Ozhur Eranallur Sree Subrahmania Swamy Temple Non-Hereditary Trustee Board v. District Collector, Malappuram and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` TUESDAY, THE 21[ST] DAY OF FEBRUARY 2023 / 2ND PHALGUNA, ``` ``` 1944 ``` ``` W.P.(C)NO.2700 OF 2020 ``` ``` PETITIONER: ``` ``` OZHUR ERANALLUR SREE SUBRAHMANIA SWAMY TEMPLE NON HEREDITARY TRUSTEE BOARD, REP. BY THE CHAIRMAN, OZHUR.P.O., THANALOOR, MALAPPURAM DISTRICT-676307. ``` ``` BY ADVS. P.RAMACHANDRAN SRI.SANTHEEP ANKARATH ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR, MALAPPURAM.`** - **`2 THE REVENUE DIVISIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT.`** - **`3 THE TAHSILDAR, TIRUR, MALAPPURAM DISTRICT.`** - **`4 THE VILLAGE OFFICER, OZHUR VILLAGE MALAPPURAM DISTRICT-676307.`** - **`5 THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, CALICUT-1.`** - **`6 RAMACHANDRAN MENON P.P., S/O. NARAYANI AMMA, AGED ABOUT 80 YEARS, RUDRA, PARAYANCHERI, KUTHIRAVATTOM P.O.,`** 2 W.P.(C)No.2700 of 2020 ``` KOZHIKODE. ``` ``` BY ADVS. SRI.V.MANOJ KUMAR SRI.IYPE JOSEPH ``` ## **`OTHER PRESENT:`** ``` SRI S. RAJMOHAN – SR. GOVERNMENT PLEADER; SRI R. LAKSHMI NARAYAN- STANDING COUNSEL, MALABAR DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.2700 of 2020 ## **JUDGMENT** ## **Anil K. Narendran, J.** Non-hereditary Trustee Board of Eranallur Sree Subrahmania Swamy Temple, represented by its Chairman, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P3 order dated 05.07.2018 and Ext.P5 order dated 12.11.2018 of the 1[st] respondent District Collector. The petitioner has also sought for a writ of mandamus commanding the 3[rd] respondent Tahsildar, Tirur, to permit the petitioner to pay land tax in respect of 40 cents of land in Re-Sy. No.81/7 of Ozhur Village in Malappuram District. 2. On 31.01.2020, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for respondents 1 to 4. The learned Standing Counsel for Malabar Devaswom Board took notice for the 5[th] respondent. Notice by speed post was ordered to the 6[th] respondent. By an interim order dated 31.01.2020, this Court stayed the operation and implementation of Exts.P3 and P5 orders for a period of three weeks. The said interim order, which was extended from time to time, is still in force. 3. The 6[th] respondent has filed a counter affidavit dated 16.10.2022, opposing the reliefs sought for in this writ petition, producing therewith Exts.R6(a) to R6(k). The petitioner has filed a 4 W.P.(C)No.2700 of 2020 reply affidavit dated 01.02.2023, producing therewith Exts.P10 to P13. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 to 4, the learned Standing Counsel for Malabar Devaswom Board for the 5[th] respondent Assistant Commissioner and also the learned counsel for the 6[th] respondent. 5. The issue that arises for consideration in this writ petition is as to whether Exts.P3 and P5 orders of the 1[st] respondent District Collector can be sustained in law. 6. The dispute between the petitioner and the 6[th] respondent centers around a property having an extent of 40 cents in Re-Sy. No.81/7 of Ozhur Village in Malappuram District. According to the petitioner, the said property belongs to Eranallur Sree Subrahmania Swamy Temple, which is a controlled institution under the Malabar Devaswom Board. On the other hand, the 6[th] respondent is claiming title and ownership of the very same property on the strength of a Verumpattam Assignment Deed No.1419/1928 of the Sub Registrar Officer, Tirur, which is one executed by Karuthattil Damodhara Menon, who is the Uralan of Eranallur Sree Subrahmania Swamy Temple, in favour of one Koochippally Sankaran Nair. According to the 6[th] respondent, the legal representative of Koochippally Sankaran Nair executed Sale 5 W.P.(C)No.2700 of 2020 Deed No.1452/1966 of the Sub Registrar Officer, Tirur, in favour of the 6[th] respondent. 7. On the request made by the 6[th] respondent for payment of land tax in respect of the property having an extent of 40 cents in Re-Sy. No.81/7 of Ozhur Village, the 3[rd] respondent Tahsildar, Tirur, passed Ext.P1 order dated 12.10.2017. Since Eranallur Sree Subrahmania Swamy Temple in Re-Sy. No.81/6 of Ozhur Village and the temple pond in Re-Sy. No.81/9 of Ozhur Village lie contiguous to the said 40 cents of land, which is the only way to the temple and pond, and since the 6[th] respondent could not produce any documents to show that he acquired jenmom right over the said 40 cents of land, and since disputes are pending in respect of the said land, the ownership over the said property has to be established in civil court. Therefore, the 3[rd] respondent Tahsildar concluded that till ownership over the said property is established in civil court, land tax cannot be collected either from the temple committee or the 6[th] respondent. Feeling aggrieved by Ext.P1 order dated 12.10.2017, the 6[th] respondent had approached the 1[st] respondent District Collector, Malappuram, in an application dated 23.10.2017. The 1[st] respondent District Collector, who is the revisional authority under Rule 18(iv) of the Transfer of Registry Rules, 1966 passed Ext.P2 order dated 11.04.2018, declining interference on Ext.P1 order dated 6 W.P.(C)No.2700 of 2020 12.10.2017 of the 3[rd] respondent Tahsildar, thereby confirming that order. 8. Instead of invoking the statutory remedy provided under the Transfer of Registry Rules, 1966 against Ext.P2 order dated 11.04.2018 of the 1[st] respondent District Collector, the 6[th] respondent submitted a complaint dated 11.04.2018, before the District Collector. On that complaint, the 1[st] respondent passed Ext.P3 order dated 05.07.2018 whereby the Trustee Board of Eranallur Sree Subrahmania Swami Temple is directed to establish their ownership over the property by filing suit before the competent civil court, within a period of three months. In case the order of the civil court is not produced within the time limit stipulated as above, the land tax of the said property can be accepted from the 6[th] respondent, who had paid land tax till the year 2010. The 4[th] respondent Village Officer is directed to verify whether there is any tampering of village records. On receipt of a copy of Ext.P3 order, the Chairman of the Trustee Board submitted Ext.P4 request dated 18.07.2018 for review of the said order. On that request the 1[st] respondent passed Ext.P5 order dated 12.11.2018, reiterating the stand taken in Ext.P3 order. The document marked as Ext.P6 is the relevant extract of Adangal Register in respect of the disputed land having an extent of 40 cents in Re.Sy.No.81/7 of Ozhur Village, as per which the Eranallur 7 W.P.(C)No.2700 of 2020 Devaswom is holding the jenmom right over the property. The document marked as Ext.P9 is a rough sketch prepared by the 4[th] respondent Village Officer in respect of the properties in Re.Sy.Nos.81/7, 81/6 and 81/9, showing the location of the temple and pond. 9. The legal issue that requires consideration is as to whether, after passing Ext.P2 order dated 11.04.2018, in exercise of the revisional jurisdiction under Rule 18 (iv) of the Transfer of Registry Rules, declining interference on Ext.P1 order dated 12.10.2017 of the 3[rd] respondent Tahsildar, the District Collector can review the said order based on a complaint dated 11.04.2018 made by the 6[th] respondent. 10. The provisions under the Transfer of Registry Rules would show that a person, who is aggrieved by an order passed by the District Collector as a revisional authority under Rule 18(iv) of the said Rules, has to challenge that order before the appropriate forum, invoking the statutory remedy provided thereunder. None of the provisions under the said Rule confer a power of review by the District Collector of an order passed in exercise of the revisional jurisdiction. 11. In **Kalabharati Advertising v. Hemant Vimalnath** **Narichania [(2010) 9 SCC 437]** the Apex Court held that, unless the statute/rules so permit, the review application is not 8 W.P.(C)No.2700 of 2020 - maintainable in case of judicial/quasi judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. Therefore, in the absence of any statutory provision providing for review, entertaining an application for review under the garb of clarification/modification/correction is not permissible. 12. In **Naresh Kumar v. State (NCT of Delhi) [(2019) 9 SCC 416]** the Apex Court reiterated that the power of review can be exercised only when the statute provides for the same. In the absence of any such provision in the statute concerned, such power of review cannot be exercised by the authority concerned. 13. In the absence of a power of review exercisable by the 1[st] respondent District Collector, under the provisions of the Transfer of Registry Rules, no interference by the 1[st] respondent is permissible on Ext.P2 order, based on a complaint dated 11.04.2018 made by the 6[th] respondent. In such circumstances, Exts.P3 and P5 orders of the 1[st] respondent, which are issued absolutely without any jurisdiction, are liable to be set aside. In the result, this writ petition is disposed of by setting aside Exts.P3 and P5 orders on the aforesaid ground; however without prejudice to the right of the 6[th] respondent to challenge Ext.P2 order dated 11.04.2018 of the 1[st] respondent District Collector 9 W.P.(C)No.2700 of 2020 before the appropriate forum, invoking the statutory remedy provided under the Transfer of Registry Rules. The legal and factual contention raised by the petitioner and the 6[th] respondent are left open to be raised before the appropriate forum at appropriate time. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** MIN 10 W.P.(C)No.2700 of 2020 ## **`APPENDIX OF WP(C) 2700/2020`** ## **`PETITIONER EXHIBITS`** - **`EXT.P1`** ``` TRUE COPY OF THE ORDER BEARING NO.B6- 535/2015 DATED 12.10.2017 BY THE 3[RD] RESPONDENT ``` ``` EXT.P2 TRUE COPY OF THE ORDER BEARING NO.B4- 12819/2017 DATED 11.04.2018 BY THE 1[ST] RESPONDENT ``` ``` EXT.P3 TRUE COPY OF THE ORDER BEARING NO.B4- 12819/2017 DATED 05.07.2018 BY THE 1[ST] RESPONDENT ``` ``` EXT.P4 TRUE COPY OF THE PETITION DATED 18.07.2018 FILED BY THE PETITIONER HEREIN BEFORE THE 1[ST] RESPONDENT ``` ``` EXT.P5 TRUE COPY OF THE ORDER DATED 12.11.2018 BY THE 1[ST] RESPONDENT ``` - **`EXT.P6 TRUE COPY OF THE RELEVANT PAGE OF ADANGAL REGISTER PERTAINING TO THE PROPERTY IN QUESTION.`** - **`EXT.P7 TRUE COPY OF THE APPLICATION DATED 06.03.2019 FILED UNDER RIGHT TO INFORMATION ACT`** - **`EXT.P8 TRUE COPY OF THE REPLY DATED 03.04.2019 FROM THE STATE PUBLIC INFORMATION OFFICER AND SENIOR SUPERINTENDENT (SUIT CELL), COLLECTORATE, MALAPPURAM`** - **`EXT.P9 TRUE COPY OF THE SKETCH PREPARED FROM THE VILLAGE OFFICER, OZHUR`** ``` EXT.P10 TRUE COPY OF THE LETTER BEARING NO.A5/3778/2012 DATED 29.09.2016 FROM THE 5[TH] RESPONDENT TO THE PETITIONER ``` 11 W.P.(C)No.2700 of 2020 - **`EXHIBIT R6(A) TRUE COPY OF BASIC TAX RECEIPT NO. 61 DATED 28/03/1987 ISSUED TO THE 6TH RESPONDENT BY THE 4TH RESPONDENT.`** - **`EXHIBIT R6(B) TRUE COPY OF THE BASIC TAX RECEIPT NO.4 DATED 13/02/1992 ISSUED TO THE 6TH RESPONDENT BY THE 4TH RESPONDENT.`** - **`EXHIBIT R6(C) TRUE COPY OF THE BASIC TAX RECEIPT NO. 68 DATED 17/02/2001 ISSUED TO THE 6TH RESPONDENT BY THE 4TH RESPONDENT.`** - **`EXHIBIT R6(D) TRUE COPY OF BASIC TAX RECEIPT NO. 7247247 DATED 20/07/2010 ISSUED TO THE 6TH RESPONDENT BY THE 4TH RESPONDENT.`** - **`EXHIBIT R6(E) TRUE COPY OF LETTER AGP/TIR/LOP-15/16 DATED 02-04-2016 OF ADDITIONAL GOVERNMENT PLEADER TURUR ISSUED TO THE 3RD RESPONDENT.`** - **`EXHIBIT R6(F) TRUE COPY OF REPORT NO.166/2017 DATED 29/06/2017 OF THE 4TH RESPONDENT ISSUED TO THE 3RD RESPONDENT.`** - **`EXHIBIT R6(G) TRUE COPY OF THE COMPLAINT DATED 23/10/2017 FILED BEFORE THE 1ST RESPONDENT BY THE 6TH RESPONDENT.`** - **`EXHIBIT R6(H) TRUE COPY RELEVANT PAGES OF BOOK LET PUBLISHED BY THE TEMPLE COMMITTEE IN THE YEAR OF 2012.`** - **`EXHIBIT R6(I) TRUE COPY OF THE LETTER DATED 09/03/2020 ISSUED TO THE 6TH RESPONDENT BY NARAYANAN NAMBOTHIRI.`** - **`EXHIBIT R6(J) TRUE COPY OF THE RELEVANT PAGES OF KSHETHRA VIGNANAKOSAM.`** - **`EXHIBIT R6(K) TRUE COPY OF ADNGAL REGISTER NO. 41/2016, DATED 13/06/2016 ISSUED TO THE 6TH RESPONDENT BY THE 4TH RESPONDENT.`** 12 W.P.(C)No.2700 of 2020 ``` EXHIBIT-P10 TRUE COPY OF THE ADANGAL EXTRACT IN RESPECT TO THE PROPERTY IN SY.81/7 ISSUED BY THE VILLAGE OFFICER ON 27.10.2022 EXHIBIT-P11 TRUE COPY OF THE RELEVANT PAGES OF 'PRASNA CHARTH' EXHIBIT-P12 TRUE COPY OF THE REPRESENTATION DATED 30.08.2022 BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT-P13 TRUE COPY OF THE LETTER TO COMMISSIONER, MALABAR DEVASWOM BOARD BY THE PETITIONER ```