1. The 2nd respondent owns a building in Ward No. 4 of Cannanore Municipality. It had initially a thatched roof, but in 1952, some repairs or additional constructions were undertaken, when the old roofing was replaced by a tiled one. It was let out to the petitioner in 1965 on a monthly rent of Rs. 25/-. In 1971 or so the petitioner moved the Land Tribunal under S. 80B of Act I of 1964 for “purchase of kudikidappu”, and the question arose whether the building could be treated as a hut under S. 2(25) of the Act. According to the petitioner, the cost of construction relevant for the purpose was the cost initially incurred i.e before repairs or re-construction in 1952. That was below Rs. 750/-. The 2nd respondent contended that the cost of reconstruction in 1952 was also relevant; and if this was included, the figure was above Rs. 750/-. The Land Tribunal and the Appellate Authority upheld the latter contention and held that the building was not a hut. Hence this revision by the petitioner. S. 2(25) defining ‘kudikidappu’ and ‘kudikidappukaran’ reads as follows:—

“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 homeatead and—

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

(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:”

2. Explanation II to the sub-section is also relevant, and that reads:—

“Explanation II—For the purposes 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 S. 79; and

(b) “homestead” means, unless the context otherwise requires, any dwelling: house erected by the person permitted to have the use and occupation of any land for the purpose of such erection, and includes any such dwelling house reconstructed by the kudikidappukaran in accordance with the provisions of S. 79.”

3. In Lakshmi v. Kunhipparechan (1978 KLT. 122) where the tenant himself had made modifications to the building after his induction, Bhaskaran, J, (as he then was) took the view that “time of construction” in Explanation II, meant the time of initial or original construction, and that the cost sub-sequently incurred for modification or reconstruction was irrelevant. It was observed:—

“………The legislature consciously wanted to have the right of the kudikidappukaran determined with reference to the value of the dwelling house as it existed at the time; of its construction, not as it existed at the time of the coming into force of the Act or any other point of time……

If a reasonable interpretation, bearing the legislative intent in mind, is given, the expression, ‘cost’ at the time of construction has to be construed to be the cost at the time of original construction of the structure, without including therein the cost subsequently incurred by the land owner……….”

4. Dealing with the objection that what the kudikidappukaran was purchasing under Ss. 80A and 80B of the Act was not the original structure, but the reconstructed one, his Lordship said:—

“……….the difficulty could be got over by making a practical approach to the question. The right of the kudikidappukaran to purchase the kudikidappu and claim fixity under S. 80A and S. 75 could be determined with reference to the cost of construction of the hut at the time when the construction was made originally however, in cases where the landlord had invested money thereafter by modifications, additions etc. the cost thereof has to be assessed and added to the cost of the hut while determining the compensation payable to the landlord treating that also as an item of improvement for which he is entitled to receive compensation.”

5. The approach of Viswanatha Iyer, J. in Mammu v. Ali (1978 KLT. 629) was slightly different. After observing that even if modifications made by the tenant subsequent to his induction into the building could be ignored on the principle laid down in Lakshmi (1978 KLT. 122), the learned Judge said that the principle could not be applied at all to cases where the modifications were effected before such induction. His Lordship went further and said:—

“Even in cases where additions and alterations are made subsequent to the permission to and occupation by another, if such alterations and additions have been made by the landlord for the use of the occupier, there will really be a case of occupation of these additions on permission. They being part of the dwelling house the cost of their construction may have to be taken into account in finding out whether the dwelling house is a hut or not. As this case does not involve such a question I do not think that I should refer the case for decision by a larger bench.”

6. The question came up before a Full Bench in Cornel v. Rodrigues (1981 KLT. 302). That was a case where the tenant had occupied the building in 1927 and some improvements had been effected in 1946. Excluding the improvements, the cost of the hut was below Rs. 750/-; but if the improvement was also to be taken into account, the total cost was above the prescribed limit. The Appellate Authority took into account the costs incurred both in 1927 and 1946, and held that the building was not a hut. The Full Bench reversed its decision by proceeding on the basis that “repairs and improvements” could not be treated as reconstruction, for the purposes of Explanation II. Their Lordships said (in paragraph 7):—

“If there had been a reconstruction in the sense that the original building which was a hut had been pulled down and a new building put up, the question would arise whether the value of the building is to be reckoned with reference to the date of construction of the new building. We are not called upon to decide any such question, as no such question arises on the facts of the present case. The finding of the Appellate Authority is that there was only substantial repairs and improvements to the existing building effected in the year 1946.”

7. The decision thus turned on the meaning of the words construction and reconstruction. As to the approaches made by Bhakaran and Viswanatha Iyer, JJ. in Lakshmi (1978 KLT. 122) and Mammu (1978 KLT. 629), the Full Bench thought that there was no conflict in their ratio. On the question as to how the expression ‘at the time of construction’ in Explanation II had to be understood, the view of the Full Bench, as expressed in paragraph (5) of the judgment, was this:—

“The definition requires that the building permitted to be occupied must be a hut on the date of such permission. The crucial date with reference to which whether a building is a hut or not is to be decided is the date on which permission to occupy was granted. As per the definition of “hut” in Explanation II, it must be a dwelling house constructed, at a cost at the time of construction not exceeding Rs. 750/- or which would have at the time of construction yielded a monthly rent not exceeding five rupees. If the construction in any particular case had been at different stages prior to the permission to occupy, the cost of construction is to be reckoned with reference to the different periods of construction, and the rental yield is to be reckoned with reference to the time when the construction had been completed.”

8. The ‘crucial date’ in this case, that is the time of letting, was 1965. The modifications were effected long before, in 1952. At the time of letting, therefore, the building had a tiled roof and the cost of constructing such a building was above Rs. 750/-. If this is the correct view to take, the revision must fail.

9. Counsel would of course contend that in as much as the old building had not been pulled down in 1952 and another erected in its place, there could be no question of reconstruction and adding the cost thereof to the value of the building, as observed in paragraph (7) of the Full Bench decision. It seems to me that the said observation cannot be considered in isolation and has to be read along with the observations in paragraph (5) of the judgment, where their Lordships had said that a building could be constructed in different stages and the cost of construction would then have to be reckoned with reference to the time when the construction was completed. If construction in stages without pulling down what is first put up could enter the reckoning, it is difficult to see why an addition should be ignored. It is also possible to hold that where an old thatched roof is completely dismantled and a new tiled roof substituted, what is involved is a reconstruction in stages, before the structure acquired the final form in which it was let out.

10. It is then argued that the 1952 modification was only in the nature of repair and that it could not be equated to reconstruction. Whether something done to an existing building is a mere repair or improvement on the one hand, or whether it could be treated as extension, addition, renovation or reconstruction on the other, is ordinarily a question of fact depending upon the nature and extent of the work done. The Full Bench bad rested its decision on the finding recorded by the Appellate Authority in the case before it. The Appellate Authority in the present case has characterised the modification as reconstruction; and as indicated earlier, it could also be construed as part of a process of construction carried out in stages.

11. Objection is then taken to the Full Bench view that the crucial date for deciding whether a building is a hut or not, is the date of permission. I am bound by the Full Bench decision; and even if it is possible to find some force in the contention as raised above, a different approach will not also be of assistance to the petitioner, as I will presently show.

12. Shorn of details, S. 2(25) contemplates occupation of a ‘hut’ by a person other than the one granting permission. Under Explanation II, ‘hut’ is a ‘dwelling house’. Such a dwelling house qualifies for being treated as a ‘hut’ only if its cost, at the time of construction, did not exceed Rs. 750/-. On a plain reading of the sub-section along with the Explanation, the existence of a dwelling house and grant of permission for its occupation are necessary for attracting clause (b) of S. 2(25); but whether the dwelling house permitted to be occupied could be treated as a hut or not would depend on its cost at the time of construction, and not at the time of granting the permission. Where a building is put up in 1920 and is let out in 1960, the point of time with reference to which its construction cost is to be estimated for the purposes of Explanation II(a)(i) would be 1920, and not 1960. The cost of constructing the building in 1960 might be above Rs. 750/-; but if the cost in 1920 was below that figure, the building would still be a hut, for the purposes of S. 2(25)(b). It is difficult to assume that the Full Bench intended to say otherwise, except perhaps in relation to a case where the construction was completed in stages before the date of letting. Even in such a case the date of permission would be relevant only for ascertaining the nature of the structure which changed hands; its construction cost would still have to be determined with reference to the point of time when work was completed.

13. Where a person puts up a small building in 1920 at a cost not exceeding Rs. 750/-, and improves it in 1955 by adding a few more rooms (or one more floor) before letting it out in 1960, is there anything wrong in taking the cost of constructing such a building as the sum total of the costs incurred in 1920 and 1955, proceeding on the basis that ‘construction’ in Explanation II will include all modifications effected to the building before it reached the shape in which it was let out?. I find nothing in the language of Explanation II which militates against such a common sense approach. And if technically and semantics are relevant, it is possible to think that the latter part of Explanation II which brings into its fold dwelling houses reconstructed by kudikidappukars “in accordance with the provisions of S. 79”, furnishes some clue. S. 79 provides that:—

“The kudikidappukaran shall have the right to maintain, repair and reconstruct with the same or different materials, but without increasing the plinth area at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, by more than fifty percent, the hut belonging to the person who permitted occupation by the kudikidappukaran, or the homestead, at his own cost.”

14. Obviously, ‘reconstructed’ in the inclusive part of Explanation II includes repairs, maintenance and reconstruction referred to in S. 79. There is no reason to assume that the words ‘constructed’, ‘reconstructed’ and ‘construction’ used in the different parts of the Explanation are intended to denote different things or concepts. Again, where the occupant increases the original plinth area by more than 50 per cent in the course of reconstruction at his own cost, he will not be protected by the inclusive part of Explanation II; and if that is so, how can he claim such protection if the reconstruction is at the cost of the landowner? The scheme of the Act is to confer fixity on the occupant and allow him to purchase the structure in which he finds himself, and what therefore matters is the nature and character of the structure in respect of which such claims are set up. In other words, look at the structure as it stands at the time of application, find out the time when it reached that form, shape or size, and take into account all the costs that must have gone into its construction, except in those cases where part of the construction could be attributed to the occupant's efforts within the limits of S. 79.

15. The above approach will no doubt affect certain persons who want to enforce kudikidappu rights. But what class of persons? No person who has himself erected a homestead on land belonging to another will be affected, as the cost of construction is irrelevant in such cases. No person occupying a building which has not been subjected to any modification will also be affected. If the modification is nominal, consisting of repairs and maintenance not adding to the value or utility of the building, then also its occupant will not be affected. Even a substantial modification at the cost of the occupant will not affect him, if it is within the limits of S. 79. The only people likely to be affected are those who want to grab substantial structures put up at the landowner's cost, and for which they had agreed to pay substantial rent, by taking advantage of a legislation essentially designed to protect others. It is doubtful whether the legislature ever wanted to make a present of such buildings, with lands adjoining thereto, to such people. Legislative attempts to protect the interests of kudikidappukars and other similar classes had commenced from the year 1122 M.E in the Cochin area, from 1951 in the Malabar area, and from 1124 M.E in the whole of the Travancore-Cochin area. The original idea was to confer fixity on landless persons connected with agriculture and permitted by landlords to erect small dwelling houses in lands belonging to them. When the legislature started moving on those lines, landlords started obtaining rent chits from the occupants so as to make out that the buildings were erected by the former and the latter were only tenants of buildings with obligation to pay agreed rates of rent. It was to get over this difficulty that the legislature decided, in subsequent enactments, to rope in such people also. The class of persons whom the legislature wanted to protect always remained the same, and the legislative measures themselves were always part of agrarian reform. It was not the intention of the legislature to convert the occupant of a substantial structure, who could afford to pay a substantial amount by way of rent, into a kudikidappukaran. The rent limits specified in the Explanation, and also in S. 76 of the Act, give a rough idea of the class of persons marked out for the legislative benevolence. Dealing with kudikidappu claims at a time when Act 35 of 1969 had not been included in the IXth Schedule of the Constitution, and the relevant provisions had to be saved as part of agrarian reform under Article 31A, Raman Nayar, C.J had said, in Narayanan Nair v. State (1970 KLT 659 FB):—

“Although this is not expressly mentioned, we think it is clear that the purpose of the transfer of the land to the landless occupant of the hut is only for purposes connected with agriculture-we are here speaking only of agricultural land. In the case of such land, even if the kudikidappukaran is not an agricultural labourer, the land transferred to him is likely to be used only for purposes of cultivation like growing a kitchen garden as an adjunct to his dwelling house. It is hardly likely to be used in entirety for building purposes (although there might be some little extension of the dwelling house) or for industrial or commercial purposes. Thus, the transfer being of agricultural land to a landless person primarily for agricultural purposes-it would in all probability make for more intensive cultivation—we do not think that it can be said that it is not a measure of agrarian reform.”

16. Mathew, J. whose dissent was confined to S. 73 of the Act, had added:—

“In many cases kudikidappukars were permitted to reside by the landowners in their land in return for their services as watchmen of their garden land and as agricultural labourers. In some cases landowners permitted them to reside on the land out of humanitarian considerations. As already indicated, the permission to reside on the land was given to persons in the former category not as a matter of charity, but as reward for the work done by them for the landowners in watching the property and also for doing sundry works in the property. In ancient days wages paid to kudikidappukars by the landowner were generally lower than wages paid to other labourers. Kudikidappukars are generally speaking agricultural labourers residing in agricultural lands, and they eke out their livelihood by doing more than one kind of work. It is well-known that many persons who reside as kudikidappukars in rural areas work in commercial or industrial establishments in urban areas. For that reason one cannot say that they have ceased to be agricultural labourers. If a person and his family have their habitat in rural area, the fact that all or some of them work in urban area in commercial or industrial establishments throughout the year or for part of it, would not take them out of the category of agricultural workers; and any reform intended to bring about a change in their relation to the landowner cannot be characterised as anything other then agrarian reform.”

17. These pronouncements make it abundantly clear that the policy of the legislature was to place a roof over landless agricultural labourers residing in agricultural lands. In the peculiar conditions of our State where towns and even cities include undeveloped rural areas also, the emphasis on agriculture may not be relevant in all cases; but that does not mean that the attempt has been to tamper with relations other than agrarian. The intention was to assist the indigent and the poor traditionally tied down to land, and not to inflame the greed of other classes of people better placed in life.

18. The building in this case is in the heart of Cannanore Town, near public offices like Village Office, Taluk Office and Training School. It has six rooms, with ceiling over one, and plastered walls. The description does not fit in with a hut ordinarily occupied by the family of a labourer, agricultural or otherwise. The agreed rent was Rs. 25/- in 1965. The kudikidappu claim was urged only when rent for more than five years was allowed to fall in arrears, and the landlord thought of suing for the same. It is difficult to uphold such a claim, at least in view of the Concurrent finding of the Tribunals below that the landlord had spent more than Rs. 750/- on the building, long before it was let out to the petitioner. The revision is therefore dismissed, but without any order as to costs.

19. Dismissed.