Kerala High Court
Kalapurakkal Jose vs The Commissioner on 20 January, 2026
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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W.P(C) No.21430/2013 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 20TH DAY OF JANUARY 2026 / 30TH POUSHA, 1947
WP(C) NO. 21430 OF 2013
PETITIONER:
KALAPURAKKAL JOSE, AGED 58 YEARS
S/O. THOMAS, PAYYAVOOR P.O., THALIPARAMBA TALUK,
KANNUR DISTRICT, REPRESENTED BY HIS POWER OF
ATTORNEY HOLDER, KURIAKOSE THERUVATH,
AGED 62 YEARS, S/O. THOMAS, THERUVATH HOUSE,
PAYYAVOOR P.O., THALIPARAMBA TALUK, KANNUR
DISTRICT.
BY ADVS.
SRI.GEORGE POONTHOTTAM (SR.)
SHRI.K.V.MANOJ KUMAR
SRI.M.PROMODH KUMAR
SHRI.P.R.SREEJITH
SMT.NISHA GEORGE
RESPONDENTS:
1 THE COMMISSIONER, MALABAR DEVASWOM BOARD,
ERANJIPALAM, KOZHIKODE-673006.
2 THE PAYYAVOOR TEMPLE, REPRESENTED BY ITS
CHAIRMAN, TRUSTEE BOARD, PAYYAVOOR P.O.,
THALIPARAMBA TALUK, KANNUR DISTRICT-670633.
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3 THE EXECUTIVE ENGINEER, PAYYAVOOR DEVASWOM,
TALIPARAMBA TALUK, KANNUR DISTRICT-670633.
4 THE DISTRICT COLLECTOR
CIVIL STATION, KANNUR-670001.
BY ADVS.
SHRI.MOHAN C.MENON
ADV. S. RAJMOHAN, SR GP
SMT.R.RANJANIE, SC MDB
SRI.R.LAKSHMI NARAYAN (SR.)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.11.2025, THE COURT ON 20.01.2026 DELIVERED THE FOLLOWING:
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JUDGMENT
K. V. Jayakumar, J.
This Writ Petition is filed under Article 226 of the Constitution of India challenging Ext.P14 order passed by the 1st respondent, the Commissioner, Malabar Devaswom Board.
2. The petitioner, Kalappurakkal Jose, states that he is the owner of 80 cents of land in R.S. No. 44 (Old Survey No. 26) of Payyavoor Amsom and Desom. According to the petitioner, the property originally belonged to the erstwhile Jenmi, namely, Karakkattidam Tharavadu.
3. The petitioner further states that one Padinjareveetil Lakshmi and her daughter, who were in possession of the said property admeasuring 3.05 Acres had executed Ext.P1 registered Marupattom Deed No. 1771 of 1949 dated 02.09.1949 of S.R.O. Irikkur. Out of the total extent of 3.05 Acres, the said Lakshmi Marassiar had executed Ext.P2 registered sale deed in respect of One Acre of property to Kunhimangalam Veetil Devi Marassiar as per registered Sale Deed No. 2390/1961 of S.R.O. Irikkur.
4. The said Devi Marassiar died and her children executed Ext.P3 Partition Deed in the year 1980. As per Ext.P3 Partition Deed, Sri. Govinda Marar got his share in schedule Nos. 1 and 2 of the deed and Smt. Lakshmikutty got her share in schedule Nos. 5, 6 and 7. The writ petitioner purchased 80 cents of property from the said Govinda Marar and Lakshmikutty vide Exts.P4 and P5 sale deeds on 13.12.1985.
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5. The petitioner further states that in the meanwhile, suo motu
proceedings were initiated by the Land Tribunal, Irikkur as S.M.P. No. 362/1976 (Ext.P7) and Ext.P6 purchase certificate was issued to the tenant.
6. The writ petitioner submits that he has been consistently remitting land revenue in respect of the subject property and has duly produced Ext.P8, the basic tax receipt, as evidence thereof. Furthermore, the petitioner has furnished Ext.P9, a possession certificate issued by the Village Officer concerned, to substantiate his continuous possession of the property.
7. The 2nd respondent, the Chairman of the Trustee Board, Payyavoor Temple, has raised certain disputes on the premise that 80 cents of land of the petitioner covered by Exts.P4 to P9 is a part of 3.13 Acres of Temple property. Thereafter, the Chairman of the Trustee Board has filed W.P.(C) No.16466/2006 before this Court. The said Writ Petition was disposed of on 10.07.2008 as per Ext.P10 judgment. In Ext.P10 judgment, a direction was issued to the Commissioner, HR&CE(Admn.) Department, Kozhikode (the 1st respondent therein), to take appropriate legal proceedings against the encroachers.
8. The Commissioner did not take final decision on the basis of Ext.P10 judgment for about four years. However, the construction of the residential building on the property was forcefully prevented by the 2nd respondent. Aggrieved by the actions of the 2nd respondent, the petitioner submitted Ext.P11 representation dated 15.02.2010 before the Government, with a request to finalise the proceedings. Thereafter, the petitioner preferred 2026:KER:4473 W.P(C) No.21430/2013 5 W.P.(C) No. 127/2012. Ext.P12 is the judgment therein.
9. The petitioner further contends that in Ext.P12 judgment, a direction was issued to the 1st respondent, Commissioner of Malabar Devaswom Board to finalise the action pursuant to Ext.P10 judgment within an outer limit of eight months. Pursuant to Ext.P12 judgment, an opportunity of being heard was afforded to the petitioner. The Deputy Commissioner inspected the property and filed Ext.P13 report dated 04.03.2013.
10. The petitioner further states that as per Ext.P13 report, the property of the petitioner is lying separately, surrounded by physical boundaries on all sides and it could not be termed as part of the larger extent of 3.13 Acres of property as claimed by the 2nd respondent. As per Ext.P13 report, the said 3.13 Acres are occupied by some others and they constructed residential and commercial buildings therein.
11. The Commissioner, as per Ext.P14 order dated 11.07.2013, has declared Exts.P1 to P5 registered documents and Ext.P6 purchase certificate as void and voidable documents.
12. Challenging Ext.P14 order of the Commissioner, the petitioner has approached this Court claiming the following reliefs:
(i) Call for the records leading to Ext.P14 and quash the same by issuance a writ of certiorari or any other appropriate writ, order or direction as ultra vires and illegal;
(ii) Declare that Ext.P14 order passed by the 1st respondent is illegal and without jurisdiction;
2026:KER:4473 W.P(C) No.21430/2013 6 The Submissions of the learned counsel for the petitioner 13. Sri. George Poonthottam, the learned Senior counsel appearing for the petitioner, submitted that Ext.P14 order is unsustainable in law and ultravires the powers conferred under the Madras Hindu Religious and Charitable Endowments Act (for the sake of brevity, 'Madras HR&CE Act'). The 1st respondent had gone beyond the powers and jurisdiction while passing Ext.P14, and therefore, the impugned order is a nullity in the eyes of law. The learned counsel would further submit that the Commissioner has no jurisdiction to declare a registered deed and Ext.P6 purchase certificate as void. He has no right to adjudicate the correctness of the purchase certificate. The learned counsel for the petitioner has placed reliance on the decisions in Cheeranthoodika Ahmmedkutty v. Parambur Mariakutty Umma1 and Lakshmi v. Viswanathan2.
14. The submission of the learned counsel for the petitioner is that only the Civil Court is vested with the jurisdiction to decide the right, title and interest with respect to a property and that the Commissioner had overlooked Ext.P13 report, wherein it is affirmed that the property of the petitioner is covered by physical boundaries on all sides.
15. Ext.P14 order was passed by the 1st respondent, Commissioner pursuant to the judgment in W.P.(C) No.16466/2006 (Ext.P10). In that judgment, the direction was to consider whether the 1 2000 (1) KLT 829 2 1999 (2) KLT 621.
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petitioner is an encroacher of the property and whether he has valid title to the property. However, the 1st respondent has acted like a Civil Court and declared whether the petitioner's title is valid or not.
Submissions of the learned counsel for the respondents
16. The 1st respondent, Commissioner, Malabar Devaswom Board has placed on record the counter-affidavit as directed by this Court, refuting the allegations in the Writ Petition. It is stated in the affidavit that in Ext.P14 order, it is found that the original lease deed No. 1771/1949 is null and void for the reason that the said lease was given by a stranger without any authority and not by the Trustee who is competent to do so. The possession certificate, tax receipts etc., are also found to have been obtained fraudulently on the basis of void and invalid documents.
17. It is further stated in the counter affidavit that the competent authority under the Kerala Land Conservancy Act (hereinafter referred to as 'KLC Act') is the District Collector, and the Commissioner has no power to evict the encroachments of Devaswom properties. The Malabar Devaswom Board is not in direct administration of the temples or their properties, but it exercises supervision and control over the administration of the temple by the Trustee/Trustee Board. The records relating to the properties are kept in the office of the concerned Devaswom.
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18. The Malabar Devaswom Board does not have any machinery
for evicting the encroachment of land. It is further stated that by Ext.R1(a) order dated 12.09.2014, the Secretary, Revenue Devaswom has directed all the District Collectors to issue directions to the Sub Collectors, Tahsildars and Deputy Collectors to remove encroachment of the land belonging to the temples under the Malabar Devaswom Board as per the KLC Act and to report compliance.
19. The respondents 2 and 3 also filed a counter-affidavit refuting the allegations in the Writ Petition. It is stated in the counter that in Ext.P10 judgment, this Court issued directions to give notice to the encroacher and hear him before actual removal and to pass appropriate directions to preserve the Devaswom land, including prohibition of any construction on the land. The respondents had produced Ext.R2(B) sketch along with the counter-affidavit.
20. According to respondents 2 and 3, the petitioner is relying on a fraudulent Marupattom Deed (Ext.P1) allegedly executed by one Devaki and Lakshmi to one Chandukutty Nambiar, making a self-declaration that an extent of 3.05 Acres belongs to the latter and the former is claimed to be a lessee under him. The petitioner has encroached upon the Ulsava Paramba, known as 'Payyattu Vayal' of the Payyavoor Devaswom, lying on the western side of the temple and on the eastern side of the 'Arattu Thara'.
21. The respondents 2 and 3 further stated that Ext.P3 partition deed, Ext.P6 Patta and all the documents relied on by the petitioner are 2026:KER:4473 W.P(C) No.21430/2013 9 fabricated. The Devaswom has never and could have ever given the Ulsava Paramba on lease to anybody. The disputed land has an extent of 3.13 Acres in Re-Survey No. 44 of Eruvasseri Amsom, Payyavoor Desom. The Resettlement Register, Adangal Register and 'A' Register would conclusively prove the title of the Devaswom.
22. It is further stated in the counter that the Karikkat Edom or Valiya Nayanar has no title on this property and therefore, the lease deed executed by two strangers to others does not convey any right, title or interest on the Devaswom property. Ext.P14 order was issued by the Commissioner pursuant to and in compliance with Ext.P10 judgment.
23. We have heard the submissions of Smt. Ranjanie, the learned Standing Counsel for the Malabar Devaswom Board, Sri. S. Rajmohan, the learned Senior Government Pleader and Adv. Mohan C. Menon, learned counsel for respondents 2 & 3.
24. The short question involved in this matter is whether the Commissioner of Malabar Devaswom Board has the power to decide the disputes as to the title?
25. This Court as per Ext.P10 judgment dated 10.07.2008 has disposed of the Writ Petition. The operative portion of the judgment reads as follows:
"3. In the circumstances, we do not think that any further direction is to be issued to the 1st respondent. The 1st respondent shall proceed to take appropriate legal proceedings against the 2026:KER:4473 W.P(C) No.21430/2013 10 encroachers. If the 3rd respondent has got a contention that he is not an encroacher of the property and he has valid title to the property, it is open to him to raise such contention before the concerned authority. We direct the 1st respondent before actual removal of the 3rd respondent, to give notice to him. It is also open to the 1st respondent-Commissioner to pass appropriate interim direction to preserve the property including prohibition of any construction, if any, made in the property alleged to have been encroached upon, until a final decision is taken."
26. In Ext.P10 judgment, this Court has directed the Commissioner, HR & CE Department, Kozhikode (the 1st respondent therein) to take action against the encroachers, including the petitioner herein.
27. On the basis of Ext.P10 judgment of this Court, the petitioner, Kalappurakkal Jose has submitted Ext.P11 representation dated 15.02.2010 before the Government with a request to finalise the proceedings by the 1st respondent, Commissioner. In Ext.P11 representation, it is stated that even though two years have elapsed from the judgment of the High Court, the Commissioner has not taken any action in the matter. The petitioner made a request to the Minister for Devaswom, Government of Kerala to issue directions to the Commissioner to take a final decision in the matter after affording an opportunity of being heard to the petitioner. A copy of Ext.P11 representation was also forwarded to the Commissioner, HR&CE, Kozhikode.
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28. Thereafter, the petitioner has instituted W.P.(C) No.127/2012
before this Court to expedite the proceedings pending before the Commissioner, HR&CE, Kozhikode. This Court vide Ext.P12 judgment dated 04.01.2012 had directed to take final action within eight months. Thereafter, pursuant to the direction issued by this Court in Ext.P12 judgment, the Commissioner, Malabar Devaswom Board has passed Ext.P14, the impugned order.
29. Before further discussion, it would be useful to extract the relevant provisions of Madras HR&CE Act, 1951 and KLC Act. Sections 6 (15), 8C, 61 and 94 of the Madras HR&CE Act are extracted hereunder:
"6(15) "religious institution" means a math, temple or specific endowment;
xxxxxxxxx 8C. Officers and Employees of the Board.- (1) The Government may appoint an officer not below the rank of a Deputy Commissioner in the abolished department who is eligible to be promoted as Commissioner as per the provision contained in Section 19G and in the absence of such an officer, an officer not below the rank of a Joint Secretary to Government who is professing Hindu religion and is a believer of God and temple worship, as the Commissioner of the Board on such terms and conditions as may be fixed by the Government, who shall also function as the Secretary of the Board.
(2) He shall be the Chief Executive Officer of the Board who shall implement all decisions of the Board.
2026:KER:4473 W.P(C) No.21430/2013 12 (3) He shall submit reports to the Government, once in three months, with respect to the working of the Board.
(4) The Board may appoint such number of Deputy Commissioners, Assistant Commissioners, and such other officers and staff as are necessary for discharging its functions under this Act.
(5) The Board may create, with the approval of the Government, such number of posts of officers and employees of the Board, as it requires.
(6) The pay and allowances and other conditions of service of the officers and employees of the Board, appointed under sub-section (4), shall be such, as may be prescribed.
xxxxxxxxx
61. Appeal to the Commissioner.- (1) Any person aggrieved by any order passed by the Deputy Commissioner under any of the foregoing provisions of this Chapter may, within one month from the date of the publication of the order or the receipt thereof by the party concerned, as the case may be, appeal to the Commissioner.
(2) Any order passed by the Commissioner on such appeal against which no suit lies to the Court under the next succeeding section, or in which no suit has been instituted in the Court within the time specified in Section 62, sub-section (1), may be modified or cancelled by the Commissioner if the order has settled or modified a scheme for the administration of a religious institution or relates to any of the matters specified in Section 59.
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94. Property of religious institutions not to vest under the Law of Limitation after commencement of this Act.- Nothing contained in any law of limitation for the time being in force 2026:KER:4473 W.P(C) No.21430/2013 13 shall be deemed to vest in any person the property or funds of any religious institution which had not vested in such person or his predecessor-in-title before the commencement of this Act."
Section 15 of the KLC Act is extracted below:
"15. Officers to exercise powers of Collector.- The Government may, by notification in the Gazette, authorise any officer including the Secretaries of Panchayats and Municipalities by name or by virtue of his officer to exercise all or any of the powers conferred on a Collector under this Act."
30. Sections 6(15), 8C, and 61 are the statutory provisions dealing with the appointment and powers of the Commissioner under the Madras HR&CE Act. Those provisions do not confer any powers on the Commissioner to adjudicate an issue with respect to the title or to evict the encroachers. However, the Commissioner has declared that the documents relied on by the petitioner are null and void. It was also held that the possession certificate and tax receipts relied on by the petitioner are also obtained fraudulently on the basis of void and voidable documents.
31. The operative portion of Ext.P14 order reads thus:
"As per the Adangal Register kept in the village office Payyavoor and in all the probability of the case, and the given inconsistencies and contradictions in the recordical evidences produced before me it seems that everything was a hatched plot with the connivance of the connected parties, thereto, to legitimize the encroachment of the land belongs to the temple.
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All the documents are void and voidable, on the particular ground that, all the records produced by the petitioner are depending upon document No.1771 of 1949, which itself is null and void at the outset, for the reason that the temple land in question therein was left on lease for 5 years by a stranger, who had no right or authority to give the temple land on lease. The trustee is the competent person to do so as provided under section 29 of the Act. In the absence of any unblemished recordical evidences from the petitioner, there is no relevancy to consider the commission report now. As per Sec.94 A of the H.R &.C.E Act, the provisions of the Kerala land conservancy Act is made applicable to the temple land, it is expedient to leave the matter of eviction to the District Collector, Kannur, who is the lawful authority to expedite action under the provisions of Kerala Land Conservancy Act.
The possession certificate and tax receipts etc. are also obtained fraudulently on the basis of void and voidable documents. So I don't find any merits in the petition and it is liable to be dismissed and I do so.
The Executive Officer is directed to approach the District Collector, Kannur for expeditious action for eviction of encroachment under the provision of Kerala Land Conservancy Act, as provided in section 94(A) of the H.R.& C.E Act. Till a final decision is taken by the District Collector, Kannur, the petitioner is restrained from carrying out any construction or make any alteration in the property in the question."
32. We have anxiously considered Ext.P14 order of the Commissioner, Malabar Devaswom Board. The Commissioner, after considering the statement of the petitioner and the Payyavoor Devaswom, 2026:KER:4473 W.P(C) No.21430/2013 15 has passed the impugned order.
33. Upon meticulous examination of Ext.P14 order, it is evident that the Commissioner has rendered a determination regarding the validity of the purchase certificate, possession certificate, and other documents relied upon by the petitioner. The order concludes that said documents are null and void, characterizing them as fabricated.
34. In Chiranjilal Shrilal Goenka v. Jasjit Singh and Others3, a Bench of three Judges of the Apex Court held that a decree passed by a court without jurisdiction is a nullity and is 'non est'.
35. It is true that this Court, as per Exts.P10 and P12 judgments, has directed the Commissioner to initiate necessary actions to evict the encroachers, including the writ petitioner. However, the Commissioner himself assumed the role of Civil Court and adjudicated the validity of the purchase certificate, possession certificate and other documents of the petitioner. The actions of the Commissioner are ultra vires, illegal and non est in the eyes of law.
36. Therefore, Ext.P14 order of the Commissioner, Malabar Devaswom Board is hereby set aside and quashed. It is open for the 2nd and 3rd respondents to approach the District Collector under the Land Conservancy Act for the eviction of the encroachers. The District Collector shall take a final decision in accordance with law within six months from the date of receipt of the application from the respondent Devaswom.
3 [1993 (2) SCC 507,] 2026:KER:4473 W.P(C) No.21430/2013 16 In the result, 1. The writ petition is allowed. 2. The impugned order of the Commissioner, Malabar Devaswom Board, is set aside and quashed. Sd/- RAJA VIJAYARAGHAVAN V JUDGE Sd/- K. V. JAYAKUMAR JUDGE BR 2026:KER:4473 W.P(C) No.21430/2013 17 APPENDIX OF WP(C) NO. 21430 OF 2013 PETITIONER EXHIBITS Exhibit-P20 A true copy of the document bearing File No. 1740/RAK/2022/RM I obtained under application dated 15.07.2022 Exhibit-P21 True copy of the adangal extract issued from the Regional Archives, Kozhikkode obtained under application dated 15.07.2022 Exhibit-P22 A true copy of the field map of field No. 43 Exhibit-P23 A true copy of the adangal extract issued by the Revenue Settlement Office, Calicut obtained under application dated 31.08.2022 Exhibit-P24 A true copy of the document as maintained in the year 1905 of the Regional Achieves, Kozhikkode Exhibit-P25 True copy of the Adangal register maintained at Taliparamba Taluk Office Exhibit-P19 A true copy of the Adangal Register maintained at the Revenue Settlement Office, Calicut and issued by the Special Assistant Settlement Officer (whose designation is renamed as Superintendent, Regional Archives, Kozhikkode) EXHIBIT P9- A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 17-7-2006. EXHIBIT P10- A TRUE COPY OF THE JUDGMENT DATED 10-07-2008 IN WRIT PETITION 16466/2006. EXHIBIT P1- A TRUE COPY OF THE REGISTERED MARUPATTOM DEED NO. 1771 ODF 1949 DATED 2-9-1949 OFR SRO IRIKKUR. 2026:KER:4473 W.P(C) No.21430/2013 18 EXHIBIT P12- A TRUE COPY OF THE JUDGMENT DATED 4-1-2012 IN WRIT PETITION 127/2012. EXHIBIT P13- A TRUE COPY OF THE REPORT DATED 4-3-2013 FILED BY THE DEPUTY COMMISSIONER. EXHIBIT P14- A TRUE COPY OF THE ORDER NO. J3/162/2012 DATED 11-7-2013 PASSED BY THE 1ST RESPONDENT. EXHIBIT P11- A TRUE COPY OF THE REPRESENTATION BEFORE THE GOVERNMENT DATED 15-2-2010 BY THE PETITIONER. EXHIBIT P2- A TRUE COPY OF THE SALED DEED IN RESPECT OF 1 ACRE EXECUTED IN FAVOUR OF KUNHIMANGALAM VEETIL DEVI MARASSSIAR BY PADINJARE VEETIOL LAKSHMI MARASSIAR BEARING DOCUMENT NO. 2390/1961 OF SRO IRIKKUR. EXHIBIT P3- A TRUE COPY OF THE PARTITION DEED NO. 1277/1980 DATED 14-5-1980 OF SRO SREEKANDAPURAM. EXHIBIT P4- A TRUE COPY OF THE SALE DEED NO. 3770/1985 13-12-1985 OF SRO SREEKANDAPURAM. EXHIBIT P5- A TRUE COPY OF THE JENM SALE DEED NO. 3771 OF 1985 DATED 13-12-1985 OFR SRO SREEKANDAPURAM. EXHIBIT P6- A TRUE COPY OF THE PURCHASE CERTIFICATE NO. 9364 OF 1977 DATED 29-3-1977 OF LAND TRIBUNAL NO.II, IRIKKUR. EXHIBIT P7- A TRUE COPY OF THE ORDER IN SMP NO. 362/1976 DATED 27-2-1976. EXHIBIT P8 A TRUE COPY OF THE LATEST BASIX TAX RECEIPT DATED 22.4.2013 EXHIBIT P15 TRUE COPY OF THE BUILDING PERMIT NO.27/2014-15 DATED 4-6-2014 2026:KER:4473 W.P(C) No.21430/2013 19 EXHIBIT P16 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 29.03.2014 ISSUED BY THE VILLAGE OFFICER EXHIBIT P17 TRUE COPY OF THE TAX RECEIPT DATED 22-4-2014 EXHIBIT P18 TRUE COPY OF THE SKETCH EXHIBIT R1(a) TRUE COPY OF LETTER NO.48834/2014/Dev.2/REVENUE DATED 12.09.2014 EXHIBIT R1(b) TRUE COPY OF LETTER TO THE DISTRICT COLLECTOR EXHIBIT R1(c) TRUE COPY AGENDA NOTE TRUE COPY OF ORDER NO.G1/2008/56509/13 EXHIBIT R1(d) DATED 02.09.2010 TRUE COPY OF THE LETTER EXHIBIT R1(e) NO.L7/15535/2007 DATED 18.01.2010 TRUE COPY OF LETTER TO THE STANDING EXHIBIT R1(f) COUNSEL WAS APPROVED ON 02.03.2012 EXHIBIT R1(g) TRUE COPY OF LETTER DATED 24.12.2012 EXHIBIT R1(h) TRUE COPY OF LETTER NO.H4-5460/2010/MDB DATED 11.08.2014