K.Jayaprakashan vs State Of Kerala on 13 April, 2023

[Cites 87, Cited by 0]

Kerala High Court

K.Jayaprakashan vs State Of Kerala on 13 April, 2023

The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that respondents 3 to 5 Land Tribunals, while dealing with the case of assignment of jenmam right in respect of religious endowments, are bound to examine whether the claim in every case is hit by Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951 and Section 76 of the Madras Hindu Religious and Charitable Endowments Act, 1927; and a declaration that Ext.P5 notification, i.e., G.O.(P)No. 09/2018/RD dated 22.02.2018 issued under sub- section (1) of Section 105A of the Kerala Land Reforms Act, 1963, whereby the Government of Kerala appointed the Village Officers coming within the jurisdiction of each Land Tribunal constituted under Section 99 of the said Act for bringing to the notice of the Land Tribunal concerned any fact or information required by the Land Tribunal to take any action necessary for the implementation of the provisions of that Act, is ultra vires the substantive 2 W.P.(C)No.8851 of 2020 provisions of the Kerala Land Reforms Act, 1963 and hence legally unsustainable. The petitioner has also sought for a writ of certiorari to quash Ext.P5 notification dated 22.02.2018; and a writ of mandamus commanding respondents 1 to 15 to take immediate steps to protect and preserve Devaswom lands, considering the request made by the petitioner in Ext.P10 representation dated 15.12.2019.

2. Respondents 2 to 4 have filed counter affidavit opposing the reliefs sought for in this writ petition, wherein it is contended that, since the petitioner, who is a devotee, is not personally affected by the issuance of purchase certificates by the Land Tribunals in respect of immovable properties of various Devaswoms under Malabar Devaswom Board, he has no locus standi to file this writ petition.

3. On 15.12.2021, when this writ petition came up for consideration, this Court passed a detailed order restraining 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, 3 W.P.(C)No.8851 of 2020 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. By the said order, the Additional Chief Secretary, Revenue Department was directed to take necessary steps to communicate a copy of that order to all Land Tribunals in the State, for information and strict compliance.

4. On 27.07.2022, when this writ petition came up for consideration along with connected matters, the learned Standing Counsel for Malabar Devaswom Board pointed out the provisions under Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951. The learned Standing Counsel submitted 4 W.P.(C)No.8851 of 2020 that some of the Land Tribunals in the State are not granting reasonable time to the Board to file statements. The learned Special Government Pleader submitted that necessary instructions shall be issued to the concerned Land Tribunals to grant reasonable time to the Malabar Devaswom Board and also to Travancore Devaswom Board and Cochin Devaswom Board to place on record their statement in the respective proceedings.

5. On 31.01.2023, the petitioner filed I.A.No.1 of 2023 seeking an order restraining respondents 3 to 5 from proceeding with pending Land Tribunal proceedings without calling for the report of the Revenue Inspector in each case, with notice to the concerned Temples/Devaswoms.

6. We heard the detailed arguments of the learned counsel for the petitioner, the learned Special Government Pleader (Revenue), the respective Standing Counsel for Malabar Devaswom Board, Travancore Devaswom Board and Cochin Devaswom Board and also the respective counsel for the party respondents.

7. In this writ petition it is alleged that there is a conscious attempt to circumvent the elaborate procedure laid down in the 5 W.P.(C)No.8851 of 2020 Kerala Land Reforms Act, 1963 and the Rules made thereunder, to invariably issue purchase certificates to claimants before the Land Tribunals, in respect of Devaswom lands. The Trustees of the temples or the Executive Officers of the temples under the control of Malabar Devaswom Board are not taking interest in protecting Devaswom lands from any encroachment by third parties. This led to a situation of the Land Tribunals issuing purchase certificates invariably in respect of Devaswom lands. In Ext.P1 order dated 10.12.1996 in C.R.P.No.1561 of 1990 (Thazhemadathil Narayanan Nambisan v. Timiri Devaswom and others) this Court noticed that the Land Tribunals are indiscriminately issuing purchase certificates to those who have encroached upon Devaswom land. In Ext.P1 order this Court directed the authorities under the Hindu Religious and Charitable Endowments Act, 1951, to look into cases where the Land Tribunals have indiscriminately made assignments in favour of persons whose names are not found in the tenants register, accounts and the demand register or any other relevant document maintained by the Devaswom prior to 01.04.1964 and to take steps to get the orders of assignment set aside by appropriate proceedings, either under the Hindu Religious and 6 W.P.(C)No.8851 of 2020 Charitable Endowments Act or by approaching the appellate authorities under the Kerala Land Reforms Act. The Commissioner of Hindu Religious and Charitable Endowments, Kozhikode was directed to look into the affairs of the Devaswom to ascertain whether there are improper assignments on the basis of the existence of cultivating tenancies, where they did not really exist, and to take steps for recovery of lands held unauthorisedly by persons, and which ought to be in the possession of the Devaswom. Pursuant to the direction contained in Ext.P1 order the Commissioner, Hindu Religious and Charitable Endowments, Kozhikode, has issued Ext.P2 circular dated 04.02.1997, with various general directions to the authorities concerned, in the matter of protection and preservation of Devaswom lands. In the writ petition, it is alleged that even after Ext.P1 order of this Court and Ext.P2 circular issued by the Commissioner, Hindu Religious and Charitable Endowments, the Land Tribunals are invariably issuing purchase certificates without following the mandatory requirements of law and without verifying the right or title of the respective claimants, which has resulted in loss of Devaswom lands.

W.P.(C)No.8851 of 2020

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 'fences 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 charitable institutions from wrongful claims or misappropriation. 8 W.P.(C)No.8851 of 2020

10. 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.

11. In Mohanan Nair [2013 (3) KLT 132] the Division Bench relied on the decision in Achuthan Pillai v. State of Kerala [1970 KLT 838], wherein a Full Bench of this Court 9 W.P.(C)No.8851 of 2020 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 10 W.P.(C)No.8851 of 2020 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.

W.P.(C)No.8851 of 2020

12. 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 12 W.P.(C)No.8851 of 2020 public interest, in accordance with law, and issue such judicial directions as becomes necessary having regard to individual fact situation.

13. 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.

14. In A.A. Gopalakrishnan v. Secretary, Cochin 13 W.P.(C)No.8851 of 2020 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 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.

15. In view of the law laid down in the decisions referred to supra, in the order dated 15.12.2021, this Court repelled the contention raised by respondents 2 to 4 that, the petitioner, who is a devotee, has no locus standi to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking the reliefs sought for in this writ petition, since he is not personally affected by the issuance of purchase certificates by the Land 14 W.P.(C)No.8851 of 2020 Tribunals in respect of immovable properties of various Devaswoms under Malabar Devaswom Board.

16. The Kerala Land Reforms Act, 1963 (for brevity, 'the Act'), is enacted to make comprehensive legislation relating to land reforms in the State of Kerala, which received the assent of the President on 31.12.1963. Sections 2 to 71, 73 to 82, 84, 99 to 108 and 110 to 132 came into force on 01.04.1964 and the remaining provisions came into force on 01.01.1970. Clause (7) of Section 2 of the Act, which defines the term 'cultivate' reads thus;

"(7) 'cultivate' with its grammatical variations means cultivate either solely by one's own labour or with the help of the members of his family or hired labourers or both, or personally direct or supervise cultivation by such members or hired labourers or both, provided that such members or hired labourers have not agreed to pay or to take any fixed proportion of the produce of the land they cultivate as compensation for being allowed to cultivate it or as remuneration for cultivating it and in the case of a member of the Armed Forces or a seaman, 'cultivation' includes cultivation on his behalf by any other person."

17. As per clause (8) of Section 2 of the Act, 'cultivating tenant' means a tenant who is in actual possession of, and is 15 W.P.(C)No.8851 of 2020 entitled to cultivate, the land comprised in his holding. Clause (19) of Section 2 defines 'intermediary' to mean any person who, not being a landowner, has an interest in the land and is entitled, by reason of such interest, to possession thereof, but has transferred such possession to any other person. As per the Explanation to clause (19) of Section 2, where such a person has transferred possession only of a portion of the land which he is so entitled to possess, he shall be deemed to be an intermediary in respect of that portion. Clause (57) of Section 2 defines 'tenant' to mean any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and enjoy any land by a person entitled to lease that land and includes those enumerated in sub-clauses (a) to (j).

18. Section 3 of the Act deals with 'exemptions'. As per sub-section (1) of Section 3, 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 16 W.P.(C)No.8851 of 2020 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. The words "(including sites belonging to a temple, mosque or church on which religious ceremonies are conducted)" were substituted for the words "(including sites on which religious ceremonies are conducted)" by the Kerala Land Reforms (Amendment) Act, 1969, with effect from 01.01.1970. As per the proviso to clause (x) of sub-section (1) of Section 3, nothing in this clause shall affect the right to which a tenant was entitled immediately before the commencement of the Act (i.e., 01.04.1964) under the contract of tenancy or under any law then in force.

19. In view of the provisions under Section 4 of the Act, certain Odacharthudars and persons claiming under Odacharthudars are to be deemed tenants. Clause (39) of Section 2 defines 'odacharthu' to mean an agreement for cutting bamboo in Malabar. Similarly, in view of the provisions under Section 4A, certain mortgagees and lessees of mortgagees are to be deemed tenants. As per sub-section (1) of Section 4A, notwithstanding 17 W.P.(C)No.8851 of 2020 anything to the contrary contained in any law or in any contract, custom or usage, or in any judgement, decree or order of the court, a mortgagee with possession of land, other than land principally planted with rubber, coffee, tea or cardamom, or the lessee of a mortgagee of such land shall be deemed to be a tenant if the condition stipulated in clause (a), clause (b) or clause (c) sub-section (1) is satisfied. As per sub-section (2) of Section 4A, nothing contained in sub-section (1) shall apply to a lessee if the lease was granted on or after the commencement of the Act. Sections 5, 6, 6A to 6C, 7, 7A to 7E, 8, 9, 10 and 11 of the Act also deal with 'deemed tenants'.

20. In view of the provisions contained in Section 9A of the Act, inserted by the Kerala Land Reforms (Amendment) Act, 1969, with effect from 01.01.1970, certain surrender documents are to be inadmissible in evidence. As per Section 9A, where any tenant has executed before 19.05.1967, a deed surrendering or purporting to surrender to his landlord his leasehold rights in any land situate in the taluk of Hosdurg or Kasaragode in the Cannanore district, such deed if unregistered shall, notwithstanding anything contained in the Indian Evidence Act, 18 W.P.(C)No.8851 of 2020 1872, be inadmissible in evidence in any dispute regarding possession of such land between such tenant or any person claiming under or through him and such landlord or any person claiming under or through him.

21. Section 12 of the Act deals with right to prove real nature of transaction. As per sub-section (1) of Section 12, notwithstanding anything in the Indian Evidence Act, 1872, or in any other law for the time being in force, or in any judgement, decree or order of court, any person interested in any land may prove that a transaction purporting to be a mortgage, otti, karipanayam, panayam, nerpanayam or licence of that land is in substance a transaction by way of kanam, kanam-kuzhikanam, kuzhikanam, verumpattam or other lease, under which the transferee is entitled to fixity of tenure in accordance with the provisions of Section 13 and to the other rights of a tenant under the Act. As per sub-section (2) of Section 12, where under sub- section (1) the Land Tribunal holds that the transferee is entitled to fixity of tenure in accordance with the provisions of Section 13, it shall be lawful for the Land Tribunal to pass an order containing directions regarding the application of the sum, if any, advanced 19 W.P.(C)No.8851 of 2020 to the landlord and making other suitable alterations in the terms recorded in the instrument executed by the parties. As per sub- section (3) of Section 12, notwithstanding anything in the Indian Evidence Act, 1872, or in any other law for the time being in force, a person described as an agent or servant in a document evidencing the contract for the cultivation of any nilam, may prove that he is a licensee.

22. Section 13 of the Act deals with the right of tenants to fixity of tenure. As per sub-section (1) of Section 13, notwithstanding anything to the contrary contained in any law, custom, usage or contract or in any decree or order of court, every tenant shall have fixity of tenure in respect of his holding, and no land from the holding shall be resumed except as provided in Sections 14 to 22. Section 13 of the Act reads thus;

"13: Right of tenants to fixity of tenure.-

(1) Notwithstanding anything to the contrary contained in any law, custom, usage, or contract, or in any decree or order of court, every tenant shall have fixity of tenure in respect of his holding, and no land from the holding shall be resumed except as provided in sections 14 to 22. (2) Nothing in sub-section (1) shall confer fixity of tenure on a tenant holding under a landlord-

20 W.P.(C)No.8851 of 2020

(i) who is a member of the Armed Forces or is a seaman, if the tenancy was created by such landlord within a period of three months before he became a member of the Armed Forces or a seaman, or while he was serving as such member or seaman; or

(ii) who is the legal representative of the landlord referred to in clause (i):

Provided that no such landlord shall resume any land from his tenant, if he is already in possession of an extent of land not less than the ceiling area; and, where he is in possession of an extent of land less than the ceiling area, the extent of land that may be resumed shall not, together with the land in his possession, exceed the ceiling area:

Provided further that a tenant holding under any such landlord shall have fixity of tenure in respect of his holding if the landlord does not claim resumption of the land comprised in the holding within six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969:

Provided also that where any such landlord is prevented by sufficient cause from not claiming resumption within the said period of six months and he claims resumption at any time before the date notified under Section 72, the right of such tenant to fixity of tenure in respect of the holding or part thereof to which the claim for resumption relates shall cease from the date of the application claiming resumption: Provided also that such tenant shall have fixity of tenure in respect of his holding or part thereof from the date of the 21 W.P.(C)No.8851 of 2020 final rejection of such application in full or in part, as the case may be:

Provided also that the provisions of this sub-section shall not apply to tenants who were entitled to fixity of tenure immediately before the 21st January, 1961, under any law then in force.

(3) Notwithstanding anything to the contrary contained in any law, or in any contract, but subject to the provisions of sub-section (2), the landlord referred to in clause (i) or clause (ii) of sub-section (2) shall be entitled to apply for the resumption from his tenant of the whole or part of his holding within six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969 or if such landlord is prevented by sufficient cause from applying for resumption within such period, at any time before the date notified under section 72."

23. In view of the provisions of Section 50 of the Act, subject to the provisions of the Act, all rights which a tenant has in his holding shall be heritable and alienable. Section 53 of the Act deals with cultivating tenant's right to purchase landlord's rights. As per sub-section (1) of Section 53, a cultivating tenant (including the holder of a kudiyiruppu, and the holder of a karaima), entitled to fixity of tenure under Section 13, shall be entitled to purchase the right, title and interest of the landowner 22 W.P.(C)No.8851 of 2020 and the intermediaries, if any, in respect of the land comprised in his holding. Section 53 of the Act reads thus;

"53: Cultivating tenants right to purchase landlord's rights.-

(1) A cultivating tenant (including the holder of a kudiyiruppu, and the holder of a karaima), entitled to fixity of tenure under Section 13, shall be entitled to purchase the right, title and interest of the landowner and the intermediaries, if any, in respect of the land comprised in his holding:

Provided that-

(i) if the landlord is entitled to resume any portion of the holding under this Act and he applies for such resumption, the cultivating tenant shall be entitled to purchase the right, title and interest of the landowner and the intermediaries only in respect of the remaining portion of the holding;

(ii) no cultivating tenant shall be entitled to purchase the right, title and interest in respect of any land 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;

(iii) 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 purchase 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 23 W.P.(C)No.8851 of 2020 family, as the case may be, be equal to the ceiling area.

Explanation:-In calculating the extent of land owned by the cultivating tenant or, where he is a member of a family, by such family, for the purposes of clause (ii) or clause (iii) of the proviso to this sub-section, the portion of the land owned by such cultivating tenant or by the family, which is liable to be purchased by the cultivating tenants holding under such tenant or family, shall not be taken into account. (2) The provisions of Section 82 shall, so far as may be, apply to the calculation of the ceiling area for the purposes of sub-section (1):

Provided that if no date has been notified under Section 83, the date of application by the cultivating tenant under Section 54 shall be deemed to be the date notified under Section 83."

24. Section 54 of the Act deals with application for purchase of landlord's rights by cultivating tenants. As per sub- section (1) of Section 54, a cultivating tenant entitled to purchase the right, title and interest of the landowner and the intermediaries under Section 53 may apply to the Land Tribunal for the purchase of such right, title and interest. Section 54 of the Act reads thus;

"54: Application for purchase of landlord's rights by cultivating tenants.-

24 W.P.(C)No.8851 of 2020

(1) A cultivating tenant entitled to purchase the right, title and interest of the landowner and the intermediaries under Section 53 may apply to the Land Tribunal for the purchase of such right, title and interest.

(2) The application for the purchase under sub-section (1) shall be in such form and shall contain such particulars as may be prescribed.

(3) Where a cultivating tenant is entitled to purchase the right, title and interest in respect of only a portion of the land held by him, he may indicate in the application, his choice of the portion, the right, title and interest over which he desires to purchase."

25. Section 57 of the Act deals with procedure before the Land Tribunal. As per 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 25 W.P.(C)No.8851 of 2020 Section 22; and (ii) on the application for purchase under Section

54. Section 57 of the Act reads thus;

"57: Procedure before the land Tribunal.-

(1) 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.

(2) 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. (3) where the cultivating tenant is entitled to purchase only a portion of the land left after resumption, the Land Tribunal shall, as far as possible, allow the purchase of the portion indicated in the application under sub-section (3) of Section

54.

(3A) Where the right, title and interest of the landowner or the intermediary vested in the cultivating tenant form part of the security for any encumbrance or charge for maintenance or alimony, the Land Tribunal shall, for the purpose of discharging the same, apportion the entire encumbrance or the charge for the maintenance or alimony between the portion of the land, the right, title and interest 26 W.P.(C)No.8851 of 2020 over which vested in the tenant and the portion remaining after such vesting, in proportion to the values of the two portions of the property; and discharge only the liability pertaining to the portion to which the purchase relates. (4) An order under clause (ii) of sub-section (2) allowing the application shall specify-

(i) the purchase price payable by the cultivating tenant;

(ii) the amount due to the landowner and each of the intermediaries, if any, on the apportionment of the purchase price paid by the cultivating tenant;

(iii) the value of encumbrances subsisting or claims for maintenance or alimony charged on the right, title and interest of the landowner and the intermediaries, if any;

      (iv)    the    amounts   payable    to   the    holder    of   the
              encumbrance      or   the   person     entitled   to   the

maintenance or alimony and the order of priority in which such amount is payable; and

(v) the amount payable to the landowner and each of the intermediaries after deducting the value of the encumbrances or the claims for maintenance or alimony.

(5) If the landowner or intermediary is liable to pay any amount to the cultivating tenant under this Act, the Land Tribunal shall, in passing orders on the application for purchase, set off such amount against the purchase price payable to the landowner or the intermediary.

(6) The Land Tribunal shall, as soon as may be, forward a copy of the orders under sub-section (2) to the Land Board." 27 W.P.(C)No.8851 of 2020

26. Section 65 of the Act deals with special provisions relating to religious, charitable or educational institutions of a public nature and Section 66 deals with procedure for vesting of rights of religious charitable or educational institutions in Government and for determination of annuity. Section 67 of the Act deals with payment of annuity and Section 67A deals with revision of annuity. In view of the provisions under Section 68, vesting of the rights of religious, charitable, or educational institutions in the Government shall not operate as bar to the purchase of landlord's rights by cultivating tenants.

27. Section 72 of the Act deals with vesting of landlord's rights in Government. As per 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 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 28 W.P.(C)No.8851 of 2020 landowners and intermediaries and subsisting thereon on the said date. Section 72 of the Act reads thus;

"72: Vesting of landlord's rights in Government.-

(1) 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:

Provided that nothing contained in this sub-section shall apply to a holding or part of a holding in respect of which an application for resumption under the provisions of this Act is pending on such date before any court or tribunal or in appeal or revision.

(2) Where in the case of a holding or part of a holding mentioned in the proviso to sub-section (1), the order rejecting the application for resumption, either in part or in full, has become final, the right title and interest of the landowner and the intermediaries, if any, of the holding or part of the holding, as the case may be, in respect of which resumption has not been allowed shall, with effect from the date on which the application for resumption has been finally rejected, vest in the Government free from all encumbrances created by the landowner and the 29 W.P.(C)No.8851 of 2020 Intermediaries, if any, and subsisting thereon on the said date.

(3) Where any land or portion of a land is restored to the possession of any person under the provisions of this Act after the date notified under sub-section (1), the right, title and interest of the landowner and intermediaries, if any, in respect of such land or portion of land shall, from the date of such restoration, vest in the Government free from all encumbrances created by the landowner and intermediaries and subsisting thereon on the said date.

(4) Where in the case of a holding or part of a holding, the landowner or an intermediary is a minor or a person of unsound mind or a member of the Armed Forces or a seaman or a legal representative of any such member or seaman, or a small holder, the right, title and interest of the landowner and intermediaries, if any, in respect of such holding or part of a holding shall vest in the Government

(a) on the expiry of six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969, or on the date notified under sub-section (1), whichever is later, in cases where no application for resumption of the holding or part of the holding has been preferred;

(b) in any case where application for resumption has been preferred, on the date on which the order rejecting such application, either in part or in full, has become final or on the date notified under sub-section (1), whichever is later.

30 W.P.(C)No.8851 of 2020

(5) Where an intermediary has resumed any land under the provisions of this Act, the right, title and interest of the landowner and the other intermediaries, if any, in respect of the said land shall vest in the Government free from all encumbrances created by the landowner and the other intermediaries, with effect from the date of resumption or the date notified under sub-section (1) whichever is later."

28. Section 72A of the Act deals with compensation to landlords for vesting of their rights in Government. Section 72B of the Act deals with cultivating tenant's right to assignment. As per 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 31 W.P.(C)No.8851 of 2020 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. Section 72B of the Act reads thus;

"72B: Cultivating tenant's right to assignment.-

(1) 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: Provided that-

(a) 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.

(b) 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 equal to the ceiling area.

Explanation:- In calculating the extent of land owned by the cultivating tenant or, where he is a member of a family, by such family, for the purposes of clauses (a) and (b) of the 32 W.P.(C)No.8851 of 2020 foregoing proviso, the portion of the land owned by such cultivating tenant or by the family, which is liable to be assigned to the cultivating tenants holding under him or such family, shall not be taken into account.

(2) The provisions of Section 82 shall, so far as maybe apply to the calculation of the ceiling area for the purposes of the proviso to sub-section (1):

Provided that if no date has been notified under Section 83, the date notified under Section 72 shall be deemed to be the date notified under Section 83.

(3) Any cultivating tenant entitled to assignment of the right, title and interest in respect of a holding or part of a holding under sub-section (1) may apply to the Land Tribunal within whose jurisdiction such holding or part is situate within two years from the date of vesting of such right, title and interest in the Government under Section 72, or such further time as may be allowed by the Government in this behalf, for such assignment to him. (4) An application under sub-section (3) shall contain the following particulars, namely:-

(a) the village, survey number and extent of the holding part to which the assignment relates;

(b) the name and address of the landowner and intermediaries and also of every other person interested in the land and the nature of their interest so far as they are known to him;

(c) the particulars regarding the other lands owned or held by him or if he is a member of a family, by such family;

33 W.P.(C)No.8851 of 2020

(d) such other particulars as may be prescribed. (5) Where a cultivating tenant is entitled to the assignment of the right, title and interest in respect of only a portion of the holding held by him, he may indicate in the application under sub-section (3) his choice of the portion to which the assignment shall relate."

29. Section 72BB of the Act deals with right of landlord to apply for assignment and compensation. As per 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. Section 72BB of the Act reads thus;

"72BB: Right of landlord to apply for assignment and compensation.-

(1) 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.

(2) An application under sub-section (1) shall contain the following particulars, namely:-

(a) the village, survey number holding to which the assignment relates;

34 W.P.(C)No.8851 of 2020

(b) the names and addresses of the cultivating tenant, landowner and intermediaries and also of every other person interested in the land and the nature of their interest, so far as they are known to the applicant;

(c) the particulars regarding the other lands held by the cultivating tenant so far as may be known to the applicant;

(d) the fair rent, if any, fixed, and the contract rent, if any, of the holding;

(e) such other particulars as may be prescribed."

30. Section 72C deals with assignment where application is not made by cultivating tenant. 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. Section 72D of the Act deals with purchase price.

31. As per Section 72F of the Act, 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 35 W.P.(C)No.8851 of 2020 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 sub-section (1) of Section 72F, the Land Tribunal shall also issue a notice individually to the landowner, each of the intermediaries and the cultivating tenant and also, as far as practicable, to the other persons referred to in clause (b) of sub- section (1) calling upon them to prefer claims and objections, if any, within such time as may be specified in the notice and to 36 W.P.(C)No.8851 of 2020 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. In view of the provisions under sub-section (4) of Section 72F, any person interested in the land, to whom no notice under sub-section (2) has been issued, may apply to the Land Tribunal stating the nature of his claim or objection and the relief he requires. 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). Section 72F of the Act reads thus;

"72F: Land Tribunal to issue notices and determine the compensation and purchase price.-

(1) 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 37 W.P.(C)No.8851 of 2020 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-

(a) the landowner, the intermediaries, if any and cultivating tenant; and

(b) 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. (2) The Land Tribunal shall also issue a notice individually to the landowner, each of the intermediaries and the cultivating tenant and also, as far as practicable, to the other persons referred to in clause (b) of sub-section (1) calling upon them 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.

(3) Notwithstanding anything contained in sub-section (2), the publication of a notice in the manner referred to in sub-

section (1) shall be deemed to be sufficient notice to the landowner, the intermediaries, if any, the cultivating tenant and all other persons interested in the land.

W.P.(C)No.8851 of 2020 (3A) The Land Tribunal shall furnish a copy of the public notice under sub-section (1), along with a statement containing the names and addresses of the persons to whom individual notices have been issued under sub-section (2) and such other particulars as may be prescribed, to the village committee of the village in which the holding is situate, or, (where the holding is situate in more than one village, the village committee of each such village and require the village committee or village committees, as the case may be, to advise the Tribunal on the matters mentioned in sub-section (3B) before such date as may be specified in the requisition.

(3B) On receipt of the copy of the public notice and the statement from the Land Tribunal under sub-section (3A), the village committee, or each of the village committees, shall, after such inquiry as may be prescribed, advice the Land Tribunal in respect of the following matters namely:

(a) the names and addresses of the landowner, the intermediaries, if any, and the cultivating tenant;

(b) the names and addresses of all other persons Interested in the land;

(c) such particulars as are necessary for the identification of the land comprised in the holding, as may be prescribed;

(d) the value of encumbrances subsisting or claims for maintenance or alimony charged on the right, title and interest of the landowner and intermediaries, if any;

39 W.P.(C)No.8851 of 2020

(e) the amount due to the holders of encumbrances or the persons entitled to maintenance or alimony and the order of priority in which the amount is payable; and

(f) such other matters as may be prescribed. (4) Any person interested in the land, to whom no notice under sub-section (2) has been issued, may apply to the Land Tribunal stating the nature of his claim or objection and the relief he requires.

(5) 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-

(a) the extent, survey number and such other particulars as may be prescribed, of the land, the right, title and interest in respect of which have vested in the Government under section 72;

      (b)    the    compensation    due     to   the   landowner   and
             intermediaries, if any;
      (c)    the amount due to the landowner and each of the

intermediaries, if any, on the apportionment of the compensation;

(d) the value of encumbrances subsisting or claims or maintenance or alimony charged on the right, title and interest of the landowner and the intermediaries, if any;

W.P.(C)No.8851 of 2020

(e) the amount due to the holders of encumbrances or the persons entitled to maintenance or alimony, and the order of priority in which the amount is payable;

      (f)    the amount payable to the landowner and each or the
             intermediaries   after        deducting   the   value   of

encumbrances of claims for maintenance or alimony;

(g) the purchase price payable by the cultivating tenant;

(h) the rent payable by the cultivating tenant to the Government in the cases falling under section 72E; (hh) where the landowner or intermediary is a religious, charitable or educational institution of a public nature and is entitled to annuity instead of compensation, the amount of such annuity; and

(i) such other particulars as may be prescribed. (6) Where the right, title and interest of the landowner or the intermediaries in respect of a holding or part of a holding vested in the Government form part of the security for any encumbrance or charge for maintenance or alimony, the Land Tribunal shall, for the purpose of determining the value of the encumbrance or the claim for the maintenance or alimony relating to that holding or part, as the case may be, apportion the entire encumbrance or the charge for the maintenance or alimony between such holding or part and the remaining lands which form the security for the encumbrance or the charge for the maintenance or alimony, in proportion to the values of the two portions.

(7) If the landowner or any intermediary is liable to pay any amount to the cultivating tenant under this Act, the Land Tribunal shall, in passing orders under this section, set off 41 W.P.(C)No.8851 of 2020 such amount against the compensation payable to the landowner or that intermediary.

(8) Where the cultivating tenant is entitled to the assignment of the right, title and interest in respect only of a portion of the land held by him (whether included in one holding or not), the Land Tribunal shall, as far as possible, assign to the cultivating tenant the right, title and interest in respect of the portion of his choice."

32. Section 72K of the Act deals with issue of certificate of purchase. 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. Section 72K of the Act reads thus;

"72K: Issue of certificate of purchase.-

(1) 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, 42 W.P.(C)No.8851 of 2020 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.

Explanation.- For the removal of doubts, it is hereby declared that on the issue of the certificate of purchase, the landowner or any intermediary shall have no right in the land comprised in the holding, and all his rights including rights, if any, in respect of trees reserved for his enjoyment shall stand extinguished.

(2) The certificate of purchase issued under sub-section (1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates.

(3) The purchase price payable by the cultivating tenant shall be a first charge on the land comprised in the holding or part thereof to which the assignment relates and shall be recoverable together with interest as provided in sub- section (3) of section 72M, under the provisions of the Revenue Recovery Act, for the time being in force.

33. Section 74 of the Act deals with prohibition of future tenancies. As per 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 43 W.P.(C)No.8851 of 2020 created in contravention of the provisions of sub-section (1) shall be invalid.

34. In exercise of the powers conferred by Section 129 of the Act, the State Government made the Kerala Land Reforms (Tenancy) Rules, 1970 (for brevity, 'the Tenancy Rules'). In view of the provisions under Rule 53, the application filed under Section 54 of the Act, for the purchase of the landlord's rights by the cultivating tenant shall be in form No.23, in which the applicant has to state the nature of tenancy and the applicant's interest in the land, the name and address of the landowner, the intermediary, if any, other persons interested in the holding, the kind of cultivation usually conducted in the holding, etc. and also other lands in which the applicant or the members of his family have interest, either as owner with possession, landowner, intermediary, cultivating tenant, or mortgage in possession, their extent and description. As per Rule 54, the notice referred to in sub-section (1) of Section 57 to the landowner, intermediaries and other interested persons shall be in Form No.24.

35. Rule 55 of the Tenancy Rules deals with preparation of preliminary findings and notice of such findings to the landowner, 44 W.P.(C)No.8851 of 2020 intermediaries and holders of encumbrances, etc. As per sub-rule (1) of Rule 55, where the Land Tribunal is of opinion that an application for purchase 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). In view of the provisions under sub-rule (2) of Rule 55, the Land Tribunal shall issue a notice of its findings referred to in sub-rule (1) in Form No.25 to the landowner, every intermediary, every holder of encumbrance and every person entitled to maintenance or alimony, calling upon them to prefer in writing claims for the purchase price or part thereof within a specified date. In view of the provisions under sub-rule (3) of Rule 55, copy of the notice under sub-rule (2) shall also be published on the notice board of the office of the Land Tribunal, on the notice board of the village office of the village in which the land is situate and on the land by affixing the same on a prominent part of it, stating, inter alia, that any objections or claims that may be preferred in the matter by any interested person will be duly considered by the Land Tribunal. In view of the provisions under sub-rule (5) of Rule 55, the Land Tribunal shall, on receipt of the objections or claims, if any, 45 W.P.(C)No.8851 of 2020 consider the same and decide the claims after giving a reasonable opportunity to the parties to produce such evidence as may be necessary and then proceed to pass the order under Section 57.

36. In view of the provisions under sub-rule (1) of Rule 56 of the Tenancy Rules, the order of a land Tribunal allowing an application for purchase or the order of an appellate authority except where its order is for dismissal of an appeal or rejection of an application for purchase shall be accompanied by a statement in a tabular form specifying the matters enumerated in clauses (a) to (l) of sub-rule (1). As per sub-rule (2) of Rule 56, the Land Tribunal shall, on receipt of an order of the High Court passed in revision, other than an order dismissing a petition of revision or rejecting an application for purchase, prepare a statement referred to in sub-rule (1) on the basis of such order and file such statement as part of the records of the case. As per Rule 57, the certificate of purchase referred to in sub-section (2) of Section 59 shall be in Form No.26 and shall bear the seal of the office of the Land Board.

37. As already noticed hereinbefore, the Kerala Land Reforms Act is enacted to make comprehensive legislation relating 46 W.P.(C)No.8851 of 2020 to land reforms in the State of Kerala. Sections 2 to 71, 73 to 82, 84, 99 to 108 and 110 to 132 of the said Act came into force on 01.04.1964 and the remaining provisions came into force on 01.01.1970. As per clause (8) of Section 2 of the Act, 'cultivating tenant' means a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding. Clause (19) of Section 2 defines 'intermediary' to mean any person who, not being a landowner, has an interest in the land and is entitled, by reason of such interest, to possession thereof, but has transferred such possession to any other person. In view of the provisions under sub-section (1) of Section 13, notwithstanding anything to the contrary contained in any law, custom, usage or contract or in any decree or order of court, every tenant shall have fixity of tenure in respect of his holding, and no land from the holding shall be resumed except as provided in Sections 14 to 22. As per sub- section (1) of Section 53, a cultivating tenant (including the holder of a kudiyiruppu, and the holder of a karaima), entitled to fixity of tenure under Section 13, shall be entitled to purchase the right, title and interest of the landowner and the intermediaries, if any, in respect of the land comprised in his holding. As per sub-section 47 W.P.(C)No.8851 of 2020 (1) of Section 54, a cultivating tenant entitled to purchase the right, title and interest of the landowner and the intermediaries under Section 53 may apply to the Land Tribunal for the purchase of such right, title and interest.

38. In view of the provisions under sub-section (1) of Section 3, 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 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. 48 W.P.(C)No.8851 of 2020

39. 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.

40. 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 of karaimas) entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under sub-section (2) of 49 W.P.(C)No.8851 of 2020 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.

41. 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 50 W.P.(C)No.8851 of 2020 land, if any, owned by him or his family, as the case may be, be equal to the ceiling area.

42. 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.

43. 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 51 W.P.(C)No.8851 of 2020 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 52 W.P.(C)No.8851 of 2020 after making due enquiries, pass an order specifying the matters enumerated in clauses (a) to (i) of sub-section (5).

44. 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.

45. On an analysis of the aforesaid provisions under the Kerala Land Reforms Act, we find 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 deals with the application for the purchase of the landlord's 53 W.P.(C)No.8851 of 2020 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 54 W.P.(C)No.8851 of 2020 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 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.

46. 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 55 W.P.(C)No.8851 of 2020 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].

47. In Ajanta Industries v. Central Board of Direct Taxes [(1976) 1 SCC 1001], a Three-Judge Bench of the Apex Court held that when law requires reasons to be recorded in a particular order, affecting prejudicially the interest of any person, who can challenge the order in court, it ceases to be a mere administrative order and the wise or violation of the principles of natural justice on account of omission to communicate the reasons is not expiated. The said decision of the Apex Court was in the context of Section 127(1) of the Income Tax Act, 1961 which empowers the Commissioner of Income Tax to transfer any case from one Income Tax Officer subordinate to him to another, also subordinate to him, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so. After taking note of the corresponding section in the Income Tax Act, 1922, 56 W.P.(C)No.8851 of 2020 i.e., Section 5(7A), the Apex Court held that, unlike Section 5(7A) of the 1922 Act, Section 127(1) of the 1961 Act requires reasons to be recorded prior to the passing of an order of transfer. However, the impugned order does not state any reasons whatsoever for making the order of transfer. The Apex Court held that the requirement of recording reasons under Section 127(1) of the 1961 Act is a mandatory direction under the law and non- communication thereof is not saved by showing that the reasons exist in the file although not communicated to the assessee. The Apex Court held further that, the reason for recording of reasons in the order and making those reasons known to the assessee is to enable an opportunity to the assessee to approach the High Court under its writ jurisdiction under Article 226 of the Constitution or even the Apex Court under Article 136 of the Constitution, in an appropriate case, for challenging the order, inter alia, either on the ground that it is a mala fide or arbitrary exercise or that, it is based on irrelevant and extraneous considerations.

48. In Breen v. Amalgamated Engineering Union [(1971) 1 All.E.R. 1148] Lord Denning, M.R. observed that the 57 W.P.(C)No.8851 of 2020 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.

49. In Commissioner of Police, Bombay v.

Gordhandas Bhanji [AIR 1952 SC 16] the Apex Court held that public orders publicly made, in the exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

50. Following the principle laid down in Gordhandas Bhanji [AIR 1952 SC 16] the Apex Court has reiterated in Mohinder Singh Gill v. Chief Election Commissioner, [(1978) 1 SCC 405] that when a statutory functionary makes an 58 W.P.(C)No.8851 of 2020 order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.

51. Following the principle laid down in the decisions referred to supra, the Apex Court in Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar [(2003) 4 SCC 364] held that reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, speaking out. The 'inscrutable 59 W.P.(C)No.8851 of 2020 face of a sphinx' is ordinarily incongruous with a judicial or quasi- judicial performance.

52. By the order dated 15.12.2021, 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.

W.P.(C)No.8851 of 2020

53. The learned Special Government Pleader (Revenue), on instructions, would submit that in terms of the direction contained in the order of this Court dated 15.12.2021, the Additional Chief Secretary, Revenue Department has already taken necessary steps to communicate a copy of that order to all Land Tribunals in the State, for information and strict compliance.

54. In continuation of the said order dated 15.12.2021, it is hereby 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 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; 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 61 W.P.(C)No.8851 of 2020 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.

55. The Additional Chief Secretary, Revenue Department is directed to take necessary steps to communicate a copy of this order to all Land Tribunals in the State, for information and strict compliance.

56. The Travancore Devaswom Board and the Cochin Devaswom Board, which are entrusted with the duty of managing the properties of Devaswoms under its management are duty bound to protect those properties of the deity, who is perpetual minor, from any wrongful claims, theft or misappropriation. The position of the Travancore Devaswom Board and that of the Cochin Devaswom Board in this regard is analogous to that of trustees. Any such wrongful claim, theft or misappropriation with the passive or active collusion of the authorities concerned, which are acts of 'fence eating the crops' should be dealt with sternly. Since 62 W.P.(C)No.8851 of 2020 deity being a perpetual minor, this Court is having inherent jurisdiction to protect and safeguard the interest and properties of the deity and the doctrine of parens patriae will also apply to the exercise of such jurisdiction. See: Suo motu v. State of Kerala [2022 2 KLT 483]. The principle laid down in the said decision is applicable with equal force in the case of controlled institutions under the Malabar Devaswom Board. The Ooralans, hereditary trustees or trustee board of such temples are also duty bound to protect the properties of the deity from any wrongful claims, theft or misappropriation. In view of the provisions under Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 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. The position of Ooralans, hereditary trustees or trustee board of such temples is also analogous to that of trustees. Any failure on their part to protect the properties of the deity, by properly defending wrongful claims in respect of such properties 63 W.P.(C)No.8851 of 2020 before the Land Tribunal would amount to breach of trust, for which they will have to face the consequences.

57. List this matter for further consideration on 29.05.2023.

58. The learned Special Government Pleader shall place on record the individual reports from all Land Tribunals in the State, furnishing the details of the purchase certificates in respect of Devaswom lands granted after the order of this Court dated 15.12.2021, with specific reference to the respective Devaswoms, i.e., Travancore Devaswom Board, Cochin Devaswom Board, Malabar Devaswom Board, etc., which shall be placed on record before the next posting date.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

                                                      P.G. AJITHKUMAR, JUDGE
       AV




13-04-2023                        /True Copy/                            Assistant Registrar

Unlock Advanced Research with PRISMAI

Kerala High Court