part of the kudikidappu and the land appurtenant thereto".

Regarding this aspect, in his concurring judgment, Subramonian Poti, J has observed thus:-

Bonafide requirement must mean an honest need. Proof of need requires something more than proof of intention or desire. The existence of desire or intention on the part of the person seeking shifting of a kudikidappu would not be sufficient. It, must be shown that the person honestly needs the land on which the kudikidappu is situate for any of the purposes mentioned in the Section.

It is thus clear from these observations that it is not enough if the landlord establishes that he honestly intends or desires to have the land for any of the purposes mentioned in clauses a, b or c. On the other hand he shall establish that he honestly needs the land for the said purposes.

Here we are concerned with clause ''a'' only. How to establish the "honest need is the ticklish question before us. What exactly is the nature of the evidence, the landlord shall produce in proof of the "honest need", invariably depends upon the facts of each case. Say for instance the case of a landlord having a very large family. The building he proposes to construct must necessarily be bigger than the building a landlord with a small family, would like to have. The landlord in the former case requires more extent than the landlord in the latter case. Whatever that be, the minimum a landlord should establish in this regard is, he has the requisite fund to construct the building and for the construction of the proposed building he has already got a plan drawn to scale or plan approved by a competent authority, in case the proposed building is to be constructed in an area, situate within the jurisdiction of the said authority. This is necessary because the plan would give an idea as to the extent of land required for the construction of the building. In the absence of such evidence it cannot be said that the landlord has successfully established that he bonafide requires the land for constructing the building envisaged under clause (a). A reference in this connection to the observations (extracted hereunder) made by Subramonian Poti J. in the Full Bench ruling is profitable:-

It must be further shown that it is either the whole land or some area in that land inclusive of the site of the kudikidappu that is required. There is no rule that any particular extent is required for any of the purposes mentioned in sub-section (2) of S. 75. The extent of the area required is a question of fact. It may vary from case to case and must depend upon the particular facts of each case. Therefore even in cases where a person possessed of other properties, establishes requirement of the property in which the kudikidappu is situate for one of the purposes mentioned in S. 75(2), if the property is of so extensive an area that it could be put to the use for the purpose mentioned in S. 75(2) without disturbing the kudikidappu shifting of such kudikidappu cannot be justified. S. 75(1) confers ''fixity of tenure on a kudikidappukaran and S. 75(2) and (4) are exception to that rule, provided by the statute. Anyone seeking the benefit of these exceptions must prove the circumstances justifying the application of these exceptions. What is to be established in an application for a shifting is that either whole of the land in which the kudikidappu is situate or portion of it inclusive of the site of kudikidappu is required for one or other of the purpose mentioned in S. 75(2)

(Headnotes)

But where the total extend of land held by a person, either as owner pr as tenant, is less than one acre and there is a kudikidappukaran on any land held by him, he may, if he requires the land occupied by such kudikidappukaran for constructing a building for his own residence, apply to the Government for the acquisition of land to which the kudikidappu may be shifted. (Vide sub-section 3 of Section 75). The person mentioned in this section need not establish as in the case of a person falling under sub-section 2, that he honestly needs the land for constructing a building for his residence. Absence of the qualifying word ''bonafide'' before ''requires'' makes this section less stringent than sub-section 2. A plain reading of these two sub-sections makes it clear that landlord falling under sub-section 2 cannot get the kudikidappu shifted to a new site for the mere asking as in the case of an owner coming under Sub-section 3. To put it pithy in order to sustain the plea for shifting falling u/s 75 (2), the landlord shall establish that he has already taken concrete or positive steps for the construction of the building on the land from where he wants to shift the kudikidappukaran-These aspects of the case require a detailed investigation. These aspects however have not been considered by the Appellate Authority. For that matter even the Full Bench ruling does not appear to have been brought to its notice because there is no reference to the said ruling in the judgment under attack.

Regarding the finding of the Appellate Authority on the question whether the new site is fit for constructing building, it should be said that the Appellate Authority has not considered the issue in the right perspective. The provisions of K. L. U. Order prohibit the conversion of paddy field into any other form of land and if that be so the - question as to whether the new site, which going by the recitals in the document is a paddy field, is fit to construct the building requires to be considered afresh. The finding of'' the Appellate Authority in this regard therefore is vacated. The question also is left open for being considered afresh. In the light of what is stated above the judgment of the Appellate Authority requires to be set aside. I accordingly set aside the same and remand the case to the Appellate Authority for a denovo consideration and decision. the Appellate Authority shall give the parties to the proceedings an opportunity to produce/adduce fresh evidence if they so desire before the appeals are finally disposed of.

The C. R. Ps are allowed in the manner indicated above. No costs.