Divine Trust represented by Fr. Janson Koottumkal and Divine Charitable Trust represented by Fr. Janson Koottumkal v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 10TH DAY OF JULY 2018 / 19TH ASHADHA, 1940** ## **WP(C).NO.11791 OF 2018** **------------------------** **PETITIONERS** **-----------** **1 DIVINE TRUST REPRESENTED BY ITS DIRECTOR, FR.JANSON KOOTTUMKAL, RESIDING AT DIVINE RETREAT CENTRE, MURINGOOR P.O., CHALAKUDY, THRISSUR DISTRICT.** ## **2 DIVINE CHARITABLE TRUST,** **REPRESENTED BY ITS DIRECTOR, FR.JANSON KOOTTUMKAL, RESIDING AT DIVINE RETREAT CENTRE, MURINGOOR P.O., CHALAKUDY, THRISSUR DISTRICT.** **BY ADVS.SRI.JULIAN XAVIER SRI.FIROZ K.ROBIN** **RESPONDENTS** ## **-----------** **1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** **2. STATE LAND BOARD, REPRESENTED BY ITS COMMISSIONER/SECRETARY, PUBLIC OFFICE BUILDING, MUSEUM ROAD, OPPOSITE ZOO, VIKHAS BHAVAN P.O., THIRUVANANTHAPURAM, KERALA - 695 033.** **3. DISTRICT COLLECTOR, COLLECTORATE, AYYANTHOLE, THRISSUR - 680 003.** **4. TAHSILDAR,** **TALUK OFFICE, MUKUNDAPURAM, THRISSUR DISTRICT - 680 125.** **5. VILLAGE OFFICER, MURINGOOR VADAKKUMMURI VILLAGE, THRISSUR DISTRICT - 680309.** **6. VILLAGE OFFICER,** **MELOOR VILLAGE, THRISSUR DISTRICT - 680 311.** **7. TALUK LAND BOARD, CHALAKUDY & DEPUTY COLLECTOR(DM), COLLECTORATE, THRISSUR DISTRICT - 680 307.REPRESENTED BY ITS CHAIRMAN.** **R1 - R7 BY SRI.K.V.SOHAN, STATE ATTORNEY SRI.C.P.PRADEEP, SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 1007-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **:2:** **WP(C).No. 11791 of 2018 (Y)** ## **---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** ## **---------------------** - **EXHIBIT P1 TRUE COPY OF THE TRUST DEED NO.P25/IV/1990 DATED 26.12.1990 OF DIVINE TRUST.** - **EXHIBIT P2 TRUE COPY OF THE TRUST DEED NO.251/IV/1999 DATED 13.12.1999 OF DIVINE CHARITABLE TRUST.** - **EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 30.06.2008 ISSUED BY THE DEPUTY TAHSILDAR, CEILING RETURN TO THE 2ND PETITIONER** - **EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 26.08.2008** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 09/09/1999 ISSUED BY THE SECRETARY, LOCAL ADMINISTRATION DEPARTMENT.** - **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 21.03.2009 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE REPORT NO.LR-6-65002/08 DATED 04.06.2009 ISSUED BY THE TAHSILDAR.** - **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 26.08.2009 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE LETTER NO.LR.6-65002/08 DATED 07.10.2009 ISSUED BY THE 3RD RESPONDENT BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE LETTER DATED 03.08.2013 ISSUED BY THE ADDITIONAL TAHSILDAR TO THE DISTRICT COLLECTOR.** - **EXHIBIT P11 TRUE COPY OF THE LETTER DATED 09.09.2013 ISSUED BY THE DISTRICT COLLECTOR TO THE 2ND RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE LETTER DATED 18.10.2013 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF THE LETTER DATED 25.11.2013 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER** - **EXHIBIT P14 TRUE COPY OF THE REPLY DATED 14.12.2013** - **EXHIBIT P14(A) TRUE COPY OF THE CERTIFICATE SUBMITTED ALONG WITH EXT.P14 ISSUED BY THE SECRETARY MELOOR GRAMA PANCHAYAT.** **:3:** **WP(C).No. 11791 of 2018 (Y) ---------------------------** **EXHIBIT P15 TRUE COPY OF THE LETTER DATED 06.06.2014 ISSUED BY THE 2ND RESPONDENT TO THE DISTRICT COLLECTOR. EXHIBIT P16 TRUE COPY OF THE LETTER DATED 24.05.2017 ISSUED BY THE 2ND RESPONDENT EXHIBIT P17 TRUE COPY OF THE NOTICE DATED 08.01.2018 ISSUED BY THE TALUK LAND BOARD. EXHIBIT P18 TRUE COPY OF THE OBJECTION DATED 14.01.2018 SUBMITTED BY THE PETITIONER BEFORE THE 7TH RESPONDENT.** **RESPONDENTS' EXHIBITS : NIL ---------------------** **//TRUE COPY//** **PA TO JUDGE** **vgd/17.07.18** ## **ALEXANDER THOMAS, J. ========================** ## **W.P.(C)No.11791 of 2018** **=========================** Dated this the 10[th] day of July, 2018 ## **JUDGMENT** It is averred that the petitioners are Trusts which are charitable institutions of public nature for religious and charitable purposes maintained by the religious denomination, viz., Mary Matha Province of Vincentian Congregation. It is stated that the 1[st] petitioner Trust is having absolute ownership and possession of 85 acres 30.5cents of land and the 2[nd] petitioner trust also holds 41 acres and 53.25 cents of land in various survey numbers. The petitioners would state that going by the provisions contained in Sec.98(A) of the Kerala Land Reforms Act, 1963 for the purpose of Chapter III of the said Act, 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 etc. and that the explanation thereto further stipulates that the pending question arises as to whether the 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 W.P.(C)No.11791 of 2018 2 by the Government and such decision shall be final. It has been held by this Court in the case in _**Mother Superior v. Taluk Land Board**_ reported in _**1989 (1) KLT 267 = 1989 KHC 66**_ that from a plain reading to the explanation to Sec.98A, it appears that the Taluk Land Board has no power to decide the issue where a question of that nature arisen in the proceedings. 2. The petitioners should aver that without notice in the provisions contained in Sec.81 and Sec.98A of the Kerala Land Reforms Act, 1963, the Deputy Tahsildar, Ceiling Return, Collectorate, Thrissur vide the letter dated 30.06.2018 has directed the then trustee of the petitioners Trusts to submit a report regarding the extend of land as per Ext.P-3. That immediately thereafter, an application as per Ext.P-4 dated 26.08.2008 was submitted by the petitioners before the 2[nd] respondent State Land Board by contending that the ceiling provisions under the Kerala Land Reforms Act is inapplicable to the petitioners and had also produced 12 documents along with Ext.P-4 to substantiate the contentions. Thereafter, nothing was heard for a long time till the petitioners were asked to produce certificate from the government as per Ext.P-13 dated 25.11.2013 issued by the 3[rd] respondent W.P.(C)No.11791 of 2018 3 District Collector, Thrissur. To that the petitioners had submitted Ext.P-14 explanation dated 14.12.2013 and also produced Ext.P14(a) certificate issued by the Secretary of the Meloor Grama Panchayath. Thereafter, as per Ext.P-17 dated 08.01.2018, the 7[th] respondent Taluk Land Board, Chalakudy had instructed the petitioners to appear before the said Taluk Land Board on 22.01.2018. The petitioners had then filed Ext.P-18 preliminary objections dated 14.01.2018. It is further stated that it is the case bundle that misplaced, the petitioners could not get the details of the documents only under the RTI Act and thereafter, the present Director of the petitioners Trust had come to know about Ext.P-4 and had found out that no final decisions has so far been taken by the competent authority on the request made by the petitioners in Ext.P-4 petition. The petitioners could then learn that the competent authority to decide on Ext.P-4 is the 1[st] respondentState Government and not the 2[nd] respondent-State Land Board. Accordingly, the petitioners should pray that a direction may be issued to the 2[nd] respondent-State Land Board to forward the files and papers connected with Ext.P-4 to the 1[st] respondent-State Government and then to direct the 1[st] respondent to take a decision W.P.(C)No.11791 of 2018 4 on Ext.P-4 within a time frame that will be fixed by this Court. In the light of these factual averments, the petitioners have filed the instant Writ Petition (Civil) on 03.04.2018 with the following prayers: - “i. To isuue a writ of mandamus or any other appropriate writ, order or direction directing the 2[nd] respondent to forward the file connected with Ext.P4 to the 1[st] respondent and further direct the 1[st] respondent to take a decision on Ext.P4 within a time frame to be fixed by this Hon'ble Court. - ii. To declare that in the light of the documents submitted along with Ext.P4 application, the petitioners are exempted from the purview of ceiling provisions by virtue of Section 81(1) (t) (ii) and (iii) of the Kerala Land Reforms Act. - i. To direct the 7[th] respondent not to proceed further with the suo motu proceedings initiated pursuant to the direction issued by the 2[nd] respondent till a decision on Ext.P4 is taken by the 1[st] respondent as per law. - ii. To award cost of these proceedings. - iii. To grant such other reliefs that may be deemed just and proper by this Hon'ble Court.” 2. Heard Sri.Julian Xavier, learned counsel appearing for the petitioners and Sri.C.P.Pradeep, learned Sr.Government ## Pleader appearing for the respondents. 3. Sec.98A of the Kerala Land Reforms Act, 1963 and its W.P.(C)No.11791 of 2018 5 ## Explanation provide as follows: “ **[98A. Interpretation.** - For the purposes of this Chapter, the term 'person' shall not include a cooperative 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.]” It has been held by this Court in _**Mother Superior v. Taluk Land Board reported in 1989 (1) KLT 267 = 1989 KHC 66**_ that from a plain reading of the Explanation appended to Sec.98A of the Kerala Land Reforms Act, 1963, the Taluk Land Board has no power to decide the issue when a question of that nature was arisen in the proceedings etc. This Court had requested the learned Sr.Government Pleader to get specific instructions as to whether Ext.P-4 is still awaiting for orders and whether the files and papers in relation to Ext.P-4 should be forwarded by the 2[nd] respondent to the competent authority among the 1[st] respondent-State Government so as to take a decision in the matter as envisaged in the Explanation appended to Sec.98A. W.P.(C)No.11791 of 2018 6 Now it is submitted by Sri.C.P.Pradeep, learned Sr.Government Pleader appearing for the respondents that Ext.P-4 is still awaiting for orders and that this Court directs, the matters in relation to Ext.P-4 should be forwarded by the authority concerned before whom Ext.P-4 is now pending, to the competent authority-the 1[st] respondent State Government etc. In the light of these aspects, it is ordered that the files and papers in relation to Ext.P-4 should be forwarded by the 2[nd] responded on the authority before whom that matter is now pending, to the competent authority 1[st] respondent-State Government and thereafter, the competent authority-respondent State Government. It is also open to the petitioners to prefer in any further application/additional representation, in respect of the matters covered by the explanation appended to Sec.98A to the competent authority of the State Government and they may do so, by filing such application/representation before the 1[st] respondent, along with the certified copy of this judgment. The competent authority 1[st] respondent-State Government will issue notice of hearing to the petitioners and will afford a reasonable opportunity of being heard to the petitioners through their authorized W.P.(C)No.11791 of 2018 7 representatives/counsel, if any, and would also permit them to adduce necessary materials and documents in support of their claim that they are entitled for the benefit conceived in the Explanation appended to Sec.98A of the Kerala Land Reforms Act and thereafter, the 1[st] respondent State Government to take a considered decision thereon after adverting to all relevant aspect of the matter. Orders in that regard may be passed by the competent authority 1[st] respondent-State Government, on the issue as to whether the petitioners Trusts are institutions of public nature for religious charitable purposes maintained by a religious determination or any section thereof, as envisaged in the Explanation to Sec.98A of the Kerala Land Reforms Act, 1963, without much delay preferably within a period of 3 months from the date of production of a certified copy of this judgment. It is made clear that if for any reason, the papers in relation to Ext.P-4 are not forwarded to the 1[st] respondent, still the 1[st] respondent should decide the issue, based on the new application/representation filed by the petitioners as aforestated. Until orders are passed by the Government as aforestated, further proceedings pursuant to Ext.P17 issued by the 7[th] respondent will W.P.(C)No.11791 of 2018 8 stand deferred. However, it is made clear that if the petitioners do not submit any representation/application as aforestated within a period of 3 weeks from the date notified for receiving a certified copy of this judgment, the benefit of the above direction will stand automatically vacated without any further orders from this Court. With these observations and directions, the above Writ Petition (Civil) will finally stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** vgd/12.07.18