Vinod.K vs The Travancore Devaswom Board on 18 January, 2024

[Cites 35, Cited by 0]

Kerala High Court

Vinod.K vs The Travancore Devaswom Board on 18 January, 2024

The petitioner, who is a devotee of Major Pathiyoor Sree Durga Devi Temple, which is a temple under the management of the 1st respondent Travancore Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding respondents 1, 4 and 6 to 8 to take follow up action based on the remarks in Ext.P3 asset register of Pathiyoor Devaswom and the decisions reflected therein and recover the property in the possession of respondents 9 and 10, within a time limit to be fixed by this Court. The petitioner has also sought for a writ of mandamus commanding the 2nd respondent to consider the request made by the 7th respondent Assistant Devaswom Commissioner, Mavelikkara Group, as reflected in Ext.P3 and take appropriate decision in the matter, within a time limit to be fixed by this Court.

2. The grievance of the petitioner is regarding the inaction on the part of the 1st respondent Travancore Devaswom Board and its officials in protecting the Devaswom land of Pathiyoor Sree Durga Devi Temple, having an extent of 2.77 Acres in Survey No.3132 of Pathiyoor Village, covered by Ext.P1 4 W.P.(C)No.26929 of 2019 settlement register. In that settlement register, the description of the land is 'Devaswom Puramboke', which has got a 'vazhi' and 'kulam'. In the writ petition, it is stated that when resurvey was conducted Survey No.3132 was demarcated as Re.Sy. No.687 and the land having an extent of 9 Ares has been mutated in the name of the 9th respondent, which is included in Re.Sy.No.687/7, as evident from Ext.P2 BTR of Pathiyoor Village. Upon finding that the extent of the property has been wrongly included in the name of the 9th respondent, the 1st respondent Board decided to initiate appropriate proceedings to rectify that mistake, as evident from the remarks in Ext.P3 asset register. The Temple Advisory Committee of Pathiyoor Sree Durga Devi Temple made an application before the State Public Information Officer and the Deputy Tahsildar, Taluk Office, Karthikappally for obtaining a copy of the files pertaining to the assignment of land in the name of 9th respondent. Based on that application, the Secretary of the Temple Advisory Committee received Ext.P4 reply dated 27.11.2017, wherein it is stated that the files could not be traced out. The document marked as Ext.P6 is a communication dated 21.02.2018 of the Tahsildar, Karthikkappally, addressed to the Secretary of the Taluk Legal Services Committee, Haripad. The document marked as Ext.P5 is 5 W.P.(C)No.26929 of 2019 another communication dated 06.07.2018 of the State Public Information Officer and Junior Superintendent in the Collectorate, Alappuzha, addressed to Sri.Biju Kumar, wherein it is stated that the relevant files could not be traced out. The document marked as Ext.P6 is a letter dated 21.02.2018 of the Tahsildar, Kathikkappally, addressed to the Secretary, Taluk Legal Services Committee, Haripad, wherein it is stated that the relevant records could not be traced out.

3. On 09.11.2022, when this writ petition came up for consideration, the learned Standing Counsel for Travancore Devaswom Board and also the learned counsel for the 10th respondent sought time to file counter affidavits. Since it was reported that the 9th respondent is no more, the learned counsel for the petitioner was directed to file a proper application.

4. The petitioner filed I.A.No.1 of 2022 seeking permission to prosecute this writ petition without bringing on record the legal representatives of the deceased 9th respondent, on the ground that the 9th respondent has already transferred the entire property to the 10th respondent and as such there is no subsisting interest of the 9th respondent in that property. That interlocutory application was allowed by the order dated 07.12.2022 and the 9th respondent was deleted from the party 6 W.P.(C)No.26929 of 2019 array, at the risk of the petitioner.

5. Respondents 1, 6, 7 and 8 have filed a counter affidavit dated 12.01.2023, wherein it is stated that the Revenue Divisional Officer, Chengannur may be directed to finalise the proceedings, in terms of the directions contained in the judgment of this Court in W.P.(C)Nos.36955 of 2016 and 1425 of 2017, within a time frame and thereafter, the 4th respondent Special Tahsildar (Land Conservancy) may be directed to evict the encroachers from the Devaswom property with police assistance. Paragraphs 3 to 7 and also the last paragraph of that counter affidavit read thus;

3. It is submitted that proceedings has been commenced based on report No.396 dated 10.07.2015 submitted by the Assistant Devaswom Commissioner, Harippad along with the report of the Sub Group Officer, Pathiyoor which states that private person has encroached into the Devaswom property in front of the Eastern Gopuram of Pathiyoor Sree Durgadevi Temple. Citing the afore-stated encroachment, the temple advisory committee had also preferred their complaint as Complaint No.220 of 2016 before the Hon'ble Ombudsman for Travancore and Cochin Devaswom Boards. On verification of the available records, it was found that out of an extent of the property which includes Arattukulam and it's surroundings comprising 96 Ares 90 sq.m, an extent of 9 Ares of property has been mutated with Thandaper No.9561 in the name of 9 respondent in view of obtaining Kuthakapatom. 7 W.P.(C)No.26929 of 2019

4. It may be noted that in order to measure and demarcate the Devaswom property, application was submitted on 07.12.2019 before the Tahsildar, Karthikapilly and accordingly the Taluk Surveyor had entrusted the Village Officer to measure and demarcate the Devaswom land. However it is stated that no further action was forthcoming for measuring and demarcating the Devaswom land. Therefore application was preferred before the Special Tahsildar, Land Conservancy Unit of the Travancore Devaswom Board for measuring and demarcating the Devaswom property and a report dated 06.02.2019 was submitted by him after inspecting the premises which includes the temple pond also. The said report was submitted to the Revenue Divisional Officer, Chengannur.

5. It is submitted that as per 6(A) of the amendment to Devaswom Proclamation dated 23.08.1948, the other puramboke properties which is in the possession or usage of the temples after 12.04.1922 shall be treated as Devaswom property itself and the said protection available for the Devaswom land is retained as per S.27 of the Travancore Cochin Hindu Religious Institutions Act (TCHRI Act in short), 1950. Therefore the temple pond and it's surroundings situated in Re.Sy.No.687/5 is Devaswom property itself.

6. It may be noted that the temple advisory committee had earlier preferred W.P.(C) No.36955 of 2016 alleging encroachment over Devaswom land and also challenging the order passed by the Revenue Divisional Officer, Chengannur as per S.138 of the Cr.P.C and the Travancore Devaswom Board had also filed W.P.(C) No.1425 of 2017 asserting that the order passed by the Revenue Divisional Officer, Chengannur is incompetent since the same has 8 W.P.(C)No.26929 of 2019 been issued without arraying the Travancore Devaswom Board as a party in the proceedings and without offering them an opportunity of being heard. Both Writ petitions were jointly heard and disposed by this Hon'ble Court vide Judgment dated 09.4.2018. The impugned orders issued by the Revenue Divisional Officer, Chengannur was quashed and the Revenue Divisional Officer was directed to issues notices to all the parties and after hearing the parties concerned it was directed to pass fresh order's within a period of three months from the date of receipt of copy of the Judgment. As regarding the pathway concerned, the Special Tahsildar has already submitted his report before the Revenue Divisional Officer, Chengannur and the matter is in the pending consideration. Therefore the Special Tahsildar has informed that no further steps are taken in the matter in view of the fact that the issue is in the pending consideration of the Revenue Divisional Officer, Chengannur.

7. It is further submitted that the Travancore Devaswom Board, being the trustee is duty bound to protect it's properties from any kind of encroachments. These respondents submits that further steps will be initiated in the matter through the office of the Special Tahsildar, Land Conservancy Unit after the culmination of the proceedings pending before the Revenue Divisional Officer, Chengannur.

Hence, considering the above facts and circumstances of the case, this Hon'ble Court may be pleased to dispose the Writ Petition with necessary direction to the Revenue Divisional Officer, Chengannur to finalize the proceedings within a time frame and thereafter to direct the 4th respondent to evict the encroachers from the Devaswom 9 W.P.(C)No.26929 of 2019 property with Police assistance. Otherwise these respondents would be put to irreparable injury, inconvenience and loss.

6. The 10th respondent has filed a counter affidavit dated 22.03.2023, producing therewith Ext.R10(a) purchase certificate dated 03.09.1991 issued by the Land Tribunal, Alappuzha in the name of her father, late G. Sankarapillai, in SM Proceedings No.8/1991, under Section 72 of the Kerala Land Reforms Act, 1963 in respect of 23 cents of land comprised in Old Survey No.3132/2 (Re.Sy.No.687/7) of Pathiyoor Village in Karthikappally Taluk. In the counter affidavit it is stated that the 10th respondent's father died on 08.07.2004. Later her mother became the owner of the property, who transferred the same in the name of her children, including the 9th respondent. The siblings of the 10th respondent executed a release deed in her favour and accordingly she is paying land tax. Paragraphs 3 to 8 of that counter affidavit read thus;

"3. My Father, Sri.G.Sankara Pillai, who was the 9th respondent in this writ petition, was a cultivating tenant in the property comprised in Old Survey No:3132/2 (Re- Survey No:687/7) of Pathiyoor Village in Karthikapally Taluk of Alappuzha District. The said property was in the possession of my grandfather till his death and thereafter, my father was in possession of the property as per Kuthagapattom lease granted from the Devaswom 10 W.P.(C)No.26929 of 2019 Department. As he had expired, he was removed from the party array on the later stage of this case before the Hon'ble Court.

4. An application has been filed by my father before the Land Tribunal, Alappuzha as SM No:8/1991 u/s 72 of the Kerala Land Reforms Act for initiating suo motu action and to assign the right, title and interest of 23 cents of land comprised in Old Survey No:3132/2 (Re.Survey No:687/7) of Pathiyoor Village in Karthikapally Taluk of Alappuzha District.

5. The Land Tribunal, passed order on the 26.06.1991, declaring that my father is having, right, title and interest of

23 cents of land comprised in Old Survey No:3132/2 (Re- Survey No:687/7) of Pathiyoor Village in karthikapally Taluk of Alappuzha District.

6. It is further submitted that, the mutation of the aforementioned property has been effected in the name of my father by the Land Tribunal, Alappuzha through a purchase certificate (kraya certificate) on 03.09.1991. True copy of the purchase certificate issued by the Alappuzha Land Tribunal along with the List (pattika) dated 03.09.1991 is produced herewith and is marked as Exhibit R10(a).

7. My father expired on 08.07.2004 and later, the property has been transferred in the name of my mother and she then transferred the property in the name of her children, including me and the other children, through an Ozhimuri, transferred the said property in my name and later on, I am the sole owner of the property and is paying the tax, till now.

8. The averments contained in paragraph 4 of the writ petition that the property is in the possession and 11 W.P.(C)No.26929 of 2019 enjoyment of the 1st Respondent, Devaswom Board is not true and hence denied. Exhibit R10(b) clearly shows that the property was in the name of my father. After he expired, the right of the property is vested in me and I am paying the property tax, which has been confirmed by the Respondents 1, 6, 7 & 8 in their counter affidavit, dated 12.01.2023. The remaining contentions taken are also equally untenable and are only to be rejected. The petitioner has not approached this Hon'ble Court with clean hands. The writ petition lacks any merit and is only to be rejected."

7. On 16.10.2023, when this writ petition came up for consideration, the learned Senior Government Pleader submitted that the files relating to Ext.R10(a) purchase certificate issued by the Land Tribunal, Alappuzha could not be traced out. From the Schedule which forms part of Ext.R10(a), this Court noticed that two boundaries of the property covered by that purchase certificate are 'Arattukulam Vazhi' and 'Devaswom Vaka Sthalam'. The learned Standing Counsel for Travancore Devaswom Board and also the learned Senior Government Pleader sought time to get instructions, with reference to the provisions under Section 3(1)(x) of the Kerala Land Reforms Act.

8. It is pertinent to note at this juncture that in the counter affidavit dated 28.01.2020 filed by the 3rd respondent Tahsildar (LR), Karthikappally, it is stated that the father of the 12 W.P.(C)No.26929 of 2019 10th respondent obtained Ext.R10(a) purchase certificate bearing No.186/91 from the Land Tribunal, Alappuzha. Thereafter, as per proceedings No.F2-8281/92 dated 30.09.1992 mutation was effected in the name of the 10th respondent's father. An extent of 2.77 Acres of land comprised in Old Survey No.3132 of Pathiyoor Village is recorded as puramboke in the settlement register.

9. Along with the memo dated 18.12.2023 filed by the learned Standing Counsel for Travancore Devaswom Board, Ext.R1(a) photographs of the disputed land are placed on record. Along with another memo dated 09.01.2024 filed by the learned Senior Government Pleader, a report dated 04.01.2024 of the 3rd respondent Tahsildar (LR), Karthikappally, along with BTR and FMB, are placed on record. That report reads thus;

"WP(C)-26929/2019-)0 നമ്പർ കേസിലെ 17.11.2023-ലെ ഉത്തരവ് പ്രോരം ടി കേസിനാസ്പദമായ ഭൂമി പത്തിയൂർ ദുർഗ്ഗാകദവികേത്രത്തിലെ ആറാട്ടുകുളത്തിലെ വശങ്ങളിൊക ാ എന്നത് സംബന്ധിച്ച് പത്തിയൂർ വികേജാഫീസർ മുകേന ഹാജരാക്കിയ റികപാർട്ട് പ്രോരം പത്തിയൂർ ദുർഗ്ഗാകദവി കേത്രവം മതിൽലേട്ടിനുള്ളിലെ ഭൂമിയം പത്തിയൂർ വികേജിൽ കലാക്ക് 21-ൽ റീസർകേ 232/1, 232/2 എന്നിവയിൽ ഉൾലപട്ട് വരുന്നു. എന്നാൽ പത്തിയൂർ കേത്ര ആറാട്ടുകുളം ടി കേത്ര കോമ്പൗണ്ടിൽ നിന്നും സുമാർ 300 മീറ്റർ േിഴക്ക് മാറി കറാഡിലെ വടക്ക് വശത്തായി ോണുന്നു. കമൽ നമ്പർ കേസിനാസ്പദമായ റീസർകവ 687/7-ൽ ലപട്ട 09.00 ആർസ് സ്ഥെം ആറാട്ടുകുളത്തിലെ പടിഞ്ഞാറ് അതിര് കേർന്ന് േിടക്കുന്നു. ബി.റ്റി.ആർ പ്രോരം ആറാട്ടുകുളം റീസർകേ 687/6-ൽ ലപട്ട 13 W.P.(C)No.26929 of 2019 69.20 ആർസ് പുറകമ്പാക്കാ .് കമൽ വിവരം ബി.റ്റി.ആർ, എഫ്.എം.ബി എന്നിവ സഹിതം റികപാർട്ട് ലേയ്തുലോള്ളുന്നു.

10. Heard the learned counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board for respondents 1, 6, 7 and 8, the learned Senior Government Pleader for respondents 2 to 5 and the learned counsel for the 10th respondent.

11. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per the provisions under Section 3 of the Act, the administration of incorporated and unincorporated Devaswoms shall vest in the Travancore Devaswom Board.

12. As per Section 15A of the Act, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions;

(iv) to establish and maintain proper facilities in the temples for 14 W.P.(C)No.26929 of 2019 the devotees. Section 31 of the Act deals with management of Devaswoms. As per Section 31 of the Act, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated, and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage.

13. '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].

14. In A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of 'fence eating 15 W.P.(C)No.26929 of 2019 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.

15. In A.A. Gopalakrishnan, on the facts of the case on hand, the Apex Court noticed that, when Respondents 3 to 5 claimed ownership of Survey No.1043, which was the front portion of the temple premises in the possession of the temple (in the proposal for settlement dated 06.07.2000), the Devaswom Board, instead of investigating and verifying as to how they could claim ownership over temple property, strangely agreed for a settlement under which the temple was to get Sy.No.1043 (which was a temple land already in its possession), in exchange for giving away another temple land (Sy.No.1042/2) to Respondents 3 to 5. The Board Resolution dated 29.08.2000 agreeing for the settlement proposal clearly records that Sy.No.1043 is already in the possession of the temple. Before the Apex Court, respondents 3 and 4 contended that the settlement in the suit (O.S.No.399 of 1998) was validly arrived at between them (the plaintiffs) and the Devaswom Board (the defendant), 16 W.P.(C)No.26929 of 2019 that the Devaswom Board had considered the proposal after taking legal advice and had duly passed a resolution to settle the suit. It was further contended that a decree having been made in terms of the compromise and such decree having attained finality, it cannot be questioned, interfered or set aside at the instance of a third party in a writ proceeding. They relied on the provisions of Order XXIII, Rule 3A of the Code of Civil Procedure, 1908, which provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The Apex Court held that, the bar contained in Order XXIII, Rule 3A will not come in the way of the High Court examining the validity of a compromise decree, when allegations of fraud/collusion are made against a statutory authority which entered into such compromise. While it is true that decrees of civil courts which have attained finality should not be interfered with lightly, challenge to such compromise decrees by an aggrieved devotee, who was not a party to the suit, cannot be rejected, where fraud/collusion on the part of officers of a statutory board is made out. Further, when the High Court by the order dated 09.09.1998 had directed the Board to take possession of Sy.No.1042/2 immediately from Respondents 3 and 4 in CDB No.3 of 1996, in a complaint by another devotee, it 17 W.P.(C)No.26929 of 2019 was improper for the Board to enter into a settlement with Respondents 2 and 3, giving up the right, title and interest in Sy.No.1042/2, without the permission of the court which passed such order. The Apex Court concluded that, viewed from any angle, the compromise decree cannot be sustained and is liable to be set aside.

16. 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 18 W.P.(C)No.26929 of 2019 same can be gone into by the High Court in these proceedings.

17. 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 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 19 W.P.(C)No.26929 of 2019 always asserted their right to visit these institutions in order to prevent fraud and redress the abuses in their management. In the celebrated Rameswar 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 contentions 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- 20 W.P.(C)No.26929 of 2019 feasance of a trustee.

18. 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 the involvement of the Devaswom, securing 'pattayam' or such other deeds, the same cannot confer any right upon the parties concerned, unless the title so derived is clear in all respects. There cannot be any dispute that the remedy to retrieve such property belonging to the Devaswom is by resorting to the course stipulated in the Kerala Land Conservancy Act, 1957.

19. In A.A. Gopalakrishnan v. Secretary, Cochin Devaswom Board [2018 (3) KHC 549] a Division Bench of this Court found that the task undertaken by the complainant to ensure that the property of the Devaswom is protected and 21 W.P.(C)No.26929 of 2019 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 in A.A. Gopalakrishnan [(2007) 7 SCC 482]. Proceedings have to be taken to a logical conclusion in respect of the land in Sy.No. 1043 as well. This is more so since in view of the 'parens patriae' jurisdiction being entrusted with the Court in this regard, there is a duty cast upon the Court to take every step to ensure that the property of the deity is protected.

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

(xii) of the said sub-section. As per clause (x) of sub-section (1) of Section 3, nothing in Chapter II shall apply to tenancies in respect of sites, tanks and premises of any temple, mosque or church (including sites belonging to a temple, mosque or church 22 W.P.(C)No.26929 of 2019 on which religious ceremonies are conducted) and sites of office buildings and other buildings attached to such temple, mosque or church, created by the owner, trustee or manager of such temple, mosque or church. In view of the provisions under sub- section (1) of Section 74, after the commencement of the Act, no tenancy shall be created in respect of any land. As per sub- section (2) of Section 74, any tenancy created in contravention of the provisions of sub-section (1) shall be invalid. In view of the provisions under sub-section (1) of Section 57, as soon as may be after the receipt of the application under Section 54, the Land Tribunal shall give notice to the landowner, the intermediaries and all other persons interested in the holding, to prefer claims or objections with regard to the application. As per sub-section (2) of Section 57, the land Tribunal shall, after considering the claims and objections received and hearing any person appearing in pursuance of the notice issued under sub- section (1) and after making due enquiries, pass orders - (i) on the application, if any, pending before it from the landowner or intermediary for resumption in accordance with the provisions of Section 22; and (ii) on the application for purchase under Section 54. In view of the provisions under sub-section (1) of Section 72, on a date to be notified by the Government in this 23 W.P.(C)No.26929 of 2019 behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyiruppus and holders of karaimas) entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon on the said date. In view of the provisions under sub-section (1) of Section 72B, the cultivating tenant of any holding or part of a holding, the right, title and interest in respect of which have vested in the Government under Section 72, shall be entitled to assignment of such right, title and interest. As per clause (a) to the proviso to sub-section (1) of Section 72B, no cultivating tenant shall be entitled to assignment of the right, title and interest in respect of any holding or part of a holding under this section if he, or if he is a member of a family, such family, owns an extent of land not less than the ceiling area. As per clause (b) to the proviso to sub-section (1) of Section 72B, where the cultivating tenant or, if he is a member of a family, such family, does not own any land or owns an extent of land which is less than the ceiling area, he shall be 24 W.P.(C)No.26929 of 2019 entitled to the assignment of the right, title and interest in respect of only such extent of land as will, together with the land, if any, owned by him or his family, as the case may be, be equal to the ceiling area. In view of the provisions under sub- section (1) of Section 72BB, any landowner or intermediary whose right, title and interest in respect of any holding have vested in the Government may apply to the Land Tribunal for the assignment of such right, title and interest to the cultivating tenant and for the payment of the compensation due to him under Section 72A. As per Section 72C, notwithstanding anything contained in sub-section (3) of Section 72B or Section 72BB, the Land Tribunal may, subject to such rules as may be made by the Government in this behalf, at any time after the vesting of the right, title and interest of the landowners and intermediaries in the Government under Section 72, assign such right, title and interest to the cultivating tenants entitled thereto, and the cultivating tenants shall be bound to accept such assignment. In view of the provisions under Section 72F, the Land Tribunal has to issue notices and determine the compensation and purchase price. As per sub-section (1) of Section 72F, as soon as may be after the right, title and interest of the landowner and the intermediaries, if any, in respect of a 25 W.P.(C)No.26929 of 2019 holding or part of a holding have vested in the Government under Section 72, or, where an application under Section 72B or Section 72BB has been received by the Land Tribunal, as soon as may be after the receipt of such application, the Land Tribunal shall publish or cause to be published a public notice in the prescribed form in such manner as may be prescribed, calling upon the landowner, the intermediaries, if any and cultivating tenant; and all other persons interested in the land, the right, title and interest in respect of which have vested in the Government, to prefer claims and objections, if any, within such time as may be specified in the notice and to appear before it on the date specified in the notice with all relevant records to prove their respective claims or in support of their objections. As per the mandate of sub-section (5) of Section 72F, the land Tribunal shall, after considering the claims and objections received in pursuance of the notice issued under sub-section (1) or sub- section (2) and the advice received from the village committee or village committees before the date specified therefor and hearing any person appearing in pursuance of the notice issued under sub-section (1) or sub-section (2) and after making due enquiries, pass an order specifying the matters enumerated in clauses (a) to (i) of sub-section (5). As per sub-section (1) of 26 W.P.(C)No.26929 of 2019 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.

21. In Jayaprakashan K. [2023 (3) KHC SN 14] the Division Bench, on an analysis of the aforesaid provisions under the Kerala Land Reforms Act, found that the said Act is a complete code by itself as far as the right of cultivating tenant to fixity of tenure in respect of his holding, the right of the cultivating tenant to get assignment of the right, title and interest in respect of his holdings, the determination by the Land Tribunal the compensation and purchase price and the issuance of purchase certificate to the cultivating tenant. The provisions under the said Act deal with the application for the purchase of the landlord's right by the cultivating tenant and the procedure for consideration of the application by the Land Tribunal, with notice to the landowner, the intermediaries, if any, the 27 W.P.(C)No.26929 of 2019 cultivating tenant and all persons interested in the land, calling upon them to prefer claims and objections, if any, and after making due enquiries. Thereafter, the Land Tribunal shall issue a certificate of purchase to the cultivating tenant. In view of the provisions under the Kerala Land Reforms (Tenancy) Rules, where the Land Tribunal is of the opinion that an application for purchase certificate has to be allowed, it shall, before it passes an order under Section 57, prepare preliminary findings on the matters enumerated in clauses (a) to (m) of sub-rule (1) of Rule

55. The Land Tribunal shall issue a notice of its findings to the landowner, every intermediary, etc., calling upon them to prefer in writings claims for the purchase price or part thereof. On receipt of the objections or claims, if any, the Land Tribunal shall consider the same and decide the claims after giving reasonable opportunity to the parties to produce such evidence as may be necessary and then proceed to pass an order under Section 57 of the Act. In such an order passed by the Land Tribunal on an application filed under Section 54 of the Act by the cultivating tenant for purchase of landlord's right, the Land 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 28 W.P.(C)No.26929 of 2019 holding. The tenancy is not in respect of land falling under clauses (i) to (xii) of Section 3 of the Act, which deals with exemptions. The tenancy is not one created in contravention of the provisions of sub-section (1) of Section 74 of the Act, i.e., it is not a tenancy created after the commencement of the Act. It is well settled that, when the statute requires to do certain thing in a certain way, the thing must be done in that way or not at all. Other methods or modes of performance are impliedly and necessarily forbidden. The said proposition of law is based on a legal maxim 'expressio unius est exclusio alterius' meaning thereby that, if the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner, and following other course is not permissible. The said proposition of law about limitation of the exercise of statutory power has first been identified by Jassel M.R. in the case of Taylor v. Taylor [(1876) 1 Ch.D. 426], wherein it was laid down that, where a power is given to do a certain thing in a certain way, that thing must be done in that way, or not at all, and that other methods of performance are necessarily forbidden. The Privy Council applied the said principle in the case of Nazir Ahmed v. King Emperor [AIR 1936 PC 253]. In Breen v. Amalgamated Engineering Union (1971 (1) All ER 29 W.P.(C)No.26929 of 2019 1148) Lord Denning, M.R. observed that the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120) it was observed that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision- taker to the controversy in question and the decision or conclusion arrived at. By the order dated 15.12.2021 in W.P.(C)No.8851 of 2020, this Court restrained all Land Tribunals in the State from proceedings with any Original Application filed before the appointed date or S.M.Proceedings for purchase certificate in respect of Devaswom lands of Temples under the control/ management of Malabar Devaswom Board, Travancore Devaswom Board and also the Cochin Devaswom Board, without the respective Devaswom Board, represented by its Secretary, in the party array. In the said order, it was made clear that a copy of the Original Application or the report and other materials based on which S.M.Proceedings are initiated shall be enclosed along with the notice issued to the 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 30 W.P.(C)No.26929 of 2019 shall be one reflecting the legal and factual contentions raised by both sides.

22. In Jayaprakashan K. [2023 (3) KHC SN 14], in continuation of the order dated 15.12.2021 in W.P.(C)No.8851 of 2020, it was ordered that, in the orders passed by the Land Tribunals in the State in Original Applications/S.M.Proceedings for purchase certificate, the Land Tribunal has to record its findings that the applicant is a cultivating tenant, as defined under clause (8) of Section 2 of the Act, who is entitled to fixity of tenure under Section 13 of the Act, in respect of his holding; that the tenancy is not in respect of land falling under clauses (i) to (xii) of Section 3 of the Act, which deals with exemptions; and that the tenancy is not one created in contravention of the provisions of sub-section (1) of Section 74 of the Act, i.e., it is not a tenancy created after the commencement of the Act. In respect of temples which are controlled institutions under Malabar Devaswom Board, the Land Tribunals shall take note of the provisions under Section 29 of the 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 31 W.P.(C)No.26929 of 2019 sanctioned by the Commissioner as being necessary or beneficial to the institution.

23. In the instant case, from the pleadings and materials on record, we notice that the 10th respondent is claiming ownership and possession of the disputed property on the strength of Ext.R10(a) purchase certificate dated 03.09.1991 issued by the Land Tribunal, Alappuzha in favour of G. Sankarapillai, in respect of 23 cents in Old Survey No.3132/2 (Re.Sy.No.687/7) of Pathiyoor Village in Karthikappally Taluk. In the order dated 16.10.2023 this Court noticed that two boundaries of the property covered by Ext.R10(a) purchase certificate are 'Aarattukulam Vazhi' and 'Devaswom Vaka Sthalam'. Along with a memo dated 18.12.2023 filed by the learned Standing Counsel for Travancore Devaswom Board Ext.R1(a) photographs of the property in question are placed on record, in order to contend that Ext.R10(a) purchase certificate is in respect of a land which falls within the purview of Section 3(1)(x) of the Kerala Land Reforms Act.

24. We do not propose to consider the above aspect in this writ petition, since Ext.R10(a) purchase certificate is not under challenge in this writ petition raising appropriate pleadings and grounds. Moreover, a purchase certificate issued by the Land 32 W.P.(C)No.26929 of 2019 Tribunal in respect of a Devaswom land can be interfered with in exercise of the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India only in exceptional circumstances.

25. In the above circumstances, this writ petition is disposed of by directing the 1st respondent Travancore Devaswom Board to take necessary steps, within a period of one month from the date of receipt of a certificated copy of this judgment, to challenge Ext.R10(a) purchase certificate dated 03.09.1991 issued by the Land Tribunal, Alappuzha, which is placed in this writ petition filed on 09.10.2019, along with the counter affidavit dated 22.03.2023 filed by the 10th respondent, by invoking the statutory remedy available under the Kerala Land Reforms Act, raising appropriate legal and factual contentions. The contentions raised by the petitioner and also that raised by the 10th respondent are left open to be raised before the appropriate forum at appropriate stage.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

G. GIRISH, JUDGE SMA 33 W.P.(C)No.26929 of 2019 APPENDIX OF WP(C) 26929/2019 RESPONDENT EXHIBITS Exhibit R10(a) True copy of the purchase certificate issued by the Alappuzha Land Tribunal along with the List (pattika) dated 03/09/1991 Exhibit-R1(a) Photographs showing the property in question.

PETITIONER EXHIBITS EXHIBIT P3 COPY OF THE ASSET REGISTER OF THE FIRST RESPONDENT WHICH INCLUDE THE ENDORSEMENT REGARDING THE DEFECT EXHIBIT P4 COPY OF REPLY DATED 27-11-2017 ISSUED BY 3RD RESPONDENT EXHIBIT P1 COPY OF THE RELEVANT EXTRACT OF THE SETTLEMENT REGISTER MAINTAINED BY THE 1ST RESPONDENT EXHIBIT P6 COPY OF LETTER DATED 21-2-2018 ISSUED BY 3RD RESPONDENT EXHIBIT P5 COPY OF THE REPLY DATED 6-7-2018 ISSUED BY 2ND RESPONDENT EXHIBIT P2 COPY OF THE BASIC TAX REGISTER OF PATHIYOOR VILLAGE

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