South Kerala Province of the Order of the Discalced Carmelites Religious and Charitable Trust, St.Alosious Monastery, Kottiyam P.O., Kollam represented by Provincial Superior, Fr. Jaison OCD v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 17TH DAY OF JULY 2018 / 26TH ASHADHA, 1940** **WP(C).No. 10560 of 2018** **…................** ## **PETITIONER(S)** **SOUTH KERALA PROVINCE OF THE ORDER OF THE DISCALCED CARMELITES RELIGIOUS AND CHARITABLE TRUST ST.ALOSIOUS MONASTERY, KOTTIYAM P.O., KOLLAM, PIN-691571, REPRESENTED BY PROVINCIAL SUPERIOR, FR.JAISON OCD, AGED 43 YEARS, S/O.JOSEPH K.V.** **BY ADVS.SRI.GEORGE VARGHESE (MANACHIRACKEL) SRI.P.R.MILTON SRI.JUSTINE PAULOSE SRI.K.J.CHAKOCHAN** ## **RESPONDENT(S)** **1. THE STATE OF KERALA, REPRESENTED BY ADDL.CHIEF SECRETARY TO GOVERNMENT OF KERALA, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE DISTRICT COLLECTOR, PATHANAMTHITTA, COLLECTORATE PATHANAMTHITTA, PATHANAMTHITTA, PIN - 689 645.** **3. THE SECRETARY, STATE LAND BOARD, KERALA, THIRUVANANTHAPURAM 695 001.** **4. THE CHAIRMAN, TALUK LAND BOARD KONNY AND DEPUTY COLLECTOR (DM) COLLECTORATE, PATHANAMTHITTA - 689 645.** **5. THE VILLAGE OFFICER, KALANJOOR VILLAGE OFFICE, KALANJOOR, ADOOR, PIN - 689 694.** **R BY SPL. GOVERNMENT PLEADER SRI.M.L.SAJEEV (REVENUE)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 10560 of 2018 (T)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **EXHIBIT P1 TRUE RELEVANT COPY OF THE TRUST DEED NO.20 OF 1999 OF THE SUB REGISTRAR OFFICE, KOTTIYAM, KOLLAM.** - **EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS OF THE COMMISSIONER OF INCOME TAX (EXEMPTION) KOCHI DATED 28-03-2017.** - **EXHIBIT P3 TRUE COPY OF THE REGISTRATION CERTIFICATE MINISTRY OF HOME AFFAIRS.** - **EXHIBIT P4 TRUE COPY OF THE SALE DEED NO.108 OF 2014 OF ENADIMANGALAM SRO.** - **EXHIBIT P5 TRUE COPY OF THE FORM NO.2 AND FORM NO.3 ISSUED BY THE FOURTH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE WRITTEN OBJECTION/STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT TALUK LAND BOARD KONNY.** - **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DT.20-10-2017 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE ORDER ISSUED BY THE FOURTH RESPONDENT TO SURRENDER THE PROPERTY.** ## **RESPONDENTS' EXHIBITS : NIL** ## **/TRUE COPY/** **P. A. TO JUDGE** **Pn 18/07** ## **ALEXANDER THOMAS, J. ======================== W.P(C)No.10560 of 2018** **=========================** Dated this the 17[th] day of July, 2018 ## **JUDGMENT** The petitioner is the South Kerala Province of the Order of the Discalced Carmelites (OCD), Religious and Charitable Trust represented by its Provincial Superior, which is stated to be a monastery, order of Discalced Carmelites (OCD) Friars, which in turn is stated to be a religious monastic denomination of the Roman Catholic Church. It is averred that the petitioner is a monastery which is engaged in religious and charitable activities and that Ext.P-1 is the copy of the Trust Deed No.20 of 1999 registered before the Sub Registrar’s Office, Kottiyam, Kollam. It is averred that it has been specifically declared in Ext.P-1 deed that it is a public religious and charitable institution and no part of the Trust property or its income shall be applied for purposes other than public religious and charitable in nature. Further, it is averred that the Trust is registered as religious Trust under the Income Tax Act and the Rules as a public Trust and it is subjected to assessment under the Income Tax and Rules on that basis. Ext.P-2 is stated to be the proceedings granting exemption by the Commissioner of Income Tax. The petitioner also has got W.P(C)No.10560 of 2018 2 registration under the provisions of the Foreign Contribution (Regulation) Act, 1976 from the Ministry of Home, Government of India at the and a copy of the same has been produced as Ext.P-3. By Ext.P-4 sale deed No.108/2014 of Enadimangalam SRO, the petitioner had purchased 07.22.80 Hectares rubber plantation and that as title holder on owner in possession, the petitioner has submitted application for effectuating mutation. But that 4[th] respondent-Taluk Land Board, Konny, Pathanamthitta District has registered a ceiling case as S.M.No.1/17/KNI against the petitioner. Ext.P-5 is the copies of individual drafts issued in Form No.2 under Rule 10 and Form No.3 under Rule 12 (1) of the Kerala Land Reforms (Ceiling) Rules, 1970. As against Ext.P-2 notice, the petitioner has submitted Ext.P-5 notice and as against Ext.P-5 notice, the petitioner has submitted Ext.P-6 objection before the 4[th] respondent-Taluk Land Board along with the supporting documents. Wherein, the petitioner has contended that the petitioner Trust is entitled for the benefit of Sec.98A of the Kerala Land Reforms Act and therefore, the proceedings initiated by the Taluk Land Board under the Kerala Land Reforms (Ceiling) Rules, is without jurisdiction. But that without considering the said W.P(C)No.10560 of 2018 3 objections of the petitioner, the 4[th] respondent-Taluk Land Board has issued Ext.P-8 notice of surrender in Form No.9 under Rule No.17 and has directed the petitioner to surrender the property. 2. The petitioner would contend that it is an institution of public nature for religious and charitable purposes maintained by religious denomination as envisaged in Sec.98A of the Kerala Land Reforms Act, 1963 and that by the mandate of the Explanation rendered in Sec.98A, if any question arises as to whether an institution is one of a public nature for religious and charitable purposes maintained by a religious denomination or section thereof, that question shall be decided by the Government. On that basis the petitioner would contend that the ceiling case and the subsequent proceedings initiated against the petitioner by the 4[th] respondent-Taluk Land Board is illegal and _ultra vires_ . 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 the Taluk Land Board has no jurisdiction to decide the question as to whether or not a person is entitled to get the benefit of Sec.98A and that question has to be decided only by the State Government in view of the Explanation appended to W.P(C)No.10560 of 2018 4 Sec.98A. The petitioner has already approached the 1[st] respondent-State Government by submitting Ext.P-7 representation dated 20.10.2017 contending that it is entitled for the benefit of Sec.98A of the Kerala Land Reforms Act, 1963 and claiming that it is an institution of a public nature for religious and charitable purposes established and maintained by religious denomination or any section thereof, as envisaged in that provision. On this basis the petitioner would contend that since the said question under Sec.98A can be exclusively decided only by the 1[st] respondent-State Government and not by the 4[th] respondent-Taluk Land Board, the present proceedings at Ext.P-8 notice directing the petitioner to surrender the property, without taking into account the provisions contained in Sec.98A of the Kerala Land Reforms Act is illegal and _ultra vires_ . It is in the light of these factual averments, the petitioner has filed the instant Writ Petition (Civil) with the following prayers: - “i. issue a writ of mandamus or any other appropriate writ or order or direction to the fourth respondent Land board Konni and call for the records relating to CC no.SM 1/17/KN and pleased to set aside the Exhibit.P8 demand notice issued to the petitioner directing to surrender the excess land to the Government. - ii. issue a writ of mandamus or appropriate writ order or direction to the first respondent to consider and pass appropriate orders in Exhibit.P7 representation for W.P(C)No.10560 of 2018 5 exemption submitted by the petitioner in accordance with law. iii. to pass such other and further orders as are deem fit and proper in the facts and circumstances of the case. iv. To allow the writ petition with costs.” 3. Heard Sri.George Varghese (Manachirackel), lerned counsel appearing for the writ petitioner and Sri.M.L.Sajeev, learned Special Government Pleader (Revenue) appearing for the respondents. 4. The petitioner has contended that it is entitled for the benefit of Sec.98A of the Kerala Land Reforms Act, 1963 in as much as it is an institution of public nature for religious and charitable purposes established and maintained by a religious denomination or any section thereof as envisaged in that provision. It is further mandated in the Explanation appended thereto that 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. Sec.98A including the Explanation thereto read as follows: “ **[98A. Interpretation.** - For the purposes of this W.P(C)No.10560 of 2018 6 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**_ that from a plain reading of the provision contained in the Explanation appended to Sec.98A of the Kerala Land Reforms Act, 1963, the Taluk Land Board has no competence of power to decide such an issue when a question of that nature was arisen in the proceedings. Now the petitioner has submitted Ext.P-7 petition dated 20.10.2017 before the 1[st] respondent-State Government contending that it is entitled for the benefit of Sec.98A and that the competent authority-State Government may take a considered decision on that aspect of the matter as envisaged in those provisions. The petitioner has also clearly raised his objection as per Ext.P-6 that since it is entitled for the benefit of Sec.98A, it cannot be submitted to the provisions of Sec.83 as it is not a person within the meaning of Chapter III of W.P(C)No.10560 of 2018 7 the Kerala Land Reforms Act, 1963 in view of the provisions envisaged in Sec.98A etc. These contentions raised by the petitioner as reflected in Ext.P-7 would require serious consideration at the hands of the 1[st] respondent-State Government. For facilitating such remit to the 1[st] respondentState Government, it is ordered that the impugned Ext.P-8 notice issued by the 4[th] respondent-Taluk Land Board, Konny, Pathanamthitta will stand set aside. The competent authority of the 1[st] respondent-State Government will issue notice of hearing to the petitioner and will afford a reasonable opportunity of being heard to the petitioner through authorized representative/counsel, if any, and then will render a considered decision as to whether the petitioner is an institution of public nature for religious and charitable purposes established and maintained by a religious determination or any section thereof, as envisaged in Sec.98A. The petitioner will be at liberty to submit any additional written submissions, supporting documents and materials to substantiate the claim that they are entitled for the benefit of Sec.98A and this may be done by the petitioner by submitting additional written submissions within 2 weeks from the date notified for receiving a W.P(C)No.10560 of 2018 8 certified copy of this judgment. Thereafter, the competent authority of the 1[st] respondent will take a considered decision on the matter, after hearing the petitioner as aforestated. Orders in that regard will be passed by the competent authority of the 1[st] respondent-State Government on Ext.P-7 petition, without much delay, preferably within a period of 3 months, at any rate, within an outer time limit of 5 months from the date of production of a certified copy of this judgment. After the competent authority of the 1[st] respondent-State Government passes order on Ext.P-7 petition as aforestated, the 1[st] respondent shall ensure that copies of the said order so passed by the State Government shall be communicated to the petitioner as well as to the 4[th] respondentTaluk Land Board, Konny, Pathanamthitta District. If the claim made by the petitioner for the benefit of Sec.98A is so rejected by the 1[st] respondent-State Government, then it will be open to the 4[th] respondent-Taluk Land Board, to proceed further with the matter in relation to Ext.P-5, in accordance with law and after affording a reasonable opportunity of being heard to the petitioner. Until the orders are passed by the 1[st] respondent-State Government on Ext.P-7 as aforestated, the petitioner shall not W.P(C)No.10560 of 2018 9 alienate or transfer the properties covered by the impugned Ext.P-5 proceedings. It is also made clear that in case petitioner has any grievances after the decision so rendered by the 1[st] respondent-State Government, it is for the petitioner to seek appropriate remedies in accordance with law. All matters to be decided on Ext.P-7 will be under the domain of the 1[st] respondentState Government. With these observations and directions, this Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** vgd/20.07.18