Lalan T. v. State of Kerala and Travancore Devaswom Board and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024/24TH MAGHA, 1945 ``` ``` WP(C) NO.3822 OF 2022 ``` ``` PETITIONER: ``` ``` LALAN T., AGED 46 YEARS S/O. THANKAPPAN, NIKARTHIL, THURAVUR P.O., CHERTHALA, ALAPPUZHA-688532. ``` ``` BY ADVS. R. KRISHNA RAJ E.S. SONI KUMARI SANGEETHA S. NAIR RESMI A. R.PRATHEESH ``` ## **`RESPONDENTS:`** ``` *1STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. ``` ``` DESCRIPTION OF THE 1[ST] RESPONDENT IS SUO MOTU CORRECTED AS “STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM-695 001” BY THE ORDER DATED 13.02.2024 IN WPC ``` ``` 2THE TRAVANCORE DEVASWOM BOARD, DEVASWOM HEADQUARTERS, NANTHANCODE, THIRUVANANTHAPURAM-695 003, REPRESENTED BY ITS SECRETARY. ``` ``` *3THE THAHISLDAR (LAND CONSERVANCY), TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM-695 003. ``` ``` DESCRIPTION OF THE 3[RD] RESPONDENT IS SUO MOTU CORRECTED AS “THE SPECIAL TAHSILDAR (LAND ``` 2 W.P.(C)No.3822 of 2022 ``` CONSERVANCY), TRAVANCORE DEASWOM BOARD, NANTHANCOE, THIRUVANANTHAPURAM-695 003” BY THE ORDER DATED 13.02.2024 IN WPC ``` - **`4 THE DISTRICT COLLECTOR, COLLECTORATE, BESIDE ZILLA PANCHAYATH OFFICE, CIVIL STATION WARD, ALAPPUZHA, KERALA-688 001.`** - **`5 DEPUTY COLLECTOR (LAND TRIBUNAL), COLLECTORATE, BESIDE ZILLA PANCHAYATH OFFICE, CIVIL STATION WARD, ALAPPUZHA, KERALA-688 001.`** - **`6 K.K. UMAYAMMA, W/O. SUKUMARAN, THARAYIL HOUSE (SATHGAMAYA), THURAVUR-688 532.`** - **`7 THE SECRETARY, LOCAL COMMITTEE, COMMUNIST PARTY OF INDIA, KUTHIATHODU, ALAPPUZHA-688 532.`** - **`*ADDL R8 THE SECRETARY KUTHIATHOD GRAMA PACHAYATH, ALAPPUZHA -688 533.`** ``` (ADDL 8TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 16.08.2023 IN IA 2/2023 IN WP(C)No.3822/2022) ``` ``` BY ADVS. ``` ``` SRI S.RAJMOHAN – SR. GOVERNMENT PLEADER ; ``` ``` SRI G.SANTHOSH KUMAR - STANDING COUNSEL - TRAVANCORE DEVASWOM BOARD SRI G.SANTHOSH KUMAR (P). SRI B.MOHANLAL ``` ``` SRI K.J.MOHAMMED ANZAR ``` ``` SMT R.KRISHNA RAJ SMT P.S.PREETHA SRI MANSOOR ALI SRI R.RAJPRADEEP ``` ``` SRI BRIJESH MOHAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.3822 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is a devotee of Thuravur Sree Narasimha Moorthi Temple, Kuthiyathodu, which is a temple under the management of the 2[nd] respondent Travancore Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 5 to evict the encroachments in the Devaswom land having an extent of 10 cents in Survey No.338/13C of Kuthiyathodu Village and maintain the same as the Devaswom land. 2. In the writ petition, the grievance of the petitioner is that the property having an extent of 10 cents in Survey No.338/13C of Kuthiyathodu Village, belonging to Thuravur Devaswom has been encroached upon by the 6[th] respondent, who has been issued with Ext.P8 purchase certificate by the Land Tribunal (Deputy Collector), Kollam. The 6[th] respondent, in the year 2014 executed Ext.P7 gift deed in favour of CPI Local Committee, Kuthiyathodu, in respect of 55 sq.meters of land, out of 8 cents covered by Ext.P8 purchase certificate. The document marked as Ext.P1 is a copy of the settlement register of Kuthiyathodu Village in which the land in question in Survey 4 W.P.(C)No.3822 of 2022 No.338/13C of Kuthiyathodu Village is shown as the land of Thuravur Devaswom. The document marked as Ext.P2 is a copy of the order of a Division Bench of this Court dated 03.04.2001 in CMP No.5073 of 1999, on a complaint made by the Thuravur Maha Kshethra Bhakthajana Samithy, whereby the Travancore Devaswom Board was directed to initiate appropriate legal proceedings to challenge the purchase certificate issued by the Land Tribunal and for getting recovery of possession of the property. Without initiating appropriate proceedings in terms of the observations contained in Ext.P2 order of this Court, the Devaswom Commissioner, Travancore Devaswom Board, vide Ext.P3 communication dated 25.03.2003 requested the 4[th] respondent District Collector, Alappuzha to initiate proceedings against the encroachers, under the provisions of the Kerala Land Conservancy Act, 1957. The President of Thuravur Maha Kshethra Bhakthajana Samithi submitted a representation dated 31.12.2012 before the Deputy Collector (Land Reforms), Alappuzha to take necessary steps to evict the 6[th] respondent from the Devaswom land in Survey No.338/13C of Kuthiyathodu Village. The document marked as Ext.P5 is a copy of reply dated 09.12.2021 received by one Arun S., based on his application dated 08.12.2021 under the provisions of the Right to 5 W.P.(C)No.3822 of 2022 Information Act, 2005, wherein it is stated that Transfer of Registry in respect of 3.24 Ares of land in Survey No.338/13C of Kuthiyathodu Village was effected in the name of the 6[th] respondent on 14.03.1997 vide PV.192/96-97 with thandaper No.8912. From that thandaper account, Transfer of Registry in respect of 55 sq.meters of land was effected in the name of CPI Local Committee, Kuthiyathodu represented by its Secretary, on 03.02.2021 vide TPV.115/21(380/21), with thandaper No.19895. The document marked as Ext.P7 is a copy of the gift deed No.1507/1/14 of Sub Registrar Office, Kuthiyathodu dated 25.06.2014 executed by the 6[th] respondent in favour of CPI Local Committee, Kuthiyathodu represented by its Secretary. The document marked as Ext.P8 is a copy of purchase certificate No.45/1997 dated 01.03.1997 issued by the Land Tribunal (Deputy Collector), Kollam in SM Proceedings No.88/96 in respect of 8 cents of land in Survey No.338/13C of Kuthiyathodu Village. In this writ petition, the petitioner would rely on the directions issued by the Apex Court in the order dated 05.07.2018 in W.P.(C)No.649 of 2018 - **Mrinalini Padhi v. Union of India [(2018) 7 SCC 789: 2018 SCC OnLine SC 667]** . 3. On 04.02.2022, when this writ petition came up for admission, this Court admitted the matter on file. The learned 6 W.P.(C)No.3822 of 2022 Senior Government Pleader took notice for respondents 1, 4 and 5 and the learned Standing Counsel for the Travancore Devaswom Board for respondents 2 and 3. Urgent notice by speed post was ordered to respondents 6 and 7, returnable within three weeks. The learned Senior Government Pleader and also the learned Standing Counsel for the Travancore Devaswom Board were directed to get instructions and file statements. 4. Along with a memo dated 15.07.2022 of the learned Senior Government Pleader, various documents in respect of the disputed property, including copy of thandaper account, pokkuvaravu register and Transfer of Registry report are placed on record. On 06.12.2022, the petitioner filed I.A.No.1 of 2022 to amend the writ petition, seeking a writ of certiorari to quash Ext.P7 gift deed dated 25.06.2014 executed by the 6[th] respondent in favour of the CPI Local Committee, Kuthiyathodu represented by its Secretary, i.e., the 7[th] respondent herein, and Ext.P8 purchase certificate No.45/1997 dated 01.03.1997 issued by the Land Tribunal (Deputy Collector), Kollam in SM Proceedings No.88/96 in respect of 8 cents of land in Survey No.338/13C of Kuthiyathodu Village. That application was allowed on 22.02.2023 and the petitioner filed the amended writ petition on 17.03.2023. 7 W.P.(C)No.3822 of 2022 5. On 10.02.2023 when this writ petition came up for consideration, on a query made by this Court, the learned Standing Counsel for Travancore Devaswom Board submitted that after Ext.P4 order of this Court dated 03.04.2001 in CMP No.5073 of 1999 the Board did not take any steps to challenge Ext.P8 purchase certificate issued by the Land Tribunal and for recovery of possession of that property. After the filing of this writ petition the Land Special Officer, Travancore Devaswom Board approached the Land Tribunal for obtaining a certified copy of Ext.P8 purchase certificate. In the order dated 10.02.2023, this Court noticed that the inaction on the part of the Travancore Devaswom Board in initiating steps to protect the property of Thuravur Sree Narasimha Moorthi Temple cannot be viewed lightly. 6. On 21.02.2023, the 2[nd] respondent Travancore Devaswom Board filed a counter affidavit dated 20.02.2023, producing therewith Exts.R2(a) to R2(d) documents. In the order dated 22.03.2023, this Court noticed that, in paragraph 4 of the counter affidavit filed by the 2[nd] respondent Board it is stated that contrary to the provisions under the Kerala Land Reforms Act, Ext.P8 purchase certificate has been granted to the 6[th] respondent without proper notice to the Board. The notice in SM 8 W.P.(C)No.3822 of 2022 Proceedings No.88/96 was issued to the Administrative Officer of Thuravur Temple. There was no notice to the Secretary of the Board, as envisaged under Section 72F of the Kerala Land Reforms Act. 7. The 6[th] respondent has filed a counter affidavit dated 13.09.2023, opposing the reliefs sought for in this writ petition, producing therewith Exts.R6(a) to R6(g) documents. The 7[th] respondent has filed a counter affidavit dated 30.03.2023, opposing the reliefs sought for in this writ petition, producing therewith Ext.R7(a) document. 8. By the order dated 16.08.2023 in I.A.No.2 of 2023, the Secretary, Kuthiyathodu Grama Panchayat was impleaded as the additional 8[th] respondent. By that order, this Court directed the learned counsel for the Grama Panchayat to make available for the perusal of this Court the entire files relating to the building permit granted to the 7[th] respondent for constructing a building in the disputed land. 9. On 24.08.2023, when this matter came up for consideration, the learned counsel for the Grama Panchayat has made available for the perusal of this Court the files relating to the building permit granted to the 7[th] respondent. By the order dated 24.08.2023, the learned Senior Government Pleader was 9 W.P.(C)No.3822 of 2022 directed to make available for the perusal of this Court the files relating to Ext.P8 purchase certificate. The files relating to the building permit granted to the 7[th] respondent were returned to the learned counsel for the Grama Panchayat. 10. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1, 4 and 5, the learned Standing Counsel for Travancore Devaswom Board for respondents 2 and 3, the learned counsel for the 6[th] respondent, the learned counsel for the 7[th] respondent and the learned counsel for the additional 8[th] respondent Grama Panchayat. 11. '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]** . 12. In **M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65]** , in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court explained the nature of the fiduciary position of the trustee and his duties and obligations. It is the duty of the trustees of the property to be faithful to the Trust and execute any document with reasonable diligence in the manner of an ordinary prudent man of business would conduct 10 W.P.(C)No.3822 of 2022 his own affairs. A trustee could not, therefore, occasion any loss to the Trust and it is his duty to sell the property if at all that was necessary, to the best advantage. Paragraph 4 of that decision reads thus; “4. There is some controversy on the question whether defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs.21,500, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed Ext.B13 dated July 14, 1960. The fact, however, remains that Defendant 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the trust and it was his duty to sell the property, if at all that was necessary, to best advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act 11 W.P.(C)No.3822 of 2022 and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee's partner or son, for that would, in fact and substance, indirectly benefit the trustee. Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner. The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law although it had a direct bearing on the controversy before it.” (underline supplied) 13. 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 12 W.P.(C)No.3822 of 2022 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 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. 14. 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 13 W.P.(C)No.3822 of 2022 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. 15. In **Nandakumar v. District Collector and others** **[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 14 W.P.(C)No.3822 of 2022 remedy to retrieve such property belonging to the Devaswom is by resorting to the course stipulated in the Kerala Land Conservancy Act, 1957. 16. 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 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. 17. In **Mrinalini Padhi v. Union of India [(2018) 7** **SCC 789 : 2018 SCC OnLine SC 667]** - order dated 05.07.2018 in W.P.(C)No.649 of 2018 - the Apex Court noticed that the issue of difficulties faced by the visitors, exploitative 15 W.P.(C)No.3822 of 2022 practices, deficiencies in the management, maintenance of hygiene, proper utilisation of offerings and protection of assets may require consideration with regard to all shrines throughout India, irrespective of religion practised in such shrines. It cannot be disputed that this aspect is covered by List III Item 28 of the Seventh Schedule to the Constitution of India and there is a need to look into this aspect by the Central Government, apart from State Governments. Section 92 of the Code of Civil Procedure, 1908 permits a court also to issue directions for making a scheme or making an arrangement for any charitable or religious institution. Accordingly, the Apex Court directed that, if any devotee moves the jurisdictional District Judge throughout India with any grievance on the above aspect, the District Judge may either himself/herself or assign the issue/matter to any other court under his/her jurisdiction, examine above aspects and if necessary, send a report to the High Court. The High Court will consider these aspects in public interest, in accordance with law, and issue such judicial directions as become necessary, having regard to the individual fact situation. Paragraphs 10, 11 and 20 of the order dated 05.07.2018 in W.P.(C)No.649 of 2018 [2018 SCC OnLine SC 667] read thus; 16 W.P.(C)No.3822 of 2022 “10. The issue of difficulties faced by the visitors, exploitative practices, deficiencies in the management, maintenance of hygiene, proper utilization of offerings and protection of assets may require consideration with regard to all shrines throughout India, irrespective of religion practised in such shrines. It cannot be disputed that this aspect is covered by List III Item 28 of the Seventh Schedule to the Constitution of India, and there is need to look into this aspect by the Central Government, apart from State Governments. 11. Section 92 of the Code of Civil Procedure permits a Court also to issue directions for making a scheme or making an arrangement for any charitable or religious institution. Accordingly, we direct that if any devotee moves the jurisdictional District Judge throughout India with any grievance on the above aspect, the District Judge may either himself/herself or by assigning the issue/matter to any other Court under his/her jurisdiction examine the above aspects and if necessary, send a report to the High Court. We have no doubt that the High Court will consider these aspects in public interest, in accordance with law, and issue such judicial directions as become necessary, having regard to the individual fact situation. xxx xxx xxx xxx 20. We may sum up our directions in today's orders, in addition to the orders dated 08.06.2018, as follows; 17 W.P.(C)No.3822 of 2022 i) Report of the District Judge dated 26.6.2018 is accepted in principle and action to be taken by the temple administration. ii) District Judge, Puri may send further report, if any by 31.8.2018, preferably by e-mail. iii) The State Government may submit report of the Committee constituted by it on or before 31.8.2018. iv) The Central Government may constitute its Committee, as already directed, within two weeks from today and place its interim report on record of this Court on or before 31.8.2018. v) Copy of the Report of the District Judge may be placed on the websites of the temple management, Ministry of Culture and website of the Supreme Court for two weeks. vi) The directions in the order dated 8.6.2018 may be complied with by all concerned and noncompliance thereof may be reported to this Court for appropriate action if necessary. vii) The temple management may consider, subject to regulatory measures, with regard to dress code, giving of an appropriate declaration or compliance with other directions, permitting every visitor irrespective of his faith, to offer respects and to make offerings to the deity. viii) We have noted that Hinduism does not eliminate any other belief and is eternal faith and wisdom and inspiration of centuries, as noted in earlier judgments of this Court. ix) Difficulties faced by the visitors, deficiencies in management, maintenance of hygiene, appropriate utilisation of offerings and protections of assets with regard to shrines, 18 W.P.(C)No.3822 of 2022 irrespective of religion is a matter for consideration not only for the State Government, Central Government but also for Courts. Every District Judge throughout India may examine such matters himself or through any court under his jurisdiction and send a report to the High Court concerned so that such report can be treated as PIL on the judicial side and such direction may be issued as may be considered necessary having regard to individual fact situation. x) Learned amicus is at liberty to engage with all stakeholders and to give suggestions for bringing about improvements and also to give a report to this Court. However, this will not stand in the way of the Committee of the State Government, Committee of the Central Government or any District Judge considering matters in terms of above directions.” (underline supplied) 18. In **Ganapathy Namboothiri v. State of Kerala [2024 (1) KLT 599 : 2024 (2) KHC 1]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party, held that the directions issued by the Apex Court in clauses (i) to (viii) and (x) of paragraph 20 of the order dated 05.07.2018 in W.P.(C)No.649 of 2018 - **Mrinalini Padhi [2018** **SCC OnLine SC 667]** are in respect of the issue of public importance highlighted in that writ petition relating to the difficulties faced by the visitors to Shri Jagannath Temple at Puri 19 W.P.(C)No.3822 of 2022 and their harassment or exploitation by the Sevaks of the temple. Before the Apex Court, it was pointed out that the environment of the surroundings is not hygienic, as it ought to be, and there are encroachments. There are deficiencies in the management of the shrine and the rituals are commercialised. See: Para 1 of the order dated 08.06.2018 in W.P.(C)No.649 of 2018 **[2018 SCC OnLine SC 602]** . It is in that context that the Apex Court issued a general direction in clause (ix) of para 20 of the order dated 05.07.2018 in W.P.(C)No.649 of 2018 - **Mrinalini Padhi [2018 SCC OnLine SC 667]** for redressal of the difficulties faced by the devotees of all shrines throughout India, irrespective of religion practised in such shrines, on account of harassment or exploitation by those in management, unhygienic surroundings, encroachments, deficiencies in management, etc. The general direction contained in clause (ix) of para 20 is to the effect that difficulties faced by the visitors, deficiencies in management, maintenance of hygiene, appropriate utilisation of offerings and protection of assets with regard to shrines, irrespective of religion is a matter for consideration not only for the State Government, Central Government but also for Courts. Every District Judge throughout India may examine such matters himself or through any court 20 W.P.(C)No.3822 of 2022 under his jurisdiction and send a report to the High Court concerned so that such report can be treated as PIL on the judicial side and such direction may be issued as may be considered necessary having regard to individual fact situation. 19. In **Ganapathy Namboothiri [2024 (2) KHC 1]** the Division Bench held that the petition that can be moved by a devotee in terms of the general direction contained in clause (ix) of paragraph 20 of the aforesaid order dated 05.07.2018 - **Mrinalini Padhi [2018 SCC OnLine SC 667]** of the Apex Court is not one invoking the provisions under Section 92 of the Code of Civil Procedure, since that provision of the Code, which deals with public charities, can be invoked only in the manner - provided in sub section (1) of Section 92, to obtain a decree of - any of the reliefs set out in clauses (a) to (h) of sub section (1) of Section 92, in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust. In terms of the general direction contained in clause (ix) of paragraph 20 of the order dated 05.07.2018 of the Apex Court, which is one issued for redressal of the difficulties faced by the devotees on account of deficiencies in management, maintenance of hygiene, 21 W.P.(C)No.3822 of 2022 appropriate utilisation of offerings or protection of assets of shrines, a devotee can approach the District Judge having jurisdiction, with a petition pointing out the difficulties faced by him on account of any such matters, in which event the District Judge may examine such matters by himself or through any court under his jurisdiction and send a report to the High Court concerned, for consideration of that report in the judicial side, for issuing any direction as may be considered necessary, having regard to individual fact situation. 20. 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 22 W.P.(C)No.3822 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 23 W.P.(C)No.3822 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 24 W.P.(C)No.3822 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 25 W.P.(C)No.3822 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 26 W.P.(C)No.3822 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. 21. 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 27 W.P.(C)No.3822 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 28 W.P.(C)No.3822 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** 29 W.P.(C)No.3822 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. 30 W.P.(C)No.3822 of 2022 ## 22. 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. 31 W.P.(C)No.3822 of 2022 23. In the instant case, in Ext.P1 settlement register of Kuthiyathodu Village the land in Survey No.338/13C is shown as land of Thuravur Devaswom. In respect of 8 cents of land in Survey No.338/13C of Kuthiyathodu Village, the Land Tribunal (Deputy Collector), Kollam issued Ext.P8 purchase certificate to the 6[th] respondent. In the year 2014, the 6[th] respondent executed Ext.P7 gift deed in favour of CPI Local Committee, Kuthiyathodu, represented by its Secretary, in respect of 55 sq.meters of land out of 8 cents covered by Ext.P8 purchase certificate. The documents on record would show that on the strength of Ext.P8 purchase certificate, Transfer of Registry was effected in the name of the 6[th] respondent on 14.03.1997 with thandaper No.8912 and thereafter, Transfer of Registry in respect of 55 sq.meters of land was effected in the name of CPI Local Committee, Kuthiyathodu, represented by its Secretary on 03.02.2021. In that 55 sq.meters of land a building has also been constructed by the 7[th] respondent, after obtaining building permit from the additional 8[th] respondent Grama Panchayat. 24. The specific stand taken in the counter affidavit filed by the 2[nd] respondent Board is that the proceedings before the Land Tribunal (Deputy Collector), Kollam in SM Proceedings No.88/96 is without notice to the Secretary of the Board, as 32 W.P.(C)No.3822 of 2022 envisaged under Section 72F of the Kerala Land Reforms Act. Instead, notice was issued to the Administrative Officer, Thuravur Temple. In the counter affidavit various irregularities and illegalities in the proceedings before the Land Tribunal in SM No.88/96 are pointed out and it is contended that the 6[th] respondent is not legally entitled for a purchase certificate in respect of the land in question. The 6[th] respondent has also filed counter affidavit raising various contentions to sustain Ext.P8 purchase certificate. Along with the counter affidavit, the 2[nd] respondent has placed on record Ext.R2(d) report dated 08.04.2015 of the Land Special Officer, Travancore Devaswom Board. The stand taken in paragraph 9 of the counter affidavit filed by the 2[nd] respondent Board reads thus; “9. It is submitted that, on 15.02.2022, the Special Tahsildar Land Conservancy Unit had sent a report to the Secretary Travancore Devaswom Board during the pendency of this case stating that the Board has to initiate action to cancel the Pattayam issued to 6[th] respondent. Accordingly, the Board issued direction on 24.O2.2022 to the Assistant Commissioner, Vaikom to inform the action taken to cancel the Pattayam issued to the 6[th] respondent pursuant to the direction in CMP No.5073/1999 and to inform the progress of the proceedings initiated. Thereafter on 07.07.2022 the Law Officer sent another letter to the Assistant Commissioner, Vaikom to inform the action taken 33 W.P.(C)No.3822 of 2022 in this regard. In reply to the above directions, the Assistant Commissioner submitted a report on 18.07.2022 stating that the files were already handed over to Adv.Sri.Pramal, Devaswom Advocate, Alappuzha to file appeal before the Appellate Authority against the order of the Land Tribunal, Kollam.” ## 25. **In the matter of Audit Report of the Travancore** **Devaswom Board for the year 1967-68 (Sabarimala Improvement Fund)** reported in **1990 (1) KLT 347)** , in the context of Section 32 of the Act, a Division Bench of this Court reminded the President and members of the Travancore Devaswom Board about their public accountability. In the said decision it was made clear that it is for all persons concerned to see that greater vigil is exercised by the President and members of the Board in the overall administration of the Board and in the collection and disbursement of funds. Paragraph 16 of the abovesaid decision reads thus: “12. Before concluding, we should record our appreciation of the invaluable services rendered by the audit in bringing to light the way in which the Board had functioned during the relevant time. But, for the untiring efforts of the audit, the entire matter would have escaped attention. We take this opportunity to remind the President and members of the Board, about their public accountability. It is true that there is delay in the submission of the audit report and the consideration of the matter by this Court. In the meanwhile, 34 W.P.(C)No.3822 of 2022 the term of the President and/or members of the Board may ordinarily expire. These have contributed to the impression that the President and members of the Board or the officers will not be answerable for the lapses or acts or omissions, when the matter is finally adjudicated after some time or delay occurs in considering the matter. Impression seems to have gathered ground in recent times that the members of the Board or the officers can easily ward off their liability or responsibility by putting forth filmsy excuses. This is a matter which cannot be countenanced in public interest. It is for all persons concerned to see that greater vigil is exercised by the President and members of the Board in the overall administration of the Board and in the collection and disbursement of funds. It is also necessary for all concerned to see that every year the audit is completed, at the quickest possible time, and the matter is considered by this Court, when the President and members of the Board, who are responsible for it, are in a position to have their defences adjudicated effectively. It is also in public interest to see that adequate and proper provisions are made, to make the officers and other outsiders, liable and responsible for all acts of omissions or commissions and for unauthorised collections and for accounting the funds which really belong to the Devaswom. Public accountability should be emphasized and effectuated in larger public interest and appropriate legislation, to suit the needs of the time and situation, in the light of past experience, should be enacted, so that the public will continue to have confidence in such institutions.” Having considered the pleadings and materials on record 35 W.P.(C)No.3822 of 2022 and also the submissions made at the Bar, we deem it appropriate to dispose of this writ petition by recording the stand taken in the counter affidavit filed by the 2[nd] respondent Travancore Devaswom Board that the Board has already initiated steps to challenge Ext.P8 purchase certificate issued by the Land Tribunal (Deputy Collector), Kollam in SM Proceedings No.88/96 by filing appeal before the Appellate Authority (Land Reforms), Alappuzha invoking the provisions under Section 102 of the Kerala Land Reforms Act. The Appellate Authority shall consider that appeal with notice to the petitioner, an authorised representative of the 2[nd] respondent Travancore Devaswom Board and also respondents 6 and 7, taking note of the law laid down in the decisions referred to supra. The legal and factual contentions raised by both sides are left open to be raised before the Appellate Authority at appropriate stage. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** ded 36 W.P.(C)No.3822 of 2022 ## **`APPENDIX OF WP(C) 3822/2022`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1TRUE COPY OF THE SETTLEMENT REGISTER DATED 23/11/2021. EXHIBIT P2TRUE COPY OF THE ORDER OF THIS HON'BLE COURT IN CMP NO. 5073/1999 DATED 03/04/2001. EXHIBIT P3TRUE COPY OF THE PROCEEDINGS OF THE DEVASWOM COMMISSIONER DATED 25/03/2003. EXHIBIT P4TRUE COPY OF THE ORDER OF THE DEPUTY COLLECTOR (LAND REFORMS) DATED 12/02/2013. EXHIBIT P5TRUE COPY OF THE REPLY GIVEN BY THE VILLAGE OFFICER KUTHIATHODU UNDER RTI ACT DATED 09/12/2021. EXHIBIT P6COPY OF THE ORDER OF THE APEX COURT IN WPC 649/2018 DATED 05/07/2018. EXHIBIT P7TRUE COPY OF THE GIFT DEED NO.1507/1/14 OF KUTHIYATHODE SUB-REGISTRY DATED 25.06.2014. EXHIBIT P8TRUE COPY OF THE PURCHASE CERTIFICATE NO.45/1997 DATED 01/03/1997. ``` ## **`RESPONDENT EXHIBITS`** ``` EXHIBIT R2(B)TRUE COPY OF THE ORDER DATED 26/11/2002 IN DBA NO.65/2002. EXHIBIT R2(A)TRUE COPY OF THE OPINION OF LAW OFFICER DATED 12/02/2002. EXHIBIT R2(C)TRUE COPY OF LETTER DATED 24/08/2005 ISSUED BY DEVASWOM COMMISSIONER. EXHIBIT R2(D)TRUE COPY OF THE REPORT OF LAND SPECIAL OFFICER DATED 08/04/2015. EXHIBIT R7(A)TRUE COPY OF THE SITE APPROVAL AND BUILDING PERMIT NO. C1-12021 DATED 24.12.2021 ISSUED BY THE SECRETARY, KUTHIYATHODU GRAMA PANCHAYAT EXHIBIT R6(A)THE TRUE COPY OF THE ABOVE SALE DEED NO: 2627/1989 OF AROOKUTTY SUB REGISTRY EXHIBIT R6(B)THE TRUE COPY OF THE JUDGMENT DATED 02/02/2016 IN A.S NO.67/2006 BY THE LEARNED SUBORDINATE JUDGE, CHERTHALA EXHIBIT R6(C)THE TRUE COPY OF THE ORDER IN I.A NO.667/2016 IN R.S.A NO.267/2016 DATED 15.03.2016BY THIS HON'BLE COURT EXHIBIT R6(F)THE TRUE COPY OF THE JUDGMENT DATED 21/01/2013 IN W.P(C) NO. 1922/2013 BY THIS HON'BLE COURT EXHIBIT R6(G)THE TRUE COPY OF THE ABOVE JUDGMENT DATED 26/09/2014 IN O.S NO.127/2013 BEFORE THE PRINCIPAL MUNSIFF COURT, CHERTHALA EXHIBIT R6(E)THE TRUE COPY OF THE ABOVE JUDGMENT DATED 24.11.2011 IN OS 162/2009 BY THE LEARNED ADDITIONAL MUNSIFF COURT, CHERTHALA EXHIBIT R6(D)THE TRUE COPY OF THE ORDER DATED 08.04.2009 IN I.A NO.1070/09 IN O.S NO. 162/2009 BY THE LEARNED ADDITIONAL MUNSIFF COURT, CHERTHALA ```