Kerala High Court
Sree Kanjiramattom Mahadeva Temple ... vs The State Of Kerala on 7 February, 2024
Author: Anil K. Narendran
Bench: Anil K. Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE G. GIRISH
WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024/18TH MAGHA, 1945
WP(C) NO. 32560 OF 2022
PETITIONERS:
1 SREE KANJIRAMATTOM MAHADEVA TEMPLE BHARANA
SAMITHI, REPRESENTED BY ITS SECRETARY RAJASEKHARAN,
AGED 58, S/O GOPINATHAN NAIR, RESIDING IN THE
ADDRESS PUTHENVEEDU, KANJIRAMATTOM, THODUPUZHA,
IDUKKI DISTRICT 685 585.
2 LORD MAHADEVA OF KANJIRAMATTOM TEMPLE,
THE PRESIDING DIETY OF SREE MAHADEVA TEMPLE,
KANJIRAMATTOM, REPRESENTED BY ITS DEVOTEE
T.S. RAJAN, AGED 57, S/O SIVANKUTTY NAIR, RESIDING
IN THE ADDRESS THEKEPARAMBIL HOUSE, KANJIRAMATTOM,
THODUPUZHA, IDUKKI DISTRICT - 685 585.
3 M.N. THRIVIKRAMAN NAMBOODIRI,
AGED 87, S/O NARAYANAN NAMBOOTHIR, MEDANGANAL MANA,
VALAKAM, MUVATTUPUZHA TALUK, VALAKAM PO, ERNAKULAM
DISTRICT - 682 316.
BY ADVS.
G.SREEKUMAR (CHELUR)
DHARUN P. AFEEF
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM DISTRICT - 695 001.
2 THE DISTRICT COLLECTOR,
OFFICE OF THE DISTRICT COLLECTOR, COLLECTORATE,
PAINAVU P O, IDUKKI DISTRICT - 685 603.
2
W.P.(C)No.32560 of 2022
3 TALUK TAHSILDAR,
LAND RECORDS, OFFICE OF THE TALUK TAHSILDAR,
LAND RECORDS, TALUK OFFICE, THODUPUZHA,
THODUPUZHA P O, CIVIL STATION,
IDUKKI DISTRICT - 685 584.
4 VILLAGE OFFICER,
OFFICE OF THE VILLAGE OFFICER, THODUPUZHA VILLAGE
OFFICE, THODUPUZHA P O, IDUKKI DISTRICT - 685 584.
5 SPECIAL TAHSILDAR,
LAND RECORDS NO-5, WORKING AS LAND TRIBUNAL,
KOTTAYAM, KOTTAYAM PO, KOTTAYAM DISTRICT 686 001.
6 ROY JOHN,
AGED 50, S/O JOHN, RESIDING IN THE ADDRESS
PULIMOOTIL HOUSE, THODUPUZHA P O,
IDUKKI DISTRICT- 685 584.
7 OUSEPH JOHN,
AGED 75, S/O JOHN, RESIDING IN THE ADDRESS
PULIMOOTIL HOUSE, THODUPUZHA P O,
IDUKKI DISTRICT - 685 584.
8 *[DENNIS, AGED 50, S/O CHACKO, RESIDING IN THE
ADDRESS PULIMOOTIL HOUSE, THODUPUZHA P O,
IDUKKI DISTRICT - 685 584.]
*[AS PER ORDER DATED 17/11/2023 IN I.A No.1 of 2023
IN WP(C) 32560 of 2022, THE NAME OF THE 8TH RESPONDENT
IS CORRECTED AS : DEMIS ABRAHAM, S/O ABRAHAM]
BY ADVS.
MANU VYASAN PETER
P.B.KRISHNAN(K/1193/1994)
P.B.SUBRAMANYAN(K/1145/2009)
SABU GEORGE(K/000711/1998)
MEERA P.(K/000191/2019)
CHITHIRA VENUGOPAL(K/307/2021)
B.ANUSREE(K/000951/2016)
SRI.S. RAJMOHAN - SR.GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
3
W.P.(C)No.32560 of 2022
JUDGMENT
Anil K. Narendran, J.
The 1st petitioner is the Bharana Samithi of Sree
Kanjiramattom Mahadeva Temple, the 2nd petitioner is the deity
of that temple, represented by a devotee, and the 3rd petitioner
is a member of Medanganal Mana, which is stated to have the
ooralan/ooranma right of that temple. The petitioners have filed
this writ petition under Article 226 of the Constitution of India,
contending that the property having an extent of 3.69 Acres in
Survey No.283/6 of the Todupuzha Village, which belongs to the
deity of Sree Kanjiramattom Mahadeva Temple is a land
exempted from the provisions of the Kerala Land Reforms Act,
1963, in view of the provisions under Section 3(1)(x) of that Act
over which the Land Tribunal has no jurisdiction and
consequently Exts.P5 to P8 purchase certificates issued in
respect of that property are liable to be quashed. The petitioners
have sought for a writ of mandamus commanding the Revenue
officials to make necessary corrections in the property covered
by Exts.P5 to P8 purchase certificates, which are presently in the
name of respondents 7 to 9, and include the name of the
Devaswom in all Revenue Records and for other consequential
reliefs, including a writ of mandamus commanding the 2nd
respondent District Collector to protect all assets belonging to
Kanjiramattom Sree Mahadeva Temple as that of the Devaswom
and its authorities, within a reasonable time frame.
2. On 03.03.2023, when this writ petition came up for
admission, the learned Senior Government Pleader took notice
on admission for respondents 1 to 5. Urgent notice on admission
by speed post was ordered to respondents 6 to 8, returnable
within three weeks.
3. Respondents 6 and 7 have filed a counter affidavit
dated 31.05.2023, producing therewith Ext.R6(a) order dated
26.09.1974 of the Special Land Tribunal, Kottayam, in S.M.No.22
of 1975 in A.P.No.169 of 1971. The 8th respondent has also filed
a counter affidavit dated 05.02.2024, wherein it is stated that he
does not have a claim of title or possession over the land having
an extent of 3.69 Acres comprised in Survey No.283/6 in
Thodupuzha Village, which is the subject matter of this writ
petition.
4. In the counter affidavit dated 31.05.2023 filed by
respondents 6 and 7, it is stated as follows;
"4. The Sree Mahadeva Temple, Kanjiramattom is not under the
administration or supervision of the Travancore Devaswom
Board or any authority under the Travancore Cochin Hindu
Religious and Charitable Endowment Act, 1950. The
administration and management of the temple is apparently in
private hands. The Petitioners are not entitled to invoke the
public law remedy. Any grievance in regard to the alleged assets
or properties of the Devaswom. Temple or deity has to be raised
as private law remedy. The remedy, if at all, lies before the Civil
Court and not under Article 226 of the Constitution. The Writ
Petition is liable to fail on this sole ground.
5. Petitioner No.1 has no legal status or personality justifying an
approach to this Hon'ble Court. Shri T.S. Rajan is not entitled in
law or on facts to represent the deity of the Sree Mahadeva,
Temple, Kanjiramattom. Petitioner No.3 has no locus-standiior
authority to approach this Hon'ble Court by filing the above Writ
Petition and seek the reliefs prayed for. The Writ Petition is an
abuse of the legal process of this Hon'ble court.
6. At the outset it may be stated that we, Respondent No.6 and
7 herein, are concerned only with the property covered by
Ext.P5 purchase certificate. The properties covered by Exts.P6,
7 and 8 are other persons. They are not made parties to the
case. The attempt to coerce us into a settlement by using
litigation as a weapon of oppression is evident. The Writ Petition
is bad for non joinder of necessary parties and filed malafide.
7. The Purchase Certificates sought to be quashed were issued
in the year 1977 after following the procedure prescribed in the
Kerala Land Reforms Act, 1963 (hereinafter 'KLR Act' for short).
The notice of the proceedings was duly issued to the
Kanjiramattom Devaswom Thodupuzha. The landlord's right was
ordered to be assigned in favour of the cultivating tenants by
orders passed in 1974. After payment of purchase price, the
purchase certificates were issued in 1977.
8. Through Ext.P5 purchase certificate, the right, title and
interest in respect of 1.10 acres comprised in Sy.No. 283/6 in
Thodupuzha village was assigned in favour of the then
cultivating tenant Sri.Ouseph John, Pulimoottil, Respondent
No.7 herein. The Kanjiramatam Devaswom was the Respondent
in the case and had been duly served. True copy of the order
dated 26.09.1974 in S.M. No.22 of 1975 on the file of the
Special Land Tribunal, Kottayam is produced herewith and
marked as Exhibit R6(a).
9. An order of the nature of Exhibit R6(a) is appealable under
Section 102 of the KLR Act. The appeal period expired in 1974
itself. The filing of Writ Petition at this distant point of time is an
abuse of the process of court. The proceedings before a
statutory tribunal conferred with exclusive jurisdiction in the
matter cannot be nullified by a collateral challenge in a Writ
Petition. The presumption available to us under Section 72 K of
the Act has not been rebutted. That the properties were held by
us for long is well known as a fact. After a lapse of 45 years, the
Writ Petition is filed challenging the purchase certificates.
10. The Writ Petition is filed on a mis-conception in regard to
the scope and application of Section 3(1)(x) of the KLR Act. The
exemption under the KLR Act is only in respect of the sites,
tanks and premises of any temple, mosque or church. The
Kanjiramattom Mahadeva Temple is located about 3 Kilometers
from the properties covered by the purchase certificates. There
are public roads, including State highway and Thodupuzha River
flowing in between the property and the temple., There is no
site of any temple involved. Hence, the exemption provision has
no application to the instant case.
11. It is submitted that the properties are outstanding on
tenancy right and was in the possession of tenants from 1952.
In any view of the matter there are disputed questions of facts
and records which cannot be adjudicated in these proceedings.
Vague allegations of lack of jurisdiction and fraud will not enable
the Petitioners to get over the finality attached to the judicial
proceedings.
12. The averments in paragraphs 1 to 4 of the Writ Petition are
not correct and hence denied. The Petitioners have
misconstrued the scope of the exemption provisions of the KLR
Act. The officials of the temple are well aware of the peaceful
and continuous possession and enjoyment of the properties of
these Respondents since 1952. Despite having notice of the
preliminary findings of the Revenue Inspector in S.M.
Proceedings No. 22 of 1975 on the file of the Land Tribunal,
Kottayam, that these Respondents are in possession and
enjoyment of the property in question, the then persons in
management did not file any objection to the same. The finality
and presumption attached to the proceedings cannot be
collaterally impugned by collateral proceedings of this nature.
13. The averments in paragraphs 5 and 6 of the Writ Petition
are not correct and are denied. The allegations have been made
without perusing the records which culminated in Ext.P5
certificate of purchase. The representatives of the temple were
parties to the Suo Motu proceedings and as stated in the earlier
paragraph, the preliminary findings of the Revenue Inspector
were not objected to by them. There was no dispute on the
tenancy right.
14. The Petitioners have laid a highly belated challenge by
making vague allegations of lack of jurisdiction of the Land
Tribunal, misconstruing the scope of the provisions pertaining to
the exemption under Section 3 of the KLR Act. There is no merit
in the grounds. The above Writ Petition is only an attempt to
stake claim over the properties owned by us."
5. Heard the learned counsel for the petitioners, the
learned Senior Government Pleader for respondents 1 to 5 and
the learned counsel for respondents 6 and 7. Despite service of
notice, none appears for the 8th respondent.
6. '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].
7. In A.A. Gopalakrishnan v. Cochin Devaswom
Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex
Court held that the properties of deities, temples and Devaswom
Boards are required to be protected and safeguarded by their
trustees/archakas/shebaits/employees. Instances are many
where persons entrusted with the duty of managing and
safeguarding the properties of temples, deities and Devaswom
Boards have usurped and misappropriated such properties by
setting up false claims of ownership or tenancy, or adverse
possession. This is possible only with the passive or active
collusion of the authorities concerned. Such acts of 'fence eating
the crops' should be dealt with sternly. The Government,
members or trustees of boards/trusts, and devotees should be
vigilant to prevent any such usurpation or encroachment. It is
also the duty of courts to protect and safeguard the properties of
religious and charitable institutions from wrongful claims or
misappropriation.
8. 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),
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
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.
9. 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.
10. 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
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-
feasance of a trustee.
11. 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.
12. 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
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.
13. 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
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
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
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
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
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.
14. 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
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
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
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
shall be one reflecting the legal and factual contentions raised by
both sides.
15. 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
sanctioned by the Commissioner as being necessary or beneficial
to the institution.
16. In case the petitioners have a case that Exts.P5 to P8
purchase certificates issued by the 5th respondent is in respect of
an exempted land falling under Section 3(1)(x) of the Kerala
Land Reforms Act, 1963 or that those purchase certificates are
not in accordance with law, it is for them to challenge the same
before the Appellate Authority, by invoking the provisions under
Section 102, raising appropriate legal and factual contentions. In
view of the statutory remedy provided under the Kerala Land
Reforms Act, we deem it appropriate to dispose of this writ
petition by relegating the petitioners to the Appellate Authority
under Section 102 of the Kerala Land Reforms Act, to challenge
Exts.P5 to P8 purchase certificates.
With the above directions, this writ petition is disposed of.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
G. GIRISH, JUDGE
ded
APPENDIX OF WP(C) 32560/2022
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ANSWERS PROVIDED FROM THE
VILLAGE OFFICER, THODUPUZHA AS PERTAINING TO THE
KANJIRAMATTOM DEVASWOM DATED 12.10.21.
Exhibit P2 A TRUE COPY OF THE OLD SURVEY SETTLEMENT REGISTER
DATED NIL
Exhibit P3 A TRUE COPY OF THE LITHO SKETCH DENOTING THE LAND
BELONGING TO THE DEVASWOM AS PROVIDED DATED NIL.
Exhibit P4 A TRUE COPY OF THE RELEVANT PAGES OF THE DRAFT
DATA BANK PREPARED BY THE AGRICULTURAL DEPARTMENT
DATED NIL.
Exhibit P5 A TRUE COPY OF THE PURCHASE CERTIFICATE ISSUED
DATED 9.3.77 BEARING NO 22/73BY THE LAND TRIBUNAL,
SPECIAL TAHSILDAR, LAND RECORDS -5, KOTTAYAM.
Exhibit P6 A TRUE COPY OF THE PURCHASE CERTIFICATE ISSUED
DATED 10.3.77 BEARING NO 21/73 OF THE SPECIAL LAND
TRIBUNAL, SPECIAL TAHSILDAR, LAND RECORDS,
KOTTAYAM.
Exhibit P7 A TRUE COPY OF THE PURCHASE CERTIFICATE ISSUED
DATED 10.3.77 BEARING NO 21/73 OF THE SPECIAL LAND
TRIBUNAL, KOTTAYAM.
Exhibit P8 A TRUE COPY OF THE PURCHASE CERTIFICATE ISSUED
DATED 9.3.77 BEARING NO 15/73 OF THE SPECIAL
TAHSILDAR, KOTTAYAM.
Exhibit P9 A TRUE COPY OF THE TAX PAID RECEIPT DATED 25.4.16
ISSUED BY THE THODUPUZHA VILLAGE OFFICER IN THE
NAME OF THE JOHN, S/O OUSEPH, PULIMOOTIL HOUSE
WITH RECEIPT NO: 4296947
Exhibit P10 A TRUE COPY OF THE TAX PAID RECEIPT DATED 25.4.16
BY THE THODUPUZHA VILLAGE OFFICER IN THE NAME OF
THE JOHN, S/O OUSEPH, PULIMOOTIL HOUSE. WITH
RECEIPT NO: 4296946
Exhibit P11 A TRUE COPY OF THE TAX PAID RECEIPT DATED 15.12.16
BY THE THODUPUZHA VILLAGE OFFICER IN THE NAME OF
THE ROY JOHN, S/O JOHN, PULIMOOTIL HOUSE.
RESPONDENT EXHIBITS
Exhibit R6(a) True copy of the order dated 26.09.1974 in S.M.
No.22/75 in A.P No. 169/71 on the file of the
Special Land Tribunal, Kottayam together with
its typed copy
Delay Petition Verified application seeking condonation of
delay in filing counter-affidavit
