Ashokan K vs State Of Kerala on 26 June, 2024

[Cites 27, Cited by 0]

Kerala High Court

Ashokan K vs State Of Kerala on 26 June, 2024

The petitioner, who is a devotee of Sree Kuruvayil Devaswom, which is a controlled institution under the 3 rd respondent Malabar Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2nd respondent District Collector to consider and pass appropriate orders on Ext.P8 representation dated 01.11.2023 made by him invoking the provisions under Section 94A of the Madras Hindu Religious and Charitable Endowments Act, 1951, with notice to respondents 7 to 15 and other interested parties, after affording them an opportunity of being heard. The petitioner has also sought for a writ of mandamus commanding respondents 3 to 6 and their officials to immediately visit the property covered by Ext.P1 Adangal Extract dated 24.11.2022 issued by the Village Officer, Kannapuram and Ext.P2 relevant extract of the Resurvey and Settlement Register issued by the State Public Information Officer and Superintendent, Regional Archives, in respect of Survey No.225/ 6 (Re.Sy.No.452/6), namely, 'Tharavalappu' of Kannapuram Village and the Muthappan Madappura situated therein and to file a detailed report before this Court regarding the lie and 5 W.P.(C)No.5840 of 2024 nature of the property and the nature and age of the 'Muthappan Madappura building, etc.; and a writ of mandamus commanding respondents 2 to 6 to take immediate steps to preserve and protect the aforesaid property from any kind of illegal alienation, trespass and encroachment and from the creation of third party rights over the property covered by Ext.P1, which belongs to the 6th respondent Devaswom.

2. Going by the averments in the writ petition, Sree Kuruvayil Devaswom, Kannapuram owns the property comprised in Survey No.225/6 (Re.Sy.No.452/6), namely, 'Tharavalappu' of Kannapuram Village in Kannur Taluk. In the writ petition it is alleged that Muthappan Madappura in that property is being managed by an unauthorised Committee/Trust led by respondents 7 to 15. Earlier, there was another Muthappan Madappura in Survey No.226/2 (Re.Sy.No.452/12), namely, 'Thacharathe Madappura Sthanamulla Paramba', which was the family property of respondents 7, 8 and 10 to 15 and the same is not in existence now. The grievance of the petitioner is that in spite of the fact that the existing Sree Muthappan Madappura situates in the property owned by Sree Kuruvayil Devaswom, the same is being managed by respondents 7 to 15 as their family property. The said respondents are appropriating the huge 6 W.P.(C)No.5840 of 2024 income accumulated in that Madappura without any right or authority. Neither Sree Kuruvayil Devaswom nor the Malabar Devaswom Board has any control over the management of Muthappan Madappura at present. Alleging encroachment on the said Devaswom land the petitioner submitted Ext.P8 representation dated 01.11.2023 before the 2nd respondent District Collector and another representation before the 4th respondent Commissioner, seeking appropriate action to stop the illegal administration of the Madappura in the property of Sree Kuruvayil Devaswom by respondents 7 to 15 and the misappropriation of the income and to recover the possession of the property.

3. The document marked as Ext.P6 is a copy of the plaint in O.S.No.836 of 2020 on the file of the Munsiff Court, Kannur, which was one filed in respect of the Devaswom property in Re.survey No.452/6 of Kannapuram Village (Old Survey No.225/6), by the 15th respondent herein, against respondents 7 to 14 seeking a permanent prohibitory injunction against cutting of trees, making constructions, etc. in that property. Relying on the Ext.P1 Adangal Extract and Ext.P2 relevant extract of Re-survey and Settlement Register, the petitioner would contend that out of a total extent of 2.10 Acres 7 W.P.(C)No.5840 of 2024 in the sub-division shown in Ext.P1 Adangal Extract, the temple property is confined to 0.45 Acres, which now stands in the name of the 6th respondent.

4. On 26.02.2024, when this writ petition came up for admission, the learned counsel for the petitioner sought an adjournment to implead the hereditary trustees of the temple in question, as additional respondents.

5. By the order dated 26.03.2024 in I.A.No.1 of 2024, the hereditary trustee of the temple was impleaded as the additional 16th respondent. The learned Senior Government Pleader took notice on admission for respondents 1 and 2 and the learned Standing Counsel for Malabar Devaswom Board for respondents 3 to 5. Urgent notice on admission was ordered to respondents 6 to 15 and the additional 16th respondent by speed post, returnable within four weeks.

6. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 and 2, the learned Standing Counsel for Malabar Devaswom Board for respondents 3 to 5, the learned counsel for the 15th respondent and also the learned counsel for the 16th respondent. Notice issued to respondents 8 and 9 returned with an endorsement 'refused'. Hence, service of notice on those respondents are 8 W.P.(C)No.5840 of 2024 declared complete. Notice issued to the 13th respondent returned with an endorsement 'unclaimed'. Considering the nature of relief proposed to be granted, completion of service of notice on the 13th respondent is dispensed with.

7. 'Deva' means God and 'swom' means ownership in Sanskrit and the term 'Devaswom' denotes the property of God in common parlance. See: Prayar Gopalakrishnan and another v. State of Kerala and others [2018 (1) KHC 536].

8. In A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of 'fence eating the crops' should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is 9 W.P.(C)No.5840 of 2024 also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.

9. In Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132] a Division Bench of this Court noticed that in A.A. Gopalakrishnan [(2007) 7 SCC 482] the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of parens patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of properties of the Temple itself, the truth of the same can be gone into by the High Court in these proceedings.

10. In Nandakumar v. District Collector and others [2018 (2) KHC 58] a Division Bench of this Court noticed that 10 W.P.(C)No.5840 of 2024 the legal position has been made clear by the Apex Court as to the role to be played by the High Court in exercising the 'parens patriae' jurisdiction in Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]. The said decision was referred to and relied on by a Division Bench of this Court in Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]. In the said circumstances, the properties of the Devaswom, if at all encroached by anybody and if any assignment/conveyance has been effected without the involvement of the Devaswom, securing 'pattayam' or such other deeds, the same cannot confer any right upon the parties concerned, unless the title so derived is clear in all respects. There cannot be any dispute that the remedy to retrieve such property belonging to the Devaswom is by resorting to the course stipulated in the Kerala Land Conservancy Act, 1957.

11. In A.A. Gopalakrishnan v. Secretary, Cochin Devaswom Board [2018 (3) KHC 549] a Division Bench of this Court found that the task undertaken by the complainant to ensure that the property of the Devaswom is protected and preserved has ultimately brought out the plain truth that the said property was sought to be appropriated by strangers and that the property in Sy.No.1042/2 has been successfully retrieved by 11 W.P.(C)No.5840 of 2024 the Devaswom, based on the intervention made by this Court and also by the Apex Court in A.A. Gopalakrishnan [(2007) 7 SCC 482]. Proceedings have to be taken to a logical conclusion in respect of the land in Sy.No. 1043 as well. This is more so since in view of the 'parens patriae' jurisdiction being entrusted with the Court in this regard, there is a duty cast upon the Court to take every step to ensure that the property of the deity is protected.

12. In Jayaprakashan K. v. State of Kerala and others [2023 (3) KHC SN 14 : 2023 (3) KLT 541] a Division Bench of this Court, in which one among us [Anil K. Narendran, J.] was a party, noticed that in view of the provisions under sub- section (1) of Section 3 of the Kerala Land Reforms Act, 1963, nothing in Chapter II (i.e., provisions regarding tenancies) shall apply to leases or tenancies of land referred to in clauses (i) to

(xii) of the said sub-section. As per clause (x) of sub-section (1) of Section 3, nothing in Chapter II shall apply to tenancies in respect of sites, tanks and premises of any temple, mosque or church (including sites belonging to a temple, mosque or church on which religious ceremonies are conducted) and sites of office buildings and other buildings attached to such temple, mosque or church, created by the owner, trustee or manager of such 12 W.P.(C)No.5840 of 2024 temple, mosque or church. In view of the provisions under sub- section (1) of Section 74, after the commencement of the Act, no tenancy shall be created in respect of any land. As per sub- section (2) of Section 74, any tenancy created in contravention of the provisions of sub-section (1) shall be invalid. In view of the provisions under sub-section (1) of Section 57, as soon as may be after the receipt of the application under Section 54, the Land Tribunal shall give notice to the landowner, the intermediaries and all other persons interested in the holding, to prefer claims or objections with regard to the application. As per sub-section (2) of Section 57, the land Tribunal shall, after considering the claims and objections received and hearing any person appearing in pursuance of the notice issued under sub- section (1) and after making due enquiries, pass orders - (i) on the application, if any, pending before it from the landowner or intermediary for resumption in accordance with the provisions of Section 22; and (ii) on the application for purchase under Section 54. In view of the provisions under sub-section (1) of Section 72, on a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyiruppus and holders 13 W.P.(C)No.5840 of 2024 of karaimas) entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon on the said date. In view of the provisions under sub-section (1) of Section 72B, the cultivating tenant of any holding or part of a holding, the right, title and interest in respect of which have vested in the Government under Section 72, shall be entitled to assignment of such right, title and interest. As per clause (a) to the proviso to sub-section (1) of Section 72B, no cultivating tenant shall be entitled to assignment of the right, title and interest in respect of any holding or part of a holding under this section if he, or if he is a member of a family, such family, owns an extent of land not less than the ceiling area. As per clause (b) to the proviso to sub-section (1) of Section 72B, where the cultivating tenant or, if he is a member of a family, such family, does not own any land or owns an extent of land which is less than the ceiling area, he shall be entitled to the assignment of the right, title and interest in respect of only such extent of land as will, together with the land, if any, owned by him or his family, as the case may be, be 14 W.P.(C)No.5840 of 2024 equal to the ceiling area. In view of the provisions under sub- section (1) of Section 72BB, any landowner or intermediary whose right, title and interest in respect of any holding have vested in the Government may apply to the Land Tribunal for the assignment of such right, title and interest to the cultivating tenant and for the payment of the compensation due to him under Section 72A. As per Section 72C, notwithstanding anything contained in sub-section (3) of Section 72B or Section 72BB, the Land Tribunal may, subject to such rules as may be made by the Government in this behalf, at any time after the vesting of the right, title and interest of the landowners and intermediaries in the Government under Section 72, assign such right, title and interest to the cultivating tenants entitled thereto, and the cultivating tenants shall be bound to accept such assignment. In view of the provisions under Section 72F, the Land Tribunal has to issue notices and determine the compensation and purchase price. As per sub-section (1) of Section 72F, as soon as may be after the right, title and interest of the landowner and the intermediaries, if any, in respect of a holding or part of a holding have vested in the Government under Section 72, or, where an application under Section 72B or Section 72BB has been received by the Land Tribunal, as soon as 15 W.P.(C)No.5840 of 2024 may be after the receipt of such application, the Land Tribunal shall publish or cause to be published a public notice in the prescribed form in such manner as may be prescribed, calling upon the landowner, the intermediaries, if any and cultivating tenant; and all other persons interested in the land, the right, title and interest in respect of which have vested in the Government, to prefer claims and objections, if any, within such time as may be specified in the notice and to appear before it on the date specified in the notice with all relevant records to prove their respective claims or in support of their objections. As per the mandate of sub-section (5) of Section 72F, the land Tribunal shall, after considering the claims and objections received in pursuance of the notice issued under sub-section (1) or sub- section (2) and the advice received from the village committee or village committees before the date specified therefor and hearing any person appearing in pursuance of the notice issued under sub-section (1) or sub-section (2) and after making due enquiries, pass an order specifying the matters enumerated in clauses (a) to (i) of sub-section (5). As per sub-section (1) of Section 72K, as soon as may be after the determination of the purchase price under Section 72F or the passing of an order under sub-section (3) of Section 72MM the Land Tribunal shall 16 W.P.(C)No.5840 of 2024 issue a certificate of purchase to the cultivating tenant, and thereupon the right, title and interest of the landowner and the intermediaries, if any, in respect of the holding or part thereof to which the certificate relates, shall vest in the cultivating tenant free from all encumbrances created by the landowner or the intermediaries if any.

13. In Jayaprakashan K. [2023 (3) KHC SN 14] the Division Bench, on an analysis of the aforesaid provisions under the Kerala Land Reforms Act, found that the said Act is a complete code by itself as far as the right of cultivating tenant to fixity of tenure in respect of his holding, the right of the cultivating tenant to get assignment of the right, title and interest in respect of his holdings, the determination by the Land Tribunal the compensation and purchase price and the issuance of purchase certificate to the cultivating tenant. The provisions under the said Act deal with the application for the purchase of the landlord's right by the cultivating tenant and the procedure for consideration of the application by the Land Tribunal, with notice to the landowner, the intermediaries, if any, the cultivating tenant and all persons interested in the land, calling upon them to prefer claims and objections, if any, and after making due enquiries. Thereafter, the Land Tribunal shall issue a 17 W.P.(C)No.5840 of 2024 certificate of purchase to the cultivating tenant. In view of the provisions under the Kerala Land Reforms (Tenancy) Rules, where the Land Tribunal is of the opinion that an application for purchase certificate has to be allowed, it shall, before it passes an order under Section 57, prepare preliminary findings on the matters enumerated in clauses (a) to (m) of sub-rule (1) of Rule

55. The Land Tribunal shall issue a notice of its findings to the landowner, every intermediary, etc., calling upon them to prefer in writings claims for the purchase price or part thereof. On receipt of the objections or claims, if any, the Land Tribunal shall consider the same and decide the claims after giving reasonable opportunity to the parties to produce such evidence as may be necessary and then proceed to pass an order under Section 57 of the Act. In such an order passed by the Land Tribunal on an application filed under Section 54 of the Act by the cultivating tenant for purchase of landlord's right, the Land Tribunal has to record its finding that the applicant is a cultivating tenant, as defined under clause (8) of Section 2 of the Act, who is entitled to fixity of tenure under Section 13 of the Act, in respect of his holding. The tenancy is not in respect of land falling under clauses (i) to (xii) of Section 3 of the Act, which deals with exemptions. The tenancy is not one created in contravention of 18 W.P.(C)No.5840 of 2024 the provisions of sub-section (1) of Section 74 of the Act, i.e., it is not a tenancy created after the commencement of the Act. It is well settled that, when the statute requires to do certain thing in a certain way, the thing must be done in that way or not at all. Other methods or modes of performance are impliedly and necessarily forbidden. The said proposition of law is based on a legal maxim 'expressio unius est exclusio alterius' meaning thereby that, if the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner, and following other course is not permissible. The said proposition of law about limitation of the exercise of statutory power has first been identified by Jassel M.R. in the case of Taylor v. Taylor [(1876) 1 Ch.D. 426], wherein it was laid down that, where a power is given to do a certain thing in a certain way, that thing must be done in that way, or not at all, and that other methods of performance are necessarily forbidden. The Privy Council applied the said principle in the case of Nazir Ahmed v. King Emperor [AIR 1936 PC 253]. In Breen v. Amalgamated Engineering Union (1971 (1) All ER 1148) Lord Denning, M.R. observed that the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120) it was 19 W.P.(C)No.5840 of 2024 observed that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision- taker to the controversy in question and the decision or conclusion arrived at. By the order dated 15.12.2021 in W.P.(C)No.8851 of 2020, this Court restrained all Land Tribunals in the State from proceedings with any Original Application filed before the appointed date or S.M.Proceedings for purchase certificate in respect of Devaswom lands of Temples under the control/ management of Malabar Devaswom Board, Travancore Devaswom Board and also the Cochin Devaswom Board, without the respective Devaswom Board, represented by its Secretary, in the party array. In the said order, it was made clear that a copy of the Original Application or the report and other materials based on which S.M.Proceedings are initiated shall be enclosed along with the notice issued to the concerned Devaswom Board, through the concerned Village Officer. The Land Tribunals were directed to afford a reasonable opportunity to the concerned Devaswom Board to raise its contentions, both legal and factual. It was made clear that the decision taken by the Land Tribunals shall be one reflecting the legal and factual contentions raised by both sides.

14. In Jayaprakashan K. [2023 (3) KHC SN 14], in 20 W.P.(C)No.5840 of 2024 continuation of the order dated 15.12.2021 in W.P.(C)No.8851 of 2020, it was ordered that, in the orders passed by the Land Tribunals in the State in Original Applications/S.M.Proceedings for purchase certificate, the Land Tribunal has to record its findings that the applicant is a cultivating tenant, as defined under clause (8) of Section 2 of the Act, who is entitled to fixity of tenure under Section 13 of the Act, in respect of his holding; that the tenancy is not in respect of land falling under clauses (i) to (xii) of Section 3 of the Act, which deals with exemptions; and that the tenancy is not one created in contravention of the provisions of sub-section (1) of Section 74 of the Act, i.e., it is not a tenancy created after the commencement of the Act. In respect of temples which are controlled institutions under Malabar Devaswom Board, the Land Tribunals shall take note of the provisions under Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951, as per which any exchange, sale or mortgage and any lease of any immovable property belonging to, or given or endowed for the purpose of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution.

15. In the instant case, the first relief sought for is a writ 21 W.P.(C)No.5840 of 2024 of mandamus commanding the 2nd respondent District Collector to consider and pass orders on Ext.P8 representation dated 01.11.2023, which is one made by the petitioner, invoking the provisions under Section 94A of the Madras Hindu Religious and Charitable Endowments Act, 1951.

16. Having considered the submissions made at the Bar, we deem it appropriate to dispose of this writ petition, without going into the merits of the case, by directing the 2nd respondent District Collector to consider and pass appropriate orders on Ext.P8 representation dated 01.11.2023 made by the petitioner invoking the provisions under Section 94A of the Act, with notice to the petitioner, the Executive Officer of the 6th respondent Sree Kuruvayil Devaswom and the alleged encroachers, namely respondents 7 to 15, and also the additional 16th respondent hereditary trustee of Sree Kuruvayil Devaswom, and after affording them an opportunity of being heard.

It would be open to the parties to submit their written submissions, along with documents to substantiate their claim, before the 2nd respondent District Collector, raising appropriate legal and factual contentions, which shall be dealt with appropriately while taking a decision, after taking note of the law laid down in the decisions referred to supra. A decision in this 22 W.P.(C)No.5840 of 2024 regard shall be taken, as expeditiously as possible, at any rate, within a period of three months from the date of production of a certified copy of this judgment.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

HARISANKAR V. MENON, JUDGE AV/28/6 23 W.P.(C)No.5840 of 2024 APPENDIX OF WP(C) 5840/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ADANGAL EXTRACT DATED 24-11- 2022 ISSUED BY THE VILLAGE OFFICER, KANNAPURAM.

Exhibit P2 TRUE COPY OF THE RELEVANT PAGES (PAGE NOS.1,6&121 ONLY) OF THE RESURVEY AND SETTLEMENT REGISTER ISSUED BY THE STATE PUBLIC INFORMATION OFFICER & SUPERINTENDENT, REGIONAL ARCHIVES, KOZHIKODE.

Exhibit P3 TRUE COPY OF THE REGD SALE DEED NO.1131 OF 1923, S.R.O., KALLYASSERY EXECUTED BY THACHARATHU VALAPPIL APPU IN FAVOUR OF THACHARATH VALAPPIL AMBU ALIAS RAMAN Exhibit P4 TRUE COPY OF THE REGD WILL NO.2/1927, S.R.O., KALLYASSERY EXECUTED BY THACHARATH VALAPPIL AMBU ALIAS RAMAN AND DATED 06-01-1927, Exhibit P5 TRUE COPY OF THE REGD SALE DEED NO.1585 OF 1971, SRO, KALLYASSERY EXECUTED BY THACHACHARATH VALAPPIL KUNHAMBU AND KALLYANI IN FAVOUR OF THACHARATH VALAPPIL MADHAVI, DATED 15-11-1971, Exhibit P6 TRUE COPY OF THE PLAINT DATED 17-11-2020 IN O.S. NO. 836 OF 2020 FILED BEFORE THE MUNSIFF COURT KANNUR Exhibit P7 TRUE COPY OF THE LETTER DATED 27-09-2022 SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT Exhibit P8 TRUE COPY OF THE PETITION DATED 01-11-2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

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