Claret Bhavan Minor Seminary of the Claretians Congregation v State of Kerala and Taluk Land Board, Meenachil

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945** **WP(C) NO. 13928 OF 2022** ## **PETITIONERS:** **1 CLARET BHAVAN MINOR SEMINARY OF THE CLARETIAN CONGREGATION (A SOCIETY REGISTERED AS S.NO. K 172 OF 1976 UNDER THE TRAVANCORE COCHIN LITERARY, SCIENTIFIC AND CHARITABLE SOCIETIES ACT, 1955) REPRESENTED BY ITS SUPERIOR, CLARET BHAVAN, KURAVILANGAD, KOTTAYAM DISTRICT, PIN 686 663** - **2 THE SUPERIOR CLARET BHAVAN, KURAVILANGAD, KOTTAYAM DISTRICT, PIN 686 663** **BY ADVS. P.B.KRISHNAN SABU GEORGE ABRAHAM BABU KALLIVAYALIL MANU VYASAN PETER** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001** - **2 THE TALUK LAND BOARD MEENACHIL, REVENUE DIVISIONAL OFFICE, PALA, KOTTAYAM, PIN 686 575** ## **OTHER PRESENT:** ## **SR.GP - JUSTIN JACOB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).No.13928 of 2022 2** **CR** ## **VIJU ABRAHAM,J** **----------------------W.P.(C).No.13928 of 2022** **------------------------------------Dated this the 29[th] day of February 2024** ## **JUDGMENT** The petitioners have approached this court seeking to quash Exts.P4 and P5 whereby a notice in a proceeding under Section 85 of the Kerala Land Reforms Act 1963 (hereinafter referred to as ‘Act 1963’)was issued to the petitioner. 2. It is averred in the writ petition as follows: The 1st petitioner is a society registered under the Travancore-Cochin Literary Scientific and Charitable Societies Act, 1955. Ext.P1 is the certificate of registration whereas Ext.P2 is the Memorandum of Association. The 1st petitioner congregation owns a large extent of property. Government by Ext.P3 notification exempted an extent of 17.03.875 acres of land under Section 81(3) of the Act 1963. While so, the petitioners were served with Ext.P4 notice in a proceeding under Section 85 of the Act 1963 along ## **W.P.(C).No.13928 of 2022 3** with a draft statement intimating that the Taluk Land Board, Meenachil has provisionally assessed 39.6587 acres as excess land liable for surrender and by Ext.P5, the petitioners were issued with a notice of hearing on the basis of Ext.P4 draft statement. It is in the said circumstance that the petitioners have approached this court. 3. It is the contention of the petitioners that Chapter III of the Act 1963 deals with ceiling provisions and as per the Act, the liability to surrender excess land is cast on a “person” and that Section 98A of the Act 1963 exempts an institution of a public nature for religious and charitable purposes established and maintained by a religious denomination or any Section thereof from the definition of “person” for the application of Chapter III of the Act 1963. In the said circumstance it is contended that the issuance of Ext P4 and P5 are not in accordance with the law and liable to be interfered with. The petitioners rely on the judgment in _**Sister Anchela**_ _**v. State of Kerala, 1979 KLT 313 (DB), Fr. K.**_ ## **W.P.(C).No.13928 of 2022 4** ## _**Aaron v. Taluk Land Board, 1981 KLT 2021**_ and the judgment in WPC No. 9968 of 2010 in support of their contention. Learned counsel for the petitioners would submit that in the decisions cited supra this court has interfered in similar circumstances and quashed the proceedings initiated by the Taluk Land Board which overlooked the exemption granted as per Section 98A of the Act 1963. 4. Learned Government Pleader contended that any person who is holding land in excess of the ceiling area is bound to file a ceiling statement under Section 85(2) of the Act 1963 before the Taluk Land Board and only for the reason that an institution is excluded under Section 98A of the Act 1963, will not by itself exempt them from filing a statement and therefore Ext P4 notice directing them to participate in the enquiry for determination of the extent and identity of the land to be surrendered is in accordance with law and not liable to be interfered with. Learned Government Pleader also relies on Section 85A of ## **W.P.(C).No.13928 of 2022 5** the Act 1963 and submits that the said Section starts with a non-obstante clause and going by the said provision, every person has to file a statement before the Land Board intimating the location, extent and such other particulars as may be prescribed, of all lands (including lands exempted under Section 81) owned or held by such family or person and no one can claim exemption from the compulsory statutory obligation under the cover of Section 98A of the Act 1963 and because of the non-obstante clause, the said provision has an overriding effect over all the other provisions contained in Chapter III of the Act 1963 including Section 98A. 5. I have heard the learned counsel appearing for the petitioners and the learned government pleader. 6. The 1st petitioner claims to be a society registered under the Travancore-Cochin Literary Scientific and Charitable Societies Act for which Ext.P1 certificate of registration has been issued. By Ext.P3, the Government has issued a ## **W.P.(C).No.13928 of 2022 6** notification under Section 81(3) exempting 17.03.875 acres of land from the provisions of the Act 1963 on a specific condition that the said exemption shall cease to be in force if the said lands are not used for the said purpose or used for any other purpose. A perusal of Ext P3 would reveal that though the request made by the petitioners was to declare that the 1st petitioner institution is not bound to surrender any portion of land held by them or in the alternative to declare the 1st petitioner is exempted from the ceiling provisions of the Act 1963 in respect of the land held by the institution, the Government chose to exempt only a certain extent of land on finding that the said land has been used for educational and charitable purposes. The said exemption has been granted as per the provisions of Section 81(3) (b) of the Act 1963 and the proviso thereto, which reads as follows: “81. Exemptions - 1. The provisions of this chapter shall not apply to - —----------- —----------- - (3) The Government may if they are satisfied that it is necessary to do so in the public interest - ## **W.P.(C).No.13928 of 2022 7** (b) on account of any land being bonafide required for the purpose of conversion into plantation or for the extension or preservation of an existing plantation or for any commercial, industrial, educational or charitable purpose, by notification in the Gazette, exempt such land from the provisions of this Chapter, subject to such restrictions and conditions as they may deem fit to impose: Provided that the land referred to in clause (b) shall be used for the purpose for which it is intended within such time as the Government may specify in that behalf; and, where the land is not so used within the time specified, the exemption shall cease to be in force.” (underline supplied) Exts.P4 and P5 are issued invoking the provisions of Section 85 of the Act 1963 which deals with the surrender of excess land and mandates that any person who owns or holds land in excess of the ceiling area on the date notified under Section 83 of the Act 1963 shall surrender such excess land. Section 85(2) of the Act 1963 mandates that such person shall within the time prescribed therein file a statement before the Land Board intimating the location, extent and such other particulars as may be prescribed of all the lands (including land exempted under Section 81) owned or held by such person and indicating the land proposed to be surrendered. The definition of ‘person’ in Section 2 (43) of the Act 1963 is also relevant for consideration of the contention raised in the writ ## **W.P.(C).No.13928 of 2022 8** petition, which reads as follows: _"person"_ shall include a company, family, joint family, association or other body of individuals, whether incorporated or not, and any institution capable of holding property;” Going by the said definition, any institution capable of holding property will come under the definition of ‘person’ whereby obliging them to file a statement regarding the particulars of the land held by them including land exempted under Section 81 of the Act 1963. In the case of the petitioners, exemption has been granted under Section 81 as is seen from Ext.P3 order but going by the terms of Section 85(2) of the Act 1963, a person is liable to file a statement even in respect of land exempted under Section 81 of the Act 1963. 7. The claim of the petitioner is essentially based on Section 98A of the Act 1963. The question to be decided is whether the 1st petitioner institution is exempted from the ceiling provisions of the Act 1963 on the basis of the exemption as provided in Section 98A of the Act 1963 which reads as follows: ## **W.P.(C).No.13928 of 2022 9** **[98A. Interpretation.** - For the purposes of this Chapter, the term "person" shall not include a co-operative society or an institution of a public nature for religious and charitable purposes established and maintained by a religious denomination or any Section thereof or the Board of Trustees for the Improvement of the City of Trivandrum constituted under Section 3 of the Trivandrum City Improvement Trust Act, 1960]. - _[Explanation._ If any question arises as to whether an institution is an institution of a public nature for religious and charitable purposes maintained by a religious denomination or any Section thereof, the question shall be decided by the Government and such decision shall be final.] (underline supplied) As per Section 98A the term ‘person’ used in Chapter III dealing with ceiling provisions, shall not include an institution of a public nature for religious and charitable purposes established and maintained by a religious denomination or any section thereof. On the strength of Section 98A of the Act 1963, it is the contention of the learned counsel for the petitioner that since the 1st petitioner institution will not come under the purview of the definition of ‘person’ coming under Chapter III of the Act 1963, they are not obliged to appear before the Taluk Land Board and to file their objection and Taluk Land Board has absolutely no right to issue Exts. P4 and P5. 8. The definition clause of ‘person’ obtaining ## **W.P.(C).No.13928 of 2022 10** in Section 2(43)of the Act 1963 will also include an institution capable of holding properties and 1st petitioner is one such institution that is holding properties. By Ext.P3, a certain extent of property has been granted exemption under Section 81(3)of the Act 1963 on condition that the exemption will be lost if the land is not used for the purpose for which it is exempted or is used for any other purpose. Section 85 of the Act 1963 which deals with the surrender of excess land obliges a person who holds land in excess of the ceiling area to file a statement before the Land Board including the lands exempted under Section 81. Therefore, the petitioners are also obliged to file a statement including the land for which exemption has been granted under Section 81 of the Act 1963. To claim the benefit of Section 98A the petitioners rely on the judgment in _**Sister Anchela’**_ s case cited supra in which it is held that a society registered under the TravancoreCochin Literary Scientific and Charitable Societies Registration Act XII of 1955 is not a ## **W.P.(C).No.13928 of 2022 11** ‘person’ bound to file a ceiling return under Section 85 of the Act. In the said case, earlier a return was filed and the Taluk Land Board recorded the same holding that the declarant is a religious and charitable institution and the land owned by the institution is exempted under Section 81 (t) (ii) of the Act 1963, but later proceedings were initiated under Section 85(9) of the Act for setting aside the said order and it is in the said circumstance that the court held that since the land owned by the institutions were exempted earlier by the Taluk Land Board under Section 81 (t) (ii) of the Act 1963, the proceedings now initiated under Section 85(9) will be hit by Section 98A of the Act. _**Fr. K. Aaron’**_ s case cited supra also was a case initiated under Section 85(9) which empowers the Taluk Land Board to set aside at any time its order under Sub-section 5 or Sub-section 7 and to proceed afresh on certain grounds enumerated under Section 85(9) of the Act 1963 and in that case also the petitioner therein was earlier exempted from the provisions of the **W.P.(C).No.13928 of 2022 12** Act and taking note of the said aspect that the court interfered in the proceedings initiated against the petitioner therein. Similar is the case dealt with in WPC No. 9968 of 2010 wherein as per Ext P1(a) proceedings therein, the Taluk Land Board had dropped further action on the ceiling return filed on behalf of the petitioner institution by taking note of Section 98A of the Act 1963 and held that the petitioner would not fall within the definition of a ‘person’ for the purposes of Chapter III of the Act. I am of the view that said decisions cannot apply in the facts and circumstances of the present case in as much as the proceedings now initiated as per Ext.P4 is one under Section 85(5) (c) of the Act 1963 whereas in the cases relied on by the petitioners, those were proceedings initiated under Section 85(9) of the Act in spite of having earlier found that the institutions in those writ petitions were exempted by the Taluk Land Board giving the benefit of Section 98A of the Act. 9. The further question to be considered is as ## **W.P.(C).No.13928 of 2022 13** to whether the petitioner is bound to respond to Exts.P4 and P5 and submit their objections. The only document relied on by the petitioner is Ext.P3 whereby the Government has granted exemption for a certain extent of property held by the 1st petitioner under Section 81(3) of the Act 1963 with a rider that the said land shall be used only for the purpose for which exemption is granted and in case of violation of the same, the exemption will automatically cease. As stated earlier, Section 85 (2) of the Act 1963 makes it obligatory for any person who is holding excess land to file a statement to the Land Board even in respect of land exempted under Section 81 of the Act 1963. The only contention raised by the petitioner is that since the 1st petitioner is an institution coming under the purview of Section 98A of the Act 1963 they are not coming under the term ‘person’ for the purpose of Chapter III dealing with ceiling provision in the light of exemption granted as per Ext P3 order. I am afraid the said contention cannot be accepted. Section **W.P.(C).No.13928 of 2022 14** 2(43) of the Act 1963 will even take in institutions like the petitioner within the meaning of ‘person’. Section 85A of the Act 1963 starts with a non-obstante clause that notwithstanding anything contained in Chapter III, any person is liable to file a statement of the lands including lands exempted under Section 81 of the Act 1963. In view of the above, I am of the view that the petitioners cannot get exemption from their responsibility to file their objection to Ext.P4 and from appearance before the Taluk Land Board as requested in Ext.P5 notice. It is also pertinent to note that Section 98A of the Act 1963 came into the statute book by an amendment carried out with effect from 01.01.1970. But Section 85A was brought into the statute book subsequently by an amendment carried out with effect from 02.11.1972 incorporating a non- obstante clause whereby obliging every person stated therein to file a statement in respect of the land held by him/them including the land exempted under Section 81 of the Act 1963. It is ## **W.P.(C).No.13928 of 2022 15** also relevant to note that what has been granted as per Ext P3 is an exemption under Section 81 of the Act 1963 in respect of certain properties in ownership of the 1st petitioner taking into consideration the fact that the same has been used for an educational and charitable purpose but with a rider that exemption will cease if the land is not used for the purpose for which exemption is granted. A perusal of Section 81 (2) (b) of the Act 1963 reveals that such exemption is granted for commercial, educational, industrial or charitable purposes and the proviso mandates that the exemption will cease if the land is not used for the purpose it is intended for. Section 81 (3) deals with exemption granted to the land since it is used for educational and charitable purposes whereas Section 98A deals with exemption to an institution of a public nature for religious and charitable purposes established and maintained by a religious denomination or any section thereof from the purview of Chapter III. Therefore, Ext P3 by itself will not make the petitioners ## **W.P.(C).No.13928 of 2022 16** entitled for the benefit of Section 98A of the Act 1963 for which there should be a specific order from the Government as provided in the explanation to Section 98A which was brought in by an amendment to the Act with effect from 07.07.1979. The explanation further provides that the question as to whether an institution is of a public nature for religious and charitable purposes maintained by a religious denomination or any section thereof can be decided only by the Government and the decision of the Government shall be final. Therefore, only for the reason that certain portion of the land was exempted under Section 81 of the Act 1963 on finding that the said land has been used for religious or charitable purposes will not by itself grant the 1[st] petitioner the benefit of Section 98A of the Act 1963. In view of the above, this court is of the opinion that the petitioners have to approach the Taluk Land Board pursuant to Exts.P4 and P5 and file their objections including their claim for exemption under Section 98A of the Act 1963. If ## **W.P.(C).No.13928 of 2022 17** the petitioner raises a claim based on Section 98A of the Act 1963, then the 2[nd] respondent Taluk Land Board is obliged to refer the matter to the 1st respondent for adjudication as to the entitlement for exemption under Section 98A of the Act 1963 and only on such adjudication being made by the Government, that proceedings pursuant to Exts. P4 and P5 shall be finalized. With the above-said direction, the above writ petition is disposed of. sd/- **VIJU ABRAHAM, JUDGE** pm **W.P.(C).No.13928 of 2022 18** ## **APPENDIX OF WP(C) 13928/2022** ## **PETITIONERS' EXHIBITS** **Exhibit P1** **TRUE COPY OF THE CERTIFICATE OF REGISTRATION BEARING S NO K 172 OF 1976 DATED 28-08-1976 ISSUED BY THE REGISTRAR OF SOCIETIES** **Exhibit P2** **TRUE COPY OF THE MEMORANDUM OF ASSOCIATION DATED 20-08-1976 OF THE CLARETIAN CONGREGATION** **Exhibit P3 TRUE COPY OF THE NOTIFICATION NO 01428/N4/78/RD DATED 18-11-1978 ISSUED BY THE GOVERNMENT OF KERALA** **Exhibit P4** **TRUE COPY OF THE NOTICE IN CEILING CASE NO 12/20 DATED 22-02-2022 ISSUED BY THE TALUK LAND BOARD, MEENACHIL.** **Exhibit P5** **TRUE COPY OF THE NOTICE BEARING NO L4/1547/2019 DATED 02-04-2022 ISSUED BY THE CHAIRMAN, TALUK LAND BOARD**