Dismissed

Viswa Hindu Parishad v. the Travancore Devaswom Board

Kerala HC27 Nov 2020WP(C)/23238/2020

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a writ petition challenging the State of Kerala s claim over devaswom lands. The Court held that disputed factual questions were sub judice in a civil suit and no legal duty was established to justify a writ of mandamus at this stage.

What did the court decide?

Writ of mandamus to issue was dismissed. No direction to the respondents issued.

Viswa Hindu Parishad Vs the Travancore Devaswom Board — Property and Title | Kerala HC (2020)

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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 C.T.RAVIKUMAR

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THE HONOURABLE MR. JUSTICE K.HARIPAL

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FRIDAY, THE 27TH DAY OF NOVEMBER 2020 / 6TH AGRAHAYANA, 1942

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WP(C).No.23238 OF 2020(D)

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PETITIONER/S:

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VISHWA HINDU PARISHAD KOTTAYAM DISTRICT COMMITTEE, REPRESENTED BY ITS PRESIDENT, P.N.S. NAMPOOTHIRI @ P.N.SREEKUMARAN NAMPOOTHIRI, AGED 62 YEARS, S/O. NAMBYLLATHAN NAMPOOTHIRI, RESIDING AT PUTHIYADAM, PUNNATHURA WEST P.O., ETTUMANOOR, KOTTAYAM, PIN-686 631.

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BY ADVS. DR.SEBASTIAN CHAMPAPPILLY SRI.GEORGE CLEETUS SMT.MARGARET MAUREEN D ROSE

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RESPONDENT/S:

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1 THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM, PIN-695 003.

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2 THE DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM, PIN-695 003.

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3 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM, COLLECTORATE P.O., KOTTAYAM, PIN-686 002.

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SRI.G.SANTHOSH KUMAR, SC, TDB SRI.T.K.ANANDAKRISHNAN, SR.GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-102020, THE COURT ON 27-11-2020 DELIVERED THE FOLLOWING:

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JUDGMENT

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Haripal, J.

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Vishwa Hindu Parishad, Kottayam District Committee, represented by its President has moved this Court under Article 226 of the Constitution of India seeking to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 1 and 2 to take all steps to recover and protect the landed properties of the Chenappady and Cheruvallikavu devaswoms in Kottayam district.

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The provocation in moving this Court is the Ext.P1 publication made by the 3^rd respondent under Rule 8 of Order 1 CPC in O.S.No.72/2019 pending before the Sub Court, Pala. The 3^rd respondent

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District Collector is the plaintiff in the suit, representing the State of Kerala. He has sought a declaration of right, title and interest of the plaintiff over plaint items 1 and 2, 2714.52 acres and 149.28 acres respectively and recovery of the same from the defendants. Other incidental reliefs are also sought in the plaint. According to the petitioner,

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jenmom right in the plaint schedules vests with Cheruvallikavu and Chenappady devaswoms; that property, referred to as Cheruvally Rubber Estate, was originally leased out by the Chenappady and Cheruvallikavu devaswoms to one Mr. J.R.Vincent in 1910 under Deed No.1675/1910 as kanapattom. That right was later transferred to one Mr. H.R. Knight in 1912 under Deed No.3437/1912. Mr. H.R. Knight had transferred the kanapattom right to M/s.Malayalam Rubber and Produce Company Ltd., London, a company incorporated in England under the English Companies Consolidation Act, 1908 under Document No.1600/1923 of SRO, Kollam. Later, the property was transferred by the said Malayalam Rubber and Produce Company Ltd., London to M/s.Harrisons Malayalam Ltd. By amalgamation of the companies the properties came in the possession of M/s.Harrisons Malayalam Ltd. in 1984. On 01.08.2005 under Indenture Deed No.2329/2005 M/s.Harrisons Malayalam Ltd. sold the property to Ayana Charitable Trust, formerly known as Gospel for Asia. But there is no reference on the derivation of title as to how document No.1600/1923 could be executed. There is also no mention about the kanapattom deeds

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executed by the devaswoms or the kanapattom deeds of 1910 and 1912. The properties in Ext.P2 plaint is item No.31 in Document No.1600/1923, commonly known as Cheruvally Rubber Estate. It was held for the reigning deity of the temple under Section 27 of the Travancore-Cochin Hindu Religious Institutions Act, 1950. Going by the principle in Section 27 of the Travancore-Cochin Hindu Religious Institutions Act, 1950, the mere reason of inclusion of a devaswom property in the revenue records as pandarapattom lands, would not change the title of the said land and the title of the jenmi would not get extinguished or adversely affected by that reason. When the jenmom land was given out on lease, the Government was entitled to recover tax from the lessee. For the purpose of levy of tax, jenmom land of devaswoms came to be included in revenue records including in the Settlement Register as pandarapattom.

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According to the petitioner, under Section 3(4) of the Travancore Jenmi and Kudiyan Regulation, kanapattom means a demise of jenmom land made or renewed by the jenmi by whatever name such demise is designated. Deity is a perpetual minor and such a property is not

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alienable. Therefore the aforesaid jenmom lands of the devaswoms should not have been sold, even then, that it has no legal effect. Whatever be the nomenclature of the transfer deeds, subsequent transfers effected can only be construed as kanapattom deeds. Moreover, after the country had become a republic on 26.01.1950 a foreign company does not fall within the definition of citizen within the meaning of Article 19(1)(f) of the Constitution. By virtue of Section 7(1)(b) of the Indian Independence Act, 1947 and Article 372(1) of the Constitution, the Jenmi and Kudiyan Regulation 1071 M.E. as amended by Regulation 12 of 1108 M.E. became subject to the Constitution of India. Thus the Travancore Jenmi and Kudiyan Regulation 1071 M.E. is the law applicable in respect of properties belonging to the Travancore jenmies. By virtue of documents executed by the predecessors-in-interest of M/s.Harrisons Malayalam Ltd. it could not step into and continue as a kudiyan. The petitioner contends that Harrisons Malayalam Ltd. had no title over the property and therefore their subsequent assignees cannot claim jenmom right of the properties. Thus he concludes that since Harrisons Malayalam Ltd. had no title to the

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property the transfer is illegal and void.

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According to the petitioner, under proviso (c) to Section 26 of the Jenmikaram Payment (Abolition) Act, 1960, any investigation, legal proceedings or remedy may be instituted, continued or enforced as per the provisions of the Travancore Jenmi and Kudiyan Regulation, 1071 M.E. Thus, the Tranvacore Devaswom should take appropriate legal steps to recover the properties of the Cheruvallikavu and Chenappady devaswoms and restore them to the possession of the devaswoms which are illegally transferred and held by the Ayana Charitable Trust for which the State of Kerala has made a false claim as if it is government property. In the above circumstance, the petitioner preferred Ext.P4 representation to the respondents 1 and 2 on 26.09.2020. But the respondents have not taken any step for protecting the properties and aggrieved by the inaction of the respondents 1 and 2 he has moved this Court under Article 226 of the Constitution.

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We heard the learned counsel for the petitioner at some length

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and also the learned standing counsel for respondents 1 and 2. The learned

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standing counsel has made it abundantly clear that the Devaswom Board does not intend to get impleaded in the suit.

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We are afraid as to how this Court will be justified in issuing a

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writ of mandamus or order or direction as prayed for. That will presuppose peeping into the correctness or otherwise of the contentions raised by the petitioner.

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Ext.P2 suit was instituted by the 3^rd respondent on the premise

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that even though the first defendant, the said Ayana Charitable Trust, has banked upon documents like pattas, purchase certificate, sale deed etc., those documents are not genuine, besides are suspicious and unreliable. Those documents have no relationship with the extent of land claimed by the defendants, that the claim of the defendants smacks of fraud, concoction, forgery and collusion. These are government properties, title of the same had not been validly conferred to the second defendant, M/s.Harrisons Malayalam Ltd. or its predecessors, the defendants have not stated anywhere as to how the government had displaced its title or the title should have conferred upon any individual. The properties are

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W.P.(C).23238/2020 :8:

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illegally held by them violating the provisions of the Kerala Land Reforms Act and that made the State to institute the suit.

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In Ext.P6 written statement filed by the defendants 1, 3 and 4, the claim of the plaintiff has been disputed and they have claimed title over the properties. They have sought for the dismissal of the suit with compensatory cost of Rs.5 crores. According to them, the suit is instituted only for the purpose of political gain and publicity, that they have absolute right, title and interest over the properties.

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We have already stated in brief the contentions of the petitioner who is a third party to the suit. We have been told that pursuant to the Ext.P1 publication the petitioner has already moved the Sub Court with I.A. No.12/2020 seeking to implead it as an additional defendant. Its mission is certainly to highlight the contention that the properties belonged to the Cheruvallikavu and Chenappady devaswoms, that its status as leasehold continues as such, the jenmom right of the devaswoms is not extinguished and it is for the Devaswom Board to get themselves impleaded and seek for recovery to its possession. From the above it is

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clear that there is absolutely no uniformity on the line of contentions taken by the plaintiff in the suit who is the 3^rd respondent, the defendants and the petitioner who is a third party to the proceedings. The petitioner wants the respondents 1 and 2 adopt the stand that it is still kanapattom property vested with the Cheruvallikavu and Chenappady devaswoms, that it being the property of the minor is liable to be recovered to the possession of the devaswom on the strength of title. On the other hand, the 3^rd respondent raises the plea that the property is vested in them, the documents relied on by the defendants in the suit are either illegal or fraudulent which do not divest the right, title and interest of the State. The defendants in their turn rely on various documents reportedly issued by the State and assignment deeds while claiming right over the property. They have also raised the contention that, if at all there is any defect in title on account of their long possession from 1910 onwards in continuation of their predecessors-ininterest, they have prescribed title by adverse possession and limitation.

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We have stated these rival pleas only to highlight the diverse stands taken by the parties to the lis as well as the petitioner who wants to

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intervene. These are disputed questions of fact, correctness of which will be unravelled only after a full-fledged trial. Now the matter is pending before the Sub Court which is the appropriate forum. Pending consideration of these disputed questions, the petitioner is not justified in seeking an extraordinary relief from this Court.

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In this setting, we are fully conscious that, expressing any opinion on the correctness or otherwise of the rival claims raised by the parties, would certainly prejudice the rights of the contesting parties besides may influence the outcome of the trial.

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Secondly, it is the settled proposition of law that while seeking the issue of a writ of mandamus, the petitioner must show that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought. In other words, he must establish a legal right in his favour and a corresponding legal duty on the part of the respondents. In this connection, it is apposite to extract the following observations of the Hon'ble Supreme Court in The Bihar Eastern Gangetic

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Fishermen Co-operative Society Ltd. v. Sipahi Singh [AIR 1977

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W.P.(C).23238/2020 :11:

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SC 2149] :

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“ A writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limits of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.”

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13. Moreover, provisions under Order I Rule 10(2) of the Code of

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Civil Procedure enables the trial court, at any stage of the proceedings, either upon or without application of either party, to implead a party as a plaintiff or a defendant if the court is satisfied that presence of the said party would enable to effectually and completely adjudicate the questions involved in the suit. Now the petitioner has already moved the court for impleading him as an additional defendant. Necessarily it will raise all these contentions before that court. If the court is satisfied that the respondents 1 and 2 are necessary parties for adjudicating the disputed

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questions, we have no doubt that the court would act upon the plea.

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In any case, the petitioner is not justified in seeking a relief from this

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Court in the aforementioned circumstances. We may hasten to add that we

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have not made any observation touching the merits of the contentions

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raised by the petitioner. Dismissed in limine. No costs.

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Sd/-

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C.T. RAVIKUMAR JUDGE

Sd/-

K.HARIPAL JUDGE

okb/30/10/2020

//True copy// P.S. to Judge

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE COURT NOTICE DATED 6.7.2020. EXHIBIT P2 TRUE COPY OF PLAINT IN O.S.NO.72 OF 2019 ON THE FILE OF THE SUB COURT AT PALA).

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EXHIBIT P3 TRUE COPY OF IA NO.12 OF 2020 IN O.S.NO.72 OF 2019 FILED BY THE PETITIONER DATED 20.7.2020.

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EXHIBIT P4 TRUE COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER TO THE IST AND 2ND RESPONDENTS DATED 26.9.2020.

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EXHIBIT P5 TRUE COPY OF INDENTURE OF SALE DEED NO.2329 OF 2005 DATED 1.8.2005.

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EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT DATED 2.3.2020 FILED BY THE CONTESTING DEFENDANTS (D-1, D-3 AND D-4) IN O.S.NO.72 OF 2019 ON THE FILE OF THE HON'BLE SUBORDINATE JUDGES COURT AT PALA).

Viswa Hindu Parishad v. the Travancore Devaswom Board

Case brief

What is this about?

What did the court decide?

Viswa Hindu Parishad v. the Travancore Devaswom Board

Case brief

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