ERIPURAM SREEKRISHNA TEMPLE v. STATE OF KERALA

and a Hindu idol. The High Court therefore is the guardian of the 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.

11. 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 W.P.(C)No.20419 of 2023 8 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 remedy to retrieve such property belonging to the Devaswom is by resorting to the course stipulated in the Kerala Land Conservancy Act, 1957.

12. 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 W.P.(C)No.20419 of 2023 9 protected.

13. 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 sub- section (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 or church, created by the owner, trustee or manager of such temple, mosque or church. In view of the provisions under sub- section (1) of Section 74, after the commencement of the Act, no tenancy shall be created in respect of any land. As per sub- section (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 W.P.(C)No.20419 of 2023 10 Land Tribunal shall give notice landowner, 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 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 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 W.P.(C)No.20419 of 2023 11 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 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 sub- section (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 W.P.(C)No.20419 of 2023 12 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 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 W.P.(C)No.20419 of 2023 13 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 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.

14. In Jayaprakashan K. [2023 (3) KHC SN 14] the W.P.(C)No.20419 of 2023 14 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 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 W.P.(C)No.20419 of 2023 15 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 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 W.P.(C)No.20419 of 2023 16 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 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 decision- taker 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 W.P.(C)No.20419 of 2023 17 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.

15. 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; W.P.(C)No.20419 of 2023 18 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.

16. In the instant case, the first relief sought for is a writ of mandamus commanding the 2nd respondent District Collector to consider and pass orders on Ext.P3 representation dated

04.11.2022 made by the petitioner. Such a representation has been made invoking the provisions under Section 92A of the Madras Hindu Religious and Charitable Endowments Act, 1951. If as a matter of fact, the property in question is one covered by Ext.R6(a) or R6(c) purchase certificates issued by the Land W.P.(C)No.20419 of 2023 19 Tribunal, the 2nd respondent District Collector cannot invoke the powers under Section 92A of the Act. On the other hand, if the disputed property is a Devaswom land in respect of which no such purchase certificate has been granted, as contended by the petitioner in the reply affidavit, the District Collector can certainly invoke his powers under Section 92A of the Act.

17. In such circumstances, this writ petition is disposed of by directing the 2nd respondent District Collector to consider and pass appropriate orders on Ext.P3 petition dated 04.11.2022 made by the petitioner, within the scope of Section 92A of the Act, 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. The legal and factual contentions raised by the petitioner and the 6th respondent are left open to be raised before the appropriate forum, at appropriate stage. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- G. GIRISH, JUDGE AV/5/3 W.P.(C)No.20419 of 2023 20 APPENDIX OF WP(C) 20419/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ADANGAL EXTRACT OF R.S. NO.63/5 (OLD SURVEY NO.144) OF EZHOME VILLAGE, ERIPURAM CHENGAL DESOM OF PAYYANUR TALUK. Exhibit P2 TRUE COPY OF THE PHOTOGRAPHS OF ERIPURAM SREEKRISHNA TEMPLE AND THE TEMPLE PROPERTY. Exhibit P3 Exhibit P4 TRUE COPY OF THE PETITION DATED 04-11-2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. COPY N-DIS TRUE NO.DCKNR/721/2023-L2 DATED 16-01-2023 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER LETTER THE OF Exhibit P5 TRUE COPY OF THE LETTER DATED 12-09-2014 ISSUED BY THE 1ST RESPONDENT. Exhibit P6 TRUE COPY OF THE LETTER DATED 23-05-2015 ISSUED BY THE 1ST RESPONDENT. Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 05-04-2019 IN W.P.(C) NO.38100 OF 2017 OF THIS HON’BLE COURT. RESPONDENT EXHIBITS Exhibit R6(a) PHOTO COPY OF JENMAM PURCHASE CERTIFICATE DATED 29.9.1976 IN OA 13715/1976 IN FAVOUR OF VALIYAVEETIL KAMMARA MARAR AND ISSUED BY DEPUTY COLLECTOR, LAND TRIBUNAL, KANNUR Exhibit R6 (b) A PHOTO COPY OF WILL NO. 36/1982 EXECUTED BY VALIYAVEETTIL KAMMARA MARAR Exhibit R6(c) CERTIFIED COPY OF ORDER DATED 10.3.1982 AND ITS PURCHASE INCLUDING CERTIFICATE IN FAVOUR OF VALIYAVEETTIL KAMMARA MARAR ANNEXURES THE W.P.(C)No.20419 of 2023 21 Exhibit R6(c)(1) A TYPE WRITTEN COPY OF FIRST TWO PAGES OF EXHIBIT R6 (C) Exhibit R6(d) A PHOTOCOPY OF GIFT DEED NO. 2382/2007 OF SRO PAYANGADI EXECUTED BY 6TH RESPONDENT IN FAVOUR OF HIS CHILDREN Exhibit R6(e) TAX RECEIPT FOR THE YEAR 2023 IN THE NAME OF SMITHA P.R AND SAJITH P.R AND ISSUED BY VILLAGE OFFICER EZHOME