Kerala High Court
*Ravindran vs State Of Kerala on 6 March, 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 6TH DAY OF MARCH 2024 / 16TH PHALGUNA, 1945
DBP NO. 11 OF 2024
IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - THALIYIL SREE
MAHADEVA TEMPLE, KOTTAYAM - ENCROACHMENT OF DEVASWOM LAND -
SUO MOTU PROCEEDINGS INITIATED ON A COMPLAINT DATED
01/12/2023 MADE BY ONE RAVEENDRAN.
PETITIONER:
*RAVINDRAN
THALILKOTTA, THAZHATHANGADY, KOTTAYAM-686 005 *("SUO
MOTU" CORRECTED AS ABOVE BY THE ORDER DATED 11.01.2024
IN DBP 11/2024)
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
REVENUE(DEVASWOM) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001
2 TRAVANCORE DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY, NANTHANCODE, KOWDIAR
POST, THIRUVANANTHAPURAM-695003
3 DEVASWOM COMMISSIONER
NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM-695003
4 #SPECIAL TAHSILDAR (LC)
TRAVANCORE DEVASWOM BOARD, NANTHANCODE,
THIRUVANANTHAPURAM-695003 #('SPECIAL TAHASILDAR(LR)'
CORRECTED AS ABOVE BY THE ORDER DATED 11.01.2024 IN DBP
NO 11 OF 2024
5 SUB GROUP OFFICER
THALIYIL SREE MAHADEVA TEMPLE, THAZHATHANGADI, THALIYIL
2
DBP No.11 of 2024
KOTTA, KOTTAYAM-686001
R1 BY SRI S.RAJMOHAN- SR GOVERNMENT PLEADER
R2 TO 5 BY SRI G.SANTHOSH KUMAR- STANDING COUNSEL-
TRAVANCORE DEVASWOM BOARD ;
THIS DEVASWOM BOARD PETITION HAVING COME UP FOR
ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
3
DBP No.11 of 2024
ORDER
Anil K. Narendran, J.
This DBP is registered suo motu, vide proceedings dated
09.01.2024, based on a complaint dated 01.12.2023 received
from one Raveendran, wherein it is alleged that one Balakrishna
Pai has encroached Devaswom land by constructing a compound
wall on the western side of the temple maidan of Thaliyil Sree
Mahadeva Temple, which is a temple under the management of
the 2nd respondent Travancore Devaswom Board. As per the
revenue records, the property where the said compound wall is
constructed is described as 'Devaswom land'. The complainant
has also produced certain photographs to show the alleged
encroachment.
2. On 11.01.2024, when this matter came up for
consideration, the learned Standing Counsel for Travancore
Devaswom Board was directed to get instructions.
3. The 4th respondent, Special Tahsildar (Land
Conservancy), has filed an affidavit dated 05.02.2024.
Paragraphs 1 to 6 of that affidavit read thus;
"3. It is submitted that Thaliyil Sree Mahadeva Temple,
Kottayam is a scheduled temple functioning under the sub
group Parappadam of Kottayam group of Travancore
Devaswom Board. The aforesaid D.B.P. is registered based
upon the complaint submitted by Mr.Raveendran alleging
encroachment with regard to the property of Thaliyil Sree
Mahadeva Temple, Kottayam.
4. It is submitted that the Assistant Devaswom
Commissioner, Kottaym, was informed to forward all
Revenue and Devaswom records concerning the ownership of
Thaliyil Devaswom. Subsequently, on 22.01.2024, the
Assistant Devaswom Commissioner had forwarded the copy
of the Settlement register and a rough sketch of the temple
site to his office. Following this, on 23.01.2024, the Head
Surveyor and Revenue Inspector had visited the temple site,
after collecting revenue records available at Kottayam
Village.
5. It may be noted that as per the settlement register of
Kottayam Pakuthi in Kottayam Taluk, Thaliyil Sree Mahadeva
temple has the right of ownership over 4.25 acres of
puramboke land in settlement Survey No.122/21-1. But as
per the Devaswom Land Register kept by Sub Group Officer,
it is seen that the Devaswom has an area of 1.58 acres of
land in old Survey No.122/21-12. On verification of the
settlement register and other records, it is seen that Sub
Divisions have been created in the Old Survey No.122/21.
Yet no document has been received to prove that how the
Sub Division was carried out. The site inspection conducted
on 23.01.2024 reveals that the property subject to the
complaint is occupied by Sri.Balakrishna Pai, the alleged
encroacher. This property was purchased by his father
Sri.Venkitesh Pai from Sri. Balakrishna Panicker who obtained
Purchase Certificate for 19 cents from the Special Munsiff
Land Tribunal, Kottayam as per Order No.41/1972. Out of the
19 cents he sold 3.25 cent to another person. He claimed
that among the rest of the land around 6 cent is developed as
pathway in front of the temple and road on the west side.
And also now he is paying tax for 4.10 Ares in Re.Survey
No.126/29. The premises of the temple are exempted from
the provisions of Land Reforms Act as per Section 3(1)(X).
Therefore, the Land Tribunal has no jurisdiction to issue the
purchase certificate u/s.72B of the Act. The said purchase
certificate will not sustain in view of the judgments rendered
by this Hon'ble Court in Gopalakrishnan A.A. v. Secretary,
Cochin Devaswom Board, Thrissur and Ors. [2018 (3)
KHC 549], Travancore Devaswom Board v. Mohanan
Nair [2013 (3) KLT 132] and Jayaprakashan K. v. State
of Kerala [2023 (3) KLT 541].
6. It is further submitted that as per old revenue records, the
temple land in Survey No.122-21-1 was recorded as
puramboke land. In Re-Survey BTR.76.72 Ares (190 cents) of
land in Re-Survey No.126/36 is recorded as 'Sarkar
Poramboke Temple'. Out of 4.25 acres of puramboke land
which was marked as Devaswom Poramboke in Survey
Settlement, only 1.90 acres of land has been returned as
Devaswom Poramboke and the rest of the land has been
prepared in the revenue records in favour of several private
individuals. Given the complexity of the situation, a detailed
enquiry into relevant settlement and resurvey records,
alongside verification of land holders documents, is necessary
to ascertain whether encroachment has occurred in
Devaswom land. Consequently this office has informed the
Devaswom and Revenue authorities to furnish the relevant
documents. Thus this respondent requests this Hon'ble Court
to consider the foregoing submissions and a comprehensive
final report will be promptly submitted upon completion of
the enquiry."
4. By the order dated 19.02.2024, the learned Standing
Counsel for Travancore Devaswom Board was directed to obtain
the details of those who are presently in occupation of the 19
cents of land, for impleading them as additional respondents.
5. Today, when this matter is taken up for consideration,
the learned Standing Counsel for Travancore Devaswom Board
would submit that in addition to the aforesaid Balakrishna Pai,
certain others are also in occupation of the Devaswom land, the
details of which are yet to be ascertained by the 4th respondent
Special Tahsildar.
6. Heard the learned Senior Government Pleader for the
1st respondent and the learned Standing Counsel for Travancore
Devaswom Board for respondents 2 to 5.
7. '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].
8. 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.
9. 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.
10. In Travancore Devaswom Board v. Mohanan Nair
[2013 (3) KLT 132] a Division Bench of this Court noticed that
in A.A. Gopalakrishnan [(2007) 7 SCC 482] the Apex Court
emphasised that it is the duty of the courts to protect and
safeguard the interest and properties of the religious and
charitable institutions. The relevant principles under the Hindu
law will show that the Deity is always treated similar to that of a
minor and there are some points of similarity between a minor
and a Hindu idol. The High Court therefore is the guardian of the
Deity and apart from the jurisdiction under Section 103 of the
Land Reforms Act, 1957 viz. the powers of revision, the High
Court is having inherent jurisdiction and the doctrine of parens
patriae will also apply in exercising the jurisdiction. Therefore,
when a complaint has been raised by the Temple Advisory
Committee, which was formed by the devotees of the Temple,
about the loss of properties of the Temple itself, the truth of the
same can be gone into by the High Court in these proceedings.
11. In Mohanan Nair [2013 (3) KLT 132] the Division
Bench relied on the decision in Achuthan Pillai v. State of
Kerala [1970 KLT 838], wherein a Full Bench of this Court
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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. In the complaint filed by the complainant it is alleged
that one Balakrishna Pai has encroached Devaswom land by
constructing a compound wall on the western side of the temple
maidan of Thaliyil Sree Mahadeva Temple, which is a temple
under the management of the 2nd respondent Travancore
Devaswom Board. The stand taken in the affidavit dated
05.02.2024 filed by the 4th respondent Special Tahsildar (Land
Conservancy Unit) is that along with Balakrishna Pai, certain
others are also in occupation of 19 cents of Devaswom land.
18. We do not propose to consider the factual disputes
relating to the alleged encroachment of the Devaswom land of
Thaliyil Sree Mahadeva Temple, since it is a matter which
requires consideration by the 4th respondent Special Tahsildar
(Land Conservancy), with proper notice to the alleged
encroachers, after complying with the statutory requirements,
and taking note of the law laid down in the decisions referred to
supra.
19. In such circumstances, this DBP is disposed of by
directing the 4th respondent Special Tahsildar (Land
Conservancy) to proceed with the matter relating to the alleged
encroachment of the Devaswom land of Thaliyil Sree Mahadeva
Temple, strictly in accordance with law, taking note of the
statutory provisions referred to herein before and the law laid
down in the decisions referred to supra, with proper notice to the
alleged encroachers and after affording them a reasonable
opportunity to substantiate their contentions. A copy of this
order shall be enclosed along with the notice issued to the
alleged encroachers and the 4th respondent Special Tahsildar
(Land Conservancy) shall finalise the proceedings initiated
against the alleged encroachers under the provisions of the
Kerala Land Conservancy Act, as expeditiously as possible, at
any rate within a period of four months from the date of receipt
of a certified copy of this order. That proceedings shall be with
notice to the petitioner - complainant.
20. Registry to communicate a copy of this order to the
petitioner - complainant by registered post with acknowledgment
due.
The 4th respondent Special Tahsildar shall file an action
taken report before the learned Ombudsman, within a period of
five months from the date of receipt of a certified copy of this
order. It would be open to the learned Ombudsman to file
reports before this Court, in case further directions are
necessary. Registry to communicate a copy of this order along
with a copy of the DBP to the learned Ombudsman.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
G. GIRISH, JUDGE
AV/7/3
