Pradeep P vs The District Collector, Palakkad on 12 February, 2025

[Cites 42, Cited by 0]

Kerala High Court

Pradeep P vs The District Collector, Palakkad on 12 February, 2025

The petitioners, who are devotees of Anthimahakalan Temple, Ananganady, Ottapalam Taluk, which is a controlled institution under the 3rd respondent Malabar Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 purchase certificate dated 30.12.1977 issued by the 7th respondent Land Tribunal, Ottapalam and Ext.P3 proceedings dated 29.10.2014 of the 2nd respondent Sub Collector, Ottapalam, whereby the land tax was ordered to be accepted from the 9th respondent. The petitioners have also sought for a writ of mandamus commanding the 2nd respondent to reconsider the issue covered by Ext.P3 proceedings, after notice to them and also the affected parties and pass appropriate orders, in accordance with law, within a time limit that may be fixed by this Court.

2. Going by the averments in the writ petition the Devaswom Land of Sree Anthimahakalan Temple has been reduced from 28 Acres to 2.98 Acres, since large extent of the property is with the encroachers. The family of the 9th respondent W.P.(C)No.30451 of 2015 5 2025:KER:14306 are the Kazhakakkar of the temple. The document marked as Ext.P1 is a purchase certificate dated 30.12.1977 issued by the Land Tribunal, in the name of the mother of the 9th respondent.

3. On 07.10.2015, when this writ petition came up for consideration, the learned Standing Counsel for Malabar Devaswom Board submitted that there is a hereditary trustee for the temple and the writ petitioners may apply for impleadment of that trustee. In the meantime, this Court issued notice before admission to the 9th respondent. The learned Standing Counsel for Malabar Devaswom Board took notice for respondents 3, 4 and the learned Government Pleader for the official respondents. This Court granted an interim order that no act of waste shall be committed in the property and the Revenue shall not register any transaction in respect of the property in question any further, for a period of four months.

4. By the order dated 17.08.2016 in this writ petition, the hereditary trustee of the temple was impleaded as the additional 10th respondent.

5. The 9th respondent has filed a counter affidavit dated 07.11.2015, opposing the reliefs sought for in this writ petition, wherein it is contended that against Ext.P1 purchase certificate W.P.(C)No.30451 of 2015 6 2025:KER:14306 issued by the Land Tribunal, a statutory remedy of appeal is provided under Section 102 of the Kerala Land Reforms Act before the Land Tribunal. In Paragraph No.6 of the counter affidavit, the 9th respondent has stated that as per Ext.P2 old Sy.No.10/1 was noted as property of the temple. His family was in occupation of the property from time immemorial as tenants under the temple. The said property was not part of the temple compound. It was lying outside the temple compound. This property was outstanding in tenancy right with Sekhara Wariyar, the Karanavar of his family. By virtue of registered assignment deed of the year 1929, the tenancy right devolved on his mother and it was in pursuance to the above tenancy, which had become a tenure having fixity by virtue of the provisions under the Land Reforms Act that she preferred application before the Land Tribunal under Section 72 of the Act and obtained Ext.P1 purchase certificate. Various other contentions have also been raised in the counter affidavit.

6. During the pendency of this writ petition, the 9th respondent died and his legal heirs were impleaded as additional respondents 11 to 13.

7. Heard the learned counsel for the petitioners, the learned Senior Government Pleader for the State and official W.P.(C)No.30451 of 2015 7 2025:KER:14306 respondents and also the learned Standing Counsel for Malabar Devaswom Board.

8. '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].

9. 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 also the duty of courts to protect and safeguard the properties of religious and W.P.(C)No.30451 of 2015 8 2025:KER:14306 charitable institutions from wrongful claims or misappropriation.

10. In A.A. Gopalakrishnan [(2007) 7 SCC 482], on the facts of the case on hand, the Apex Court noticed that, when Respondents 3 to 5 claimed ownership of Survey No.1043, which was the front portion of the temple premises in the possession of the temple (in the proposal for settlement dated 06.07.2000), the Devaswom Board, instead of investigating and verifying as to how they could claim ownership over temple property, strangely agreed for a settlement under which the temple was to get Sy.No.1043 (which was a temple land already in its possession), in exchange for giving away another temple land (Sy.No.1042/2) to Respondents 3 to 5. The Board Resolution dated 29.08.2000 agreeing for the settlement proposal clearly records that Sy.No.1043 is already in the possession of the temple. Before the Apex Court, respondents 3 and 4 contended that the settlement in the suit (O.S.No.399 of 1998) was validly arrived at between them (the plaintiffs) and the Devaswom Board (the defendant), that the Devaswom Board had considered the proposal after taking legal advice and had duly passed a resolution to settle the suit. It was further contended that a decree having been made in terms of the compromise and such decree having attained finality, W.P.(C)No.30451 of 2015 9 2025:KER:14306 it cannot be questioned, interfered or set aside at the instance of a third party in a writ proceeding. They relied on the provisons of Order XXIII, Rule 3A of the Code of Civil Procedure, 1908, which provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The Apex Court held that, the bar contained in Order XXIII, Rule 3A will not come in the way of the High Court examining the validity of a compromise decree, when allegations of fraud/collusion are made against a statutory authority which entered into such compromise. While it is true that decrees of civil courts which have attained finality should not be interfered with lightly, challenge to such compromise decrees by an aggrieved devotee, who was not a party to the suit, cannot be rejected, where fraud/collusion on the part of officers of a statutory board is made out. Further, when the High Court by the order dated 09.09.1998 had directed the Board to take possession of Sy.No.1042/2 immediately from Respondents 3 and 4 in CDB No.3 of 1996, in a complaint by another devotee, it was improper for the Board to enter into a settlement with Respondents 2 and 3, giving up the right, title and interest in Sy.No.1042/2, without the permission of the court which passed such order. The Apex Court W.P.(C)No.30451 of 2015 10 2025:KER:14306 concluded that, viewed from any angle, the compromise decree cannot be sustained and is liable to be set aside.

11. 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 parents 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.

12. In Mohanan Nair [2013 (3) KLT 132] the Division Bench relied on the decision in Achuthan Pillai v. State of W.P.(C)No.30451 of 2015 11 2025:KER:14306 Kerala [1970 KLT 838], wherein a Full Bench of this Court considered the validity of an order passed by the Government under Section 99 of the Madras Hindu Religious and Charitable Endowments Act, 1951. By the said order the Government cancelled the sanction given for transfer of immovable property of a Devaswom. The initial order, i.e., Ext.P1 order was passed by the Commissioner for sanction to lease 600 acres of forest land belonging to Emoor Bhagavathy Devaswom. The said order was passed in the year 1960 and the Government cancelled the same by Ext.P5 order dated 23.02.1967. The Full Bench traced the principles regarding the rights of an authority to protect the institution like Devaswom in order to prevent fraud. The Full Bench held that the power to cancel a sanction and thereby to make null and void an improvident transfer or alienation of immovable property of a Devaswom, though exercised under the guise of revision, is visitorial in character. It is a matter of common knowledge that even from very early times religious and charitable institutions in India came under the special protection of the ruling authority. The rulers of the country always asserted their right to visit these institutions in order to prevent fraud and redress the abuses in their management. In the celebrated Rameswar W.P.(C)No.30451 of 2015 12 2025:KER:14306 Pagoda case [(1874) 1 Ind App 209] it was pointed out by the Judicial Committee that the former rulers of this country always asserted the right to visit endowments of this kind to prevent and redress the abuses in their management. The authorities, therefore, support the conclusion that supervision and control of Hindu Religious and Charitable Institutions is a function of government and that Government at all times asserted and exercised the power. The fact that Government did not exercise the power immediately when it became aware of the circumstances vitiating Ext.P1 order cannot prejudice the interest of the Devaswom. If the contention of the petitioner were to prevail, it would mean that because the Government was not very vigilant in exercising the power the interest of the Devaswom should suffer. Section 10 of the Limitation Act, 1963, provides no period of limitation for a suit against a person in whom the trust property has become vested for any specific purpose or against his legal representatives or assigns for the purpose of following in his or their hands such property. The reason behind the section is that an express trust ought not suffer by the misfeasance or non- feasance of a trustee.

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13. In Mrinalini Padhi v. Union of India [2018 SCC OnLine SC 667] - order dated 05.07.2018 in W.P.(C)No.649 of 2018 - the Apex Court noticed that the issue of difficulties faced by the visitors, exploitative practices, deficiencies in the management, maintenance of hygiene, proper utilisation of offerings and protection of assets may require consideration with regard to all Shrines throughout the India, irrespective of religion practiced in such shrines. It cannot be disputed that this aspect is covered by List III Item 28 of the Seventh Schedule to the Constitution of India and there is need to look into this aspect by the Central Government, apart from State Governments. Section 92 of the Code of Civil Procedure, 1908 permits a court also to issue direction for making a scheme or making an arrangement for any charitable or religious institution. Accordingly, the Apex Court directed that, if any devotee moves the jurisdictional District Judge throughout the India with any grievance on the above aspect, the District Judge may either himself/herself or by assigning the issue/matter to any other court under his/her jurisdiction examine above aspects and if necessary send a report to the High Court. The High Court will consider these aspects in public interest, in accordance with law, and issue such judicial W.P.(C)No.30451 of 2015 14 2025:KER:14306 directions as becomes necessary having regard to individual fact situation.

14. In Nandakumar v. District Collector and others [2018 (2) KHC 58] a Division Bench of this Court noticed that 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 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.

15. 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 W.P.(C)No.30451 of 2015 15 2025:KER:14306 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 the Devaswom, based on the intervention made by this Court and also by the Apex Court [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 and there is a duty cast upon the Court to take every step to ensure that the property of the deity is protected.

16. 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 W.P.(C)No.30451 of 2015 16 2025:KER:14306 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 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) W.P.(C)No.30451 of 2015 17 2025:KER:14306 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 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 W.P.(C)No.30451 of 2015 18 2025:KER:14306 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 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 W.P.(C)No.30451 of 2015 19 2025:KER:14306 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 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, W.P.(C)No.30451 of 2015 20 2025:KER:14306 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 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.

17. 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 W.P.(C)No.30451 of 2015 21 2025:KER:14306 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 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 W.P.(C)No.30451 of 2015 22 2025:KER:14306 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 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 W.P.(C)No.30451 of 2015 23 2025:KER:14306 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 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 W.P.(C)No.30451 of 2015 24 2025:KER:14306 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.

18. In Jayaprakashan K. [2023 (3) KHC SN 14], in 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 W.P.(C)No.30451 of 2015 25 2025:KER:14306 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.

19. Section 76 of the Madras Hindu Religious and Charitable Endowments Act, 1926 (Act 2 of 1927) reads thus;

"S.76. Alienation of Immovable Trust Property.- (1) No exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to any math, temple or specific endowment shall be valid or operative unless it is necessary or beneficial to the math, temple or specific endowment and is sanctioned by the Board.

(2) The trustee of the math, temple or specific endowment or any person having interest may, within one year of the date of the order of the Board under sub-section (1), apply to the court for modifying or cancelling such order. (3) The order of the Board under sub-section (1) when no application is made under sub-section (2) and the order of the court when such application is made shall be final."

20. In view of the provisions contained in Section 76 of the Act of 1926, no exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging W.P.(C)No.30451 of 2015 26 2025:KER:14306 to any math, temple or specific endowment shall be valid or operative unless it is necessary or beneficial to the math, temple or specific endowment and is sanctioned by the Board.

21. Section 103 of the Act of 1951 deals with effect repeal of the Madras Hindu Religious Endowments Act, 1926 (Act 2 of 1927). Section 103 of the Act of 1951 reads thus;

"103. Effect of repeal of the Madras Hindu Religious Endowments Act, 1926.- Notwithstanding the repeal of the Madras Hindu Religious Endowments Act, 1926 (hereinafter in this Section referred to as the said Act)-

(a) all rules made, notifications or certificates issued, orders passed, decisions made, proceedings or action taken, schemes settled and things done by the Government, the Board or its President or by an Assistant Commissioner under the said Act, shall, in so far as they are not inconsistent with this Act, be deemed to have been made, issued, passed, taken settled or done by the appropriate authority under the corresponding provisions of this Act and shall, subject to the provisions of clause (b), have effect accordingly;

Explanation. - Certificates issued by the Board under section 78 of the said Act shall be deemed to have been validly issued under that section, notwithstanding that the certificates were issued before the making of rules prescribing the manner of their issue.

(b) if the State Government are satisfied that any such rule, notification, certificate, order, decision, proceeding, action, W.P.(C)No.30451 of 2015 27 2025:KER:14306 scheme or thing, although not inconsistent with this Act would not have been made, issued, passed, taken, settled or done, or would not have been made, issued, passed, taken, settled or done in the form adopted, if this Act had been in force at the time, they shall have power, by order made at any time within one year from the commencement of this Act, to cancel or to modify in such manner as may be specified in the order, the said rule, notification, certificate, order, decision, proceeding, action, scheme or thing, and thereupon, the same shall stand cancelled or modified as directed in the said order, with effect from the date on which it was made or from such later date as may be specified therein:

Provided that before making any such order, the Government shall publish in the Kerala Government Gazette a notice of their intention to do so, fix a period which shall not be less than two months from the date of the publication of the notice for the persons affected by the order to show cause against the making thereof and consider their representations, if any;

(c) a notification published in respect of any religious institution under Section 65A, sub-section (3), or sub-

section (5), of the said Act and in force immediately before the commencement of this Act shall be deemed to be a notification published under Section 64 of this Act. Explanation. - The scheme of administration, if any, settled for the religious institution and the rules, if any, framed under such scheme which ceased to apply to the institution under Section 65B of the said Act shall not be deemed to be revived by reason of the cancellation of the notification W.P.(C)No.30451 of 2015 28 2025:KER:14306 under Section 64, sub-section (4), or by reason of its having ceased to be in force by efflux of time.

(d) all schemes settled or modified by a Court of law under the said Act or under Section 92 of the Code of Civil Procedure, 1908, shall be deemed to have been, settled or modified by the Court under this Act and shall have effect accordingly;

(e) in any scheme settled or deemed to have been settled under the said Act (including a scheme settled under Section 92 of the Code of Civil Procedure, 1908) and in force immediately before the commencement of this Act -

(i) all powers conferred and all duties imposed by such scheme on one or more trustees, whether hereditary or non- hereditary, shall be exercised, subject to the restrictions and conditions, if any, specified in the scheme by the trustee or trustees appointed for the religious institution under this Act.

(ii) all powers conferred and all duties imposed by such scheme on any Court or Judge or any other person or body of persons not being a trustee or trustees or a paid or an honorary officer or servant of the religious institution, shall be deemed to have been conferred or imposed on the Area Committee if the institution is subject to the jurisdiction of such a Committee and on the Commissioner, in other cases; and the Area Committee or the Commissioner, as the case may be, shall exercise such powers and discharge such duties in accordance with the provisions of the scheme subject to such restrictions and conditions, if any, specified in the Scheme;

(f) all orders made under Section 67 of the said Act shall, W.P.(C)No.30451 of 2015 29 2025:KER:14306 notwithstanding that they are inconsistent with this Act, continue in force, but any such order may at any time be modified or cancelled by the Deputy Commissioner if it is in an order made under sub-section (1) or sub section (3) of that section and by the Commissioner if it is an order made under sub-section (4) or sub-section (5) of that Section; and any person aggrieved by any modification or cancellation made by the Deputy Commissioner may appeal to the Commissioner within such time as may be prescribed;

(g) all bylaws made by the Board under the said Act shall, in so far as they are not inconsistent with this Act, be deemed to be orders issued by the Commissioner under this Act;

(h) all proceedings pending before the State Government or the Board or its President or an Assistant Commissioner under the provisions of the said Act at the commencement of this Act, may, in so far as they are not inconsistent with the provisions of this Act, be continued by the appropriate authority under this Act;

(i) all costs, expenses, charges, penalties, and contributions payable to the Board under the said Act, immediately before the commencement of this Act, shall be payable to the Commissioner instead; and any assessment, levy or demand of such sums made before the commencement of this Act shall be deemed to be valid and may be continued and shall be enforceable under this Act;

(j) all suits, applications or proceedings taken by, or on behalf of, or against, the Board under the provisions of the said Act and pending at the commencement of this Act, may be continued by, or on behalf of, or against the W.P.(C)No.30451 of 2015 30 2025:KER:14306 Commissioner subject to the provisions of, and in so far as they are not inconsistent with this Act;

(k) any remedy by way of application, suit or appeal which is provided by this Act shall be available in respect of proceedings under the said Act pending at the commencement of this Act as if the proceedings, in respect of which the remedy is sought had been instituted under this Act."

22. In view of the provisions contained in Section 103 of the Act of 1951, notwithstanding the repeal of the Madras Hindu Religious Endowments Act, 1926 (Act 2 of 1927) all rules made, notifications or certificates issued, orders passed, decisions made, proceedings or action taken, schemes settled and things done by the Government, the Board or its President or by an Assistant Commissioner under the said Act, shall, in so far as they are not inconsistent with this Act, be deemed to have been made, issued, passed, taken settled or done by the appropriate authority under the corresponding provisions of this Act and shall, subject to the provisions of clause (b), have effect accordingly.

23. In such circumstances, in respect of the land of temples, which are controlled institutions under the Malabar Devaswom Board, the Land Tribunals shall take note of the provisions contained in Section 76 of the Madras Hindu Religious W.P.(C)No.30451 of 2015 31 2025:KER:14306 and Charitable Endowments Act, 1926 (Act 2 of 1927) and also that contained in Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951.

24. By the order dated 13.10.2022, this Court directed the learned Senior Government Pleader to make available for the perusal of this Court the files relating to Ext.P1 purchase certificate dated 30.12.1977. On 30.05.2023, this Court noticed the submission made by the learned Senior Government Pleader that the files relating to Ext.P1 purchase certificate are yet to be traced out.

25. Today, during the course of arguments, the learned Senior Government Pleader, on instructions, would submit that files relating to Ext.P1 purchase certificate are yet to be traced out.

26. Having considered the pleadings and materials on record and also the submissions made at the Bar, we deem it appropriate to dispose of this writ petition, by relegating the petitioners and the additional 10th respondent hereditary trustee to challenge Ext.P1 purchase certificate issued by the Land Tribunal, Ottapalam, by invoking the statutory remedy provided under Section 102 of the Kerala Land Reforms Act, by approaching W.P.(C)No.30451 of 2015 32 2025:KER:14306 the Appellate Authority (Land Reforms), Palakkad, after obtaining certified copy of Ext.P1 purchase certificate dated 30.12.1977 and also the proceedings of the Land Tribunal, Ottapalam in that case. The 1st respondent District Collector, Palakkad shall take necessary steps to ensure that the files relating to Ext.P1 purchase certificate are traced out within a period of two months from the date of receipt of a certified copy of this judgment. Thereafter, the petitioners, the additional 10th respondent hereditary trustee as well as additional respondents 11 to 13, who are the legal heirs of the 9th respondent, shall obtain certified copy of that file or the proceedings of the Land Tribunal, Ottapalam, after submitting proper applications and remitting the required fee.

27. Subject to the outcome of the said appeal, the petitioners and the additional 10th respondent hereditary trustee can challenge Ext.P3 proceedings dated 29.10.2014 of the 2nd respondent Sub Collector, Ottapalam, before the appropriate forum, if so advised.

The Appellate Authority shall consider and pass appropriate orders on the appeal, after taking note of the statutory provisions referred to hereinbefore and the law laid down in the decisions W.P.(C)No.30451 of 2015 33 2025:KER:14306 referred to above. A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of four months from the date of filing of such an appeal. It would be open to the appellants and the party respondents to submit written submissions before the Appellate Authority (Land Reforms), Palakkad, raising appropriate legal and factual contentions, which shall be adverted to by the Appellate Authority, before taking a decision. The interim order of this Court dated 07.10.2015, shall continue to be in force till then.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

                                     MURALEE KRISHNA S., JUDGE
MSA
 W.P.(C)No.30451 of 2015              34              2025:KER:14306



                      APPENDIX OF WP(C) 30451/2015

PETITIONER EXHIBITS

EXHIBIT.P-1:              TRUE COPY OF THE PURCHASE CERTIFICATE
                          ISSUED IN THE NAME OF THE MOTHER OF THE
                          8TH RESPONDENT DATED 30.12.1977

EXHIBIT.P-2:              TRUE COPY OF THE BTR ISSUED AT THE
                          INSTANCE OF THE 8TH RESPONDENT UNDER RTI
                          ACT, IN RESPECT OF SURVEY NO.10/1, DATED
                          1.9.15

EXHIBIT.P-3:              TRUE COPY OF THE ORDER PASSED BY THE 2ND
                          RESPONDENT PERMITTING THE 9TH RESPONDENT
                          TO PAY BASIC TAX DATED 29.10.14.

EXHIBIT.P-4:              TRUE COPY OF THE JUDGEMENT RENDERED BY
                          THE HON'BLE HIGH COURT OF KERALA, IN WPC
                          NO.8226/13 DATED 31.5.13.

RESPONDENT EXHIBITS

Exhibit R11(A)            TRUE COPY OF THE ASSIGNMENT DEED DATED
                          08-04-1929 EXECUTED BY KUTTAN WARRIER IN
                          FAVOUR OF RAGHAVA WARRIER.

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