Balakrishnan T.N. v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 ``` ``` WP(C) NO. 37071 OF 2022 ``` ## **`PETITIONER:`** ``` BALAKRISHNAN T.N., AGED 49 YEARS S/O LATE NARAYANAN, BUSINESS, RESIDING AT THONAKKAR THAKIDIYEL HOUSE, VELLAD P.O., TALIPARAMBA, KANNUR - 670571. ``` ``` BY ADVS.MAHESH V RAMAKRISHNAN PRAVEEN K.S. ``` ## **`RESPONDENTS:`** |**`1`**|**`STATE OF KERALA,`**| |---|---| ||**`REP. BY ITS CHIEF SECRETARY TO GOVERNMENT,`**| ||**`SECRETARIAT, THIRUVANANTHAPURAM - 695 001.`**| |**`2`**|**`SECRETARY TO GOVERNMENT,`**| ||**`REVENUE (DEVASWOM) DEPT, GOVT. OF KERALA,`**| ||**`SECRETARIAT, THIRUVANANTHAPURAM - 695 001.`**| |**`3`**|**`DIRECTOR, DEPARTMENT OF TOURISM,`**| ||**`GOVERNMENT OF KERALA, PARKVIEW, THIRUVANANTHAPURAM -`**| ||**`695 033.`**| |**`4`**|**`THE DISTRICT COLLECTOR,`**| ||**`COLLECTORATE, KANNUR - 670 002.`**| |**`5`**|**`DISTRICT TOURISM PROMOTION COUNCIL (DTPC) KANNUR,`**| ||**`REPRESENTED BY ITS SECRETARY, CALTEX JUNCTION, KANNUR`**| ||**`- 670002.`**| |**`6`**|**`MALABAR DEVAWOM BOARD,`**| ||**`REP. BY ITS SECRETARY, HOUSEFED COMPLEX, P.O.`**| ||**`ERAHNIPALAM, KOZHIKODE - 673 006.`**| 2 W.P.(C)No.37071 of 2022 - **`7 THE COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, P.O. ERAHNIPALAM, KOZHIKODE - 673 006.`** - **`8 NADUVIL VELLAD DEVASWOM, REPRESENTED BY ITS EXECUTIVE OFFICER, VELLAD P.O., TALIPARAMBA, KANNUR - 670571.`** - **`*ADDL.R9 THE DISTRICT SURVEY SUPERINTENDENT, OFFICE OF THE DISTRICT SURVEY SUPERINTENDENT, COLLECTORATE ROAD, THAVAKKARA, KANNUR-670 002 IS SUO MOTU IMPLEADED AS PER ORDER DATED 29.05.2024 IN WP(C)`** ``` R1 TO R4 AND R9 BY SRI. S. RAJMOHAN, SR.G.P. ``` ``` R5 BY ADV.SMT.MEENA.E.K R6 TO R4 BY SMT. RANJANIE, SC, TDB R8 BY ADV.SRI.MOHAN C.MENON ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.37071 of 2022 ## **JUDGMENT** Anil K. Narendran, J. The petitioner, who is a devotee of Sree Naduvil Vellad Devaswom, which is a controlled institution under the Malabar Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P9 notice dated 08.11.2022 issued by the Secretary of the 5[th] respondent District Tourism Promotion Council (DTPC), Kannur, inviting quotations for running tourism centres at various places including ‘Palakkayamthattu Tourism Centre’ in Kannur District, to the extent to which the same is concerning the properties covered by Ext.P2 Adangal Extract of Palakkayamthattu, the land of Sree Naduvil Vellad Devaswom. The petitioner has also sought for a writ of mandamus commanding respondents 1 to 4 to prevent the 5[th] respondent DTPC and their officials, workers and agents from encroaching upon the properties of Sree Naduvil Vellad Devaswom covered by Ext.P2 and from changing the lie and nature of the property, to stop all tourism/construction activities in the said property forthwith, and from making any permanent constructions thereon, by invoking the powers under Section 94A of the Madras Hindu Religious and Charitable Endowments Act, 1951 4 W.P.(C)No.37071 of 2022 and by implementing the directions in Ext.P1 circular dated 07.10.2014 issued by the Assistant Commissioner, Malabar Devaswom Board, Kasaragod Division, Ext.P3 judgment dated 22.12.2015 in W.P.(C)No.39071 of 2015, Ext.P4 judgment dated 18.08.2016 in W.A.No.906 of 2016, etc. The further relief sought for is a writ of mandamus commanding the 4[th] respondent District Collector and the officials subordinate to him to immediately visit the property covered by Ext.P2 Adangal Extract and to file a detailed report before this Court regarding the lie and nature of the property, to report regarding the exact property in respect of which Ext.P9 notice dated 08.11.2022 is issued, along with the documents based on which such property is being dealt with by the 5[th] respondent DTPC. 2. On 18.11.2022, when this writ petition came up for admission, this Court admitted the matter on file. The learned Senior Government Pleader took notice for respondents 1 to 5 and the learned Standing Counsel for Malabar Devaswom Board for respondents 6 and 7. This Court issued urgent notice by speed post to the 8[th] respondent, returnable within two weeks. By the order dated 18.11.2022, this Court granted an interim stay of all further proceedings pursuant to Ext.P9 notification, insofar as it relates to “Palakkayamthattu” Tourism Centre. The 5 W.P.(C)No.37071 of 2022 said interim order, which was extended from time to time, was extended for a period of three months by the order dated 26.05.2023. 3. The 8[th] respondent has filed a counter affidavit dated 01.07.2023, supporting the reliefs sought for in this writ petition, producing therewith Ext.R8(a) photographs. 4. The 5[th] respondent DTPC has filed a counter affidavit dated 24.07.2023, opposing the reliefs sought for in this writ petition, producing therewith Exts.R5(a) to R5(c) documents. In the said counter affidavit, it is stated that “Palakkayamthattu” is a tourism centre, which comes under the area of operation of DTPC, Kannur. The document marked as Ext.R5(a) is the mahazar statement of the surplus land comprised in Resurvey No.292/1A of Naduvil Village of Taliparamba Taluk, taken possession from Sri.Kalloor Narayanan Nambiar. A perusal of Ext.R5(a) would show that out of the total extent of 22345.35 Acres of land, the land having an extent of 15 Acres within the boundary shown in that mahazar was taken possession from Sri.Kalloor Narayanan Nambiar. Paragraphs 5 to 8 of that counter affidavit read thus; “5. The averments contained in paragraphs 1, 2 and 3 of the above writ petition are not fully correct and 6 W.P.(C)No.37071 of 2022 hence hereby denied. It is submitted that the Palakkayamthattu is a tourism centre, which comes under the area of operation of the District Tourism Promotion Council (DTPC), Kannur. The Mahazar statement of the surplus land shows that the land consisting Resurvey No.292/1A of Naduvil Village of Taliparamba Taluk is taken from Sri.Kalloor Narayanan Nambiar. A true copy of the mahazar statement of the surplus land consisting Resurvey No.292/1A of Naduvil Village of Taliparamba Taluk taken from Sri.Kalloor Narayanan Nambiar is produced herewith and marked as Exhibit R5(a). It is further submitted that the area mentioned in the Mahazar Report and Adangal (BTR) Register is the same. Hence there is no doubt on the ownership of the land. 6. The averments contained in paragraphs 4, 5, 6 & 7 of the above writ petition are not fully correct and hence hereby denied. It is submitted that in W.P.(C)No.39071 of 2015, the Single Bench of this Hon’ble Court had directed to evict the encroachments in Naduvil Vellad Devaswom and the Division Bench directed the petitioner therein to move the appropriate civil court and as per the direction they had filed O.S.No.36 of 2018 before the Sub Court, Payyannur. Further, the main subject matter of the suit is the division of surplus land and Devaswom land. Now the court ordered to take steps for measuring the land. Palakkayamthattu Tourism Centre is one of the prestigious project of State Government 7 W.P.(C)No.37071 of 2022 and as per GO(Rt)No.642/2015/TSM dated 23.12.2015 the Government had granted permission for various constructions for the development of the project. A true copy of the Government order bearing GO(Rt)No.642/2015/TSM dated 23.12.2015 is produced herewith and marked as Exhibit R5(b). 7. The averments contained in paragraphs 8 and 9 of the above writ petition are not fully correct. The petitioner in the above writ petition had filed CMP No.716 of 2016 before the Court of Enquiry Commissioner and Special Judge, Thalassery for enquiring the corruption in the construction of Palakkayamthattu Tourism Triangle and he has not raised any matters in this petition at that time. 8. The averments contained in paragraphs 10, 11 and 12 of the above writ petition are not fully correct and hence hereby denied. It is submitted that the District Tourism Promotion Council (DTPC) Kannur with registration S.No.551 of 1988 is registered under the Societies Registration Act (XXI of 1860) to undertake activities for the promotion of domestic, national and international tourism in and from the District. The date of registration was on 07.12.1988. A true copy of the Memorandum of Association of DTPC is produced herewith and marked as Exhibit R5(c). 35 solar lights which is spread over the entire area which will light up the area. There has been large number of people visiting Palakkayamthattu from the date when it opened for the public. The District Tourism Promotion 8 W.P.(C)No.37071 of 2022 Council has leased out the Palakkayamthattu Tourism Triangle an amount of Rs.3,05,000/- was received as monthly lease rent and as an income to the DTPC. The agreement period for the lease of the project has been completed on 05.11.2022 and the proceedings have started to grant fresh lease.” 5. The 4[th] respondent District Collector, Kannur has also filed a counter affidavit dated 12.03.2024, wherein it is stated that the total extent of 30.60 Acres of surplus land, i.e., 15.60 Acres in Resurvey No.210/1 and 15 Acres, in Resurvey No.292/1A of Naduvil Village, Taliparamba Taluk was taken possession from Sri.Pothera Kallur Veettil Narayanan Nambiar. Paragraphs 2 to 7 of that counter affidavit read thus; “2. It is submitted that, as per Proceedings No.TLB/1378/ 73/TBA dated 07.07.1976 of Taluk Land Board, Thaliparamba total extent of 30.60 acres of surplus land (i.e., 15.60 acres in R.S.No.210/1 and 15 acres in R.S.No.292/1A) of Naduvil Village, Thaliparamba Taluk was taken possession from Sri.Pothera Kallur Veettil Narayanan Nambiar. Out of this, an extent of 15.60 acres of land comprised in R.S.No.210/1 was already assigned to several persons as per the provisions of Kerala Land Reforms Act of 1963. As the remaining 15 acres of surplus land in R.S.No.292/1A is not suitable for assignment to individuals, steps are being taken to reserve the same for public purpose. As per the Mahazar statement dated 9 W.P.(C)No.37071 of 2022 21.08.1976 which was prepared for taking possession of 15 acres of land in R.S.No.292/1A, the eastern boundary is Kizhakkekara Agasthi, southern boundary is M. Kesavan Nambiar, western boundary is Thekkel Mathai and northern boundary is Kappalumaakkal Chako. The Palakkayam Thattu Tourism Project operated under DTPC, Kannur is currently located on the above said land. 3. In such circumstances, the various averments in W.P.(C)No.37071 of 2022 filed by Sri.Balakrishnan T.N. are not fully correct and hence denied by this respondent except those which are specifically admitted hereunder. 4. It is submitted that the Palakkayam Thattu Tourism Project working under DTPC, Kannur is currently situated on the surplus land which was taken from Sri.Pothera Kallur Veettil Narayanan Nambiar in R.S.No.292/1A of Naduvil Amsom and Desom, Taliparamba Taluk. 5. As per proceedings No.TLB/1378/73/TBA dated 07.07.1976 of Taluk Land Board, Thaliparamba, a total extent of 30.60 acres of surplus land (i.e., 15.60 acres in R.S.No.210/1 and 15 acres in R.S.No.292/1A) of Naduvil Amsom and Desom, Taliparamba Taluk was taken possession from Sri.Pothera Kallur Veettil Narayanan Nambiar. 6. It is submitted that as per Proceedings No.DTPC/3153/ 2016 dated 20.07.2016, the District Collector, Kannur gave permission for issuing building number to Secretary, D.T.P.C., Kannur for constructing facilitation centre including cafeteria and toilet. Moreover, as per the letter No.B8/2016/20776/13 dated 30.11.2016, the District Collector, Kannur gave permission for temporary electricity connection also for tourism project. 10 W.P.(C)No.37071 of 2022 7. The claims and averments in the Writ Petition are not true and are liable to be dismissed. The intention of the petitioner is to hinder the tourism activities of DTPC and to benefits the private resort owners of Kannur and Wayanad Districts. The Palakkayam Thattu is a beautiful tourism destination of Kannur District, which attracts several tourists who like nature and adventure activities and it was being operated by DTPC on behalf of the Government. The petitioner has filed the above Writ Petition with the intention to stop the tourism activities of Palakkaym Thattu in order to facilitate the near by tourist resorts of Kannur and Wayanad Districts operated by private agencies. Due to the stay in the operations of the destination, the present condition of the Palakkaym Thattu is very pathetic, and it lacks even the basic facilities like drinking water, toilets, lights and other services expected and needed by the visitors to the destination. As there is an urgent requirement to provide the above facilities to the public, it is highly essential to vacate the stay order passed by this Hon’ble Court on 18.11.2022 in the above matter.” 6. From the pleadings and materials on record and the submissions made at the Bar, we notice that O.S.No.36 of 2018 filed by the 8[th] respondent Naduvil Vellad Devaswom, represented by its Executive Officer, against the 5[th] respondent District Tourism Promotion Council and others seeking declaration of title of plaint schedule property having an extent of 7.5 Acres in Resurvey No.292/1A, which forms part of Ext.P2 Adangal Extract, is now pending consideration before the Sub 11 W.P.(C)No.37071 of 2022 Court, Payyannur. In that suit, there is a prayer for recovery of possession of the plaint schedule property. A large extent of land, which is comprised in Resurvey No.292/1A of Naduvil Village in Taliparamba Taluk, is shown as Devaswom land in Ext.P2 Adangal Extract. 7. 'Deva' means God and 'swom' means ownership in Sanskrit and the term 'Devaswom' denotes the property of God in common parlance. See: **Prayar Gopalakrishnan and another v. State of Kerala and others [2018 (1) KHC 536]** . 8. In **A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]** a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fence eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be 12 W.P.(C)No.37071 of 2022 vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. 9. In **Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]** a Division Bench of this Court noticed that in **A.A. Gopalakrishnan [(2007) 7 SCC 482]** the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of _parens patriae_ will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of properties of the Temple itself, the truth of the same can be gone into by the High Court in these proceedings. 10. In **Nandakumar v. District Collector and others** 13 W.P.(C)No.37071 of 2022 **[2018 (2) KHC 58]** a Division Bench of this Court noticed that the legal position has been made clear by the Apex Court as to the role to be played by the High Court in exercising the ‘ _parens patriae_ ’ jurisdiction in **Gopalakrishnan v. Cochin Devaswom** **Board [(2007) 7 SCC 482]** . The said decision was referred to and relied on by a Division Bench of this Court in **Travancore** **Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]** . In the said circumstances, the properties of the Devaswom, if at all encroached by anybody and if any assignment/conveyance has been effected without the involvement of the Devaswom, securing ‘pattayam’ or such other deeds, the same cannot confer any right upon the parties concerned, unless the title so derived is clear in all respects. There cannot be any dispute that the remedy to retrieve such property belonging to the Devaswom is by resorting to the course stipulated in the Kerala Land Conservancy Act, 1957. 11. 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 14 W.P.(C)No.37071 of 2022 the property in Sy.No.1042/2 has been successfully retrieved by the Devaswom, based on the intervention made by this Court and also by the Apex Court in **A.A. Gopalakrishnan [(2007) 7 SCC 482]** . Proceedings have to be taken to a logical conclusion in respect of the land in Sy.No. 1043 as well. This is more so since in view of the ‘ _parens patriae_ ’ jurisdiction being entrusted with the Court in this regard, there is a duty cast upon the Court to take every step to ensure that the property of the deity is protected. 12. 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 subsection (1) of Section 3 of the Kerala Land Reforms Act, 1963, nothing in Chapter II (i.e., provisions regarding tenancies) shall apply to leases or tenancies of land referred to in clauses (i) to (xii) of the said sub-section. As per clause (x) of sub-section (1) of Section 3, nothing in Chapter II shall apply to tenancies in respect of sites, tanks and premises of any temple, mosque or church (including sites belonging to a temple, mosque or church on which religious ceremonies are conducted) and sites of office buildings and other buildings attached to such temple, mosque 15 W.P.(C)No.37071 of 2022 or church, created by the owner, trustee or manager of such temple, mosque or church. In view of the provisions under subsection (1) of Section 74, after the commencement of the Act, no tenancy shall be created in respect of any land. As per subsection (2) of Section 74, any tenancy created in contravention - of the provisions of sub section (1) shall be invalid. In view of the provisions under sub-section (1) of Section 57, as soon as may be after the receipt of the application under Section 54, the Land Tribunal shall give notice to the landowner, the intermediaries and all other persons interested in the holding, to prefer claims or objections with regard to the application. As per sub-section (2) of Section 57, the land Tribunal shall, after considering the claims and objections received and hearing any - person appearing in pursuance of the notice issued under sub section (1) and after making due enquiries, pass orders - (i) on the application, if any, pending before it from the landowner or intermediary for resumption in accordance with the provisions of Section 22; and (ii) on the application for purchase under Section 54. In view of the provisions under sub-section (1) of Section 72, on a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by 16 W.P.(C)No.37071 of 2022 cultivating tenants (including holders of kudiyiruppus and holders of karaimas) entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon on the said date. In view of the provisions under sub-section (1) of Section 72B, the cultivating tenant of any holding or part of a holding, the right, title and interest in respect of which have vested in the Government under Section 72, shall be entitled to assignment of such right, title and interest. As per clause (a) to the proviso to sub-section (1) of Section 72B, no cultivating tenant shall be entitled to assignment of the right, title and interest in respect of any holding or part of a holding under this section if he, or if he is a member of a family, such family, owns an extent of land not less than the ceiling area. As per clause (b) to the proviso to sub-section (1) of Section 72B, where the cultivating tenant or, if he is a member of a family, such family, does not own any land or owns an extent of land which is less than the ceiling area, he shall be entitled to the assignment of the right, title and interest in respect of only such extent of land as will, together with the 17 W.P.(C)No.37071 of 2022 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 subsection (1) of Section 72BB, any landowner or intermediary whose right, title and interest in respect of any holding have vested in the Government may apply to the Land Tribunal for the assignment of such right, title and interest to the cultivating tenant and for the payment of the compensation due to him under Section 72A. As per Section 72C, notwithstanding anything contained in sub-section (3) of Section 72B or Section 72BB, the Land Tribunal may, subject to such rules as may be made by the Government in this behalf, at any time after the vesting of the right, title and interest of the landowners and intermediaries in the Government under Section 72, assign such right, title and interest to the cultivating tenants entitled thereto, and the cultivating tenants shall be bound to accept such assignment. In view of the provisions under Section 72F, the Land Tribunal has to issue notices and determine the compensation and purchase price. As per sub-section (1) of Section 72F, as soon as may be after the right, title and interest of the landowner and the intermediaries, if any, in respect of a holding or part of a holding have vested in the Government under Section 72, or, where an application under Section 72B or 18 W.P.(C)No.37071 of 2022 Section 72BB has been received by the Land Tribunal, as soon as may be after the receipt of such application, the Land Tribunal shall publish or cause to be published a public notice in the prescribed form in such manner as may be prescribed, calling upon the landowner, the intermediaries, if any and cultivating tenant; and all other persons interested in the land, the right, title and interest in respect of which have vested in the Government, to prefer claims and objections, if any, within such time as may be specified in the notice and to appear before it on the date specified in the notice with all relevant records to prove their respective claims or in support of their objections. As per the mandate of sub-section (5) of Section 72F, the land Tribunal shall, after considering the claims and objections received in - - pursuance of the notice issued under sub section (1) or sub section (2) and the advice received from the village committee or village committees before the date specified therefor and hearing any person appearing in pursuance of the notice issued under sub-section (1) or sub-section (2) and after making due enquiries, pass an order specifying the matters enumerated in clauses (a) to (i) of sub-section (5). As per sub-section (1) of Section 72K, as soon as may be after the determination of the purchase price under Section 72F or the passing of an order 19 W.P.(C)No.37071 of 2022 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. 13. In **Jayaprakashan K. [2023 (3) KHC SN 14]** the Division Bench, on an analysis of the aforesaid provisions under the Kerala Land Reforms Act, found that the said Act is a complete code by itself as far as the right of cultivating tenant to fixity of tenure in respect of his holding, the right of the cultivating tenant to get assignment of the right, title and interest in respect of his holdings, the determination by the Land Tribunal the compensation and purchase price and the issuance of purchase certificate to the cultivating tenant. The provisions under the said Act deal with the application for the purchase of the landlord's right by the cultivating tenant and the procedure for consideration of the application by the Land Tribunal, with notice to the landowner, the intermediaries, if any, the cultivating tenant and all persons interested in the land, calling upon them to prefer claims and objections, if any, and after 20 W.P.(C)No.37071 of 2022 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 21 W.P.(C)No.37071 of 2022 exemptions. The tenancy is not one created in contravention of the provisions of sub-section (1) of Section 74 of the Act, i.e., it is not a tenancy created after the commencement of the Act. It is well settled that, when the statute requires to do certain thing in a certain way, the thing must be done in that way or not at all. Other methods or modes of performance are impliedly and necessarily forbidden. The said proposition of law is based on a legal maxim _'expressio unius est exclusio alterius'_ meaning thereby that, if the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner, and following other course is not permissible. The said proposition of law about limitation of the exercise of statutory power has first been identified by Jassel M.R. in the case of **Taylor v. Taylor [(1876) 1 Ch.D. 426]** , wherein it was laid down that, where a power is given to do a certain thing in a certain way, that thing must be done in that way, or not at all, and that other methods of performance are necessarily forbidden. The Privy Council applied the said principle in the case of **Nazir Ahmed v. King Emperor [AIR 1936 PC 253]** . In ## **Breen v. Amalgamated Engineering Union (1971 (1) All ER** **1148)** Lord Denning, M.R. observed that the giving of reasons is one of the fundamentals of good administration. In **Alexander** 22 W.P.(C)No.37071 of 2022 **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 decisiontaker to the controversy in question and the decision or conclusion arrived at. By the order dated 15.12.2021 in W.P.(C)No.8851 of 2020, this Court restrained all Land Tribunals in the State from proceedings with any Original Application filed before the appointed date or S.M.Proceedings for purchase certificate in respect of Devaswom lands of Temples under the control/ management of Malabar Devaswom Board, Travancore Devaswom Board and also the Cochin Devaswom Board, without the respective Devaswom Board, represented by its Secretary, in the party array. In the said order, it was made clear that a copy of the Original Application or the report and other materials based on which S.M.Proceedings are initiated shall be enclosed along with the notice issued to the concerned Devaswom Board, through the concerned Village Officer. The Land Tribunals were directed to afford a reasonable opportunity to the concerned Devaswom Board to raise its contentions, both legal and factual. It was made clear that the decision taken by the Land Tribunals shall be one reflecting the legal and factual contentions raised by both sides. 23 W.P.(C)No.37071 of 2022 ## 14. In **Jayaprakashan K. [2023 (3) KHC SN 14]** , in continuation of the order dated 15.12.2021 in W.P.(C)No.8851 of 2020, it was ordered that, in the orders passed by the Land Tribunals in the State in Original Applications/S.M.Proceedings for purchase certificate, the Land Tribunal has to record its findings that the applicant is a cultivating tenant, as defined under clause (8) of Section 2 of the Act, who is entitled to fixity of tenure under Section 13 of the Act, in respect of his holding; that the tenancy is not in respect of land falling under clauses (i) to (xii) of Section 3 of the Act, which deals with exemptions; and that the tenancy is not one created in contravention of the provisions of sub-section (1) of Section 74 of the Act, i.e., it is not a tenancy created after the commencement of the Act. In respect of temples which are controlled institutions under Malabar Devaswom Board, the Land Tribunals shall take note of the provisions under Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951, as per which any exchange, sale or mortgage and any lease of any immovable property belonging to, or given or endowed for the purpose of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. 24 W.P.(C)No.37071 of 2022 15. Having considered the submissions made at the Bar and taking note of the law laid down in the decisions referred to supra, we deem it appropriate to dispose of this writ petition, without expressing anything on the rival contentions raised by the 5[th] respondent DTPC and the 8[th] respondent Naduvil Vellad Devaswom, by directing the additional 9[th] respondent District Survey Superintendent to see that the survey of the Devaswom land of Naduvil Vellad Devaswom with reference to old survey records is undertaken with notice to the petitioner, the 8[th] respondent Devaswom, the 5[th] respondent DTPC and other affected parties. For that purpose, the Executive Officer of the 8[th] respondent Devaswom shall submit a proper application before the additional 9[th] respondent District Survey Superintendent, furnishing the description of the Devaswom land to be surveyed and other necessary particulars. In case the application made by the Executive Officer of the 8[th] respondent Devaswom is proper and the statutory requirements are complied with, the additional 9[th] respondent shall do the needful for the survey of the Devaswom land and the entire exercise in this regard shall be finalised, as expeditiously as possible, at any rate, within an outer limit of six months. It is made clear that this Court has not expressed anything 25 W.P.(C)No.37071 of 2022 touching the merits of the matter pending before the Sub Court, Payyannur in O.S.No.36 of 2018. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **HARISANKAR V. MENON, JUDGE** AV/30/5 26 W.P.(C)No.37071 of 2022 ## **`APPENDIX OF WP(C) 37071/2022`** ## **`PETITIONER EXHIBITS`** - **`Exhibit P1 TRUE COPY OF THE CIRCULAR DATED 07-10-2014 ISSUED BY THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, KASARAGOD DIVISION.`** - **`Exhibit P2 TRUE COPY OF THE ADANGAL EXTRACT OF RESURVEY NO.292/1A OF NEW NADUVIL VILLAGE ISSUED BY THE VILLAGE OFFICER, NEW NADUVIL VILLAGE.`** - **`Exhibit P3 TRUE COPY OF THE JUDGEMENT DATED 22-12-2015 IN W.P.(C) NO. 39071 OF 2015.`** - **`Exhibit P4 TRUE COPY OF THE JUDGEMENT DATED 18-08-2016 IN WA NO. 906 OF 2016.`** - **`Exhibit P5 TRUE TRUE COPY OF THE COPY OF THE JUDGEMENT DATED 02-03-2018 IN CON.CASE(CIVIL) NO. 1742/2017 IN WA NO.906/2016.`** - **`Exhibit P6 TRUE COPY OF THE PLAINT DATED 18-09-2018 IN O.S. NO. 36 OF 2018 FILED BY THE 8TH RESPONDENT BEFORE THE SUB COURT, PAYYANUR`** - **`Exhibit P7 TRUE COPY OF THE COMPLAINT DATED NIL FILED BY THE PETITIONER BEFORE THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THALASSERY AS CMP 716 OF 2016.`** - **`Exhibit P8 TRUE COPY OF THE ORDER DATED 26-05-2017 IN CMP NO. 716/2016 OF THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THALASSERY.`** - **`Exhibit P9 TRUE COPY OF THE NOTIFICATION AS DTPC/3419/3153C/305 DATED 08-11-2022 ISSUED BY THE 5TH RESPONDENT.`** - **`RESPONDENT EXHIBITS`** - **`EXHIBIT R8(A) TRUE COPY OF THE PHOTOGRAPHS`** ``` EXHIBIT R5 (A) A TRUE COPY OF THE MAHAZAR STATEMENT OF THE SURPLUS LANDCONSISTING RESURVEY NO. 292/1A OF NADUVIL VILLAGE OF TALIPARAMBA TALUK TAKEN ``` 27 W.P.(C)No.37071 of 2022 ``` FROM DR.KALLOOR NARAYAN NAMBIAR ALONG WITH TYPED COPY OF 2ND PAGE OF R5 (A) ``` ``` EXHIBIT R5(B) A TRUE COPY OF THE GOVERNMENT ORDER BEARING NO. GO (RT) NO 642/2015/TSM DATED 23/12/2015 ``` ``` EXHIBIT R5 (C) A TRUE COPY OF THE MEMORANDUM OF ASSOCIATION OF DTPC REGISTERED ON 7/12/1988 ```