Gowri and others v. State of Kerala and Malabar Devaswom Board and Sree Thricherumanna alias Kottiyoor Devaswom

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` THURSDAY, THE 11[TH] DAY OF APRIL 2024 / 22ND CHAITHRA, 1946 ``` ``` W.P.(C)NO.10884 OF 2024 ``` ## **`PETITIONERS:`** - **`1 GOWRI, AGED 82 YEARS, W/O. LATE CHELLAPPAN, *[KOLLAT HOUSE], KOTTIYOOR AMSOM, IRITTY TALUK, KANNUR DISTRICT, PIN - 670651`** - **`2 KOLLAT SAROJINI, AGED 68 YEARS, S/O. LATE CHELLAPPAN, *[KOLLAT HOUSE], KOTTIYOOR AMSOM, IRITTY TALUK, KANNUR DISTRICT, PIN - 670651`** - **`3 KOLLAT CHANDRAN, AGED 64 YEARS, S/O. LATE CHELLAPPAN, *[KOLLAT HOUSE], KOTTIYOOR AMSOM, IRITTY TALUK, KANNUR DISTRICT, PIN - 670651`** - **`4 KOLLAT UTHAMAN, AGED 57 YEARS, S/O. LATE CHELLAPPAN, *[KOLLAT HOUSE], KOTTIYOOR AMSOM, IRITTY TALUK, KANNUR DISTRICT, PIN - 670651`** - **`5 KOLLAT RAGHUNATHAN, AGED 55 YEARS, S/O. LATE CHELLAPPAN, *[KOLLAT HOUSE], KOTTIYOOR AMSOM, IRITTY TALUK, KANNUR DISTRICT, PIN - 670651`** - **`6 USHA, AGED 64 YEARS, W/O. LATE RAVEENDRAN, *[KOLLAT HOUSE], KOTTIYOOR AMSOM, IRITTY TALUK, KANNUR DISTRICT, PIN - 670651`** - **`7 JITHESH, AGED 38 YEARS, S/O. LATE RAVEENDRAN, *[KOLLAT HOUSE], KOTTIYOOR AMSOM, IRITTY TALUK, KANNUR DISTRICT, PIN - 670651`** - **`8 JISH KUMAR, AGED 34 YEARS, S/O. LATE RAVEENDRAN, *[KOLLAT HOUSE], KOTTIYOOR AMSOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670 651`** W.P.(C)No.10884 of 2024 : 2 : ``` *(THE WORD 'KOLLAT HOUSE' INSERTED AS PER ORDER DATED 19.03.2024 IN IA 1/2024 IN WP(C)) ``` ``` BY ADVS. ``` ``` SURESH KUMAR KODOTH K.P.ANTONY BINU SUKARNAN ``` ## **`RESPONDENTS:`** ``` 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, *[REVENUE (DEVASWOM) DEPARTMENT], SECRETARIAT, TRIVANDRUM, PIN - 695 001 ``` ``` *(THE DESCRIPTION OF THE 1ST RESPONDENT CORRECTED AS 'REVENUE (DEVASWOM) DEPARTMENT', INSTEAD OF ``` ``` ‘DEPARTMENT OF REVENUE & AMP; DEVASWOM’ ``` ``` AS PER ORDER DATED 19.03.2024 IN IA 1/2024 IN WP(C)). ``` ``` 2 DISTRICT COLLECTOR, COLLECTORATE, KANNUR, PIN - 670002 ``` - **`3 MALABAR DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY ERANHIPALAM P.O, KOZHIKODE - 673006`** - **`4 SREE THRICHERUMANNA ALIAS KOTTIYOOR DEVASWOM, REPRESENTED BY ITS CHAIRMAN, BOARD OF TRUSTEES, KOTTIYOOR POST, KANNUR DISTRICT, PIN - 670651`** ``` BY ADVS. SRI.S.RAJMOHAN – SR.GP SMT.R.RANJANIE - SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C)No.10884 of 2024 : 3 : ## **JUDGMENT** ## **Anil K. Narendran, J** The petitioners have filed this writ petition, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 3, namely the State of Kerala, represented by the Secretary to Government, Revenue (Devaswom) Department, and the Malabar Devaswom Board, represented by its Secretary, to consider Ext.P4 application dated 01.03.2016 and accord sanction for purchasing 67.5 cents of land in Re.Sy.Nos.1191/5 and 1191/6 of Kottiyoor Village, originally belonged to their predecessor Chellappan by virtue of Purchase Certificate Nos.625/73 and 598/73 issued by the Land Tribunal, Manathana, as a parking ground for the 4[th] respondent Sree Thricherumanna @ Kottiyoor Devaswom. 2. On 03.04.2024, when this writ petition came up for admission, the learned Senior Government Pleader sought time to get instructions as to whether Ext.P4 application dated 01.03.2016 made by Kottiyoor Devaswom before the Commissioner, Malabar Devaswom Board, is pending consideration before the 1[st] respondent. 3. Heard the learned counsel for the petitioners, the learned Senior Government Pleader for respondents 1 and 2 and the learned W.P.(C)No.10884 of 2024 : 4 : Standing Counsel for Malabar Devaswom Board for the 3[rd] respondent. 4. The learned Senior Government Pleader, on written instruction from the Additional Secretary, Revenue (Devaswom) Department, would submit that challenging the order, whereby Ext.P4 application stands rejected, the Chairman of the 4[th] respondent Devaswom has submitted a revision, vide file No.DEVB1/142/2023-REV, which is pending consideration before the 1[st] respondent. 5. The learned Standing Counsel for Malabar Devaswom Board, on instructions, would submit that the Commissioner, Malabar Devaswom Board, has already filed a report dated 21.07.2017 in Ext.P4, wherein it is pointed out that the purchase certificates Nos.625/73 and 598/73 issued by the Land Tribunal, - - Manathana were illegally obtained by the predecessor in interest of the petitioners, and eviction proceedings have already been initiated. It is at that juncture that the petitioners, with the connivance of the Executive Officer of Kottiyoor Devaswom, made a proposal for acquisition of their property as a parking ground for the Devaswom. 6. Though the learned counsel for the petitioners addressed arguments on the aforesaid submissions made by the learned W.P.(C)No.10884 of 2024 : 5 : Standing Counsel for Malabar Devaswom Board, we do not propose to consider those aspects in these proceedings. 7. 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 sub-section (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 subsection. 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. In view of the provisions under sub-section (1) of Section 57, as W.P.(C)No.10884 of 2024 : 6 : 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 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 W.P.(C)No.10884 of 2024 : 7 : 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 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 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 W.P.(C)No.10884 of 2024 : 8 : 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 subsection (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 W.P.(C)No.10884 of 2024 : 9 : 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 subsection (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. W.P.(C)No.10884 of 2024 : 10 : In such circumstances, this writ petition is disposed of by directing the 1[st] respondent to take an appropriate decision on the matter now pending before the Government, vide file No.DEVB1/142/2023-REV, and take an appropriate decision thereon, strictly in accordance with law, taking note of the law laid down in the decision referred to supra, after affording both sides a reasonable opportunity of being heard, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. Sd/- Sd/- **HARISANKAR V. MENON, JUDGE** anm W.P.(C)No.10884 of 2024 : 11 : ## **`APPENDIX OF WP(C) 10884/2024`** ``` PETITIONERS' EXHIBITS Exhibit P1 TRUE COPY OF THE REGISTERED WILL DATED 25- 10-2021 EXECUTED BY CHELLAPPAN Exhibit P2 TRUE COPY OF THE CONSENT LETTER DATED 24- 04-2014 Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 18-12-2003 IN WP (C) 36972/03 Exhibit P4 TRUE COPY OF THE APPLICATION NO.TKD/MIS/28/2016 DATED 01-03-2016 SUBMITTED BY THE 4 TH RESPONDENT Exhibit P5 TRUE COPY OF THE PROCEEDINGS BEARING REF.NO. DCKNR/9207/2018H3 DATED 26-05-2023 OF THE 2 ND RESPONDENT/DISTRICT COLLECTOR ```