Holding

Explanation II‑A makes any person in occupation of a homestead or hut between 16 August 1968 and 31 January 1970 a Kudikidappukaran, without needing to prove initial permission, subject only to the proviso’s quantitative limits.

Summary

The Supreme Court examined whether Explanation II‑A to clause (25) of Section 2 of the Kerala Land Reforms Act, 1964 (as amended by Act 17 of 1972) confers Kudikidappu rights on any person who occupied a homestead or hut between 16 August 1968 and 31 January 1970, irrespective of proof of initial permission. The Court held that Explanation II‑A is a non‑obstante provision that creates a statutory fiction, deeming every such occupant a Kudikidappukaran provided the proviso‑conditions (house cost, rent, and land‑holding limits) are met. Consequently, the appellant in Civil Appeal 3045 was entitled to restoration of the Land Tribunal order, and in Civil Appeal 2505 the appellant was granted relief only for the B‑schedule shed. The Special Leave Petitions were dismissed. The judgment emphasized a liberal, purposive construction of beneficial legislation.

Issues considered

Does Explanation II‑A to clause (25) of Section 2 of the Kerala Land Reforms Act, 1964 (Amended 1972) automatically deem a person occupying a homestead or hut during the period 16‑Aug‑1968 to 31‑Jan‑1970 as a Kudikidappukaran?
Is proof of initial permissive occupation required to claim Kudikidappu rights under Explanation II‑A?
What is the effect of the non‑obstante clause in Explanation II‑A on prior judicial decisions?
Do the proviso conditions (cost of house, rent, land‑holding limits) restrict the benefit of Explanation II‑A?

Legislation cited

Kerala Land Reforms Act, 1963s. Section 70
Kerala Land Reforms Act, 1964s. Section 2(25)
Kerala Land Reforms (Amendment) Act, 1969
Kerala Land Reforms (Amendment) Act, 1972s. Explanation II‑A to Section 2(25)

Subjects

Kerala Land Reforms ActKudikidappu rightsExplanation II-Astatutory fictionnon‑obstante clausebeneficial legislationliberal constructionoccupancy rightshomesteadhut

Judgment

S. APPUKUITAN A
v.
THUNDiyIL JANAK! AMMA & ANR.

JANUARY 13, 1988

[SABYASACHI MUKHARJI AND S. NATARAJAN, JJ.J B

Kera/a Land Reforms Act, 1964 as amended by Act 17 of 1972-
Explanation /l-A to clause (25) of Section 2 of-Scope and effect of

These appeals and Petitions for Special Leave raised a common
question of law regarding the scope and effect of Explanation 11-A to
clause (25) of section 2 of the Kerala Land Reforms Act, 1964, as
c
amended by Act 17 of 1972; What fell for consideration was whether by
reason of Explanation II-A to seetion 2(25) of the Act; a person in
occupation of a homestead or a hut belonging to another during the
per_iod stipulated in the Explanation would become a Kudikidappuka-
ran and be entitled to Kudikidappu rights under the Act. D

Allowing Civil Appeal No. 3045 of 1980, allowing C.A. No. 2505
of 1977 partly and dismissing the Petitions for Special Leave, the Court,

·.HELD: The. contentions of the· pa~ies in these cases had to be
examined in the conspectus of the several amendments°made by the E
').-- Legislature to section 2(25) of the Act and the decisions rendered by the
Kerala High Court. [669CI

Explanation 11-A has been made a non-obstante provision in
-~ order to give over-riding effect to the Explanation over any judgment,
decree or· order of any court, passed against a person who was on F
I 6.S_.68 in occupation of a homestead or hut thereon and who continued
.to be in such occupation till the lst day of January, 1970. The Legis.la-
ture bas by introducing Explanation 11-A done away with any reference
to occupation being referable to any permission granted by the owner of
. the land or the hnt as the case may be. Not only had the Legislature
eschewed any reference to permissive occupation but had also given a G
mandate that every one in actual occupation of any land and the dwel-
~ ling house thereon between 16.8.68 and l. l.70, irrespective of who built
· the dwelling place, should be granted recognition as a Kudikidappuka-
ran. By reason of this explicit provision, there was no scope whatever
restricting the class of person entitled to the benefit of Explanation II-A ,
to only those who were able to prove obtainment of initial permission to H
661
662 SUPREME COUR'.f REPORTS [1988) 2 S.C.R.

occupy a homestead or a hut thereon. Explanation II-A equates an
A
occupant of a homestead or a hut thereon during the relevant period
with a Kudikidappukaran as defined under the main clause. Such being
the case, anyone satisfying the requirements of Explanation II-A would
automaticaHy be entitled to have the status of a Kudikidappukaran and
to all the benefits flowing therefrom. In other words, a person falling
B under Explanation II·A has to be statutorily deemed as one permitted to
occupy a homestead or the hut thereon as envisaged in sub-clauses (a)

-
and (b) of clause (25) of.section 2. The only limitation placed by expla-
nation II-A is that a person falling within the terms of the definition
should satisfy the conditions laid down by the provisd to the Explana-
tion, viz. that if he or his predecyssor had not constructed the dwelling
house, the house should not costwise exceed Rs. 750 or.rentwise exceed a
c monthly rent of Rs~5 and the occupant should not be in possession of
land exceeding tl!ree cents in extent in any city or major municipality or
five cents in any 9ther municipality or ten cents in any panchayat area
or township either as owner or as a tenant on which he could erect a
building. Viewed in the proper perspective, Explanation II-A consti-
D tutes a second limb of clause (25) of section 2 to give full effect to its
intendment, viz., entitling a person to Kudikidappu rights.imder section
2(25) if he proves initial permission to occupy the land and the dwelling
house without the need of proving continuous possession dllrill1g a pre-
scr.ibed period of time or in thealternative to claim Kudikidappu rights
under Explanation 'II-A by proving continnous occupation during the y
E period of time pre5cribed by the Explanation without the necessity of
proving obtainment of initial permission to occupy the land and the
dwelling house thereon. Explanation II-A has got operatwe force of its
own, which may be seen from the fact that clause (25) of section 2 as
-
well as sub-clause (b) of the proviso to Explanation II-A lay down ,..
identical conditions which are to be satisfied by an. applicant unde~~
F the main clause or the Explanation for claiming rights as a Kudikidapp- -
ukaran. If the Explanation was sub-servient to section 2(25), there was
no need for the Legislature to have provided sub-clause (b) of the pro-
viso to Explanation II-A. There was no repugnancy between the two
provisions because section 2(25) pertains to occupants of homesteads of
one category while Explanatiqn II-A pertains to homestead occupants of
G a different category. [670A-H; 671A-G) .. ~

The Kerala Land Reforms Aet was a beneficial enactme'!t
intended to secure occupancy rights to farmers and agricultural labour-
ers who did not have homestead lands and dwelling places of their own
for. their occupation. In the case of beneficial enactments, the courts
H should follow a policy of benevolent and liberal construction. Even if
S. APPUKlJITAN v. T.J. AMMA 663

·i there was any little room for doubt whether Explanation II-A could go A
to the extent of conferring Kudikidappu rights on persons who were not
H able to prove their lawful entry upon the land and the occupation of the
dwelling house, it had to be held that the Explanation had been specifi-
cally provided for giving greater thrust to the intendment of the legisla-
ture, and, therefore, the Explanation warranted a liberal and purposive
B
interpretation so as to fulfil the object of the legislation and comply with
Y ·the legislative intent. l672G-H; 673G-H; 674A]
'
J' The attention of the Court was drawn to a judgment of this Court
--,.. in Palayi Kizhakkekara Methai's son K.M. Mathew and anr. v.
~- Pothiyill Mommutty's son Hamsa Haji & Ors., C.A. No. 165 of 1974,
&etc.-J.T. 1987 (2) S,C. 520, but the Court found no conflict between C
_1 the view taken by the Court in these appeals and the view taken by this
\ court in C.A. No. 165of1974, etc. l675C; 676EI

In C.A. No. 3045 of 1980, the appellant was in possession of a hut
from 1982 onwards; nevertheless his claim for Kudikidappu rights D
under Explanation II-A was rejected as he was not able to prove grant
11 of permission to him by the respondent for occupying the hut. Since it
has been held by the Court that a claimant for Kudikidappu rights
under Explanation II-A, who did not suffer any disqualification under
the proviso, needed only to prove' the factunrofpossession between the
prescribed dates for being placed on par with a Kudikidappukaran as
defined in section 2(25) of the Act, the appeal had to succeed, with order E
of the Land Tribunal, restored. [676F·HI

In the C.A. No. 2505 of 1977, the appellant claimed Kudikidappu
' rights in respect of two sheds set out in A & B Schedules; The appellant
was not entitled to any relief in respect of the A schedule property F
~ause it had been concurrently found by all the courts that he had
1 taken the shed on lease in the year 1954 under rent chit and that the
shed continued to be in existence and it had not been rebuilt by the
appellant. In respect of the B schedule shed, the appellant had been
denied relief solely on the ground that he had failed to prove grant of
permission by the respondent and his predecessor-in-title to occupy the
' > homestead and put up the shed. In view of the factum of occupation of G
the B schedule property during the period envisaged by Explanation
'y II·A, the appellant was entitled to a decree in respect of the B schedule
property. Appeal was partly allowed-in respect of the B schedule
property-and the case, remitted to the Land Tribunal for determining
the price of the B schedule property and for directions, etc. 1677 A·D I
H
664 SUPREME COURT REPORTS I 19881 2 S.C.R.
l-·
A The Petitions for Special Leave failed, because it had been concur-
rently found that the sheds occupied by the respondent in each case
were included in the property leased to the petitioner though possession >'
was allowed to be retained by the respondents and as such, the respon'
dents were entitled to claim Kudikidappu rights under Explanation 11-
A. As the respondents had been inducted into possession of the huts by the
B
owner of the land and as the lease granted to the petitioner comprised
the sheds occupied by the respondents also, the petitioner could not 1
contend that the respondents were not entitled to seek the sale of ten •
cents of land adjoining each hut under section 80 B of the Act. [677E-FI '

Velayudhan v. Aishabi, A.I.R. 1981 Kerala 185; Gopalan v. ~
c Chellamma, 119661K.L.T.673; Mariam and others v. Ouseph Xavier,•
11971] K.L.T. 709; Achutan v. Narayani Amma, 119801 K.L.T. 160, ) ..
A.I.R. 1980 NOC 90; Moideen Kuktty v. Gopalan, [19801K.L.T.468;
East End Dwelling Co. Ltd. v. Finsbary Borough Council, 119521 AC
109; M.K. Venkatachalam v. Bombay Dyeing and Manufacturing Co.
Ltd., [19591 S.C.R. 703; Commissioner of Income Tax, Delhi v. Teja
D Singh, A.I.R. 1959 S.C. 355; Industrial Supplies Pvt. Ltd. 'v. Union of
India, 11980] IV S.C.C. 341; Jeewanlal & Ors. v. Appellate Authority, "(
I 1984] 4 S.C.C. 356; Bharat Singh v. Management of New Delhi
Tuberculosis Centre, New Delhi, & Ors., 119861 2 SCC 614; Sonawati
& Ors. v. Shri Ram & Anr., 119681 I SCR 617; Azad Singh & Ors. v.
E Rarkat Ullah Khan & Ors., [198312 SCR 927; Shri Prithvi Cotton Mills 'y-
Ltd. & Anr. v. Broach Borough Municipality & Ors., 1197011SCR388;
Hari Singh & Ors. v. The Military Estate Officer & Anr., 119731 I SCR
515; D. Cawassi & Co. Mysore v. State of Mysore & Anr., [19851 1
SCR 825 and Palavi Kizhakkekara Mathaiy's son K.M. Mathew & Anr.
v. Pothiyill Mommitty's son Hamsa Haji & Ors., J.T. 1987 2 S.C. 520, "
referred to.
F ---"'
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3045 . ' \
of 1980 etc.

From the Judgment and Order dated 3.6.1980 of the Kerala High
Court in C.R.P. No. 2711of1918
G
S. Padmanabhan and N. Sudhakaran for the Appellant.

Abdul Khader and K.M.K. Nair for the Respondents.

The Judgment of the Court was delivered by
H
.S. APPUKUTTAN v. T.J. AMMA (NATARAJAN, J.I 665

NATARAJAN, J. The appeals by special leave and the special A
leave peti'tions raise a common question of law regarding the scope and
effect of Explanation II-A to Clause (25) of Section 2 of the Kerala
Land Reforms Act. 1964, (for short. the Act hereafter) as amended by
Act. 17 of 1972. It is, however, necessary to me.ntion two matters even
I at the outset of the judgment. Had the judgments in the two appeals
~ been pronounced after the decision in Velayudhan v. Aishabi, AIR B
1981Kerala185 by a Full Bench of the Kerala High Court, the results
would have been different and there would have been no necessity for
these appeals being filed. Secondly, the decision in Velayudhan v.
Aishabi, has become final since no appeal has been preferred to this
Court against the judgment therein.

What falls for consideration in all these cases is whether by
c
reason of Explanation !IA to Section 2(25) of the Act, a person in
occupation of a homestead or a hut belonging to another during the
period stipulated in the Explanation would become a Kudikidappuka·
ran and be entitled to Kudikidappu rights under the Act. •
D
~ For a proper·understandingof the issue: we niay make a brief
reference to the history of the Legislation and to some of the earlier
decision of the High Court. Originally, the occupants of dwelling
· houses or huts on homestead land belonging to others were only given
".>- a right to remove the materials of the super-structure put up by them
or alternately to seek monetary compensation thereof. The restricted E
conferment of rights exposed the occupants of huts belonging to others
to indiscriminate eviction. To afford protection to them, the erstwhile
:j._ Cochin State and the Trnvancore State passed suitable enactments to
safeguard their possession. Eventually, when the Travancore·Cochin
State came to be formed, an Act known as the travancore·Cochin
. Prevention of Eviction of Kudikidappukars Act; 1950 was passed. F
Even under that Act; protection was given only to those persons who
had put up the super-structures themselves and not to persons who
were occupying huts put up by the '!and owners.· Protection was
extended to that class of persons also unde,f the Kerala Stay of Evic-
tion Proceedings Act. 1957. The said Act was amended by the Kerala
--t"' Stay of Eviction Proceedings Act, 1958. This was followed by the G
Kerala Land Reforms Act, 1964 (the Act). Clause (25) of Section 2 of
the Act defined a Kudikidappukaran and Kudikidappu as under:

"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 . H
666 SUPREME COURT REPORTS [1988] 2 S.C.R.

municipality or ten cents in any panchayat area or town-
A
ship, in possession either as owner or as tenant, on which
he could erect a homestead and:

(a) who has been permitted with or without an obli-
gation to pay rent by a person in lawful possession of any
B land to have the use and occupation of a portion of such
land for the purpose of erecting a homestead; or

(b) who has been permitted by a person in lawful
possession of any land to occupy, with or without an obliga-_
tion to pay rent, a hut belonging to such person and situate
in the said land; ~
c
and 'Kudikidappu' means the land and the homestead
or the hut so permitted to be erected or occupied together
with the easement attached thereto."

D There were two Explanation to Section 2(25). For our purpose, it i~
enough if we set out Explanation II alone. It read as under:

"Explanation II" .. "Any person who was in occupation of z
Kudikidappu on the llth day of April, 1957, and who con·
tinued to be in such occupation at the commencement oJ
E this Act, shall be deemed to be in occupation of such
Kudikidappu with permission as required under the clause.
(Emphasis supplied).

In Gopalan v. Chellamma, [1966) K.L.T. 673 Madhavan Nair, J.
of the Kerala High Court held, without noticing a contrary view tak~
F in an earlier case in Second Appeal No. 558 of 1961, that to be a
Kudikidappukaran, the occupancy must have commenced with the
permission of the owner of the land, that the permission given should
not have been withdrawn or terminated subsequently but must have
continued to be effective till the relevant time, that Explanation II
would only have the effect of extending the permission initially
G granted to the date of the commencement of the Act and that a
trespasser forcibly entering upon the land will not be entitled to claim
rights as a Kudikidappukaran.

Subsequent to this decision, the Act underwent several amend-
ments under the Kerala Land Reforms (Amendment) Act, 1969. One
H of the changes effected was the substitution of Explanation II
S. APPUKUITAN v. T.J. AMMA [NATARAJAN, J.J 667
iI
(extracted above) by a proviso which read as under:
A
.... "Provided that a person who, on the 16th August, 1968 was
in occupation of any land and the homestead thereon, or .in
., occupation of a hut belonging to any other person, and who
·'' continued to be in such occupation at the commencement
' of the Kerala Land Reforms (Amendment) Act, 1969, shall B
y be deemed to be in occupation of such land and homestead,
,I
ll

....
-, or hut, as the case may be, with permission as required
under this clause." (Emphasis supplied) .

~
~ The proviso came to be construed by Krishna Iyer, J. (as he then
was) in Mariam and Others v. Ouseph Xavier, [1971) K.L.T. 709 and C
J_ the learned Judge differed only partly from the view taken in Gopalan
v. Chellamma (supra) and held that "the initial leave to occupy is
obligatory to make the dweller a Kudikidappukaran" and that the
proviso operates only at the next stage and hence such protection was
afforded only to persons who had initially obtained permission to
occupy the homestead or hut and continued to be in occupation till the D
commencement of the Act but without reference to any further ques-
tion as to whether the permission initially granted continued to subsist
or had been subsequently revoked.

After this decision was rendered, the Legislature once again
brought about certain amendments to the Act by means of the Kerala E
Land Reforms (Amendment) Act, 1972. The Legislature omitted the
proviso to Section 2(25) (extracted above) and introduced Explanation
II-A with retrospective effect. Explanation II-A is to the following
effect:
~
Explanation II-A "Notwithstanding any judgment, decree F
f or order of any court, a person, who on the .J6th day of
August, 1968, was in occupation of any land and the dwel-
ling house thereon (whether constructed by hirn or by any
of his predecessors-in-interest or belonging to any other
person) and continued to be in such occupation till the lst
day of January, 1970, shall be deemed to be a Kudikidapp- G
ukaran: (emphasis supplied).

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

(a) in cases where the dwelling house had not been H
668 SUPREME COURT REPORTS 11988) 2 S.C.R.

constructed by such person or by any or his predecessors-
A
in-interest, if-

(i) such dwelling house was constructed at a cost, at
the time of construction, exceeding seven hundred and fifty
rupees; or
B
(ii) such dwelling house could have, at the time of
construction, yielded a monthly rent exceeding five rupees;
or

(b) if he has a builidng or is in possession of any land
exceeding in extent three cents in any city or major munici-
c pality or five cents in any other municipality or ten cents in
any panchayat area or township, eith.er as owner or as ten-
ant, on which he could erect a building.

The scope and effect of Explanation II-A introduced by the
D Amending Act of 1972 cam~ to be construed by a Division Bench of
the Kerala High Court in Achuthan v. Narayani Amma, 11980) K.L.T.
160: AIR 1980 NOC 9(), 'The Bench held that the effect of Explanation.
II-A is to dispense with proof of permissive occupation, either in sup-
port or rebuttal thereof, and that even in the absence of such proof and
without any enquiry as regards the original occupation, a person who
E satisfies the conditions mentioned therein and does not fall within the
ambit of the proviso thereto has to be deemed a Kudikidappukaran.
However, in Moideenkuktty·v. Gopa/an, 11980) K.L.T. 468 another
...
Division Bench took a contrary view and held that the legal fiction
which had all along existed right from 1955 under Section 4(2) of the ,.
Travancore-Cochin Act, 1955, Explanation II to Section 2(20) of the~
F Agrarian Relations Act, 1961, Explanation II To Section 2(25) of the
Kerala Land Reforms Act, 1964 and the proviso thereto as inserted by '1
the Amending Act, 1969 was only intended to protect a Kudikidapp-
ukaran who began his occupation of a Kudikidappu with permission by
providing for the statutory continuance of the permission initially
given till the commencement of each of the above mentioned Statutes
G and the Explanation II-A introduced by Act 17 of 1972 had not altered
or widened the legal fiction so as to cover a case of initial permission
also. The Bench, therefore, held that unless initial permission for
occupation of a homestead or hut is established, Explanation II-A will
not be attracted. It was on account of the conflicting views taken by
the two Division Benches in Achuthan's case (supra) and Moideenku-.
H kutty's case (supra), a reference was made to a Full Bench for decision
S. APPUKUTIAN v. T.J. AMMA INATARAJAN, J.J 669

-1. of the case in Velayudhan & Ors. v. Alshabi & Ors. (supra) The Full A
Bench, after elaborately tracing the history of the Legislation and
.,,. considering the changes brdught about periodically by the Legislature
to confer Kudikidappu rights on occupants of homesteads and huts and
reviewing the earlier decisions, came to the conclusion that Explana-
tion II-A could be treated as an addendum to Section 2(25) in order to
widen the definition or alternately Section 2(25) can be treated as (he B
)- main provision and Explanation II-A as an exception thereto. In that
view of the matter, the Full Bench held that the decision in Achuthan's
case (supra) laid down the correct law and the view taken in
_,,,, ' Moideenkukutty's case was not sustainable.

'
. ...(
It is in the conspectus of the several amendments made by the
Legislature to Section 2(25) of the Act and the decisions rendered by
the Kerala High Court, we have to examine the contentions of the
counsel for the appellants and the respondents in the respective appe-
als. The Full Bench of the Kerala High Court bas analysed the position
and summed up its view in the following manner regarding the purpose
c

underlying the changes brought about in the Act and the new dimen- D
I' sion that has now been given by Explanation II-A to Section 2(25).
The relevant passage in Velayudhan's case (supra) occurs in para 24 at
page 192 of the report (AIR 1981 Kerala 192) and is as follows:

"When the words 'in occupation of a Kudikidappu' in Exp-
lanation II to Sec. 2(25) in the K.L.R. Act as originally E

- ;.
enacted was held by this Court to be suggestive of the need
for the person claiming Kudikidappu right thereunder to
prove permissive occupation as on the relevant date
(11.4.1957) thereunder, the legislature omitted the word
"Kudikidappu'', and resorted to the terminology of 'in
occupation of any land and the homestead thereon, or in F
occupation of a hut ....... 'in the proviso to Section 2(25)
as amended by the Amending Act, 1969. When this Cour.t
pointed out that still the emphasis of the fiction is on the
permissive aspect of occupation and not on the ·status of the
person as Kudikidappukaran, and that the words 'home-
stead' and 'hut' are indicativ.e of the requirement that G
permissive occupation as on the relevant date (16.8.1968)
has to be established, the legislature reacted by omitting
the words 'homestead' and 'hut' from the fiction and laying
stress on the status as Kudikidappukaran by enacting Exp-
lanation II-A to Section 2(25) of the K.L.R. Act as per the.
K.L.R. (Amending) Act, 1972." H
670 .SUPREME COURT REPORTS [1988] 2 S.C.R.
y
At the outset it has to be pointed out that Explanation JI-A has
A
been made a non-obstante provision in order to give over-riding effect
to the Explanation over any judgment, decree or order of any Court ~
passed· against a person who was, on 16.8.1968 in occupation. of a
homestead or hut thereon and who colltimied to be in such occupation •
till the lst day of :January· 1970.. Now, if we look at Explanation II to
B Section 2(25) as it originally stood and the proviso which replaced it
under the 1969 (Amendment) Act and Explanation JI-A which wa~ l
introduced iiy the amending Act 1972, we may notice the significant t~
changes made by the Legislature-and the. W1derlying reasons therefor.
In Explanation II, it was laid down that any person in occupation of a
Kudikidappu during the prescribed period Viz. 11.4.1957 to the date of 1l
commencement of the Act "shall be deemed to be in occupation of !J
C such Kudikidappu with permission as required under this clause''. ")..._
Since it was held in Gopa/an's case (supra) that the use of the words
"in occupation of a Kudikidapp11; with permission", obligated an
occupant of a Kudikidappu to prove initial permission to enter a home~
stead or occupy a hut on the land of .another. and further prove con-
D tinuance of such permission till the relevant date, the Legislature omit-
ted the word "kudikidappu" in the proviso that was substituted for
Explanation II under the 1969 Amendment Act. Even then, it was held
in Mariam's case (supra) that initial leave to occupy was obligatory to
make an occupant a Kudikidappukaran because of the use of the words
.. with permission as required under the clause" in the proviso.·There-

-
E fore, what the Legislature has done while introducing Explanation
U-A by the 1972 Amendment Act is to do away with any reference to
occupation being referable to any permission granted by the owner of
the land or the hut as the case may be. Not only has the Legislature
eschewed any reference to permissive occupation but has also given a
,.
mandate that everyone in actual occupation of any land and the dwel.:..s-'-
F li.ng house ther~on, betwee.n the dates 16.8.1968 to 1.1.1970, .ii:respec- ·- 1
t1ve of who butlt the dwellmg place, shall be granted recogn1t10n as a
Kudikidappukaran. The words used are "the person .......... in
occupation .......... shall be deemed to be a Kudikidappukaran."
By reason of this explicit provision, there is no scope whatever for
restricting the class of persons entitled to the benefit of Explanation
G II-A to only those who are able to prove obtainment of initial permis-
sion to occupy a homestead or a hut thereon. Explanation JI-A y
equates an occupant of a homestead or a hut thereon during the relev-
ant period with a Kudikidapyukaran as defined under the main clause.
Sucli being the case, anyone satisfying the requirements of Explana-
tion II-A would automatically be entitled to have the status of a
H Kudikidappukaran and to all the benefits flowing therefrom. In other
S. APPUKU'ITAN v. T.J. AMMA [NATARAJAN, J.) 671

words, a perst>n falling under Explanation tl-A has to be statutorily
deemed as one permitted to occupy a homestead or the hut thereon as A
envisaged in Sub-Clauses (a) and (b) of Clause(25) to Section 2. The
only limitation placed by Explanation ii-A is that a person falling
within Jhe terms of the definition should satisfy the conditions laid
down by the proviso to the Explanation viz. that if he or his predeces-
sor had not constructed the dwelling house, the house should not B
costwise exceed Rs.750 or rentWise exceed a monthly rent of Rs.5 and
the occupant should not be in possession of land exceeding three cents
in extent in any city or major municipality or five cents in any other
municipality or ten cents in any panchayat area or township either as
owner or as a tenant on which he could erect a building. viewed in the
proper perspective, Explanation II-A constitutes a second limb of
Clause (25) of Section 2 devised by the Legislature to give full effect to C
its intendment viz. entitling a person to claim Kudikidappu rig!Jts
under Section 2(25) if he proves initial permission to_ occupy Qte !arid
and the dwelling house without the need of proving continuous posses-
s_ion during a prescribed period of time or in the altemative-to claim
Kudikidappu rights under Explanation II-A by proving continuous D
occupation during the period of time prescribed by the Explanation
without the necessity of proving obtainment of initial permission to
.occupy the land and the dwelling house thereon. Explanation II-A has
got operative force of its own and this may be seen from the fact that
- •'(
Clause (25) of Section 2 as well as Sub-Clause (b) of the proviso to
Explanation II-A lay down identical conditions which are to be satis- E
fied by an applicant under the main clause or the Explanation for
claiming rights as a Kudikidappukaran. Both the provisions lay down
that any claimant for Kudikidappu rights should not have a homestead
or any land exceeding in extent three cents in any city or major munici-
pality or five cents in any other municipality or ten cents in any
panchayat area or township in his possession either as owner or tenpnt p
on which he could erect a homestead. If the Explanation is subservient
to Sectioo 2(25), there was no need for the Legislature to have pro-
vided-Sub Clause (b) to the proviso to Explanation II-A. There is no
repugpancy between the two provisions because Section 2(25) pertains
to occupants of homestead of one category while Explanation II-A
pertains to homestead occupants of a different category. G

By introducing Explanation II-A, the Legislature has created a
statutory fiction. As to how statutory fictions are to be interpreted is
by now well-settled. The approach formulated by Lord Asquith in East
End Dwelling Co. Ltd. v. Finsbary Borough Council, [1952] AC 109
has been approved by this Court in a number of cases. The line of H
672 SUPREME COURT REPORTS I1988] 2 S.C.R.

A approach set out by Lord Asquith is as under:

"If you are bidden to treat an imaginary state of affairs as
real, you must surely, unless prohibited from doing so, also
imagine as real the consequences and incidents which if the
putative state of affairs had in fact existed, must inevitably
B have flowed from or accompanies it. .... The statute says
that you must imagine a certain state of affairs; it does not 1
· say that having done so, you must cause or permit your \l~
imagination to boggle when it comes to the inevitable
corollaries of that state of affairs."
...
?i
c This line of approach has been adopted by this Court in a number of
cases and we may refer only to some of them. See M.K. Venkata·
>--
cha/am v. Bombay Dyeing and manufacturing Co. Ltd., 11959] SCR
703: AIR 1958 SC 875; Commissioner of Income Tax, Delhi v. Teja
Singh, AIR 1959 SC 355. In Commissioner of Income Tax, Delhi v.
Teja Singh (supra), this Court pointed out that "it is a rule of interpre-
D tation well-settled that in construying the scope of a legal fiction it
would be proper and even necessary to assume all those facts on which
alone the fiction can operate." In Industrial supplies Pvt. Ltd. v. Union
of India, [1980] IV SCC 341, this Court observed as follows:

"It is now axiomatic that when a legal fiction is incorpora- r
E ted in a statute, the court has to ascertain for what purpose
the-fiction is created. After ascertaining the purpose, full
effect must be given to the statutory fiction and it should be
carried to its logical conclusion. The court has to assume all
. """
the facts and consequences which are incidental or inevit- '"
able corollaries to giving effect to the fiction. The legal
F effect of the words 'as if he were' in the definition of owner
in Section 3(n) of the Nationalisation Act read with Section
\
2(1) of the Mines Act is that although the petitioners were
not the owners, they being the contractors for the working
of the mine in question, were to be treated as such though,
in fact, they were not so." ,~

G
It has also to be borne in mind that the Kerala Land Reforms Act y
is a beneficial enactment intended to secure occupang rights to
farmers and agricultural labourers who do not have homestead lands
and dwelling places of their own for their occupation. Incidentally, we
may mention-that Act 17 of 72 has been subsequently included in the
H 9th Schedule to the Constitution and this would reflect in fuller mea-
S. APPUKUTIAN v. T.J. AMMA lNATARAJAN, J.J 673

sure the anxiety of the Legislature to protect the rights of occupants of A
homestead and huts thereon. In the case of beneficial enactments the
courts should follow a policy of benevolent and liberal construction. In
Jeewanlal & Ors. v. Appellate Authority, [19841 4 SCC 356 it was
observed as follows:

"In construing a social welfare legislation, the court should B
'r adopt a beneficent rule of construction; and if a section is
capable of two constructions, that construction should be
•
~

preferred which fulfils the policy of the Act, and is more
!" beneficial to the persons in whose interest the Act has been
passed. When, however, the language is plain and unambi-
~\ guous, the Court must give effect to it whatever may be the
consequence, for, in that case, the words of the statute
c
-1 speak the intention of the Legislature. When the language
is explicit, its consequences are for the Legislature and not.
for the courts to consider. The argument of inconvenience
and hardship is a dangerous one and is only admissible in
construction where the meaning of the status is obscure and D
there are two methods of construction. In their anxiety to
advance beneficent purpose of legislation, the courts must
not yield to the temptation of seeking ambiguity when
there is none."
. -1
In Bharat Singh v. Management of New Delhi Tuberculosis Centre, E
New Delhi & Ors., 119861 2 sec 614, the abovesaid policy was
......l reiterated in the following words:

-< "Now it is trite to say that acts aimed at social amelioration
;....,........., giving benefits for the have-nots should receive liberal con-
struction. It is always the duty of the court to give such a F
i construction to a statute as would promote the purpose or
object of the Act. A construction that promotes the
purpose of the legislation should be preferred to a literal
construction. A construction which would defeat the rights
of the have-not and the underdog and which would lead to
~,

injustice should always be avoided." G
"T' Therefore, even if there is any little room for doubt whether
Explanation 11-A can go to the extent of conferring Kudikidappu rights
on persons who are not able to prove their lawful entry upon the land
on the occupation of the dwelling house, it has to be held that the
Explanation has been specifically provided for giving greater thrust to H
674 SUPREME COURT REPORTS [1988] 2 S.C.R.

A the intendment of the legislature and, therefore, the Explanation war-
rants a liberal and purposive interpretation so as to fulfil the object of
the legislation and comply with the legislative intent.

Mr. Abdul Khader, learned counsel for the respondent however
sought to contend, that whichever way Explanation II-A is construed
B i.e. whether as a legal fiction or as a re-enacted provision of substan-
tive law the Explanation would still be trammelled by the basic pre-
scription contained in the main clause regarding permissive occupa-
tion. The counsel argued that so long as clause (25) of Section 2
continued to define a Kudikidappukaran as a person "who has been
permitted ..... by a person in lawful possession ..... to have the use
c and occupation of a portion of the land for the purposes of erecting a
homestead/hut belonging to him in the said land", the Explanation
would necessarily be governed and controlled by the words in Clause
(25) of Section 2 and as such even if a person was in occupation of a
homestead or hut between the period 16.8.1968 to 1.1.1970 he will not
be entitled to claim rights as a Kudikidappukaran unless he is able to
D prove grant of initial permission by the owner of the land or the hut, as
the case may be. It was argued that it was not the intention of the
legislature to confer Kudikidappukaran rights on trespassers and unau-
thorised occupants. Our attention was drawn to the decisions in Sona-
wati & Ors. v. ShriRam &Anr., [1968] 1SCR617, and Azad Singh &
Others v. Barkat Ullah Khan & Others, 11983] 2 SCR 927. In these
E decisions the words "Cultivatory possession" occurring in the U.P.
Zamindari abolition & Land Reforms Act and the U .P. Land Reforms
(Supplementary) Act have been held to refer to lawful possession and
as such they would not, cover the case of a trespasser upon the land.
These decisions can be of no avail in this case because Explanation
II-A has avoided any reference to permissive occupation and has
F straight away equated an occupant of a homestead during the pre-
scribed period with a Kudikidappukaran as defined in the main clause.
The Explanation has to be interpreted in the light of the words used by
the legislature and having in mind the object sought to be achieved and
the evil sought to be remedied by the Act.

G Mr. Abdul Khader alternatively contended that Explanation II- ",..,
A should be construed as a validating provision introduced by the
legislature to overcome the limitations noticed by the Courts in the Y
corresponding provisions in the previous enactments and as such the
validation exercise cannot be given acceptance unless the validating
law satisfied the tests prescribed therefor. The learned counsel refer-
H red to certain decisions in this behalf, viz. Shri Prithvi Cotton Mills
S. APPUKUTIAN v. T.J. AMMA [NATARAJAN, J.l 675

Ltd. & Anr. v. Broach Borough Municipality·& Ors., [1970] 1 SCR
A
388; Hari Singh & Ors. v. The Military Estate Officer and Anr., [1973]
1 SCR 515 and D. Cawassi & Co. Mysore v. The State of Mysore &
Anr., [1985] 1SCR825: AIR 1984 SC 1980 and argued that a validat-
ing law can be upheld only if the legislature has competence to
legislate over the subject matter and secondly, only if the legislature
has removed the defects noticed by the Courts in the previous law. B
) This argument fails to take note of the significant change the legisla-
I ture has made in the wording of Explanation II-A. It is therefore futile
, to contend that Explanation II-A suffers from the same limitations the
... earlier provisions were thought to suffer from .

•' _.(·"\· respondents
After the arguments were concluded, learned counsel for the 'C
have circulated a copy of the judgment of this Court in
C.A. No. 165 of 1974 etc. Palayi Kizhakkekara Mathaiy's son K.M.
Mathew & Anr. v. Pothiyill Mommutty's son Hamsa Haji & Ors., JT
1987 2 SC 520 delivered on 29.4.1987 wherein Section 70 of the Kerala
Land Reforms Act, 1963 as amended by the Kerala Land Reforms
(Amendment) Act, 1969 •has been interpreted as conferring benefit O
thereunder only on persons whose occupation of the private forests or
unsurveyed lands had a lawful origin and not on persons in unlawful
occupation based on trespass or forcible and unlawful entry. We have
carefully considered the judgment and find that the pronouncement
therein does not in any way lend support to the contentions of the
respondents herein. The scheme of Sections 7A, 7B, 7C, 70, 8 & 9 of E

- the Kerala Land Reforms Act, 1963 is entirely different and this posi-
tion is succinctly brought out by the following passage in the decision
referred to above. The Court had summed up the scheme of the Act in
the following words:
··~
"On a careful scrutiny of the aforesaid prov1swns, it F
1 becomes abundantly clear that the intention of the legisla-
ture was to grant protection only to persons whose posses-
sion had a lawful origin in the sense that they had either
bona fide believed the lands to be Government's land of
which they could later seek assignment or had taken the
lands on lease from person whom they bona fide believed G
to be competent to grant such leases or had come into
possession with the intention of attorning to the lawful
owners or on the basis of arrangements like varam etc.
which were only in the nature of licences and fell short of a
leasehold right. It was not within the contemplation of the
legislature to confer the benefit of protection on persons H
676 SUPREME COURT REPORTS [1988] 2 S.C.R.

A who had wilfully trespassed upon lands belonging to others
and whose occupation was unlawful in its origin. The
expression "in occupation" occurring in Section 7D must
be construed as meaning "in lawful occupation."

The clear finding in that case was that the appellant had claimed
B
title on the basis of adverse possession and his own plea was that he had
come into possession of the lands by trespass. He was therefore, far
removed from the class of persons whom the Legislature wanted to
provide for viz. persons who had entered upon land under a bona fide
mistaken belief that the land belongs to Government and is capable of
assignment or that the land belongs to the person who had granted
C them lease etc. The entry was, therefore, linked with a bonafide belief
though mistaken, about the character of the land and hence a trespas-
ser is not entitled to claim any benefit. But in so far as Section 2(25)
and Explanation II-A of the Act are concerned the occupant of the
homestead or hut is not enjoined to prove that he occupied the .
homestead or hut under a bona fide mistaken belief and that he was
D not a trespasser. He need only prove under the main clause that he had
been permitted to occupy the homestead or hut and under Explanation
II-A that he had been in continuous occupation from 16.8.1968 to
1.1.1970. Presumably the Legislature has thought that an occupant of
a homestead or a hut would not have been allowed to remain in occu-
E pation for so long if he was a trespasser. There is therefore, no conflict
between the view taken by us in these appeals and the view taken by
this Court in CA No. 165/74 etc. (supra) ...
Having settled the question of law we will now deal with the
appeals and the Special Leave Petitions on their merits. In C.A. No.
..
•;;
3045 of 1980 it was found that the appellant was in possession of a hut~
F from 1962 onwards. Nevertheless his claim for Kudikidappu rights --· \
under Explanation II-A was rejected as he was not able to prove grant
of permission to him by the respondent for occupying the hut. Since we
have held that a claimant for Kudikidappu rights under Explanation
II-A, who does.not suffer any disqualification under the proviso, need
only prove the factum of possession between the prescribed dates for
G being placed on par with a Kudikidappukaran as defined in Section
2(25) of the Act, the appeal has to succeed and will accordingly stand y
allowed. Consequently, the order of the Land Tribunal Telicherry in
0.A. No. 22 of 1973 will stand restored but having regard to the lapse
of time, the appellant is directed to pay the entire amount towards the
H value of the hut and the land, as fixed by the Land Tribunal, within
three months from today.
S. APPUKUTIAN v. T.J. AMMA (NATARAJAN, J.] 677

As regards C.A. No. 2505 of 1977, the appellant claimed Kudiki- A
dappu rights in respect of two sheds set out in plaint A & B schedules.
In so far as A schedule property is concerned, the appellant is not
entitled to any relief because it has been concurrently found by all the
Courts that he had taken the shed on lease in the year 1954 under a
rent chit for running a tea shop and that the shed continued to be in B
existence and it had not been rebuilt by the appellant. However, in so
far as the shed comprised in B schedule is concerned, the appellant has
been denied relief solely on the ground that he had failed to prove
grant of permission by the respondent and his predecessors-in-title to
_..... occupy the homestead and put up the shed. Having regard to the
factum of occupation of the B schedule property during the period
envisaged by Explanation II-A, it follows that the appellant is entitled C
to a decree in respect of the B schedule property. The appeal is,
therefore, partly allowed in so far as the B schedule property is con-
cerned. The matter will stand remitted to the Land Tribunal Teli-
cherry for determining the price of the B schedule property for the
directions regarding the manner in which the purchase price should be D
paid by the appellant.

Special Leave Petitions 204 & 205 have to fail because it has been
concurrently found that the sheds occupied by the respondent in each
case were included in the property leased to the petitioner though
possession was allowed to be retained by the respondents, and as such
the respondents are entitled to claim Kudikidappu rights under Expla- E
nation II-A of Section 2(25) of the Act. As the respondents had been
inducted into possession of the huts by the owner of the land and as the
lease granted to the petitioner comprised the sheds occupied by the
respondents also, the petitioner cannot contend that the respondents
are not entitled to seek the sale of ten cents of land adjoining each hut F
.-r-...._ under Section SOB of the Act. Hence the Special Leave Petitions are
-f dismissed. ·

There will be no order as to costs in the appeals as well as the
special leave petitions.
G
S.L. Appeals and Petitions dismissed.

I