Cochin Devaswom Board v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 3RD DAY OF JULY 2017/12TH ASHADHA, 1939** **WP(C).No. 29252 of 2016 (F) ----------------------------** **PETITIONER** **-------------** **COCHIN DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, THRISSUR.** **BY ADVS.SRI.KRISHNA MENON, SC, COCHIN DEVASWOM B SRI.K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, THIRUVANANTHAPURAM.** **2. THE DISTRICT COLLECTOR THRISSUR.** **3. THE REVENUE DIVISIONAL OFFICER THRISSUR.** **4. DEPARTMENT OF SURVEY & LAND RECORDS OFFICE OF THE SUPERINTENDENT, RE-SURVEY DEPARTMENT, THRISSUR-680 003.** **5. PAULOSE C.T. CHIRAYATH MANJIYIL HOUSE, MUKKATTUKARA, NETTISSERY P.O., PIN-680 651.** **6. SHAJI S/O. THOMAS, CHIRAYATH MANJIYIL HOUSE, MUKKATTUKARA, NETTISSERY P.O., PIN-680 651.** **7. SHOMI @ FRANCIS S/O. DEVASSY, CHIRAYATH MANJIYIL HOUSE, MUKKATTUKARA, NETTISSERY P.O., PIN-680 651.** **8. SANTHOSH S/O. OUSEPH, CHIRAYATH MANJIYIL HOUSE, MUKKATTUKARA, NETTISSERY P.O., PIN-680 651.** ## **W.P.(C)NO.29252 OF 2016 --2--** **9. JOY** - **S/O. OUSEPH, CHIRAYATH MANJIYIL HOUSE, MUKKATTUKARA, NETTISSERY P.O., PIN-680 651.** **10. KURIAKKU JOSE CHIRAYATH MANJIYIL HOUSE, MUKKATTUKARA, NETTISSERY P.O., PIN-680 651.** **11. JOSHI S/O. THOMAKKUTTY, CHIRAYATH MANJIYIL HOUSE, MUKKATTUKARA, NETTISSERY P.O., PIN-680 651.** **12. THOMAS S/O. KOCHAPPU, CHIRAYATH MANJIYIL HOUSE, MUKKATTUKARA, NETTISSERY P.O., PIN-680 651.** **13. GEORGE S/O. LONAPPAN, CHIRAYATH MANJIYIL HOUSE, MUKKATTUKARA, NETTISSERY P.O., PIN-680 651.** **14. SOPHIA W/O. JOSE, CHIRAYATH MANJIYIL HOUSE, MUKKATTUKARA, NETTISSERY P.O., PIN-680 651.** **15. JOSE S/O. ANTONY, CHIRAYATH MANJIYIL HOUSE, MUKKATTUKARA, NETTISSERY P.O., PIN-680 651.** **16. MARY ANTONY W/O. ANTONY, CHIRAYATH MANJIYIL HOUSE, MUKKATTUKARA, NETTISSERY P.O., PIN-680 651.** **17. JIPHSY W/O. BIJU MANJALI KUNJUVAREETH, MANJALI HOUSE, NETTISSERY P.O., PIN-680 651.** **18. C.A.BABY W/O. KANJIRATHINKAL STEPHAN, KANJIRATHINKAL HOUSE, NETTISSERY P.O., PIN-680 651.** **19. BEENA W/O. KOLLANNUR THOMAS, KOLLANNUR HOUSE, NETTISSERY P.O., PIN-680 651.** - **ADDL. R20 IMPLEADED.** - ***ADDL.R20 SRI.RAVI.P.A.,** - **PULICKAL HOUSE, NETTISSERY P.O.** - ***ADDL. R20 IS IMPLEADED AS PER ORDER DATED 5.10.2016 IN I.A. NO.15518/2016** **W.P.(C)No.29252/2016** **---3--** **R5-R7,R9-R20 BY ADV. SRI.M.P.PRAKASH R BY GOVERNMENT PLEADER (Sr ) SRI.T.K.ANANTHAKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-072017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 29252 of 2016 (F)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 COPY OF THE RELEVANT PAGES OF THE FIR.** - **EXHIBIT P2 COPY OF THE NOTICE DATED 7.6.2016 AS MADE AVAILABLE TO THE DEVASWOM OFFICER BY THE PRESIDENT OF THE TEMPLE ADVISORY COMMITTEE.** - **EXHIBIT P3 COPY OF THE LETTER ADDRESSED TO THE 2ND RESPONDENT.** - **EXHIBIT P4 COPY OF THE LETTER ADDRESSED TO THE 3RD RESPONDENT.** - **EXHIBIT P5 COPY OF THE OBJECTION DATED 25.8.2016 ADDRESSED TO THE 4TH RESPONDENT.** - **EXHIBIT P6 COPY OF THE JUDGMENT DATED 4.2.2010 IN DBP NO.76/2009.** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **TRUE COPY** **P.A TO JUDGE** ## **SMM** ## **P.R. RAMACHANDRA MENON & SHIRCY V.,JJ. ------------------------------------------------------** ## **W.P.(C) No.29252 of 2016** ## **-----------------------------------------------------Dated this the 3[rd] day of July, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Cochin Devaswom Board is challenging the correctness and sustainability of Ext.P2 notice dated 7.6.2016 issued by the 4[th] respondent in so far as the petitioner Devaswom Board has been required to appear for an enquiry scheduled to be held on 22.6.2016, also producing the relevant documents if the ownership of the property mentioned therein was with the Devaswom; so as to proceed with further steps for assigning sub divisions to the property mentioned therein. 2. Heard the learned Standing Counsel appearing for the petitioner as well as the learned Counsel appearing for the party respondents 5 to 7 and 9 to 20, besides the learned Government Pleader. 3. The petitioner Devaswom is concerned with the W.P.(C) No.29252 of 2016 2 large extent of properties owned by the Dharma Sastha Temple, Nettissery Thrissur. The dispute is in relation to the properties having an extent of 1.88 acres in Sy No.247, 2.07 acres in Sy.No.246 and 1.80 acres in Sy.No.248, all in the Nettissery Village. It is stated that the above properties are included in the Survey and Settlement Register of Nettissery Village in Trichur District; copies of the relevant pages of which have been produced as Ext.P1,P1(2) and P1(3). It is also stated that the aforesaid properties are being made use of by the Devaswom for conducting 'pooram' in the Temple every year, which is known as “Araattukulam Pooram” one of the celebrated poorams in Central Kerala. 4. The learned Counsel for the petitioner submits that part of the above property came to be possessed and enjoyed by some others including the party respondents, upon which appropriate proceedings were initiated under the Land Conservancy Act for recovery of the properties. W.P.(C) No.29252 of 2016 3 By virtue of the mandate under Section 62A and 62B of the Travancore Cochin Hindu Religious Institutions Act, 1950, (“the TCHRI Act”), it is open for the Devaswom to pursue such remedy, more so, under the provisions of Land Conservancy Act which are specifically made as applicable to the properties belonging to Devaswom. It was without any regard to the same, that Ext.P2 notice was issued by the 4[th] respondent on 7.6.2016 informing the petitioner that some other persons, who claimed possession of the properties had approached the 4[th] respondent for effecting sub division of the said properties, for conferring better enjoyment upon them, leading to the notice asking the petitioner to produce all the relevant records if any, in the hearing scheduled to be held on 22.6.2016. This made the petitioner to approach this Court by challenging the said proceedings, simultaneously seeking for a declaration that the properties covered by old Sy.Nos.246, 247, 248 and 249 W.P.(C) No.29252 of 2016 4 of Nettissery Village cannot be demarcated in favour of the respondents 5 to 9. The party respondents have filed a counter affidavit mainly contending that Devaswom has no right over the property; that the party respondents or their predecessors in interest were tenants in respect of the property for the past several decades and further that existence of such tenancy right stands virtually conceded by the Devaswom as borne by Ext.R5(a) plaint in O.S.No.59/1975 filed by the Devaswom before the Munsiff's Court against some other tenants for realisation of the 'Jenmikaram' under the Kanam Tenancy Act, 1955. 5. The learned Counsel for the party respondents points out that, by virtue of the mandate under Section 3 (1) of the Kanam Tenancy Act, the 'jenmi' has no absolute right over the property, who can only get the 'kanam' fixed in respect of the property in question. Ever since the said enactment, the party respondents/their predecessors -in-interest were enjoying the properties; which right W.P.(C) No.29252 of 2016 5 turned to be absolute, by virtue of The Kanam Tenancy Abolition Act, 1976. 6. According to the learned Counsel for the petitioner, the property of the Devaswom actually belongs to the 'Deity' who is a perpetual minor and hence the property of the Devaswom cannot be alienated in any manner. For the very same reason, no purchase certificate can ever been issued by the 4[th] respondent and as such, the application preferred for effecting sub division of the property is only to be rejected. The learned Standing counsel further points out that undue reliance cannot be placed on Ext.R5(a) plaint by the Devaswom, which is only for realisation of the balance amount of Rs.1464/- as 'Jenmikaram'. In any view of the matter, that is not a document to be relied on to assert or to infer that the persons named in Exhibit.P2 are having any right over the property under the TCHRI Act even much prior to the commencement of the Kerala Land Reforms Act. W.P.(C) No.29252 of 2016 6 7. During the course of hearing, reliance is sought to be placed on Section 3(1)(x) of the Land Reforms Act. Section 3 deals with the exemptions and under Section 3 (1)(x), land belonging to the Temple or Church etc stands exempted. At the same time, the proviso thereunder clearly reveals that the said provision is not applicable in respect of the tenancy obtained prior to commencement of the Land Reforms Act. There cannot be any dispute to the fact that the Land Reforms Act got the assent of the President and it was brought into existence on 31.12.1963, whereas the party respondents/their predecessors in interest, according to the learned Counsel for the party respondents, had obtained the tenancy right by virtue of the very enactment of the Kanam Tenancy Act, 1955 which was brought into force on 1.3.1956. 8. Making a reference to the contents of Ext.R5(t) purchase certificate, the learned Counsel for the petitioner points out that the property has been clearly shown there W.P.(C) No.29252 of 2016 7 in as belonging to the Devaswom. Reliance is also sought to be placed on the verdict passed by the Division Bench of this Court in _**Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132],**_ where the scope of Section 3 (1)(x) of the Land Reforms Act has been discussed in detail. 9. Paragraph 50 of the verdict rendered by this Court in 2013 (3) KLT 132 reads as follows: “ 50. Another crucial aspect that was lost sight of by the Land Tribunal is that the property belonged to the Devaswom. Therefore, the Land Tribunal had to examine whether the land will come under the exempted category under S.3(1)(x) of the Act for which no information was sought for. This aspect was never verified also. The Tribunal will get jurisdiction only after satisfying about the conditions under S.3(1)(x) of the Act. The proviso to the said section relied upon by the learned counsel for the fourth respondent does not also save the situation as what is intended in the proviso is that “nothing in this clause shall affect the rights to which a tenant was entitled immediately before the commencement of this Act under the contract of tenancy or under any law then in force”. Herein, there was no contract of tenancy in W.P.(C) No.29252 of 2016 8 favour of the predecessor-in-interest of the fourth respondent and it was elementary for the Land Tribunal to consider whether it is having jurisdiction in the matter, which was also not verified. The Land Tribunal also did not consider whether the report of the Special Village Officer is correct or not and whether it can be accepted, as he is not authorised by the Government by way of a notification. Therefore, the entire procedure adopted by the Land Tribunal is illegal and the order passed is a nullity in the light of the decision of the Full Bench in Muhammed Haji's case (1993 (1) KLT 227 (FB)” There cannot be any dispute with regard to the observations made by the learned Judges in the above paragraph extracted above. 10. The question involved herein is something different, as to whether it could be said that the property stands excluded by virtue of the mandate under Section 3 (1)(x) of the Land Reforms Act, if it is established that the tenancy had already been obtained prior to commencement of the said Act. This is a factual aspect which is to be proved with reference to the proper W.P.(C) No.29252 of 2016 9 pleadings and evidence to be let in. The learned counsel for the party respondents submits that the tenancy was created in favour of the party respondents or their predecessors in interest right from the commencement of Kanam Tenancy Act. The learned counsel for the petitioner submits with reference to Ext.R5(d) that, even as per the document produced by them of the year 1964, the source is not mentioned (but for a vague reference as to the oral lease) as to the commencement of the lease. It is true that there is a case for the Cochin Devaswom Board that the provisions of the Kanam Tenancy Act are not applicable to the property of the Devaswom which however is sought to be rebutted by the learned counsel for the party respondents by placing reliance on the verdict passed by a Full Bench of this Court in _**Kochunni Kartha & Others v. State & Others [1961 KLT 84 (F.B)**_ ], whereby it is held by the Full Bench that the property of the Devaswom will also come within the W.P.(C) No.29252 of 2016 10 purview of the said Act to the extent as it dealt with by the statute. The position was made clear by a constitution bench of the Apex Court as well, as per the decision reported in _**Cochin Devaswom Board, Trichur v. Vamana Setti and others [AIR 1966 SC 1980]**_ and a subsequent verdict passed by the Supreme Court in _**Cochin Devaswm Board v. Capt.E.M.George [1995 (2) SCC 387]**_ . This Court is of the view that the said question need not be dealt with for the time being, as the main challenge raised is against Ext.P2 notice issued by the 4[th] respondent. Only after finalising the above proceedings, that further steps may have to be pursued with regard to the sub division and assignment of the land by the competent authority. As it stands so, it is not at all necessary for this Court to go into 'prayer No.2', as well, for the time being. 11. The only question to be considered is whether Ext.P2 notice issued by the 4[th] respondent requires to be W.P.(C) No.29252 of 2016 11 intercepted by this Court. There is no challenge as to the authority of the 4[th] respondent under the Land Conservancy Act/Rules, but for the nature of challenge raised by the petitioner with reference to the rights of the Devaswom over the property. Even going by Exhibit.P2, what has been required by the 4[th] respondent is only to produce the relevant title deeds by the Devaswom to effect proper survey and measurements of the properties and to identify them. It is quite possible for Devaswom to produce the relevant records. Same is the position with regard to the party respondents as well. Equally important is to note that the exercise with regard to the survey and measurement can be pursued on the basis of the documents available with the departmental authorities as well. 12. In the above circumstance, this Court finds that the challenge raised by the petitioner against Ext.P2 does not hold any water. The Original Petition is devoid of W.P.(C) No.29252 of 2016 12 merits and is dismissed accordingly; without prejudice to the rights of both the sides to substantiate the facts and figures before the 4[th] respondent as to their rival claims. **P.R. RAMACHANDRA MENON JUDGE** **SHIRCY.V JUDGE** smm