Kerala High Court
Pradeep P vs The District Collector, Palakkad on 12 February, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
2025:KER:14306
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025 / 23RD MAGHA, 1946
WP(C) NO. 30451 OF 2015
PETITIONERS:
1 PRADEEP P
AGED 30 YEARS
S/O.AYYAPPAN, PARAMELPADI, PAVUKKONAM
(P.O),VANIYAMKULAM, OTTAPALAM TALUK,
PALAKKADDISTRICT.
2 VISWANATHAN
AGED 28 YEARS
S/O.RAMA NATHAN, CHAVATTAKKATTIL HOUSE,
PAVUKKONAM (P.O), VANIYAMKULAM, OTTAPALAMTALUK,
PALAKKAD DISTRICT.
BY ADVS.
SRI.G.SREEKUMAR (CHELUR)
SRI.K.RAVI PARIYARATH
RESPONDENTS:
1 THE DISTRICT COLLECTOR, PALAKKAD
2 THE SUB COLLECTOR OTTAPALAM
PALAKKAD DISTRICT.
3 THE MALABAR DEVASWOM BOARD
REPRESENTED BY ITS COMMISSIONER,
HOUSEFED COMPLEX,ERANHIPALAM (P.O),
KOZHIKODE. PIN - 673 006.
W.P.(C)No.30451 of 2015 2 2025:KER:14306
4 THE ASSISTANT COMMISSIONER
MALABAR DEVASWOM BOARD, CIVIL STATION,
PALAKKAD. PIN - 678 001.
5 THE EXECUTIVE OFFICER
SREE ANTHIMAHAKALAN VISHNU TEMPLE,
ANANGANADYVILLAGE OTTAPALAM TALUK,
PALAKKAD DISTRICT.
6 THE CIRCLE INSPECTOR OF POLICE
OTTAPALAM, PALAKKAD DISTRICT.
7 THE ADDL. TAHSILDAR OTTAPALAM
PALAKKAD DISTRICT.
8 THE VILLAGE OFFICER ANANGANDY
OTTAPALAM TALUK
PALAKKAD DISTRICT.
9 A.V.SANKARAN D4 ANJALI GARDENS
PALLIPPURAM
PALAKKAD.
*10 K.P. DAMODHARAN UNNI MOOPPIL NAIR
THE HEREDITARY TRUSTEE,
SREE ANTHIMAHAKALAM VISHNU TEMPLE,
ANANGANADY VILLAGE OTTAPALAM TALUK,
PALAKKAD DISTRICT, RESIDING AT POCKET-F-36D,
MAYOR VIHAR, FASE-II, BEW DELHI-91.
(*IS IMPLEADED AS PER ORDER DATED 17.08.2016 IN
I.A. NO.12389 OF 2016)
#11 NIRMALA
W/O LATE A.V.SANKAR, AGED 63 YEARS,
RESIDING AT D4, ANJALI GARDENS,
PALLIPPURAM, PALAKKAD, PIN-678006.
##12 KAVITHA SANKAR
D/O LATE A.V.SANKAR, AGED 42 YEARS,
134 PRIMROSE, L & T COLONY, SERENE COUNTY,
GACHIPOWLI, HYDERABAD.
###13 SARITHA
D/O LATE A.V.SANKAR, AGED 38 YEARS,
RESIDING AT D4, ANJALI GARDENS,
W.P.(C)No.30451 of 2015 3 2025:KER:14306
PALLIPPURAM, PALAKKAD, PIN-678006.
(#ADDITIONAL RESPONDENTS R11 TO R13 ARE IMPLEADED
AS PER ORDER DATED 21.08.2017 IN I.A.NO.11219 OF
2017)
BY ADVS.
SRI.T.KRISHNANUNNI SR.
SRI.K.C.KIRAN
SMT.MEENA.A.
SRI.VINOD RAVINDRANATH
SRI.VINAY MATHEW JOSEPH
OTHER PRESENT:
SRI. S. RAJMOHAN, SR. GP;
SMT. R. RANJANIE, SC, MDB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 12.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)No.30451 of 2015 4 2025:KER:14306
JUDGMENT
Anil K. Narendran, J.
The petitioners, who are devotees of Anthimahakalan
Temple, Ananganady, Ottapalam Taluk, which is a controlled
institution under the 3rd respondent Malabar Devaswom Board, has
filed this writ petition under Article 226 of the Constitution of
India, seeking a writ of certiorari to quash Ext.P1 purchase
certificate dated 30.12.1977 issued by the 7th respondent Land
Tribunal, Ottapalam and Ext.P3 proceedings dated 29.10.2014 of
the 2nd respondent Sub Collector, Ottapalam, whereby the land tax
was ordered to be accepted from the 9th respondent. The
petitioners have also sought for a writ of mandamus commanding
the 2nd respondent to reconsider the issue covered by Ext.P3
proceedings, after notice to them and also the affected parties and
pass appropriate orders, in accordance with law, within a time limit
that may be fixed by this Court.
2. Going by the averments in the writ petition the
Devaswom Land of Sree Anthimahakalan Temple has been
reduced from 28 Acres to 2.98 Acres, since large extent of the
property is with the encroachers. The family of the 9th respondent
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are the Kazhakakkar of the temple. The document marked as
Ext.P1 is a purchase certificate dated 30.12.1977 issued by the
Land Tribunal, in the name of the mother of the 9th respondent.
3. On 07.10.2015, when this writ petition came up for
consideration, the learned Standing Counsel for Malabar
Devaswom Board submitted that there is a hereditary trustee for
the temple and the writ petitioners may apply for impleadment of
that trustee. In the meantime, this Court issued notice before
admission to the 9th respondent. The learned Standing Counsel for
Malabar Devaswom Board took notice for respondents 3, 4 and
the learned Government Pleader for the official respondents. This
Court granted an interim order that no act of waste shall be
committed in the property and the Revenue shall not register any
transaction in respect of the property in question any further, for
a period of four months.
4. By the order dated 17.08.2016 in this writ petition, the
hereditary trustee of the temple was impleaded as the additional
10th respondent.
5. The 9th respondent has filed a counter affidavit dated
07.11.2015, opposing the reliefs sought for in this writ petition,
wherein it is contended that against Ext.P1 purchase certificate
W.P.(C)No.30451 of 2015 6 2025:KER:14306
issued by the Land Tribunal, a statutory remedy of appeal is
provided under Section 102 of the Kerala Land Reforms Act before
the Land Tribunal. In Paragraph No.6 of the counter affidavit, the
9th respondent has stated that as per Ext.P2 old Sy.No.10/1 was
noted as property of the temple. His family was in occupation of
the property from time immemorial as tenants under the temple.
The said property was not part of the temple compound. It was
lying outside the temple compound. This property was outstanding
in tenancy right with Sekhara Wariyar, the Karanavar of his family.
By virtue of registered assignment deed of the year 1929, the
tenancy right devolved on his mother and it was in pursuance to
the above tenancy, which had become a tenure having fixity by
virtue of the provisions under the Land Reforms Act that she
preferred application before the Land Tribunal under Section 72 of
the Act and obtained Ext.P1 purchase certificate. Various other
contentions have also been raised in the counter affidavit.
6. During the pendency of this writ petition, the 9th
respondent died and his legal heirs were impleaded as additional
respondents 11 to 13.
7. Heard the learned counsel for the petitioners, the
learned Senior Government Pleader for the State and official
W.P.(C)No.30451 of 2015 7 2025:KER:14306
respondents and also the learned Standing Counsel for Malabar
Devaswom Board.
8. 'Deva' means God and 'swom' means ownership in
Sanskrit and the term 'Devaswom' denotes the property of God in
common parlance. See: Prayar Gopalakrishnan and another
v. State of Kerala and others [2018 (1) KHC 536].
9. In A.A. Gopalakrishnan v. Cochin Devaswom
Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex
Court held that the properties of deities, temples and Devaswom
Boards are required to be protected and safeguarded by their
trustees/archakas/shebaits/employees. Instances are many
where persons entrusted with the duty of managing and
safeguarding the properties of temples, deities and Devaswom
Boards have usurped and misappropriated such properties by
setting up false claims of ownership or tenancy, or adverse
possession. This is possible only with the passive or active
collusion of the authorities concerned. Such acts of '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
W.P.(C)No.30451 of 2015 8 2025:KER:14306
charitable institutions from wrongful claims or misappropriation.
10. In A.A. Gopalakrishnan [(2007) 7 SCC 482], 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,
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it cannot be questioned, interfered or set aside at the instance of
a third party in a writ proceeding. They relied on the provisons 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
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concluded that, viewed from any angle, the compromise decree
cannot be sustained and is liable to be set aside.
11. 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 parents 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.
12. In Mohanan Nair [2013 (3) KLT 132] the Division
Bench relied on the decision in Achuthan Pillai v. State of
W.P.(C)No.30451 of 2015 11 2025:KER:14306
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
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Pagoda case [(1874) 1 Ind App 209] it was pointed out by the
Judicial Committee that the former rulers of this country always
asserted the right to visit endowments of this kind to prevent and
redress the abuses in their management. The authorities,
therefore, support the conclusion that supervision and control of
Hindu Religious and Charitable Institutions is a function of
government and that Government at all times asserted and
exercised the power. The fact that Government did not exercise
the power immediately when it became aware of the
circumstances vitiating Ext.P1 order cannot prejudice the interest
of the Devaswom. If the contention of the petitioner were to
prevail, it would mean that because the Government was not very
vigilant in exercising the power the interest of the Devaswom
should suffer. Section 10 of the Limitation Act, 1963, provides no
period of limitation for a suit against a person in whom the trust
property has become vested for any specific purpose or against
his legal representatives or assigns for the purpose of following in
his or their hands such property. The reason behind the section is
that an express trust ought not suffer by the misfeasance or non-
feasance of a trustee.
W.P.(C)No.30451 of 2015 13 2025:KER:14306
13. In Mrinalini Padhi v. Union of India [2018 SCC
OnLine SC 667] - order dated 05.07.2018 in W.P.(C)No.649 of
2018 - the Apex Court noticed that the issue of difficulties faced
by the visitors, exploitative practices, deficiencies in the
management, maintenance of hygiene, proper utilisation of
offerings and protection of assets may require consideration with
regard to all Shrines throughout the India, irrespective of religion
practiced in such shrines. It cannot be disputed that this aspect is
covered by List III Item 28 of the Seventh Schedule to the
Constitution of India and there is need to look into this aspect by
the Central Government, apart from State Governments. Section
92 of the Code of Civil Procedure, 1908 permits a court also to
issue direction for making a scheme or making an arrangement
for any charitable or religious institution. Accordingly, the Apex
Court directed that, if any devotee moves the jurisdictional District
Judge throughout the India with any grievance on the above
aspect, the District Judge may either himself/herself or by
assigning the issue/matter to any other court under his/her
jurisdiction examine above aspects and if necessary send a report
to the High Court. The High Court will consider these aspects in
public interest, in accordance with law, and issue such judicial
W.P.(C)No.30451 of 2015 14 2025:KER:14306
directions as becomes necessary having regard to individual fact
situation.
14. In Nandakumar v. District Collector and others
[2018 (2) KHC 58] a Division Bench of this Court noticed that
the legal position has been made clear by the Apex Court as to the
role to be played by the High Court in exercising the 'parens
patriae' jurisdiction in Gopalakrishnan v. Cochin Devaswom
Board [(2007) 7 SCC 482]. The said decision was referred to
and relied on by a Division Bench of this Court in Travancore
Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]. In
the said circumstances, the properties of the Devaswom, if at all
encroached by anybody and if any assignment/conveyance has
been effected without involvement of the Devaswom, securing
'pattayam' or such other deeds, the same cannot confer any right
upon the parties concerned, unless the title so derived is clear in
all respects. There cannot be any dispute that the remedy to
retrieve such property belonging to the Devaswom is by resorting
to the course stipulated in the Kerala Land Conservancy Act, 1957.
15. 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
W.P.(C)No.30451 of 2015 15 2025:KER:14306
ensure that the property of the Devaswom is protected and
preserved has ultimately brought out the plain truth that the said
property was sought to be appropriated by strangers and that the
property in Sy.No.1042/2 has been successfully retrieved by the
Devaswom, based on the intervention made by this Court and also
by the Apex Court [A.A. Gopalakrishnan - (2007) 7 SCC 482].
Proceedings have to be taken to a logical conclusion in respect of
the land in Sy.No.1043 as well. This is more so since in view of the
'parens patriae' jurisdiction being entrusted with the Court in this
regard and there is a duty cast upon the Court to take every step
to ensure that the property of the deity is protected.
16. 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
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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)
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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
W.P.(C)No.30451 of 2015 18 2025:KER:14306
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
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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,
W.P.(C)No.30451 of 2015 20 2025:KER:14306
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.
17. 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
W.P.(C)No.30451 of 2015 21 2025:KER:14306
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
W.P.(C)No.30451 of 2015 22 2025:KER:14306
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
W.P.(C)No.30451 of 2015 23 2025:KER:14306
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
W.P.(C)No.30451 of 2015 24 2025:KER:14306
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.
18. 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
W.P.(C)No.30451 of 2015 25 2025:KER:14306
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.
19. Section 76 of the Madras Hindu Religious and
Charitable Endowments Act, 1926 (Act 2 of 1927) reads thus;
"S.76. Alienation of Immovable Trust Property.- (1) No
exchange, sale or mortgage and no lease for a term
exceeding five years of any immovable property belonging
to any math, temple or specific endowment shall be valid or
operative unless it is necessary or beneficial to the math,
temple or specific endowment and is sanctioned by the
Board.
(2) The trustee of the math, temple or specific endowment
or any person having interest may, within one year of the
date of the order of the Board under sub-section (1), apply
to the court for modifying or cancelling such order.
(3) The order of the Board under sub-section (1) when no
application is made under sub-section (2) and the order of
the court when such application is made shall be final."
20. In view of the provisions contained in Section 76 of the
Act of 1926, no exchange, sale or mortgage and no lease for a
term exceeding five years of any immovable property belonging
W.P.(C)No.30451 of 2015 26 2025:KER:14306
to any math, temple or specific endowment shall be valid or
operative unless it is necessary or beneficial to the math, temple
or specific endowment and is sanctioned by the Board.
21. Section 103 of the Act of 1951 deals with effect repeal
of the Madras Hindu Religious Endowments Act, 1926 (Act 2 of
1927). Section 103 of the Act of 1951 reads thus;
"103. Effect of repeal of the Madras Hindu Religious
Endowments Act, 1926.- Notwithstanding the repeal of
the Madras Hindu Religious Endowments Act, 1926
(hereinafter in this Section referred to as the said Act)-
(a) all rules made, notifications or certificates issued, orders
passed, decisions made, proceedings or action taken,
schemes settled and things done by the Government, the
Board or its President or by an Assistant Commissioner
under the said Act, shall, in so far as they are not
inconsistent with this Act, be deemed to have been made,
issued, passed, taken settled or done by the appropriate
authority under the corresponding provisions of this Act and
shall, subject to the provisions of clause (b), have effect
accordingly;
Explanation. - Certificates issued by the Board under section
78 of the said Act shall be deemed to have been validly
issued under that section, notwithstanding that the
certificates were issued before the making of rules
prescribing the manner of their issue.
(b) if the State Government are satisfied that any such rule,
notification, certificate, order, decision, proceeding, action,
W.P.(C)No.30451 of 2015 27 2025:KER:14306
scheme or thing, although not inconsistent with this Act
would not have been made, issued, passed, taken, settled
or done, or would not have been made, issued, passed,
taken, settled or done in the form adopted, if this Act had
been in force at the time, they shall have power, by order
made at any time within one year from the commencement
of this Act, to cancel or to modify in such manner as may be
specified in the order, the said rule, notification, certificate,
order, decision, proceeding, action, scheme or thing, and
thereupon, the same shall stand cancelled or modified as
directed in the said order, with effect from the date on which
it was made or from such later date as may be specified
therein:
Provided that before making any such order, the
Government shall publish in the Kerala Government Gazette
a notice of their intention to do so, fix a period which shall
not be less than two months from the date of the publication
of the notice for the persons affected by the order to show
cause against the making thereof and consider their
representations, if any;
(c) a notification published in respect of any religious
institution under Section 65A, sub-section (3), or sub-
section (5), of the said Act and in force immediately before
the commencement of this Act shall be deemed to be a
notification published under Section 64 of this Act.
Explanation. - The scheme of administration, if any, settled
for the religious institution and the rules, if any, framed
under such scheme which ceased to apply to the institution
under Section 65B of the said Act shall not be deemed to be
revived by reason of the cancellation of the notification
W.P.(C)No.30451 of 2015 28 2025:KER:14306
under Section 64, sub-section (4), or by reason of its having
ceased to be in force by efflux of time.
(d) all schemes settled or modified by a Court of law under
the said Act or under Section 92 of the Code of Civil
Procedure, 1908, shall be deemed to have been, settled or
modified by the Court under this Act and shall have effect
accordingly;
(e) in any scheme settled or deemed to have been settled
under the said Act (including a scheme settled under Section
92 of the Code of Civil Procedure, 1908) and in force
immediately before the commencement of this Act -
(i) all powers conferred and all duties imposed by such
scheme on one or more trustees, whether hereditary or non-
hereditary, shall be exercised, subject to the restrictions and
conditions, if any, specified in the scheme by the trustee or
trustees appointed for the religious institution under this
Act.
(ii) all powers conferred and all duties imposed by such
scheme on any Court or Judge or any other person or body
of persons not being a trustee or trustees or a paid or an
honorary officer or servant of the religious institution, shall
be deemed to have been conferred or imposed on the Area
Committee if the institution is subject to the jurisdiction of
such a Committee and on the Commissioner, in other cases;
and the Area Committee or the Commissioner, as the case
may be, shall exercise such powers and discharge such
duties in accordance with the provisions of the scheme
subject to such restrictions and conditions, if any, specified
in the Scheme;
(f) all orders made under Section 67 of the said Act shall,
W.P.(C)No.30451 of 2015 29 2025:KER:14306
notwithstanding that they are inconsistent with this Act,
continue in force, but any such order may at any time be
modified or cancelled by the Deputy Commissioner if it is in
an order made under sub-section (1) or sub section (3) of
that section and by the Commissioner if it is an order made
under sub-section (4) or sub-section (5) of that Section; and
any person aggrieved by any modification or cancellation
made by the Deputy Commissioner may appeal to the
Commissioner within such time as may be prescribed;
(g) all bylaws made by the Board under the said Act shall,
in so far as they are not inconsistent with this Act, be
deemed to be orders issued by the Commissioner under this
Act;
(h) all proceedings pending before the State Government or
the Board or its President or an Assistant Commissioner
under the provisions of the said Act at the commencement
of this Act, may, in so far as they are not inconsistent with
the provisions of this Act, be continued by the appropriate
authority under this Act;
(i) all costs, expenses, charges, penalties, and contributions
payable to the Board under the said Act, immediately before
the commencement of this Act, shall be payable to the
Commissioner instead; and any assessment, levy or
demand of such sums made before the commencement of
this Act shall be deemed to be valid and may be continued
and shall be enforceable under this Act;
(j) all suits, applications or proceedings taken by, or on
behalf of, or against, the Board under the provisions of the
said Act and pending at the commencement of this Act, may
be continued by, or on behalf of, or against the
W.P.(C)No.30451 of 2015 30 2025:KER:14306
Commissioner subject to the provisions of, and in so far as
they are not inconsistent with this Act;
(k) any remedy by way of application, suit or appeal which
is provided by this Act shall be available in respect of
proceedings under the said Act pending at the
commencement of this Act as if the proceedings, in respect
of which the remedy is sought had been instituted under this
Act."
22. In view of the provisions contained in Section 103 of
the Act of 1951, notwithstanding the repeal of the Madras Hindu
Religious Endowments Act, 1926 (Act 2 of 1927) all rules made,
notifications or certificates issued, orders passed, decisions made,
proceedings or action taken, schemes settled and things done by
the Government, the Board or its President or by an Assistant
Commissioner under the said Act, shall, in so far as they are not
inconsistent with this Act, be deemed to have been made, issued,
passed, taken settled or done by the appropriate authority under
the corresponding provisions of this Act and shall, subject to the
provisions of clause (b), have effect accordingly.
23. In such circumstances, in respect of the land of
temples, which are controlled institutions under the Malabar
Devaswom Board, the Land Tribunals shall take note of the
provisions contained in Section 76 of the Madras Hindu Religious
W.P.(C)No.30451 of 2015 31 2025:KER:14306
and Charitable Endowments Act, 1926 (Act 2 of 1927) and also
that contained in Section 29 of the Madras Hindu Religious and
Charitable Endowments Act, 1951.
24. By the order dated 13.10.2022, this Court directed the
learned Senior Government Pleader to make available for the
perusal of this Court the files relating to Ext.P1 purchase
certificate dated 30.12.1977. On 30.05.2023, this Court noticed
the submission made by the learned Senior Government Pleader
that the files relating to Ext.P1 purchase certificate are yet to be
traced out.
25. Today, during the course of arguments, the learned
Senior Government Pleader, on instructions, would submit that
files relating to Ext.P1 purchase certificate are yet to be traced
out.
26. Having considered the pleadings and materials on
record and also the submissions made at the Bar, we deem it
appropriate to dispose of this writ petition, by relegating the
petitioners and the additional 10th respondent hereditary trustee
to challenge Ext.P1 purchase certificate issued by the Land
Tribunal, Ottapalam, by invoking the statutory remedy provided
under Section 102 of the Kerala Land Reforms Act, by approaching
W.P.(C)No.30451 of 2015 32 2025:KER:14306
the Appellate Authority (Land Reforms), Palakkad, after obtaining
certified copy of Ext.P1 purchase certificate dated 30.12.1977 and
also the proceedings of the Land Tribunal, Ottapalam in that case.
The 1st respondent District Collector, Palakkad shall take
necessary steps to ensure that the files relating to Ext.P1
purchase certificate are traced out within a period of two months
from the date of receipt of a certified copy of this judgment.
Thereafter, the petitioners, the additional 10th respondent
hereditary trustee as well as additional respondents 11 to 13, who
are the legal heirs of the 9th respondent, shall obtain certified copy
of that file or the proceedings of the Land Tribunal, Ottapalam,
after submitting proper applications and remitting the required
fee.
27. Subject to the outcome of the said appeal, the
petitioners and the additional 10th respondent hereditary trustee
can challenge Ext.P3 proceedings dated 29.10.2014 of the 2nd
respondent Sub Collector, Ottapalam, before the appropriate
forum, if so advised.
The Appellate Authority shall consider and pass appropriate
orders on the appeal, after taking note of the statutory provisions
referred to hereinbefore and the law laid down in the decisions
W.P.(C)No.30451 of 2015 33 2025:KER:14306
referred to above. A decision in this regard shall be taken, as
expeditiously as possible, at any rate, within a period of four
months from the date of filing of such an appeal. It would be open
to the appellants and the party respondents to submit written
submissions before the Appellate Authority (Land Reforms),
Palakkad, raising appropriate legal and factual contentions, which
shall be adverted to by the Appellate Authority, before taking a
decision. The interim order of this Court dated 07.10.2015, shall
continue to be in force till then.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
MSA
W.P.(C)No.30451 of 2015 34 2025:KER:14306
APPENDIX OF WP(C) 30451/2015
PETITIONER EXHIBITS
EXHIBIT.P-1: TRUE COPY OF THE PURCHASE CERTIFICATE
ISSUED IN THE NAME OF THE MOTHER OF THE
8TH RESPONDENT DATED 30.12.1977
EXHIBIT.P-2: TRUE COPY OF THE BTR ISSUED AT THE
INSTANCE OF THE 8TH RESPONDENT UNDER RTI
ACT, IN RESPECT OF SURVEY NO.10/1, DATED
1.9.15
EXHIBIT.P-3: TRUE COPY OF THE ORDER PASSED BY THE 2ND
RESPONDENT PERMITTING THE 9TH RESPONDENT
TO PAY BASIC TAX DATED 29.10.14.
EXHIBIT.P-4: TRUE COPY OF THE JUDGEMENT RENDERED BY
THE HON'BLE HIGH COURT OF KERALA, IN WPC
NO.8226/13 DATED 31.5.13.
RESPONDENT EXHIBITS
Exhibit R11(A) TRUE COPY OF THE ASSIGNMENT DEED DATED
08-04-1929 EXECUTED BY KUTTAN WARRIER IN
FAVOUR OF RAGHAVA WARRIER.
