1. S.A. No. 479 of 1971 is an appeal by defendants 3 and 4. The respondent is the plaintiff in the suit which was for a declaration of the title of the plaintiff to the plaint schedule item 2 building and its site and also for eviction of defendants from the building. The appellants were impleaded in the suit by order dated 10- 61961 on C.M.P. No. 4019 of 1961. The trial court found that the defendants in the suit, four in number, were trespassers. The case of the first appellant that he was a kudikidappukaran was negatived and it was held that the defendants had no right over item 2 building and that they were liable to be evicted. The suit was therefore decreed as prayed for. In appeal the finding that the defendants were trespassers was not even challenged and only one point was urged before the appellate court and this argument was based on the proviso to S.2(25) of Act 1 of 1964 as amended by Act 35 of 1969. S.2(25) of the Kerala Land Reforms Act, 1963 (Act 1 of 1964). for short the Act as amended by Act 35 of 1969 was in these terms:

"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) 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 but belonging to such person and situate in the said land; and "kudikidappu" means the land and the homestead or the but so permitted to be erected or occupied together with the easements attached thereto:

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 but 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 be deemed to be in occupation of such land and homestead, or hut, as the case may be, with permission as required under this clause".

2. The contention raised before the appellate court was based on the wording of the proviso to S.2 (25) that a person who was in occupation of a but belonging to any other person on the 16th August, 1968 and who continued to be in such occupation at the commencement of Act 35 of 1969 must be deemed to be in occupation with the required permission even if he was a rank trespasser. This contention was negatived by the appellate court. It was held that the legislature could not have intended to confer statutory right on trespassers. The appeal was accordingly dismissed.

3. After the second appeal was filed against the appellate decision on the 14th June, 1971, S.2 (25) was amended by Act 17 of 1972 which came into force on 1-11-1972. This amendment was to take effect from 1 11970. When the case came up for hearing before Gopalan Nambiyar J. the learned judge referred the case to be heard by a Division Bench,

4. When the case came up before a Division Bench on 4-6-74 counsel for the respondent prayed for time to file a petition under Art.226 of the Constitution challenging the validity of the Explanation introduced into the Act by Act 17 of 1972. Accordingly the ease was adjourned to the 6th of June, 1974 and on that day Original Petition 2470 of 1974 was filed by the respondent and his daughter seeking the issue of a writ in the nature of a declaration that Explanation II A introduced in the definition of "kudikidappukaran" in S.2 (25) of the Act by S.2 of the Kerala Land Reforms (Amendment) Act, 17 of 1972 is unconstitutional and null and void. That petition was also heard along with the second appeal.

5. In Gopalan v. Chell