Partly allowed

Kamalakshi & Another v. State of Kerala and Others

Kerala HC14 Feb 2013CRP/232/2010

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed claims for public religious institution exemption under Section 81(1)(t)(ii) due to lack of evidence regarding public dedication. It remitted the calculation of exemptable ceiling area between 12 and 15 Acres to the Taluk Land Board and stayed the taking over of possession in a tenancy dispute until the Land Tribunal decides the claim.

What did the court decide?

Exemption for 3.68 Acres granted; ceiling limit to be re-determined between 12-15 Acres based on option statement; TLB stay on taking possession in tenancy dispute for 4 months.

Kamalakshi & Another Vs State of Kerala and Others — Landlord and Tenant | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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THURSDAY, THE 14TH DAY OF FEBRUARY 2013/25TH MAGHA 1934

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CRP.No. 232 of 2010 ( )

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AGAINST THE ORDER/JUDGMENT IN LB.554/1973 of TALUK LAND BOARD, PALAKKAD DATED 25-03-2010

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REVISION PETITIONER(S)/LR OF DECLARANT:

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KAMALAKSHI, AGED 85 YEARS, W/O.LATE SUBRAMANYA IYER, IYYAR MALA VEEDU, THENUR PARALI-1, PALAKKAD.

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S.SAHADEVAN, AGED 57 YEARS, S/O.LATE SUBRAMANYA IYER, IYYAR MALA VEEDU, THENUR PARALI-1, PALAKKAD.

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BY ADVS.SRI.U.BALAGANGADHARAN

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SRI.S.M.UNNIKRISHNAN

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RESPONDENT(S):

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STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, THIRUVANANTHAPURAM.

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THE CHAIRMAN, TALUK LAND BOARD, PALAKKAD.

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THE DISTRICT COLLECTOR, PALAKKAD.

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THE TAHSILDAR, PALAKKAD.

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BY ADV. SPECIAL GOVERNMENT PLEADER (REVENUE): SMT.SUSHEELA K BHATT

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 1402-2013, ALONG WITH CRP. 233/2010, CRP. 234/2010, CRP. 288/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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========================= C.R.P.Nos.232, 233, 234 and 288 of 2010 ============================ Dated this the 14^th day of February, 2013

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O R D E R

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These civil revisions arise from proceeding dated 25.03.2010 of the Taluk Land Board, Palakkad (for short, "the TLB”) in L.B.No.554/73 directing the declarant to surrender excess land and rejecting claims made by some of the claimants.

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Proceeding was initiated in the year, 1973. The declarant (whose legal representatives are, petitioners in C.R.P.Nos.232, 233 and 234 of 2010) was directed to surrender 10.65Acres as excess land. That order was on the premise that the declarant was holding 23.33 Acres of which, he was entitled to get exemption of 3.68 Acres as the said extent formed temple and its premises. The TLB was also of the view that extent of the land which the declarant could hold was 12 Acres. Thus, it came to the conclusion that the declarant is liable to surrender 10.65Acres as excess land.

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Later, the Deputy Tahsildar submitted report to the TLB that the declarant is in possession of 183.61Acres. By the impugned proceeding dated 25.03.2010 the TLB has directed the declarant to surrender 167.93Acres (after granting exemption

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C.R.P.Nos.232, 233, 234 and 288 of 2010 2

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and excluding ceiling limit of 12 Acres). Legal representatives of the declarant have challenged that order in C.R.P.Nos.232, 233 and 234 of 2010. Claimants who made a claim before the TLB on the strength of being either tenants or deemed tenants of property in their possession have challenged rejection of their claims in C.R.P.No.288 of 2010.

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Learned counsel for petitioners in C.R.P.Nos.232, 233, and 234 of 2010 contends that the TLB has not taken into account various documents declarant had produced to show that property is owned or held by a religious institution of a public nature which is entitled to get exemption of entire land belonging to or held by it under Sec.81(1)(t)(ii) of the Kerala Land Reforms Act (for short, "the Act”). It is also contended that at any rates declarant was entitled to hold 15 Acres of Paramba while, ceiling limit was fixed by the TLB as 12Acres.

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Learned counsel for petitioners in C.R.P.No.288 of 2010 contends that by way of separate lease deeds executed by the declarant or under him, petitioners in C.R.P.Nos.288 of 2010 are in possession of the respective lands claimed by them. It is also contended that with the Government also on the party array, the Forest Tribunal, Palakkad has held that petitioners in

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C.R.P.Nos.232, 233, 234 and 288 of 2010 3

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C.R.P.No.288 of 2010 are lessees of the said lands. Therefore, the TLB was bound to exempt the said lands also from the land liable to be surrendered, it is contended.

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Learned Special Government Pleader appearing for the respondents has contended that claim made by the legal representatives of the declarant for exemption cannot be accepted for the reason that there is no evidence to show that the Devaswom set up by the declarant is of a public nature. Reliance is placed on the decisions in Joseph Thomas Vs. Taluk Land Board (1979 KLT 41) and State of Kerala Vs. Karthiyani Amma (1989(2) KLT 505) . It is contended that merely for the reason, even if it is assumed so, that public are offering worship in the temple, it does not transform the temple into a temple of public nature. It is contended that exemption in respect of the land owned or held by such public religious institution ought to be made by the public religious institution while in this case, no such claim is made by the institution concerned. Even the declarant has not made any claim under Sec.81(1)(t)(ii) of the Act. Instead, claim was made only under Sec.85A of the Act. Hence the declarant or his legal representatives are not required to claim any exemption under

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C.R.P.Nos.232, 233, 234 and 288 of 2010

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Sec.81(1)(t)(ii) of the Act, it is argued.

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So far as petitioners in C.R.P.No.288 of 2010 is concerned, it is argued by the learned Special Government Pleader that the competent Land Tribunal has not so far issued any order of assignment in favour of petitioners in C.R.P.No.288 of 2010 holding that they are either tenants or deemed tenants and hence the said claim cannot be entertained by the TLB.

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Sec.81(1)(t)(ii) of the Act exempts lands owned or held by a religious, charitable or educational institutions of a public nature. To be a religious institution of a public nature, it is not sufficient that either the public are offering worship without any objection or that contributions are being received by them as well. If it was originally a private temple, there must be evidence of dedication of the private temple to the public to transform it into a religious institution of a public nature.

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Learned Special Government Pleader has given me the file concerning the proceeding before the TLB. I find from the file that the declarant has made a declaration in form IA under Sec.85A of the Act. There, name and address of the declarant is given as 'Chidambareswara Swami Dev, S/o. Subramania Iyer'. It is also seen from the declaration that the

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C.R.P.Nos.232, 233, 234 and 288 of 2010

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nature of the religious institution referred to therein is stated as a 'private Devaswom'. The declarant has described himself as trustee of the private Devaswom.

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Learned counsel for petitioners in C.R.P.Nos.232, 233 and 234 of 2010 have referred to me certain documents which according to him were produced before the TLB and which according to him were not considered by the TLB.

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It is the case of petitioners in C.R.P.Nos.232, 233 and 234 of 2010 that a foreigner got possession of the property. By assignments it came to one Kunjan Iyer who gifted the same as per document dated 04.12.1875 to his brother, Kothankan Iyer. Kothankan Iyer is said to have been in possession of the said property as Manager of the Devaswom (referred to above). He was also given power to lease the property for the benefit of temple. On the death of the said Kothankan Iyer, the then Malabar District Collector escheated the property on 23.09.1911 as it was abandoned. The Malabar District Collector gave possession of the property to Chipra Subramanya Iyer. While so, there was some dispute between Chipra Subramanya Iyer and his brothers. Thereon, O.S.No.6 of 1914 came to be filed in the District Munsiff's Court, Ottappalam. That suit was disposed of

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C.R.P.Nos.232, 233, 234 and 288 of 2010

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as per judgment dated 13.11.1914, according to the petitioners, holding that the Devaswom in question belonged to the Ezhava community. Chipra Subramanya Iyer executed a registered document styled as 'Nishchaya Pathram' in the year, 1945 handing over possession of the property to his son, Subramanian. The said Subramanian was directed to manage the property on behalf of the temple. While so, a member of the joint family of Subramanian filed O.S.No.52 of 1985 in the Sub Court, Palakkad for partition of property of the joint family. There, the property in question was also included. It is submitted that as per judgment in O.S.No.52 of 1985, it was held that property of the temple is not partible.

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I must notice that in the above suits, the Government was not a party. Documents/litigation relied on by the petitioners in C.R.P.Nos.232, 233 and 234 of 2010 are among members of the family and cannot bind the Government.

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I referred to the statement made by the declarant in form No.1A of Sec.85A of the Act. There, the Devaswom in question is described as a private Devaswom and the declarant, as trustee of the private Devaswom. In the light of that affirmation made by the declarant, his legal representatives

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C.R.P.Nos.232, 233, 234 and 288 of 2010

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cannot take a different stand and contend that the Devaswom in question is a religious institution of a public nature falling under Sec.81(1)(t)(ii) of the Act. Therefore, contention raised by the petitioners in C.R.P.Nos.232, 233 and 234 based on Sec.81(1)(t) (ii) of the Act has to fail.

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But, the contention raised by those petitioners relating to the calculation of extent of land liable to be surrendered requires consideration. The TLB has found that 3.68Acres is liable to be exempted as it takes in the temple and its premises. The Government has not challenged exemption thus granted by the TLB and hence that should stand. The TLB has also found that extent of property which the declarant (and his legal representatives) could hold is 12Acres. Learned counsel submits that the declarant and his legal representatives are entitled to hold, depending on nature of property which they have the option to surrender, 12 to 15 Acres. If 15 Acres of paramba are available to be held by them, it is argued that the ceiling limit would be up to 15 Acres.

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Certainly that is a matter which the TLB has to decide based on the option statement legal representatives of the declarant would file. If legal representatives of the declarant

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C.R.P.Nos.232, 233, 234 and 288 of 2010

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show that extent of paramba in their possession is 15 Acres, necessarily the TLB has to fix the ceiling limit of paramba which legal representatives of the declarant are entitled to possess as 15Acres. That is apart from the 3.68Acres which the TLB has already exempted.

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So far as claim in C.R.P.No.288 of 2010 is concerned, it is based on the lease allegedly created by the declarant Whether claimants are cultivating tenants or deemed tenants that question has to be decided by the Land Tribunal having jurisdiction over the matter. A learned Judge of this Court in the judgment dated 17.01.2012 in O.P(C).No.47 of 2012 has held that the decision as to whether a claimant is a deemed tenant or not (falling under Sec.7E of the Act) is a matter coming outside the domain of consideration of the TLB and as such that question has to be decided by the Land Tribunal concerned. Therefore the claim made by petitioners in C.R.P.No.288 of 2010 has to be adjudicated by the Tribunal concerned.

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Since petitioners in C.R.P.No.288 of 2010 are entitled to move the Land Tribunal concerned for a finding as to their claim of tenancy or deemed tenancy, it is appropriate that they are granted some time for the purpose and the TLB does not take

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C.R.P.Nos.232, 233, 234 and 288 of 2010

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over property in the possession of petitioners in C.R.P.No.288 of 2010 for some time.

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Resultantly these civil revisions are disposed of as under:

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(I) C.R.P.Nos.232, 233 and 234 of 2010 :-

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(i) While rejecting claim of petitioners herein for exemption under Sec.81(1)(t)(ii) of the Act, it is directed that exemption granted to them by the TLB over 3.68Acres would stand.

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(ii) Depending on the nature and extent of property petitioners have in their possession and based on their option statement the TLB shall fix the ceiling limit (between 12 to 15 Acres).

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(II) C.R.P.No.288 of 2010 :-

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(i) It is directed that petitioners therein could establish their claim of tenancy/deemed tenancy in the Land Tribunal concerned.

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(ii) It is directed that the TLB shall not take over possession of properties in the possession of petitioners in C.R.P.No.288 of 2010 for a period of four (4) months from this day.

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(iii) In the meantime it is open to the petitioners to move the Land Tribunal concerned for a finding regarding their claim of tenancy/deemed tenancy and if necessary, move appropriate application in that Tribunal as provided under the Act and relevant Rules.

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Sd/-

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THOMAS P.JOSEPH, JUDGE

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Sbna

Kamalakshi & Another v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

Kamalakshi & Another v. State of Kerala and Others

Case brief

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