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2005 DIGILAW 766 (KER)

P. R. Ramavarma Raja v. Secretary to Government

2005-12-07

K.S.RADHAKRISHNAN, K.T.SANKARAN

body2005
Judgment :- K.S. Radhakrishnan, J. Petitioner is the Managing Trustee of Sree Arangam Mahadeva Temple, an institution governed by the provisions of H.R. & C.E. Act, 1951. The temple is a religious and charitable institution within the meaning of Section 65 of the Kerala Land Reforms Act. 1963. Petitioner has approached this court seeking a writ of mandamus directing the respondents to disburse the annuity granted to the temple. vide G.O. (Ms) No 393/71/RD dated 17.8.1971 and also for a writ of certiorari to quash Exts.P12 and P15 orders and also for other consequential relief’s. 2. The Sree Arangam Mahadeva Temple at Tallparamba is a temple of great antiquity and held in the highest veneration. Temple had extensive landed properties. Due to mismanagement and lack of proper maintenance. It was of ruinous stage once, but revived due to efforts of the fit person appointed under the H.R. & C.E. Act and the general public. Of late there were disputes between the hereditary trustees and the fit person which were settled. Temple had large extent of properties in its possession and also outstanding in the possession of tenants. 3. The State of Kerala as part of agrarian reforms made comprehensive legislation relating to land reforms in the State of Kerala, namely the Kerala Land Reforms Act, 1963. Right, title and interest of the landlord in respect of his holdings held by the cultivating tenants stood vested in the Government free from all encumbrances as per Section 72 of the Land Reforms Act with effect from 1.1.1970. Section 72 A stipulates that every land owner and intermediary whose right, title and interest in respect of any holding have vested in the Government under Section 72 shall be entitled to compensation as provided in sub-sections (2), (3) and (4). Section 72 A stipulates that every land owner and intermediary whose right, title and interest in respect of any holding have vested in the Government under Section 72 shall be entitled to compensation as provided in sub-sections (2), (3) and (4). Section 65 of the Kerala Land Reforms Act prescribes special provision relating to charitable or educational institutions of public nature which says that in respect of a holding the land owner or the intermediary is a religious, charitable or educational institution of a public nature, such institution may by application to the Land Board, choose whether the right, title and interest of the institution in respect of the holding should be vested in the Government in consideration of the payment of an annuity in perpetuity by the Government or whether it should be paid such annuity by the Government instead of purchase price in case the holding is purchased by the cultivating tenant under the provisions of the Act. Section 65 (2) states that if any question arises as to whether an institution is religious, charitable or educational institution of a public nature, the same shall be decided by the Land Board after such enquiry as it deems fit and its decision thereon shall be final. 4. The Land Board, Trivandrum as per proceedings LB (8) 7-2297/71 dated 29.7.1971 declared Sree Arangam Mahadeva Temple as a religious institution falling under Section 65 (2) of the Act read with Rule 12 of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970. The Managing Trustee of the temple then preferred an application for annuity since the properties of the temple statutorily vested in the Government under section 72 of the Act. Government then passed G.O. (Ms) No 393/71/RD dated 17.8.1971, relevant portion of which reads as follows: “Government is pleased to sanction the payment of interim annuity of Rs 72,137/- (Rupees seventy two thousand one hundred and thirty seven only) for year 1970 to Sri Arangam Temple Thadikkadavu Village, Taliparamba Taluk, Cannanors District, a religious institution of public nature, being 40% of the money value of the total annual contract rent of Rs 1,80,344/- and they hereby authorize Sri P.R. Rama Varma Raja, Managing Trustee, Sri Arangam Temple, Alakode P.O. to receive the payment. The payment will be made from the Sub Treasury, Taliparamba.” Hereditary trustees of Ashtamachal tarwad had however claimed that annuity sanctioned by the Government should go to the tarwad and not to the temple. In fact one of the members of the tarwad filed O.S. No 156 of 1974 before the Sub Court, Thalassery contending that the temple ceased to exist and the properties of the temple were reverted back to the family. The Deputy Collector (L.R) Taliparamba in O.A. No 4409 of 1975 considered the application filed under Section 72 B (3) of the Act with the temple in the array of parties and held as follows: As per Ext. P19 the order of the Commissioner under Section 38 H.R. & C.E. Act was published in the District Gazette dated 25.4.1975 “Sree Arangam Temple is included in the notification. Ext. B17 is the order of the Commissioner and a direction was issued by the High Court to consider the case afresh. He has considered all the pros and cons of the case and then passed an order upholding the order of the Deputy Commissioner. He has finally come to the conclusion that the Arangam Devaswom properties has never ceased to exist as such and the properties of the Arangam devaswom are the assets of the temple. The Land Board in its proceedings LAB. B7-2297/71 has declared that under section 65 of the K.L.R. Act read with rule 12 of the rules 1970. “Sre Arangam Temple is an institution of a publice nature”. In the circumstances. I find Sree Arangam Devaswom is that actual landlord in respect of the properties and respondent No.1 S.A.P. Padmanabha Varma Thampan Kaimal or the members of his edoms cannot claim that the properties belong to their edom as private jenmom. Further we also notice against the judgment in O.S. No 156 of 1974, M.F.A. No 94 of 1977 was preferred before this court and this court disposed of the appeal on 23.8.1978 directing the Deputy Collector to consider the question under section 60 of the H.R. & C.E. Act and the Deputy Collector passed an order on 9.1.1989 stating as follows: “From the above facts it is evident enough that Sri Arangam temple was an old temple with more than 5000 acres of land of its own. This properties were directly entertained for the benefit of devaswom by the hereditary trustees Viz. This properties were directly entertained for the benefit of devaswom by the hereditary trustees Viz. Ashtamachal and Ettisseri Edom. By their unruly affairs the temple was happened to close down and this came to the hands of Sri P.R. Rama Varma Raja in such dilapidated condition. So it is clear that there was no pooja in the temple when Sri Raja took over the management. That does not mean that the temple was ceased to exist or its properties have been lost. So the contention that at a time when pooja was not performed the entire temple was ruined and as a result the properties belonging to the temple had been conveyed into the property of the trustees family will be unreasonable and untenable. As per the statement submitted before the Land Board 5421.67 acres of land was owned by the Devaswom and on the basis of this annuity was fixed to the Devaswom and annuity sanctioned for 1970 vide G.O.Ms.No.393/71/RD dated 17.8.1971. So the temple is having such an extensive land under direct ownership and possession before 1971. When the Kerala Land Reforms Act came into force the properties given to the tenants got pattayam and as a result a large extent of property was lost. The report of the Asst. Commissioner dated 20.5.1988 reveals that the temple was functioning three years back and the present temple is not a new temple because the entire structure is old one and only reconstructions and repairs were made to the old structure. The gopurams and temple tank are old structure. The gopurams and temple tank are old one which itself will clearly show that the old Arangam Temple and the present one are one and the same and simply because the pottos are not performed will not be sufficient in declaring and deciding the temple as defunct one. From the above facts it is clear enough that the present Arangam temple is one and the same of the old one which due to the mismanagement of the Trustees happened to put down pottos. So the question of declaring Sri Arangam temple as a defunct one does not arise. The next point to be decided whether there is any property in possession and ownership. As pointed out earlier the temple was having 5421.67 acres of land under different survey numbers at different places. So the question of declaring Sri Arangam temple as a defunct one does not arise. The next point to be decided whether there is any property in possession and ownership. As pointed out earlier the temple was having 5421.67 acres of land under different survey numbers at different places. The statement filed by the Managing Trustees to the Land Board reveals this position and this was not been objected by any of the Trustees and any persons who have interest. The details of property belonging to Sri Arangam temple is as follows: RS 23/1 4095.24 “ 17/1A 1247.80 “ 17/1B 13. 75 7/1 0.90 7/2 1.63 8 4.50 9.10/1 10/2 15.38 11/1 27.65 11/2 0.65 12 4.07 Total 5421.67 Out of which the devaswom is in possession now only comprises very few acres. At present the devaswom is in possession and ownership of 3357 acres in Rs 23/1 and 53/1A. From the above facts it is clear that the Arangam temple is not a defunct temple and it exists in its proud and prestige with an area of 3387 acres of land of its own. Though the petitioner is entitled to get annuity on the basis of the various orders passed by the authorities under the Land reforms Act and the dispute between the trustee and the temple has already been settled, stating untenable reasons annuity amount legitimately due to the temple is being denied. Petitioner then made an application to the Village Officer. Alacode to which vide Ext.P6 proceedings Village Officer has reported the temple and an extent of 6561.89 acres of land. Petitioner therefore made repeated representations for payment of annuity. Counsel submits. In order to deny the legitimate amount due to the temple, petitioner was served with Ext.P10 notice dated 18.7.1995 stating that enquiry conducted with reference to the list of tenants furnished by the Managing Trustee a large number of persons shown in the list are not the persons in actual possession, of Devaswom properties and that all of them have purchased jenmom right on their tenanted holding from other Land Tribunal presuming that such lands are owned by private jenmies. Further it was stated that the list of tenants furnished by the temple does not contain any details such as correct address of the persons in possession of the Devaswom land, boundaries of the plot held by each person etc. Further it was stated that the list of tenants furnished by the temple does not contain any details such as correct address of the persons in possession of the Devaswom land, boundaries of the plot held by each person etc. It is also stated that all the tenants in possession of land in R.S.No.17/1A and 23/1 of Arangam desom have already purchased jenmom right over their tenanted holdings. It is also pointed out that the Devaswom authorities are sure that the lands involved in those cases are devaswom lands it was their bounden duty to prefer appeal before the Appellate Authority and to get those impugned orders passed by the authorities either by mistake or by oversight set aside. Petitioner then filed a detailed objection, Ext. P11 to which he received Ext.P12 communication dated 26.10.1995 stating that Arangam Devaswom, Alakkode is entitled to get only Rs. 2,415.62/final annuity from the year 1970 stating that the earlier order passed on 17.8.1971 was not a final order. Petitioner then filed this original petition challenging Ext.P15 order dated 30.12.1995. 5. Counsel appearing for the petitioner, Smt. Asha P. Kuriakose took us elaborately through the various orders passed and submitted that the Government is not even respecting its earlier order. G.O. (Ms) No 393/71/RD dated 17.8.1971 wherein Government have already accorded sanction for payment of interim annuity of Rs.72.137/- for the year 1970. Counsel also referred to the judgment of this court in O.P.No.4281 of 1944 stating that even the amounts fixed by the Government is not being paid. This court disposed of the original petition with a direction to the second respondent to consider Ext.P19 and pass appropriate orders. According to him, the present order fixing the annuity of Rs.2.415.62 is arbitrary and illegal. 6. Senior Government pleader Sri Mohan C. Menon on the other hand contended that the exact property owned by the Devaswom could not be ascertained since there was no co-operation by the Devaswom authorities. Counsel submitted that even though Devaswom claimed to have lost an extent of 5421.67 acres of land by way of tenancy cases, detailed verification revealed that only an extent of 722.34 acres were involved as on 26.4.1955 and it is for that final annuity was fixed. Counsel submitted that even though Devaswom claimed to have lost an extent of 5421.67 acres of land by way of tenancy cases, detailed verification revealed that only an extent of 722.34 acres were involved as on 26.4.1955 and it is for that final annuity was fixed. It is also pointed out that the lands assigned to tenants treating ownership right to the temple alone can be included in the final annuity list and that the entire area claimed by the temple cannot be reckoned for the quantification of annuity under section 72 (f) of the Land Reforms Act. 7. The Kerala Land Reforms Act has made revolutionary changes granting fixity of tenure to cultivating tenant and to persons who are landless. It also abolished intermediary rights and fixed the ceiling area for the holding for personal cultivation of the landlord and transferred the tenanted holdings to cultivating tenants. By virtue of Section 72 of the Act all the right. Title and interest of the land owners and intermediaries in respect of holdings held by cultivating tenants vested with the Government free from all encumbrances created by land owners or intermediaries subsisting thereon as on 1.1.1970. Section 72-A obliges the Government to give compensation to the landlord in respect of any land vested in the Government. Section 65 is a special provision enacted for religious, charitable and educational institutions of a public nature. Section 65 enables the Institution to choose whether the right title and interest of the institution in respect of the holding should be vested in the Government in consideration of the payment of an annuity in perpetuity by the Government or whether it should be paid such annuity by the Government instead of purchase price in case the holding is purchased by the cultivating tenant under the provisions of the Act. Section 65 (2) states that if any dispute arises as to whether the institution is religious, charitable or educational institution of a public nature, the question shall be decided by the Land Board after such enquiry as it deems fit and its decision thereon shall be final. Section 66 deals with the procedure for vesting of rights of religious charitable or educational institutions in Government and for determination of annuity. Section 66 deals with the procedure for vesting of rights of religious charitable or educational institutions in Government and for determination of annuity. Sub-section (1) of Section 66 states that application under sub-section (1) of Section 65 shall specify all the holdings in respect of which the institution desires to be paid annuity. Under sub-section (3) on receipt of the application the Land Board shall direct any Land Tribunal or the Land Tribunals within whose jurisdiction the holdings specified in the application are situate to determine the annuity payable to the institution. Section 67 states that the Government shall pay the annuity payable to the institution every year in perpetuity on such date or dates and in such manner as may be prescribed. 8. We notice that the Government by G.O. (Ms) No 393/71/RD dated 17.8.1971 had already accorded sanction for payment of interim annuity of Rs 72,137/- for the year 1970 to the petitioner Devaswom being 40% of the money value of the total annual contract rent of Rs 1,80,344/-. This order was passed by the Government taking note of the report of the Land Board and other relevant documents. Government passed the above mentioned order taking note of the extent of land vested in the Government under the Land Reforms Act. The order in O.A. No 4409 of 1975 passed by the Deputy Collector (LR) Taliparamba and the order of the Deputy Commissioner. H.R. & C.E. Administration Department, Calicut and the settlement register certified by the village Officer, Palakkad dated 30.5.1991 would indicate that an extend of 5,421.6 acres of land belonged to the Devaswom stood vested in the Government under the Land reforms Act. Devaswom is not concerned with the question as to whether applications for purchase of cultivating tenants are pending or not. So far as Devaswom is concerned on the coming into force of the Land Reforms Act, extent of 5,421.6 acres of land stood vested in the Government which fact is supported by the Revenue and other records. It is on the basis of the said records Government passed Ext.P2 order dated 17.8.1971 fixing the interim annuity of Rs.72,137/- 9. We are of the view Government is duty bound to pay the annuity as fixed by it in Ext.P2 order dated 17.8.1971. There is no justifiable reason to go back from that government order. It is on the basis of the said records Government passed Ext.P2 order dated 17.8.1971 fixing the interim annuity of Rs.72,137/- 9. We are of the view Government is duty bound to pay the annuity as fixed by it in Ext.P2 order dated 17.8.1971. There is no justifiable reason to go back from that government order. Right to get annuity under Section 65 of the Act is a statutory right of the Devaswom: since on the basis of the Kerala Land Reforms Act the properties were statutorily vested with the Government. For more than three decades Government is delaying the matter denying the legitimate claims of the Devaswom. Payment of annuity is not a bounty but a statutory right of a landlord whose properties have been statutorily vested in the State. Annuity is a right to receive de anno in annum a certain sum that may be given for life or in perpetuity usually charged on the grant. The Government is therefore duty bound to pay the annuity which is being denied for the last three decades for one reason or other. 10. In such circumstances, we are inclined, to allow this original petition and declare that the temple is entitled to get annuity as per the government order, G.O.(Ms).No.393/71/RD dated 17.8.1971. The Government is therefore directed to pay continued annuity on that basis from the year 1970 onwards. Amounts due till the date of this judgment would be paid within a period of three months from today with 6% interest and the Government would continue to pay the annuity amount regularly as per the above mentioned government order.