Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 18TH DAY OF OCTOBER 2023 / 26TH ASWINA, 1945 WP(C) NO. 2310 OF 2023 PETITIONER/S: 1 ARUN MOHAN AGED 34 YEARS S/O. C.K.MOHANAN, AGED 34, CHIRACKAL HOUSE, PULIYANAM P.O., ANGAMALY - 683 572., PIN - 683572 2 SANAL KUMAR T.C AGED 28 YEARS S/O. CHANDRAN NAIR, AGED 28, THURUTHUMMAL HOUSE, PULIYANAM P.O., ANGAMALAY - 683 572., PIN - 3 SANDEEP P.V AGED 39 YEARS S/O. UNNIKRISHNAN, AGED 39, PERINGALY HOUSE, PULIYANAM P.O., ANGAMALAY - 683 572., PIN - BY ADVS. P.B.SUBRAMANYAN P.B.KRISHNAN SABU GEORGE MANU VYASAN PETER MEERA P. RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001., 2 THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM-695003., 3 DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM - 695003., 4 SPECIAL TAHSILDAR (LAND CONSERVATION), TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM - 695003., 5 SUB GROUP OFFICER TRAVANCORE DEVASWOM BOARD, THIRUMUZHIKULAM SUB GROUP, PARAVUR GROUP, NORTH PARAVUR - 683 513., 6 PARAKKADAVU GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, MOOZHIKULAM AMBALAMURI ROAD, KURUMASERI, ERNAKULAM-683 579., 7 THE SECRETARY PARAKKADAVU GRAMA PANCHAYAT, MOOZHIKULAM AMBALAMURI ROAD, KURUMASERI, ERNAKULAM-683 579., 8 C.N.MADHAVA WARRIER @ APPUKUTTAN AGED 80 YEARS(FATHER'S NAME NOT KNOWN TO THE PETITIONERS), AGED 80, CHIRACKAL WARRIATHU, PULIYANAM P.O., PARAKADAVU VILLAGE, ALUVA TALUK, ANGAMALY-683 572., 9 SAVITHRI FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONERS), CHIRACKAL WARRIATHU, PULIYANAM P.O., PARAKADAVU VILLAGE, ALUVA TALUK, ANGAMALY - 683 572., 10 UNNIKRISHNAN AGED 52 YEARS S/O. C.N.MADHAVA WARRIER, AGED 52, CHIRACKAL WARRIATHU, PULIYANAM P.O., PARAKADAVU VILLAGE, ALUVA TALUK, ANGAMALY - 683 572., 11 UNNIKRISHNA WARRIER AGED 80 YEARS (FATHER'S NAME NOT KNOWN TO THE PETITIONERS), AGED 80, KOTHOOR VADAKE WARRIAM, MARUTHAKARA P.O., KUNJHANAM PARA, KOTHOOR - 680 301., 12 SREEJA AGED 52 YEARS, W/O. RISHI, AGED 52, KOTHOOR VADAKE WARRIAM, MARUTHAKARA P.O., KUNJHANAM PARA, KOTHOOR-680 301., 13 SREEJITH AGED 50 YEARS S/O. UNNIKRISHNA WARRIER, AGED 50, KOTHOOR VADAKE WARRIAM, MARUTHAKARA P.O., KUNJHANAM PARA, KOTHOOR - 680 301., 14 SREEKUMAR AGED 48 YEARS, S/O. UNNIKRISHNA WARRIER, AGED 48, KOTHOOR VADAKE WARRIAM, MARUTHAKARA P.O., KUNJHANAM PARA, KOTHOOR - 680 301.,
15 RAJEEV KUMAR, AGED 55 YEARS "NOW RESIDING AT C/O. REMADEVI, "RAJEEVAM", SREEMOOLANAGARAM P.O., ALUVA, ERNAKULAM DISTRICT - 683 580" S/O. PARAMESHWARAN NAIR, AGED 55, RESIDING AT POOMKUDI (H), KANJOR P.O., KALADY, ERNAKULAM DISTRICT - 683 575. (ABOVE CORRECTION IS CARRIED OUT AS PER ORDER DATED 11/04/2023 IN IA 1/2023.), PIN - 683575 16 REMADEVI,AGED 50 YEARS D/O. PARAMESHWARAN NAIR, AGED 50, POOMKUDI (H), KANJOR P.O., KALADY, ERNAKULAM DISTRICT - 683
575. "NOW RESIDING AT C/O. MOHANAN, "RAJEEVAM", SREEMOOLANAGARAM P.O., ALUVA, ERNAKULAM DISTRICT - 683 580" (ABOVE CORRECTION IS CARRIED OUT AS PER ORDER DATED 11/04/2023 IN IA 1/2023.), PIN - 17 MAYA P.R, AGED 60 YEARS D/O. RAMAN NAIR, AZHAVOOR HOUSE, PULIYANAM P.O., ALUVA TALUK, ANGAMALY - 683 572., PIN - 683572 18 MADHU P.R, AGED 60 YEARS C/O. VENU P.R, AGED 60, PAZHAVOOR HOUSE, PULIYANAM P.O., ALUVA TALUK, ANGAMALY - 683 572., 19 GOPALAKRISHNAN NAIR (FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER), PERIYAMBATH HOUSE, KOTHAKULANGARA, ANGAMALY - 683 572., 20 JOHN MATHEW ANTHRAPER PROPRIETOR, CABANA FOOD INDUSTRY, CONCERT HOUSE, G-390, PANAMPILLY NAGAR, COCHIN - 682 036.,
BY ADVS. SHRI.S.RAJMOHAN, SENIOR G.P. SANTHOSH KUMAR G Sudhish Kumar S P. Gopal RESMI A. AJITH VISWANATHAN M P ASHOK KUMAR Anilkumar PJ JESWIN P VARGHESE Sunil Shankar A VIDYA GANGADHARAN(K/000424/2020) SANDHRA.S(K/001610/2021) P.S.SREE PRASAD(K/1181/2009) BINDU SREEDHAR(K/000317/2002) ASIF N(K/001564/2018) OTHER PRESENT: SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ; SRI G.SANTHOSH KUMAR - STANDING COUNSEL- TRAVANCORE DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Anil K. Narendran, J.
Petitioners, the devotees of Chirakkal Sree Mahadeva Temple, who are presently the members of the Temple Advisory Committee constituted under Section 31A of the Travancore- Cochin Hindu Religious Institutions Act, 1950, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus directing respondents 1 to 5 to reclaim/recover 10 acres of land in old Survey Nos.167/1, belonging to the Chirakkal Sree Mahadeva Temple, expeditiously, in a time bound manner to be fixed by this Court; a writ of mandamus commanding the 3rd respondent Devaswom Commissioner to act on Ext.P9 complaint made by the petitioners, in a time bound manner to be fixed by this Court; and a writ of mandamus commanding respondents 6 and 7 to ensure that no waste is flowing into the temple pond from the manufacturing unit of respondent No.20.
2. Going by the averments in the writ petition, vast
extent of temple property is in the hands of third parties. On verification of the properties approximately 10 acres of land is now in the hands of third parties. According to the petitioner, these third parties have obtained assignments/purchase certificates in respect of the temple properties by setting up false claims of tenancy. The properties of the deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees. The statutory authorities have a vested right to protect and preserve the temple properties. Ext.P1 settlement register evidences that at one point of time, the temple had approximately 10 acres of land. By the lapse of time and indiscriminate issuance of ‘patta’, the temple property is now reduced to 64 cents. The temple at present does not have an entrance through the front. Though proceedings were initiated at the instance of the learned Ombudsman, Travancore Devaswom Board, to recover the temple properties, the same is kept pending. Respondents 1 to 5 are not taking any steps to recover the temple properties. The document marked as Exts.P3 is an
order passed by the learned Ombudsman in Complaint No.31 of
2015 dated 13.02.2015. Ext.P7 is a letter dated 22.01.2020 of the Special Tahsildar along with a report addressed to the learned Ombudsman informing that the temple is situated in an extent of only 64 cents and that, purchase certificates in respect of the remaining lands have been issued to private persons. Ext.P8 is a letter issued by the Special Tahsildar addressed to the Village Officer asking him to furnish the details of the persons who are in possession of the properties comprised in Sy.Nos.167/1, 167/13,
3. On 24.01.2023, when this matter came up for
admission, this Court admitted the matter on file. The learned Senior Government Pleader took notice for the 1 st respondent. The learned Standing Counsel for Travancore Devaswom Board took notice for respondents 2 to 5. The learned Standing Counsel for Parakkadavu Grama Panchayat took notice for respondents 6 and 7. Urgent notice was ordered to respondents 8 to 20 by speed post returnable within four weeks.
4. Counter affidavits have been filed by respondents 2 to 5, 8, 9, 10, 15, 16 and 17.
5. On 23.06.2023, when this writ petition came up for consideration, this Court passed a detailed order, which reads thus;
“In the counter affidavit filed by the 8th respondent, it is contended that he obtained certificate of purchase from the Settlement Officer (Inam Lands), Kottayam in respect of 40.80 Ares of property comprised in survey No.167/7, title to which is now in question and he produced a copy of the certificate of purchase as Exhibit R8(m). The learned counsel for the 8th respondent would submit that the said property is planted with rubber trees, which are now ripe for re-plantation and a few rubber trees are already cut down. The remaining trees are also required to be cut and removed. The learned counsel for the 8th respondent
seeks permission to remove the rubber trees already fell and also to cut and remove the standing rubber trees. The dispute involved in the Writ Petition is regarding title to various properties, including the aforesaid property. Having heard the learned counsel for the petitioners, the learned Senior Government Pleader, the learned Standing Counsel for the Travancore Devaswom Board and also the learned counsel for the 8th respondent, we are of the view that the trees already cut down can be allowed to be removed. It is required to get clarity regarding the title to the property in his possession. Till then, the status of the property has to be maintained, and therefore, it is not possible now to allow him to cut and remove the standing rubber trees. If the logs of felled rubber trees are retained idle in the property, the same would be worthless. In such circumstances, the 8th respondent is permitted to remove the logs of felled rubber trees, which are lying in the said property. The logs of rubber trees shall be removed in the presence of the 5th respondent-Sub Group Officer, Travancore Devaswom Board, Thirumoozhikkulam Sub Group. In case of any dispute, the 5th respondent shall report the matter to the Station House Officer of the local police station, who shall take appropriate steps to avoid any kind of law and order situation. The learned Senior Government Pleader and the Standing Counsel for the Travancore Devaswom Board shall get instructions as to whether Ext.R8(m) purchase certificate dated 06.11.1998 was issued by the Settlement Officer (Inam Lands), Kottayam with notice to the Travancore Devaswom Board. The status of the property in dispute as on today shall be maintained by the parties, subject to the permission given to the 8th respondent to remove the
felled rubber trees from the property.''
6. Today, when this matter is taken up for consideration,
the learned Standing Counsel for Travancore Devaswom Board would submit that the 4th respondent Special Tahsildar (Land Conservation), Travancore Devaswom Board has already initiated proceedings for evicting the alleged encroachers from the Devaswom. 40 persons including the party respondents have already been issued with notice.
7. Travancore-Cochin Hindu Religious Institutions Act,
1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds.
8. Chapter II of the Act deals with the Travancore
Devaswom. Section 3 of the Act deals with vesting of administration in Board. As per Section 3, the administration of incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds as well as the fund constituted under the Devaswom Proclamation, 1097 M.E. and the surplus fund constituted under the Devaswom (Amendment) Proclamation, 1122 M.E. which were under the management of the Ruler of Travancore prior to the first day of July, 1949, except the Sree Padmanabhaswamy Temple, Sree Pandaravaka properties and all other properties and funds of the said temple, and the management of all institutions which were under the Devaswom Department shall vest in the Travancore Devaswom Board.
9. Section 4 of the Act deals with constitution of the
Travancore Devaswom Board. As per sub-section (2) of Section 4, the Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board. Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub- section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per sub-section (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their jurisdiction.
10. Section 15A of the Act, inserted by Act 5 of 2007, with
effect from 12.04.2007, deals with duties of the Board. As per Section 15A, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions; (iv) to establish and maintain proper facilities in the temples for the devotees. Section 16 of the Act deals with supervision and control by the Board. As per Section 16, the Board shall, subject to the provisions of Part I of the Act, exercise supervision and control over the acts and proceedings of all officers and servants of the Board and of the Devaswom Department.
11. Section 24 of the Act deals with maintenance of
Devaswoms, etc., out of Devaswom Fund. As per Section 24, the Board shall, out of the Devaswom Fund constituted under Section 25, maintain the Devaswoms mentioned in Schedule I [i.e. incorporated Devaswoms], keep in a state of good repair the temples, buildings, and other appurtenances thereto, administer the said Devaswoms in accordance with recognised usages, make contributions to other Devaswoms in or outside the State and meet the expenditure for the customary religious ceremonies and may provide for the educational uplift, social and cultural advancement and economic betterment of the Hindu community.
12. Section 27 of the Act deals with Devaswom properties.
As per Section 27, immovable properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30 th Meenam, 1097 corresponding to the 12th April, 1922, shall be dealt with as Devaswom properties. The provisions of the Land Conservancy Act of 1091 (IV of 1091) shall be applicable to Devaswom lands as in the case of Government lands. Section 31 of the Act deals with management of Devaswoms. As per Section 31, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated, and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage.
13. 'Deva' means God and 'swom' means ownership in
Sanskrit and the term 'Devaswom' denotes the property of God in common parlance. [see: Prayar Gopalakrishnan and another v. State of Kerala and others - 2018 (1) KHC 536]
14. In A.A. Gopalakrishnan v. Cochin Devaswom
Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fence eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.
15. In A.A. Gopalakrishnan [(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, 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 concluded that, viewed from any angle, the compromise decree cannot be sustained and is liable to be set aside.
16. In Travancore Devaswom Board v. Mohanan Nair
[2013 (3) KLT 132] a Division Bench of this Court noticed that in A.A. Gopalakrishnan [(2007) 7 SCC 482] the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of 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.
17. In Mohanan Nair 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 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.
18. 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 directions as becomes necessary having regard to individual fact situation.
19. 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.
20. 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 [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.
21. In K. Jayaprakash v. State of Kerala and others [2023(3) KLT 541 : 2023(3) KLT SN 14], this Court held in paragraphs 37 to 45 and 52 to 56 as follows;
''37. As already noticed hereinbefore, the Kerala Land Reforms Act is enacted to make comprehensive legislation relating to land reforms in the State of Kerala. Sections 2 to 71, 73 to 82, 84, 99 to 108 and 110 to 132 of the said Act came into force on 01.04.1964 and the remaining provisions came into force on 01.01.1970. As per clause (8) of Section 2 of the Act, ‘cultivating tenant’ means a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding.
Clause (19) of Section 2 defines ‘intermediary’ to mean any person who, not being a landowner, has an interest in the land and is entitled, by reason of such interest, to possession thereof, but has transferred such possession to any other person. In view of the provisions under sub-section (1) of Section 13, notwithstanding anything to the contrary contained
in any law, custom, usage or contract or in any decree or order
of court, every tenant shall have fixity of tenure in respect of his holding, and no land from the holding shall be resumed except as provided in Sections 14 to 22. As per sub-section (1) of Section 53, a cultivating tenant (including the holder of a kudiyiruppu, and the holder of a karaima), entitled to fixity of tenure under Section 13, shall be entitled to purchase the right, title and interest of the landowner and the intermediaries, if any, in respect of the land comprised in his holding. As per sub- section (1) of Section 54, a cultivating tenant entitled to purchase the right, title and interest of the landowner and the intermediaries under Section 53 may apply to the Land Tribunal for the purchase of such right, title and interest.
38. In view of the provisions under sub-section (1) of Section 3, 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.
39. 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.
40. 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.
41. 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 fa mily, as the case may be, be equal to the ceiling area.
42. 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.
43. 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).
44. 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.
45. On an analysis of the aforesaid provisions under the Kerala
Land Reforms Act, we find 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 deals 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. xxx xxx xxx
52. By the order dated 15.12.2021, 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.
53. The learned Special Government Pleader (Revenue), on
instructions, would submit that in terms of the direction contained in the order of this Court dated 15.12.2021, the Additional Chief Secretary, Revenue Department has already taken necessary steps to communicate a copy of that order to all Land Tribunals in the State, for information and strict compliance.
54. In continuation of the said order dated 15.12.2021, it is
hereby 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 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; 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.
55. The Additional Chief Secretary, Revenue Department is directed to take necessary steps to communicate a copy of this
order to all Land Tribunals in the State, for information and strict
compliance.
56. The Travancore Devaswom Board and the Cochin Devaswom Board, which are entrusted with the duty of
managing the properties of Devaswoms under its management are duty bound to protect those properties of the deity, who is perpetual minor, from any wrongful claims, theft or misappropriation. The position of the Travancore Devaswom Board and that of the Cochin Devaswom Board in this regard is analogous to that of trustees. Any such wrongful claim, theft or misappropriation with the passive or active collusion of the authorities concerned, which are acts of ‘fence eating the crops’ should be dealt with sternly. Since deity being a perpetual minor, this Court is having inherent jurisdiction to protect and safeguard the interest and properties of the deity and the doctrine of parens patriae will also apply to the exercise of such jurisdiction. See: Suo motu v. State of Kerala [2022 2 KLT 483]. The principle laid down in the said decision is applicable with equal force in the case of controlled institutions under the Malabar Devaswom Board. The Ooralans, hereditary trustees or trustee board of such temples are also duty bound to protect the properties of the deity from any wrongful claims, theft or misappropriation. In view of the provisions under Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 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 be neficial to the institution. The position of Ooralans, hereditary trustees or trustee board of such temples is also analogous to that of trustees. Any failure on their part to protect the properties of the deity, by properly defending wrongful claims in respect of such properties before the Land Tribunal would amount to breach of trust, for which they will have to face the consequences.
22. Having considered the submissions made at the Bar, this
writ petition is disposed of by directing the 4 th respondent Special Tahsildar (Land Conservation) to proceed with the proceedings initiated under the Kerala Land Conservancy Act against alleged encroachers of the Devaswom property of Chirakkal Sree Mahadeva Temple, including the party respondents, after affording them an opportunity to substantiate their contentions by filing objections along with supporting documents. The proceedings initiated in this regard shall be concluded, as expeditiously as possible, at any rate within a period of six months. Thereafter, an action taken report by the 4th respondent shall be forwarded to this Court, through the learned Standing Counsel, which shall be listed before the Devaswom Bench along with the Judges’ papers in this DBP. The legal and factual contentions raised by the party respondents are left open to be raised before the 4th respondent, at appropriate stage. The order of status quo on 23.06.2023, in respect of the property of the 8th respondent shall continue till a decision is taken by the 4th respondent, as directed above. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- SOPHY THOMAS, JUDGE Dxy APPENDIX OF WP(C) 2310/2023 PETITIONER EXHIBITS EXHIBIT1 TRUE COPY OF THE SETTLEMENT REGISTER, PARAKKADAVU, DATED NIL EXHIBIT P2 TRUE COPY OF THE COMPLAINT MADE TO THE OMBUDSMAN, TRAVANCORE DEVASWOM BOARD, DATED 12-2-2015 EXHIBIT P3 TRUE COPY OF THE ORDER IN C.NO.31 OF 2015 OF THE OMBUDSMAND, TRAVANCORE DEVASWOM BOARD, DATED 13-2-2015 EXHIBIT P4 TRUE COPY OF THE REPRESENTATION MADE BEFORE THE 5TH RESPONDENT, DATED 27-1- EXHIBIT P5 TRUE COPY OF LETTER NO.A2.122/15 OF THE SPECIAL TAHSILDAR (LAND CONSERVATION), DATED 12-10-2015 EXHIBIT P6 TRUE COPY OF LETTER NO.353 OF THE ASST. DEVASWOM COMMISSIONER, TDB, DATED 19-2- EXHIBIT P7 TRUE COPY OF THE LETTER OF THE SPECIAL TAHSILDAR, DATED 22-1-2020 EXHIBIT P8 TRUE COPY OF THE LETTER OF THE SPECIAL TAHSILDAR, DATED 22-1-2020 EXHIBIT P9 TRUE COPY OF THE COMPLAINT MADE BY THE PETITIONERS 1 AND 2 BEFORE THE COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DATED 28-04-2022 EXHIBIT P10 TRUE COPY OF THE ACKNOWLEDGMENT CARD DATED 5-5-2-22 EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN O.S.NO.360 OF 2016 ON THE FILE OF THE MUNSIFF'S COURT, ALUVA, DATED 15-10-2022 EXHIBIT-P12 A TRUE COPY OF THE PHOTOGRAPH SHOWING THE TREES CUT RESPONDENT EXHIBITS EXHIBIT R8(A) TRUE COPY OF THE APPLICATION SUBMITTED BY THE 8TH RESPONDENT DATED 8.10.1998 TO THE SETTLEMENT OFFICER, KOTTAYAM EXHIBIT R8(B) TRUE COPY OF THE POSSESSION CERTIFICATE DATED 26-08-1998 ISSUED BY THE VILLAGE OFFICER, PARAKKADAVU EXHIBIT R8(C) TRUE COPY OF THE TAX RECEIPT DATED 3-12- 1993 ISSUED BY THE VILLAGE OFFICER, PARAKKADAVU EXHIBIT R8(D) TRUE COPY OF THE TAX RECEIPT DATED 4-6- 1997 ISSUED BY THE VILLAGE OFFICER, PARAKKADAVU EXHIBIT R8(F) TRUE COPY OF THE TAX RECEIPT DATED 19- 09-1978 BY THE VILLAGE OFFICER, PARAKKADAVU EXHIBIT R8(G) TRUE COPY OF THE TAX RECEIPT DATED 10- 08-1988 BY THE VILLAGE OFFICER, PARAKKADAVU EXHIBIT R8(K) TRUE COPY OF THE REPORT OF THE REVENUE INSPECTOR DATED 12.10.1998 EXHIBIT R8(L) TRUE COPY OF THE ORDER OF THE SETTLEMENT
OFFICER DATED 21.10.1998 IN SMP 315/1998 ALONG WITH THE STATEMENT OF THE SETTLEMENT OFFICER UNDER SECTION 7(4) OF THE ACT 1981 EXHIBIT R8(H) TRUE COPY OF THE RELAVENT PAGE OF FORM F OF BASIC TAX REGISTER DATED NIL BY THE VILLAGE OFFICER, PARAKKADAVU EXHIBIT R8(I) TRUE COPY OF THE RELEVENT PAGE OF THANDAPPER REGISTER NO.4203 DATED NIL BY THE VILLAGE OFFICER, PARAKKADAVU EXHIBIT R8(M) TRUE COPY OF THE CERTIFICATE OF PURCHASE DATED 6.11.1998 ISSUED BY THE SETTLEMENT OFFICER, INAM LANDS, KOTTAYAM IN FAVOUR OF THE 8TH RESPONDENT EXHIBIT R8(N) TRUE COPY OF FORM NO.9 (FORM OF PATTA) ISSUED BY THE SETTLEMENT OFFICER DATED 06-11-1998 SETTLEMENT OFFICER IN FAVOUR OF THE 8TH RESPONDENT EXHIBIT R8(O) TRUE COPY OF THE PETITION SUBMITTED BY THE 8TH RESPONDENT DATED 18-04-2023 BEFORE THE STATION HOUSE OFFICER, ANGAMALY POLICE STATION EXHIBIT R8(Q) TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, PARAKKADAVU DATED 26-04-2023 EXHIBIT R8(P) TRUE COPY OF THE COMPLAINT SUBMITTED BY THE SUB GROUP OFFICER OF THE TEMPLE DATED 18-04-2023 BEFORE THE STATION HOUSE OFFICER, ANGAMALY POLICE STATION EXHIBIT R8 (E) TRUE COPY OF THE WATER TAX RECEIPT DATED 26-12-1966 ISSUED BY THE VILLAGE OFFICER, PARAKKADAVU EXHIBIT R8 (J) TRUE COPY OF THE PATTAM RECEIPT DATED 24-07-1961 ISSUED BY THE DEVASWOM PETITIONER EXHIBITS EXHIBIT R (10) A TRUE PHOTOSTAT COPY OF THE SETTLEMENT
REGISTER PERTAINING TO 1.120 ACRES INOLDSURVEY NO.167/7 OF PARAKADAVU VILLAGE OBTAINED UNDER THE RIGHT TO INFORMATION ACT,2005 EXHIBIT R( 10) B TRUE PHOTOSTAT COPY OF THE PROCEEDINGS DATED 21-10-1998 OF THE SETTLEMENT OFFICER (INAM LANDS), KOTTAYAM OBTAINED UNDER THE RIGHT TO INFORMATION ACT, 2005 DATED 21-10-1998 EXHIBIT R (10) C TRUE PHOTOSTAT COPY OF THE CERTIFICATE
OF PURCHASE BEARING NO.397 OF 1998 ISSUED TO THE 8TH RESPONDENT BY THE SETTLEMENT OFFICER (INAM LANDS), KOTTAYAM OBTAINED UNDER THE RIGHT TO INFORMATION ACT, 2005 21-10-1998
EXHIBIT R (10) D TRUE PHOTOSTAT COPY OF THE SETTLEMENT DEED NO.5454 OF 2000 OF ALUVA SUB REGISTRY RESPONDENT EXHIBITS EXHIBIT-R2(A) TRUE COPY OF THE RELEVANT PAGES OF THE LAND REGISTER OF CHIRAKKAL DEVASWOM. EXHIBIT-R2(B) TRUE COPY OF THE CIRCULAR ROC THE BOARD. EXHIBIT R17 (A) A TRUE COPY OF THE SALE DEED REGISTERED AS DOCUMENT NO. 5124/1993 OF SRO, CHENGAMANADU DATED 20.12.1993 EXHIBIT R17(B) A TRUE COPY OF LAND TAX RECEIPT NO. KL07040204338/2023 ISSUED BY VILLAGE OFFICER, PARAKADAVU DATED 02.05.2023 EXHIBIT R17(C) A TRUE COPY OF PURCHASE CERTIFICATE NO. 751 ISSUED BY LAND TRIBUNAL, ALUVA DATED 01.12.1977 EXHIBIT R17(D) A TRUE COPY OF BUILDING AGE CERTIFICATE ISSUED FROM PARAKADAVU GRAMA PANCHAYAT DATED 11.08.2023 EXHIBIT R17(F) A TRUE COPY OF TAX RECEIPT NO. KL07040204339/2023 ISSUED BY VILLAGE OFFICER, PARAKADAVU DATED 02.05.2023 EXHIBIT R17(G) A TRUE COPY OF PURCHASE CERTIFICATE NO. ERNAKULAM DATED 24.07.1993 EXHIBIT R17 (E) A TRUE COPY OF SALE DEED REGISTERED AS DOCUMENT NO. 2907/2009 OF SRO, CHENGAMANADU DATED 13.11.2009 EXHIBIT.R9(A) A TRUE COPY OF THE SALE DEED NO.5453/2000 DATED 22.12.2000 EXHIBIT R16(A) TRUE COPY OF THE PURCHASE CERTIFICATE NO.2755/1975 DATED: 15/01/1974 OF LAND TRIBUNAL PARAKKADAVU EXHIBIT R16(B) TRUE COPY OF THE REGISTERED WILL NO.90/2009 DATED:19/06/2009 EXHIBIT R16(C) TRUE COPY OF THE LAND TAX RECEIPT NO.KL07040211752/2021 ISSUED BY VILLAGE OFFICER, PARAKKADAVU FOR THE PERIOD OF 2021-22 DATED:05/10/2021 EXHIBIT R16(D) TRUE COPY OF THE LAND TAX RECEIPT
NO.KL07040211247/2022 ISSUED BY VILLAGE OFFICER, PARAKKADAVU FOR THE PERIOD OF 2022-23 DATED:08/06/2022