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2023 DIGILAW 643 (KER)

Cochin Thirumala Devaswom v. State of Kerala

2023-08-14

ANIL K.NARENDRAN, P.G.AJITHKUMAR

body2023
JUDGMENT : ANIL K. NARENDRAN, J. 1. The petitioner-Cochin Thirumala Devaswom approaches this Court ritualistically from 2003 onwards for getting annuity allowed to it under the provisions of the Kanam Tenancy Abolition Act, 1976. This Court in the judgment dated 24.08.2006 in W.P. (C) No. 20975 of 2006, Ext.P2, observed as follows: “The petitioner is a temple of status and standing and when rights for receiving annuity had been recognized, such payments are to be made regularly and it would be infra dig to suggest Devaswom authorities are to plead every year with a begging bowl.” 2. The petitioner subsequently also filed a few Writ Petitions; all yielded positive directions in favour of the petitioner, but the sad plight continues. The officials of the Government even after 52 years after occurring its obligation to pay final annuity as provided in Section 3 and quantified in terms of Section 4(3) of the Kanam Tenancy Abolition Act failed to discharge that obligation. In that context, the petitioner has filed this Writ Petition seeking the following reliefs: (i) Issue a writ of mandamus or any other appropriate writ or order directing the respondents to fix the final annuity considering the prevailing rate of commodities in respect of land extending 491.9560 Hectares (1226 Acres) as expeditiously as possible, at any rate within a reasonable time limit fixed by this Hon'ble court and revise such annuity periodically. (ii) To issue a writ of mandamus or any other appropriate writ or order directing the respondents to pay interest @ 12% per annum on the amount fixed as final annuity and pay the arrears with interest 1.1.1970 upto date and cost, in the interest of justice. (iii) Call for records leading to Ext.P11 and quash the same by issuing a writ of certiorari or other appropriate writ or order.” 3. The Writ Petition was admitted on 01.11.2022. The learned Senior Government Pleader took notice for the respondents. A counter affidavit dated 28.03.2023 was filed by the 2nd respondent, wherein the reasons for the delay in ordering annuity have been explained. Paragraphs No. 5 to 16 in the counter affidavit are as follows: “5. The Writ Petition was admitted on 01.11.2022. The learned Senior Government Pleader took notice for the respondents. A counter affidavit dated 28.03.2023 was filed by the 2nd respondent, wherein the reasons for the delay in ordering annuity have been explained. Paragraphs No. 5 to 16 in the counter affidavit are as follows: “5. The Settlement Officer published a draft roll on 17.08.2019 and the District Collector, Ernakulam in his letter I.3-53445/14 dated 14.01.2020 submitted a report to this office for fixing the final annuity as per Kanam Tenancy Abolition Act 1976 to Cochin Thirumala Devaswom on the basis of extent of land. Due to the non production of details regarding jenmikaram by the petitioner and non-availability of records in village and taluk offices specifying the Kanam land the draft roll was prepared on the basis of considering 50% of total land i.e. 245.9780 hectare as Kanam land and jenmikaram @ Rs.1.25 per are. Thus an amount of Rs.29210/- has been calculated as final annuity in draft roll. The petitioner filed objection against the draft and claimed 3 times of the interim annuity i.e. Rs.49728/- or for considering 70% of the land as Kanam land. 6. The District collector as per the above report has recommended to fix the final annuity as Rs.32,131/- considering 55% of the land as Kanam land. As per section 4(3) of Kanam Tenancy Abolition Act 1976 final annuity to religious or charitable institution of a public nature has to be fixed on the basis of jenmikaram received by the institution. Hence the above report has been returned to the District Collector, Emakulam for resubmission as per section 4(3) of the Kanam Tenancy Abolition Act 1976. 7. The District Collector, Ernakulam in his letter I.3-53445/14 dated 26.03.22 reported that the petitioner as per letter B1-75/78 dated 12.08.19 has stated that they have no records regarding jenmikaram on 01.01.1970 and hence the draft roll can't be prepared as per rules. A report in this regard has been submitted to the Government on 30.03.2022. The Government vide letter R1-88/2017/Rev. dated 26.04.2022 directed to fix the final annuity verifying the records at Taluk and village offices as per rule 4(6) of the Kanam Tenancy Abolition Rules 1977 and also examine the possibility fixing the interim annuity of Rs.12,432/- as final annuity with the written consent of Devaswom. 8. The Government vide letter R1-88/2017/Rev. dated 26.04.2022 directed to fix the final annuity verifying the records at Taluk and village offices as per rule 4(6) of the Kanam Tenancy Abolition Rules 1977 and also examine the possibility fixing the interim annuity of Rs.12,432/- as final annuity with the written consent of Devaswom. 8. The District Collector, Ernakulam vide letter dated 23.09.22 reported that the records regarding jenmikaram of Cochin Thirumala Devaswom are not available from the Mattancherry Village Office and Cochin Taluk Office and also that the Cochin Thirumala Devaswom President in his letter B1-75/78 dated 24.08.22 states that they are not willing to fix interim annuity of Rs.12,432/- as final annuity and the matter was informed to the Government on 24.09.22. As per the Government letter dated 11.10.22 direction has been given to the District Collector, Ernakulam to have discussion with Cochin Thirumala Devaswom to settle the issue by fixing final annuity increasing the interim annuity of Rs.12432/- by 50% (12432+6216) i.e. Rs.18,648/- as amicable settlement. In the meantime this writ petition was filed. 9. As per section 4(3) of Kanam Tenancy Abolition Act 1976 final annuity to religious or charitable institution of a public nature has to be fixed on the basis of jenmikaram received by the institution. The petitioner has not produced any relevant documents to prove the jenmikaram due to them and also stated in letter B1-75/78 dated 12.08.2019 that they have no records regarding jenmikaram on 01.01.1970. The records are also not available in Mattancherry Village Office and Taluk Office, Cochin. In the absence of sufficient documents to prove the claim the Government as per letter dated 11.10.22 directed the District Collector, Emakulam to held discussion with Cochin Thirumala Devaswom to settle the issue by fixing final annuity increasing the interim annuity of Rs.12432/- by 50% (12432+6216) i.e. Rs.18,648/- as amicable settlement. 10. The final annuity was not fixed due to the non availability of proper records and thus the interim annuity was sanctioned. So the claim that all relevant records were submitted to revenue authorities is not correct. As per rule 19 of the Kanam Tenancy Abolition Rules 1977 a separate application shall be necessary for payment of amount of interim relief for each year. 11. As per rule 19 of the Kanam Tenancy Abolition Rules 1977 a separate application shall be necessary for payment of amount of interim relief for each year. As per rule 19 of the Kanam Tenancy Abolition Rules 1977 a separate application shall be necessary for payment of amount of interim relief for each year. 11. As per rule 19 of the Kanam Tenancy Abolition Rules 1977 a separate application shall be necessary for payment of amount of interim relief for each year. The Cochin Thirumala Devaswom has been sanctioned interim annuity as per Kanam Tenancy Abolition Act 1976 of Rs.12,432/- for the period 2021-2022 as per GO(Ms)154/2022/RD dated 06.06.2022. Only after fixing the final annuity the same can be disbursed on production of annuity payment order at treasury every year and without separate application. 12. The petitioner has not produced any relevant documents to prove the jenmikaram due to them and also stated in letter B1-75/78 dated 12.08.2019 that they have no records regarding jenmikaram on 01.01.1970. The records are also not available in Mattancherry Village Office and Taluk Office, Cochin. In the absence of sufficient documents to prove the claim the Government as per letter dated 11.10.22 directed the District Collector, Ernakulam to held discussion with Cochin Thirumala Devaswom to settle the issue by fixing final annuity increasing the interim annuity of Rs. 12432/- by 50% (12432+6216) i.e. Rs.18,648/- as amicable settlement. 13. The Settlement Officer published a draft roll on 17.8.2019 and the District Collector, Ernakulam in his letter I3-53445/14 dated 14.01.2020 submitted a report to this office for fixing the final annuity as per Kanam Tenancy Abolition Act 1976 to Cochin Thirumala Devaswom on the basis of extent of land. Due to the non production of details regarding jenmikaram by the petitioner and non availability of records in village and taluk offices specifying the Kanam land the draft roll was prepared on the basis of considering 50% of total land i.e. 245.9780 hectare as Kanam land and jenmikaram @ Rs.1.25 per are. Thus an amount of Rs.29210/- has been calculated as final annuity in draft roll. The petitioner filed objection against the draft roll and claimed 3 times of the interim annuity ie.Rs.49728/- or for considering 70% of the land as Kanam land. The District collector as per the above report has recommended to fix the final annuity as Rs.33,822/- considering 55% of the land as Kanam land. The petitioner filed objection against the draft roll and claimed 3 times of the interim annuity ie.Rs.49728/- or for considering 70% of the land as Kanam land. The District collector as per the above report has recommended to fix the final annuity as Rs.33,822/- considering 55% of the land as Kanam land. As per section 4(3) of Kanam Tenancy Abolition Act 1976 final annuity to religious or charitable institution of a public nature has to be fixed on the basis of jenmikaram received by the institution. Hence the above report has been returned to the District Collector, Ernakulam for resubmission as per section 4(3) of the Kanam Tenancy Abolition Act 1976. 14. The Cochin Thirumala Devaswom is also receiving final annuity as per KLR Act for Rs.3,29,411/- from 2021 with periodical revision on every 5 years as per GO(Ms)247/2021/Rev dated 30.11.2021. The 491.956 hectare land claimed for final annuity as per Kanam Tenancy Abolition Act 1976 includes the land for which final annuity has been sanctioned as per KLR Act. Hence the claim of petitioner to get Rs.2 lakh as final annuity for kanam land considering the total land vested with the Government is not genuine. 15. An amount of Rs.29,210/- has been calculated as final annuity in draft roll prepared on the basis of considering 50% of total land i.e. 245.9780 hectare as Kanam land and jenmikaram @ Rs.1.25 per are. As per section 4(3) of Kanam Tenancy Abolition Act 1976 final annuity to religious or charitable institution of a public nature has to be fixed on the basis of jenmikaram received by the institution. Hence the above report has been returned to the District Collector, Ernakulam for resubmission as per section 4(3) of the Kanam Tenancy Abolition Act 1976. 16. The petitioner has not produced any relevant documents to prove the jenmikaram due to them and also stated in letter B1-75/78 dated 12.08.2019 that they have no records regarding jenmikaram on 01.01.1970. The records are also not available in Mattancherry Village Office and Taluk Office, Cochin. In the absence of sufficient documents to prove the claim the Government after seeking all possible measures to settle the issue as per letter dated 11.10.22 directed the District Collector, Emakulam to held discussion with Cochin Thirumala Devaswom for fixing final annuity increasing the interim annuity of Rs.12432/- by 50% (12432+6216) i.e. Rs. 18,648/- as amicable settlement.” 4. In the absence of sufficient documents to prove the claim the Government after seeking all possible measures to settle the issue as per letter dated 11.10.22 directed the District Collector, Emakulam to held discussion with Cochin Thirumala Devaswom for fixing final annuity increasing the interim annuity of Rs.12432/- by 50% (12432+6216) i.e. Rs. 18,648/- as amicable settlement.” 4. The petitioner filed a reply-affidavit in which it is claimed that the annuity entitled by the petitioner shall be decided on taking into account increase in wages, prices of commodities, etc. The petitioner in this regard placed reliance on the observations of this Court in Re: Temples in the erstwhile Malabar area [AIR 1995 Kerala 172]. The petitioner also pointed out the difficulties experienced as a result of the delay in fixing and releasing of the final annuity. The petitioner claims that final annuity at the rate of Rs.25,000/- per acre together with interest should be paid. 5. Heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader. 6. The right of the petitioner to get annuity in respect of its properties, title to which was divested by operation of the Kanam Tenancy Abolition Act, 1976 and its forerunner statute is undisputed. The petitioner although has not been paid the final annuity entitled by it, interim annuity at the rate of Rs.12,432/- per annum is being paid. Section 4(3) of the Kanam Tenancy Abolition Act entitles every jenmi, if it is a religious or charitable institution of a public nature, whose right to receive jenmikaram is extinguished, is entitled to be paid by the Government every year an amount equal to the balance arrived at after deducting from the jenmikaram, the institution was entitled to receive as on 01.01.1970, 5% towards collection charges. The obligation of the Government to pay annuity is therefore indisputable. The final annuity was to be computed within a period of one year by virtue of the provisions of Section 6 of the Kanam Tenancy Abolition Act. If the final annuity is not computed within time, the religious institution is entitled to get payment of such amount as may be prescribed, by way of interim relief. By operation of the said provision, the Government has been making yearly payment of Rs.12,432/- to the petitioner. The said payments for the period from 1978 to 1988 was paid in lump sum in the year 1991. By operation of the said provision, the Government has been making yearly payment of Rs.12,432/- to the petitioner. The said payments for the period from 1978 to 1988 was paid in lump sum in the year 1991. Later also the said payments were effected, of course, only when the petitioner approaches this Court alleging delay in the payment. Now, the grievance of the petitioner is that the final annuity as per the provisions of Section 4(3) of the Kanam Tenancy Abolition Act is yet to be computed despite specific direction by this Court as per Ext.P6. It may be noted that in Exts.P4 and P5, which are the counter-affidavits filed on behalf of the Government in W.P. (C) No. 16002 of 2014 it was candidly undertaken that the final annuity would be computed and paid within a period of six months. Even in spite of such undertakings as early as in 2015, order regarding final annuity is not issued by the respondents. In such circumstances, the grievance of the petitioner is quite genuine. 7. It can be seen from Exts.P8 to P19, which are various official proceedings, communications to and from the officials and representations by the petitioner in regard to the fixation of final annuity. It is true that the officials had taken several steps for fixation of the final annuity. What is the area of land for which the petitioner is entitled to get annuity is the main dispute. Claim of the petitioner is that it is entitled to get annuity for an extent of 491.9560 hectares (1226 acres). 8. The respondents would contend that the petitioner is receiving Rs.3,29,411/- as annuity under the provisions of the Kerala Land Reforms Act, 1963 (for short “KLR Act”). The said payment is in respect of a part of the petitioner’s properties, which was divested by virtue of the provisions of the KLR Act and deducting the said area alone, the petitioner can claim annuity under the Kanam Tenancy Abolition Act. If so, on ascertaining the area of the property in respect of which annuity is being paid to the petitioner under the KLR Act, the extent of land for which the petitioner shall be given annuity under the Kanam Tenancy Abolition Act can be ascertained. 9. If so, on ascertaining the area of the property in respect of which annuity is being paid to the petitioner under the KLR Act, the extent of land for which the petitioner shall be given annuity under the Kanam Tenancy Abolition Act can be ascertained. 9. From the various proceedings and communications referred to above, it can be seen that the respondents took a stand that the petitioner can be given annuity for 50% of the said land of 491.9560 hectares, which was divested from it. The reasons for taking such a stand by the respondents for computing the final annuity is the non-availability of the records to find the kanam property vested in the Government from the petitioner. The petitioner would contend that in 1976 all the registers and records were submitted before the Settlement Officer and no copy has been retained by the petitioner. The respondents cannot take a stand that they are not in possession of any details regarding the Kanam properties, since the Settlement Officer is expected to maintain registers containing details regarding the role of every jenmi in respect of its holding by virtue of the provisions of Section 9 of the Kanam Tenancy Abolition Act. 10. Taking into account all the above aspects, we are of the view that the respondents cannot shirk their liability of fixing the final annuity entitled by the petitioner. It is for the respondents to take necessary steps on the basis of the available materials to finalise the final annuity without any further delay. Having quantified the interim annuity, the respondents cannot have a stand that they are not in possession of any material to ascertain the extent of land for which the petitioner is entitled to get the final annuity. 11. The claim of the petitioner is that it is entitled to get the annuity fixed taking into account the increase in the wages and value of commodities. In order to fortify the said contention the learned counsel for the petitioner placed reliance In Re: Temples In The Erstwhile Malabar Area, AIR 1995 Ker. 172 . In that decision, a Division Bench of this Court issued various directions to the Government in regard to the administration and governance of the Temples in Malabar religion. In order to fortify the said contention the learned counsel for the petitioner placed reliance In Re: Temples In The Erstwhile Malabar Area, AIR 1995 Ker. 172 . In that decision, a Division Bench of this Court issued various directions to the Government in regard to the administration and governance of the Temples in Malabar religion. In paragraph No. 62 of the said decision several directions were issued among which it was directed that the Government should consider the requirement of revision of annuity periodically in accordance with the rise in price of the commodities. Section 67A of the KLR Act enables the religious institutions, whose properties were divested under the KLR Act to get the annuity revised every five years. But there is no such provision in the Kanam Tenancy Abolition Act. 12. Entitlement of revision of annuity being paid to Sree Padmanabhaswamy Temple, Thiruvananthapuram under the provisions of the Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971 was in question in Silpa Nair vs. State of Kerala and Others, 2023 (1) KHC 89 . A Division Bench of this Court noticed that unlike Section 67A in the KLR Act, there is no provision enabling revision of annuity in the Enfranchisement Act. The Division Bench on the question of revision of annuity held as follows: “41. Here is a case where the petitioner highlighted the grievance that the annuity fixed in the year 1971 has not been enhanced hitherto. Considering the rate of inflation and such other aspects, it is the obligation of the Government to revise the annuity appropriately. Article 290A of the Constitution of India provides for payment of annuity towards Travancore Devaswom Fund from the Consolidated Fund of India meaning thereby the right of Devaswoms to get annuity is a Constitutional right. The grievance of denial by the Government to enhance the annuity that has been highlighted by the petitioner should be looked into in the aforementioned angle. When the statutory and Constitutional provisions command the Government to pay the annuity, it cannot be said that the petitioner has any oblique or extraneous motive in filing this Writ Petition. It certainly serves the larger public interest. 42. When the statutory and Constitutional provisions command the Government to pay the annuity, it cannot be said that the petitioner has any oblique or extraneous motive in filing this Writ Petition. It certainly serves the larger public interest. 42. The above discussion follows that the annuity to be paid to Sree Padmanabhaswamy Temple is under Section 6 of the Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971 and any enhancement is possible only if the said statute is amended. In the counter affidavit filed on behalf of the 3rd respondent, it is pointed out that the proposal to enhance the annuity payable to Sree Padmanabhaswamy Temple is under the active consideration of the Government. In order to enhance the annuity payable to the Temple, in the year 2017, Bill No. 51 was bought during 14th Kerala Legislative Assembly, to amend the Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971. The Bill could not be passed by the Assembly during the tenure of 14th Kerala Legislative Assembly. That Bill lapsed, under Article 196(5) of the Constitution of India, on the dissolution of 14th Kerala Legislative Assembly. The process initiated for introducing a new Bill is in progress. The file, which was examined by the Finance Department, is under active consideration of the State Government. 43. We are of the view that any such increase shall be taking into account the prevailing state of affairs, including the rate of inflation and change that has been brought about in the nature and complexity in the administration of Sree Padmanabhaswamy Temple over a period of time. All the same, it is a matter for legislation. This Court is not expected to direct the State to carry out a legislation in a particular manner.” 13. The same is the position in this case also. In Kanam Tenancy Abolition Act there is no provision for revision of annuity as though revision is a constitutional mandate. In such circumstances, it is for the Government to take a decision in the matter of revision of the annuity and the periodicity of such revision in an appropriate manner. A writ of mandamus in that matter cannot be issued. 14. In such circumstances, it is for the Government to take a decision in the matter of revision of the annuity and the periodicity of such revision in an appropriate manner. A writ of mandamus in that matter cannot be issued. 14. Accordingly, this Writ Petition is allowed directing the respondents to fix the final annuity entitled by the petitioner as per the provisions of Section 4(3) of the Kanam Tenancy Abolition Act, within a period of six months from the date of production of a certified copy of the judgment before the 3rd respondent.