OZHUR ERANALLUR SREE SUBRAHMANIA SWAMY TEMPLE NON v. THE DISTRICT COLLECTOR, MALAPPURAM

BY ADVS.V.MANOJ KUMAR IYPE JOSEPH(K/000847F/1993) VINOD S.(K/545/2010) 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 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.11461 of 2023 2 Anil K. Narendran, J. JUDGMENT The petitioner, namely, Ozhur Eranallur Sree Subrahmania Swamy Temple, represented by its hereditary trustee, has filed this writ petition under Article 226 of the Constitution of India, seeking an order directing the 1st respondent District Collector, Malappuram to initiate land conservancy proceedings as sought for in Ext.P7 representation dated 30.08.2022, in respect of 40 cents of land in Re-Sy.No.81/7 of Ozhur Village in Malappuram District, in which a ‘Sarppakkavu’ ‘Deepasthambham’. According to the petitioner, the aforesaid land belongs to the deity of Ozhur Eranallur Sree Subrahmania Swamy Temple. On the other hand, the 5th respondent would contend that that land belongs to him.

2. On 04.04.2023, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 3 and the learned Standing Counsel for Malabar Devaswom Board for the 4th respondent. This Court issued urgent notice on admission by speed post to the 5th respondent, returnable by 23.05.2023. The learned Senior Government Pleader and also the learned Standing Counsel for Malabar Devaswom Board were directed to get W.P.(C)No.11461 of 2023 3 instructions.

3. The 5th respondent has filed a counter affidavit dated

15.11.2023, opposing the reliefs sought for in this writ petition, producing therewith Exts.R5(a) to R5(k) documents. Relying on those documents, the 5th respondent would contend that 40 cents of land covered by Exts.R5(a) and R5(d) basic tax receipts belong to him, over which the petitioner cannot claim any right of ownership. The petitioner has filed a reply affidavit dated

06.01.2024, producing therewith Exts.P10 to P12 documents.

4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 to 3, the learned Standing Counsel for Malabar Devaswom Board for the 4th respondent and also the learned counsel for the 5th respondent.

5. The petitioner had earlier approached this Court in W.P.(C)No.2700 of 2020 seeking a writ of certiorari to quash Ext.P3 order dated 05.07.2018 and Ext.P5 order dated

12.11.2018 issued by the 1st respondent District Collector. In that writ petition, the petitioner has also sought for a writ of mandamus commanding the 3rd respondent therein - Tahsildar, Tirur, to permit the petitioner to pay land tax in respect of 40 cents of land in Re-survey No.81/7 of Ozhur Village in W.P.(C)No.11461 of 2023 4 Malappuram District. That writ petition was disposed of by the judgment dated 21.02.2023. Paragraphs 9 to 13 and also the last paragraph of the said judgment read thus; “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 3rd respondent Tahsildar, the District Collector can review the said order based on a complaint dated 11.04.2018 made by the 6th 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 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 W.P.(C)No.11461 of 2023 5 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 1st respondent District Collector, under the provisions of the Transfer of Registry Rules, no interference by the 1st respondent is permissible on Ext.P2 order, based on a complaint dated 11.04.2018 made by the 6th respondent. In such circumstances, Exts.P3 and P5 orders of the 1st 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 6th respondent to challenge Ext.P2 order dated 11.04.2018 of the 1st respondent District Collector 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 6th respondent are left open to be raised before the appropriate forum at appropriate time.”

6. During the course of arguments, the learned counsel for the petitioner would place reliance on the decision of a learned Single Judge of this Court in Janaki Amma v. Sree Amruthamangalam Kshethram Moorthi [2014 (1) KLT SN W.P.(C)No.11461 of 2023 6 26 (C.No.34)]. The counsel has also relied on sub-section (1) of Section 76 of the Madras Hindu Religious Endowments Act, 1927, which reads thus; “76. (1) No exchange, sale or mortgage and no lease for a term of exceeding five years of any immovable property belonging to any mutt or temple shall be valid or operative unless it is necessary or beneficial to the mutt or temple and is sanctioned by the Board in the case of mutts and excepted temples and by the committee in the case of other temples.”

7. On the other hand, the learned counsel for the 5th respondent would raise a question of maintainability of the proceedings pending before the 1st respondent District Collector, by contending that the property in question is in the exclusive possession and enjoyment of the said respondent on the strength of sale deed No.1456 of 1966 of the Sub Registrar Office, Tirur. The provisions under Section 94A of the Kerala Land Conservancy Act, which was inserted in the year 2008, have no application. In such circumstances, the 1st respondent District Collector has no jurisdiction to consider Ext.P7 representation dated 30.08.2022.

8. Having considered the submissions made at the Bar, leaving open the legal and factual contentions raised by both sides, this writ petition is disposed of by directing the 1st W.P.(C)No.11461 of 2023 7 respondent District Collector to consider and pass appropriate orders on Ext.P7 representation dated 30.08.2022 made by the petitioner, for invoking the provisions under Section 94A of the Madras Hindu Religious and Charitable Endowments Act, 1951, 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, with notice to the petitioner and the 5th respondent and after affording them an opportunity of being heard. The question of maintainability Ext.P7 representation raised by the 5th respondent is left open to be raised before the 1st respondent. The order to be passed by the 1st respondent shall be a ‘reasoned order’, after adverting to the legal and factual contentions raised by both sides. It would be open to the petitioner and the 5th respondent to submit written submissions before the 1st respondent. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- G. GIRISH, JUDGE AV/2/2 W.P.(C)No.11461 of 2023 8 APPENDIX OF WP(C) 11461/2023 PETITIONER EXHIBITS Exhibit-P1 Exhibit-P2 Exhibit-P3 Exhibit-P4 Exhibit-P5 Exhibit-P6 Exhibit-P7 Exhibit-P8 Exhibit-P9 EXHIBIT-P10 TRUE COPY OF THE ORDER BEARING NO.B6-535/2015 DATED 12.10.2017 BY THE 2ND RESPONDENT TRUE COPY OF THE ORDER BEARING NO.B4- 12819/2017 DATED 11.04.2018 BY THE 1ST RESPONDENT TRUE COPY OF THE JUDGMENT DATED 21.02.2023 IN W.P(C) NO.2700/2020 ON THE FILE OF THIS HONOURABLE COURT TRUE COPY OF THE RELEVANT PAGE OF ADANGAL REGISTER PERTAINING TO THE PROPERTY IN QUESTION TRUE COPY OF THE SKETCH PREPARED FROM THE VILLAGE OFFICER, OZHUR TRUE COPY OF THE LETTER BEARING NO.A5/3778/2012 DATED 29.09.2016 FROM THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD TO THE PETITIONER TRUE COPY OF THE REPRESENTATION DATED 30.08.2022 BY THE PETITIONER BEFORE THE 1ST RESPONDENT TRUE COPY OF THE LETTER DATED 01.09.2022 TO THE 4TH RESPONDENT BY THE PETITIONER TRUE COPY OF THE LETTER DATED 13.02.2023 BY THE 4TH RESPONDENT TO THE PETITIONER 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 PHOTOGRAPHS SHOWING THE TEMPLE AND THE W.P.(C)No.11461 of 2023 9 SURROUNDINGS RESPONDENT EXHIBITS EXHIBIT R5(A) EXHIBIT R5(B) EXHIBIT R5(C) EXHIBIT R5(D) EXHIBIT R5(E) EXHIBIT R5(F) EXHIBIT R5(G) EXHIBIT R5(H) A TRUE COPY OF BASIC TAX RECEIPT NO. 61 DATED 28-03-1987 ISSUED TO THE 5TH RESPONDENT BY THE 3RD RESPONDENT A TRUE COPY OF BASIC TEN RECEIPT NO. 4 DATED 13-02-1992 ISSUED TO THE 5TH RESPONDENT BY THE 3RD RESPONDENT A TRUE COPY OF BASIC TAX RECEIPT NO. 68 DATED 17-02-2001 ISSUED TO THE 5TH RESPONDENT BY THE 3RD RESPONDENT A TRUE COPY OF BASIC TAX RECEIPT NO. 7247247 DATED 20-07-2010 ISSUED TO THE 5TH RESPONDENT BY THE 3RD RESPONDENT A TRUE COPY OF LETTER NO. AGP/ TIR/LOP-15/16. DATED 02-04-2016 OF THE ADDITIONAL GOVERNMENT PLEADER TIRUR, ISSUED TO THE 2ND RESPONDENT A TRUE COPY OF REPORT NO.166/2017 OF THE 3RD RESPONDENT DATED 29-06-2017 ISSUED TO THE 2ND RESPONDENT A TRUE COPY OF THE COMPLAINT DATED 23-10-2017 FILED BEFORE THE 1ST RESPONDENT BY THE 5TH RESPONDENT A TRUE COPY RELEVANT PAGES OF BOOK LET PUBLISHED BY THE TEMPLE COMMITTEE IN THE YEAR OF 2012 EXHIBIT R5(I) A TRUE COPY OF THE LETTER DATED 09-03-2020 ISSUED TO 5TH RESPONDENT EXHIBIT R5(J) A TRUE COPY OF THE RELEVANT PAGES OF KSHETHRA VIGNANAKOSAM EXHIBIT R5(K) A TRUE COPY OF ADANGAL REGISTER NO.41/2016, DATED 13-06-2016 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT