Judgment

NATARAJAN, J.:- The appeals by special leave and the special leave petitions 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 mention two matters even at the outset of judgment. Had the judgments in the two appeals been pronounced after the decision in Velayudhan v. Aishabi, AIR 1981 Ker 185 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.

2. What falls for consideration in all these cases is whether by reason of Explanation IIA 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 kudikidappukaran and be entitled to kudikidappu rights under the Act.

3. For a proper understanding of the issue, we may make a brief reference to the history of the Legislation and to some of the earlier decisions 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 superstructure put up by them or alternately to seek monetary compensation therefor. The restricted conferment of rights exposed the occupants of huts belonging to others to indiscriminate eviction. To afford protection to them, the erstwhile Cochin State and the Travancore 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. Even under that Act, protection was given only to those persons who had put up the superstructures themselves and not to persons who were occupying huts put up by the land owners. Protection was extended to that class of persons also under the Kerala Stay of Eviction Proceedings Act, 1957. The said Act was amended by the Kerala Stay of Eviction Proceedings Act, 1958. This was followed by the 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 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) 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 homestead; 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 easement attached thereto."

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

"Explanation II. Any person who was in occupation of a kudikidappu on the 11th day of April, 1957, and who continued to be in such occupation at the commencement of this Act, shall be deemed to be in occupation of such kudikidappu with permission as required under the clause". (Emphasis supplied).

4. In Gopalan v. Chellamma, 1966 Ker LT 673 Madhavan Nair, J. of the Kerala High Court held, without noticing a contrary view taken in an earlier case in Second Appeal No. 558 of 1961, that to be a kudikidappukaran, the occupancy must have commenced with the permissio