T.M.Parameswaran Namboodiri vs Principal Secretary, Revenue (R) ... on 7 January, 2022

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Kerala High Court

T.M.Parameswaran Namboodiri vs Principal Secretary, Revenue (R) ... on 7 January, 2022

The petitioner, who is the Managing Trustee and Ooralan of Ayiroor Anthimahakalan Temple, Thavanur Village in Ponnani Taluk, which is a controlled institution under Malabar Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P13 communication dated 01.09.2021 issued from the office of the Accountant General (A&E), Kerala, wherein it is stated that, as per the reply received from the 1 st respondent, the amount of annuity due for the period 1993 to 2011 to Ayiroor Anthimahakalan Devaswom should be credited to the account held by that institution in Sub Treasury, Ponnani and that, Shri.A. Dinesh Kumar, the present Executive Officer of the institution is the fit person authorised to operate the account. The petitioner has also sought for a writ of mandamus commanding the respondents to issue cheque in his name with regard to the annuity dues of the institution for the period from 1993 to 2011; and a writ of mandamus or any other appropriate writ, order or direction permitting him to operate the account of the institution, so as to withdraw the -4- W.P.(C). No.19165 of 2021 annuity dues for the period from 1993 to 2011.

2. Going by the averments in the writ petition, though as evidenced by Ext.P1 order dated 05.02.2011 of the 1 st respondent State and Ext.P2 certificate dated 15.03.2011 issued by the 3rd respondent Assistant Devaswom Commissioner, the petitioner is the proper person to receive the annuity dues in respect of Ayiroor Anthimahakalan Devaswom, for the period from 1993 to 2011, even after approaching the authorities by submitting several representations, the said amount is not yet disbursed to him. In reply to Ext.P9 representation dated 29.08.2019 made by the petitioner, the Senior Accounts Officer in the office of the Accountant General (A&E), Kerala, issued Ext.P10 communication dated 24.02.2020, whereby he is informed that, as per the reply received from the Sub Treasury Officer, Ponnani, payment of annuity for the period from 1993 to 2011 could not be made as the 3 rd respondent Assistant Devaswom Commissioner has not intimated the details of Ooralan for the period from 1993 to 02.06.2011. Therefore, the 1 st respondent has been addressed for issuing necessary instructions to the -5- W.P.(C). No.19165 of 2021 Sub Treasury Officer, Ponnani, in the matter, under intimation to the 4th respondent Accounts Officer in the office of the Accountant General (A&E), Kerala. In view of the sanction already accorded by the 1st respondent, vide Ext.P1 order dated 05.02.2011, the petitioner again submitted Ext.P11 representation dated 04.03.2020 before the 5 th respondent District Treasury Officer, Malappuram and Ext.P12 representation dated 29.01.2021 before the 7 th respondent Executive Officer of Ayiroor Anthimahakalan Devaswom, for disbursement of the annuity dues of the institution. Thereafter, the petitioner was issued with Ext.P13 communication dated 01.09.2021 from the office of the Accountant General (A&E), Kerala, wherein it is stated that, as per the reply received from the 1st respondent, the amount of annuity due for the period 1993 to 2011 to Ayiroor Anthimahakalan Devaswom should be credited to the account held by that institution in Sub Treasury, Ponnani and that, Shri.A. Dinesh Kumar, the present Executive Officer of the institution, is the fit person authorised to operate the account. Challenging Ext.P13 communication dated 01.09.2021, the petitioner is before this Court in this writ -6- W.P.(C). No.19165 of 2021 petition, seeking the aforesaid reliefs.

3. On 16.09.2021, when this writ petition came up for admission, this Court admitted the matter on file. The learned Senior Government Pleader took notice for respondents 1 and 4 to 6. The learned Standing Counsel for Malabar Devaswom Board took notice for respondents 2, 3, 7 and 8. Notice by special messenger was ordered to the 9 th respondent, returnable by 22.09.2021. The learned Standing Counsel for Malabar Devaswom Board and also the learned Senior Government Pleader sought time to get instructions.

4. A statement has been filed by the learned Standing Counsel for Malabar Devaswom Board, on behalf of the 2 nd respondent, wherein it is stated that, Ayiroor Anthimahakalan Temple, Thavanoor is a public institution coming within the purview of Madras Hindu Religious and Charitable Endowments Act, 1951 and hence it is under the supervisory control of Malabar Devaswom Board. At present, the day-to-day administration of the temple is being carried out by an Executive Officer appointed by Malabar Devaswom Board. The petitioner is the Hereditary Trustee of the Temple. He -7- W.P.(C). No.19165 of 2021 administered the temple as Managing Trustee till 24.02.2011. From 24.02.2011 upto the year 2017, the administration was under the Trustee Board comprising of Non-Hereditary Trustees appointed by Malabar Devaswom Board. Thereafter, from the year 2017 onwards, the administration of the Temple is being carried out by the Executive Officer appointed by the Board. As such, the present Executive Officer is the competent person to receive the annuity dues sanctioned for the institution. Since the annuity amount is sanctioned in favour of the Devaswom, the Executive Officer is the fit person to receive the said amount on behalf of the Devaswom, irrespective of the year for which the amount was sanctioned. Even though the administration of the temple was under

Hereditary Trusteeship from 1993 to 24.02.2011, the petitioner cannot stake claim over the annuity amount as a personal claim. Annuity has been sanctioned by the Government to the deity, as compensation for deemed loss of landed properties of the Devaswom, in view of the implementation of the Kerala Land Reforms Act, 1963. Annuity has been sanctioned in favour of the Devaswom and not in -8- W.P.(C). No.19165 of 2021 favour of the Trustee or in the name of any other individual. The Trustee can act only on behalf of the deity and not in his personal capacity.

5. The petitioner has filed reply affidavit to the statement filed on behalf of the 2 nd respondent, wherein it is stated that, Ayiroor Anthimahakalan Temple was taken over by Malabar Devaswom Board only in the year 2011. The claim made by the petitioner for annuity dues is for the period from 1993 to 24.02.2011, i.e., for a period prior to the taking over of the administration of Temple by Malabar Devaswom Board. Therefore, the Board cannot contend that the Executive Officer is the person, who is entitled to receive that amount. As per Ext.P1, the 1st respondent had sanctioned the amount of annuity for the period from 1993 to 2011, which has to be paid to the petitioner, who is the Managing Trustee and Ooralan, who was managing the temple till the year 2011. Exts.P1, P3, P4 and P10 would show that the said amount should be paid to the petitioner, who is the Managing Trustee and Ooralan. The petitioner thus can stake claim over the annuity amount for the period from 1993 to 2011 and the 9 th respondent -9- W.P.(C). No.19165 of 2021 Executive Officer does not have any right to receive the said amount.

6. The 5th respondent District Treasury Officer has filed a statement dated 24.11.2021, wherein it is stated that, the Accountant General (A&E), Kerala, has accorded sanction for granting annuity to Ayiroor Anthimahakalan Temple, vide Ext.P3 communication dated 03.03.2011 addressed to the Sub Treasury Officer, Ponnani, wherein it is stated that payment of arrears from 1993 to 2010 has to be made in 2010-11 by debit '3475-201-96-Annuity to Religious, Charitable and Educational Institutions of a public nature under the KLR Act, 1963 - contributions' to the persons entitled to receive the amount on behalf of the institution on presentation to the institution's half of the annuity payment order together with a claim in the form prescribed. The sanction order was communicated to the Sub Treasury Officer, Ponnani. As per the request of Malabar Devaswom Board, the same was returned to the Accountant General (A&E), Kerala, with a non-payment certificate, since the Board made a complaint that the "Party Copy" of the Annuity Payment Order was lost from them. A fresh order was -10- W.P.(C). No.19165 of 2021 issued by the Accountant General (A&E), Kerala, on 10.03.2019. The Annuity Payment Order was issued in the name of Managing Trustee (Ooralan) of the Temple. The Sub Treasury Officer had requested Malabar Devaswom Board to provide the details of Ooralan for the period of 1993 to 2011, including his name and attested signature, for the purpose of releasing the amount. The Board requested the Sub Treasury Officer, Ponnani, to transfer the amount to STSB account in the name of the Temple. The Board did not provide the details of Ooralan, as requested. On the other hand, the office was informed that Shri.A. Dinesh Kumar, who is the Executive Officer of the Temple, alone is entitled to receive the annuity and operate the account. Malabar Devaswom Board, vide letter dated 10.06.2019, informed that the Temple in question is under Malabar Devaswom Board and the Executive Officer appointed by the Board is administrating the Temple, who is the appropriate person who can operate the STSB account with the Sub Treasury, Ponnani. They have also provided certified signature of the Executive Officer. In the KYC provided by Malabar Devaswom Board, on 05.01.2021, the details are -11- W.P.(C). No.19165 of 2021 shown as "Dinesh Kumar A., Executive Officer, Malabar Devaswom Board", whereas in the Treasury Saving Account the details are shown as "Executive Officer, Ayiroor Anthimahakalan Devaswom". As per the annuity payment order issued by the Accountant General (A&E), Kerala, it is stated that the amount was sanctioned to the Managing Trustee (Ooralan). According to the 5th respondent, though a request was made to Malabar Devaswom Board to clarify the above aspect, the same had not yet been clarified.

7. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 and 4 to 6, the learned Standing Counsel for Malabar Devaswom Board for respondents 2, 3, 7 and 8 and also the learned counsel for the 9th respondent.

8. The issue that arises for consideration in this writ petition is as to whether any interference is warranted in Ext.P13 communication dated 01.09.2021 issued from the office of the Accountant General (A&E), Kerala, wherein it is stated that, as per the reply received from the 1 st respondent, the amount of annuity due for the period 1993 to 2011 to -12- W.P.(C). No.19165 of 2021 Ayiroor Anthimahakalan Devaswom should be credited to the account held by that institution in Sub Treasury, Ponnani and that, Shri.A. Dinesh Kumar, the present Executive Officer of the institution, is the fit person authorised to operate the account.

9. As already noticed hereinbefore, the claim made by the petitioner, who is the Managing Trustee and Ooralan of the Temple, is towards the annuity payable to the institution, for the period from 1993 to 2011.

10. Section 67 of the Kerala Land Reforms Act, 1963 deals with payment of annuity. As per Section 67, the Government shall pay the annuity payable to the institution every year in perpetuity on such date or dates and in such manner as may be prescribed. As per the first proviso to Section 67, no annuity in respect of a holding shall be paid if the purchase price in respect of that holding has been paid, or deposited in pursuance of Sub-section (8) of Section 63. As per the second proviso to Section 67, where the right, title and interest of the institution are subject to any encumbrance on the date on which such right, title and interest have vested in -13- W.P.(C). No.19165 of 2021 the Government; (i) the value of the encumbrance shall be paid to the holder of the encumbrance; and (ii) five per sent of the value of the encumbrance shall be deducted from the annuity and the balance, if any, alone shall be paid to the institution. As per the third proviso to Section 67, where the value of the encumbrance is more than sixteen times the annuity; (i) if there is only one encumbrance, sixteen times the annuity shall be paid to the holder of the encumbrance; and (ii) if there are more than one encumbrance, sixteen times the annuity shall be paid to the holders of the encumbrances in their order of priority, and in either case, no amount by way of annuity shall be payable to the institution.

11. Rule 68A of the Kerala Land Reforms (Tenancy) Rules, 1970 deals with payment of interim annuity. As per sub- rule (1) of Rule 68A, a religious, charitable or educational institution of a public nature which has applied to the Government or the Land Board for the payment of annuity shall, on application made by it on that behalf and subject to the provisions of this Rule, be paid by the Government interim annuity for the year 1970 and for every subsequent year until -14- W.P.(C). No.19165 of 2021 the annuity payable to it under the Act is paid. As per sub-rule (2) of Rule 68A, the application under sub-rule (1) shall be in Form No.27A and may be sent by registered post or presented in person, to the Secretary, Land Reforms Department, Government of Kerala. As per sub-rule (3) of Rule 68A, a separate application shall be made for each year after the commencement of that year. As per sub-rule (4) of Rule 68A, the interim annuity payable to an institution for an year shall be such amount, not exceeding forty per cent of the money value of the annual contract rent to which such institution is entitled from the holdings in respect of which it has applied for annuity, as may be determined by the Government. As per Explanation to sub-rule (4) of Rule 68A, for the purposes of this sub-rule, the money value of the annual contract rent to which an institution is entitled shall be deemed to be the value specified as such in the application under sub-rule (1).

12. As per sub-rule (5) of Rule 68A of the Rules, on receipt of an application under sub-rule (1), the Government shall, it they are satisfied that there are sufficient grounds to believe that the applicant is a religious, charitable or -15- W.P.(C). No.19165 of 2021 educational institution of a public nature and that the institution has applied for annuity, issue an order in Form No.34A in favour of the institution. As per sub-rule (6) of Rule 68A, the provisions of sub-rules (5) and (6) of Rule 68 shall, so far as may be, apply to an order issued under sub-rule (5) of this Rule and to the disbursement of the interim annuity in pursuance of such order. As per sub-rule (7) of Rule 68A, the interim annuity paid to an institution under this Rule shall be adjusted towards the annuity payable to that institution under the Act, in such manner as may be determined by the Government. As per sub-rule (8) of Rule 68A, without prejudice to any other mode of recovery, any amount paid under this Rule to an institution which is found to be not entitled to annuity under the Act, shall be recoverable from such institution in the same manner as if such amount were an arrear of public revenue due on land.

13. A plain reading of the provisions under Section 67 of the Kerala Land Reforms Act make it explicitly clear that the annuity is payable to the institution, every year in perpetuity, on such date or dates in such manner as may be prescribed as -16- W.P.(C). No.19165 of 2021 per the aforesaid Act and the Rules made thereunder. When the amount of annuity is payable to the institution, i.e., Devaswom, the Managing Trustee or Ooralan of the Temple has absolutely no right to stake any claim over that amount.

14. '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]

15. In the instant case, as already noticed, the Accountant General (A&E), Kerala, accorded sanction for granting annuity to Ayiroor Anthimahakalan Temple, vide Ext.P3 communication dated 03.03.2011 addressed to the Sub Treasury Officer, Ponnani, wherein it is stated that payment of arrears from 1993 to 2010 has to be made in 2010-11 by debit '3475-201-96-Annuity to Religious, Charitable and Educational Institutions of a public nature under the KLR Act, 1963 - contributions' to the persons entitled to receive the amount on behalf of the institution on presentation to the institution's half of the annuity payment order together with a claim in the form -17- W.P.(C). No.19165 of 2021 prescribed. The provisions under Section 67 of the Kerala Land Reforms Act make it explicitly clear that the annuity is payable to the institution, every year in perpetuity, on such date or dates in such manner as may be prescribed as per the aforesaid Act and the Rules made thereunder. When the amount of annuity is payable to the institution, i.e., Devaswom, the Managing Trustee or Ooralan of the Temple has absolutely no right to stake any claim over that amount. The annuity amount payable has to be credited in the account of the institution.

In such circumstances, the petitioner is not entitled to any of the reliefs sought for in the writ petition. The writ petition fails and the same is accordingly dismissed. No order as to cost.

Sd/-

ANIL K.NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE AV/11/1 -18- W.P.(C). No.19165 of 2021 APPENDIX OF WP(C) 19165/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ANNUITY PAYMENT ORDER DT.05.02.2011 ISSUED BY 1ST RESPONDENT Exhibit P2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE 3RD RESPONDENT DATED 15.03.2011.

Exhibit P3 TRUE COPY OF THE COMMUNICATION MADE BY THE 4TH RESPONDENT TO 6TH RESPONDENT DATED 03.03.2011.

Exhibit P4              TRUE COPY OF THE ORDER DATED
                        22.08.2011 ISSUED BY THE 1ST
                        RESPONDENT.

Exhibit P5              TRUE COPY OF THE CLAIM FORM SUBMITTED
                        BY THE PETITIONER BEFORE THE 6TH
                        RESPONDENT DATED 12.12.2012.

Exhibit P6              TRUE COPY OF THE REPRESENTATION
                        SUBMITTED BY THE PETITIONER TO 1ST
                        RESPONDENT.

Exhibit P7              TRUE COPY OF THE REPRESENTATION
                        SUBMITTED BY THE PETITIONER TO THE 3RD
                        RESPONDENT DATED 06.01.2018.

Exhibit P8              TRUE COPY OF LETTER ISSUED BY THE 3RD
                        RESPONDENT TO THE PETITIONER
                        DT.16.01.2018.

Exhibit P9              TRUE COPY OF THE REPRESENTATION
                        SUBMITTED BY THE PETITIONER BEFORE THE
                        4TH RESPONDENT DATED 29.08.2019.

Exhibit P10             TRUE COPY OF LETTER ISSUED BY THE 4TH
                        RESPONDENT TO THE PETITIONER
                        DT.24.02.2020.
                                 -19-
W.P.(C). No.19165 of 2021



Exhibit P11             TRUE COPY OF THE LETTER SUBMITTED BY
                        THE PETITIONER BEFORE THE 5TH
                        RESPONDENT DATED 04.03.2020.

Exhibit P12             TRUE COPY OF THE REPRESENTATION
                        SUBMITTED BY THE PETITIONER BEFORE THE
                        7TH RESPONDENT DATED 29.01.2021

Exhibit P13             TRUE COPY OF THE LETTER GIVEN TO THE
                        PETITIONER BY THE 4TH RESPONDENT
                        DT.01.09.2021.

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