P.V. Vijayalakshmi and others v. Kumaraswami and Sukumaran

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 RP.No. 617 of 2008() -------------------AGAINST THE JUDGEMENT/ORDER IN SA.230/1999 Dated 09/01/2008 .................... PETITIONERS/APPELLANTS. ------------------------------------ 1. P.V.VIJAYALAKSHMI, WIDOW OF P.R.KRISHNAMOORTHY, KASABA AMSOM & DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 2. RAMAKRISHNAN, S/O. KRISHNAMOORTHY, -DO- -DO-. 3. SURESHKUMAR, S/O. KRISHNAMOORTHY, -DO- -DO-. BY ADV. SRI.C.P.KUNJHIKANNAN SRI.S.K.MADHU RESPONDENTS: RESPONDENTS. ------------------------- 1. KUMARASWAMI, PAST PRESIDENT, - SRI.KANYAKAPARAMESWARI AMMAN KOVIL, KASABA AMSOM DESOM, KOZHIKODE TALUK. 2. SUKUMARAN, PRESENT PRESIDENT, SRI.KANYAKAPARAMESWARI AMMAN KOVIL, KASABA AMSOM DESOM, KOZHIKODE TALUK. BY SRI.P.K.RAMKUMAR THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 14/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE, J.** **---------------------------------R.P. No.617/2008 in S.A. 230/1999 ---------------------------------Dated this the 14[th] day of July , 2008** ## **O R D E R** The appellant seeks review of my judgment dismissing the second appeal on merits after noting that there is no representation for the appellant. I have allowed a rehearing since my judgment was passed in the absence of the appellant. 2. The Sri.C.A.joy, the learned counsel for the appellants has addressed me very extensively and persuasively. All those submissions were resisted by Sri.P.K.Ramkumar who supported the judgments of the court below and my judgment. 3. My attention was drawn by the learned counsel to the judgment of the Supreme Court in **A.V.G.P.Chettiar & Sons and Others v. T.Palanisamy Gounder** ( 2002 ) 5 Supreme Court Cases 337) and also to the judgment of a Division Bench of this court in **Payyannur Co-op. Educational Society v. Narayanan** ( 2000 (3) KLT 129). According to the learned counsel, in A.V.G.P. Chettiar's case, the Supreme Court was interpreting a notification similar to G.O.(MS) 59/93/HSG dated 19.11.1993 ' SRO 2078/93. The learned counsel would argue that even if it is assumed that the finding of the court below that the plaintiff institution is an institution governed by the provisions of the HR & CE Act is correct then also the institution of the present suit without obtaining permission from the statutory authorities under the HR & CE Act is incompetent. Permission should have been obtained and then only the suit should have been instituted. The notification which was considered by the Supreme Court in **A.V.G.P.Chettiar's** case (supra) has been extracted by the Supreme Court in paragraph 30 of the judgment as follows; “GOM's No.2000, Home, 16.8.1976 – No.II (2) HO/4520/76 – In exercise of the powers conferred by Section 29 of the Tamil Nadu Buildings ( Lease and Rent Control) Act, 1960 (Tamil Nadu Act 18 of 1960) and in supersession of the Home Department Notification No.II(2)/ HO/3811/74, dated 12.8.1974, published at p.444 of Part II Section 2 of the Tamil Nadu Government Gazette, dated 12.8.1974, the Government of Tamil Nadu hereby exempts all the buildings owned by the Hindu, Christian and Muslim religious public trusts and public Charitable trusts from all the provisions of the said Act”. 4. I am unable to agree with the learned counsel for the appellants when he submits that the Tamil Nadu notification is in pari materia with Notification No. S.R.O. No.2078/93.The notification which is subject matter of the second appeal exempts buildings owned inter alia by the institutions which are Hindu Religious and Charitable Endowment from the purview of Section 11 and other Sections of the Kerala Buildings ( lease & Rent Control) Act 2 of 1965. Whereas, notwithstanding notification which was considered by the Supreme Court in A.V.G.P.Chettiar's case exempts all the buildings owned by the Hindu, Christian and Muslim religious public trusts and public charitable trusts from all the provisions of the Tamil Nadu Rent Control Act. The argument of the learned counsel that even if it is assumed that the respondent plaintiff is a Hindu religious institution for the purpose of S.R.O. No.2078/93, the authorities under the HR & CE Act will have to be moved first, is founded on the observations of the Supreme Court in paragraphs 27 and 28 of its judgment. The argument is referable also to paragraph 16 of the judgment of the Division Bench of this court in Payyannur Co-op. Educational Society's case. In paragraph 16 of its judgment the Division Bench deals with Section 29 of the Madras HR & CE Act, which concerned with alienation of immovable property belonging to the religious institution and states that alienations will be null and void unless the same is sanctioned by the HR & Ce Commissioner. Reference is also made to Section 93 of the Act which provides that suit or other local proceedings in respect of the administration of a religious institutions or any other matter of dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, except under and in conformity with, the provisions of the Act. Obviously, the observation of the Supreme Court regarding the motions to be made before the parties under the HR & CE Act did not have anything to do with any motion by the institutions for evicting its tenants. Concededly the building in question is situated in an area where the Kerala Act 2 of 1965 is applicable. Ordinarily, eviction could have been possible only in terms of Section 11 of that Act. S.R.O. 2078/93 exempts buildings belonging to all Hindu Religious Charitable Endowments from the purview of the Act 2 of 1965. The issue, which the parties joined for trial and was decided by the courts below, was whether S.R.O. 2078/93 applies. According to me, this issue has been considered and decided by the trial court as well as by the lower appellate court on a proper appreciation of the evidence which had been adduced by the parties. The situation that the building belongs to a Hindu Religious institution affairs of which are being supervised by the Hindu Religious and Charitable Endowment Act is irrefutable. That being the position, the conclusion is irresistible that Notification S.R.O.2078/93 applies. In fact, the first among the two substantial questions suggested by the appellant as arising in this case for determination pertains to the interpretation of S.R.O. 20778/93. According to me, interpretation given by the trial court as endorsed by the lower appellate court to the notification is a correct one. The learned counsel for the appellants did not address any argument before me regarding the second substantial question of law which according to the appeal memorandum arises for decision. Sri.Ramkumar read over to me the full text of the notice . I am of the view that the notice conforms to the requirements of Section 106 of the Transfer of Property Act. Therefore, the 2[nd] question of law will also have to be answered against the appellant. The second appeal will stand dismissed. However, there will be a modification to the judgment under appeal that if the building in question is peacefully surrendered by the appellants to the respondents plaintiff within a period of two months from today, the appellant's will not be liable for the costs presently decreed by the trial court and the lower appellate court. Subject to that modification the judgment and decree under appeal will stand confirmed. ## **PIUS C. KURIAKOSE JUDGE** dpk