Ramachandran Nair, J. The petitioners are aggrieved by Ext.P7 order passed by the third respondent, viz. The Special Tahsildar and Executive Magistrate, Conservancy, Travancore Devaswom Board, by which it was ordered to take possession an extent of 45.055 cents of land in Sy. No.61/15B and to hand over the same to the Travancore Devaswom Board, as it is Temple property. They are also seeking for a declaration that SRO No.819/2008 vide GO(MS) No.247/2008/RD dated 4.8.2008 issued by the first respondent State of Kerala invoking Section 15 of the Kerala Land Conservancy Act, 1957 and authorising the third respondent to exercise the powers of the Collector in respect of the properties of Travancore Devaswom Board is without jurisdiction, null and void and inoperative.
2. We heard learned counsel for the petitioners, Shri P. Chandrasekhar, Shri P. Gopal, learned Standing Counsel for the Travancore Devaswom Board (for short “the Board”) and learned Senior Government Pleader Shri A. Ranjith for the State.
3. The pleas of the petitioners, relevant for consideration, are the following: The petitioners' late father Shri Padmanabhan obtained purchase certificate from Vaikom Land Tribunal in respect of 45.055 cents of land in Survey No.61/15B1 of Vaikom Village. Ext.P1 dated 10.7.1978 is the copy of the purchase certificate. Mutation has been effected in his name and Ext.P2 is the copy of the basic tax receipt showing the same. Ext.P3 is the copy of the notice issued by the third respondent asking the second petitioner to appear and to prove his claims, if any, in respect of the said property. It was informed that, it had been prima facie found that the properties in Sy. Nos.61/14, 61/15A and 61/15B are, as per the settlement registers of the Travancore Devaswom Board, and there is an encroachment by them. Ext.P6 is the reply given by the second petitioner and Ext.P7 is the order thereafter passed by the third respondent holding that the property belongs to the Saraswathi Devi Temple, T.V. Puram which is under the Travancore Devaswom Board and therefore being Temple property, the same has to be surrendered to the Devaswom. The purchase certificate is absolutely void ab initio.
4. Ext.P8 is the judgment of the Munsiff's Court Vaikom in O.S. No.124/1970 which is a suit filed by the Travancore Devaswom Board on behalf of the Temple in respect of the total area extending to 73 cents. It is pointed out that even though the suit was decreed allowing the Board to recover possession of the land with arrears of pattom and interest, no execution petition was filed and the property continued to be in possession of the petitioners' father as a cultivating tenant and purchase certificate was issued in respect of 45.055 cents of land.
5. With regard to the jurisdiction of the third respondent, it is contended that the provisions under the Land Conservancy Act, 1957 are applicable for eviction of unauthorised occupants of Government land, whereas the petitioners cannot be treated as occupying any land unauthorisedly, since they have obtained purchase certificate.
6. A detailed counter affidavit has been filed by the Secretary of the Board disputing the averments in the writ petition. Inter-alia, it is contended that the exercise of power by the third respondent who was duly authorised by a notification issued under Section 15 of the Land Conservancy Act, 1957 cannot be said to be without jurisdiction. The property in question belongs to Saraswathy Devi Temple under the Thirumani Venkitapuram Devaswom. The same is under the administration of the Travancore Devaswom Board in Vaikom Group. It is a Grade II temple. The main idol of the temple is “Saraswathy” and there are sub shrines of “Ganapathi, Sastha, Durga, Rakshas and Nagar.” The Temple is situated in 73 cents of land comprised in Survey No.61/15B of Vaikom Village It also owns another extent of land viz. 41 cents in Sy. No.61/14 of Vaikom Village. The settlement register issued by the Travancore Government in respect of Vaikom village shows that the Temple is having jenmam right over 73 cents of land in Sy. No.61/15B and 43 cents of land in Sy. No.61/14 of Vaikom village, a copy of which has been produced as Ext.R2(a). It is contended that in the light of Section 27 of Travancore Cochin Hindu Religious Institutions Act, 1950 (for short “TCHRI Act”), the provisions of the Land Conservancy Act have been made applicable to Devaswom lands as in the case of Government lands. By virtue of Section 3 of the said Act, the administration of unincorporated Devaswoms, apart from Hindu Religious Endowments and all their properties and funds are vested in the Board. It is pointed out that the father of the petitioners was not at all a cultivating tenant. In the year 1960 a kuthakapattom agreement was executed between their father and the Superintendent of Devaswoms, Vaikom Group, as Ext.R2(b) for a period of six years by which he was allowed to take usufructs from the trees standing in 73 cents of Temple land on payment of Rs.55/- per annum. The term of the said agreement ended on 24.9.1966. It is contended that the Land Tribunal, without complying with the procedure contemplated under the Kerala Land Reforms Act and the Rules, allowed the application which is null and void. He was never a cultivating tenant, as the kuthakapattom arrangement did not enable him to cultivate the land, but it was only for taking usufructs.
7. Apart from that, it is mainly contended that the property is exempted under Section 3(1)(x) of the Kerala Land Reforms Act as it is the premises of the Temple. It is specifically contended that the sanctum sanctorum of the Temple is situated within the 73 cents of land. It is also stated that pattayam has been issued showing survey number as 61/15B1, whereas the application is in respect of Sy. No.61/15 only. It is contended that since the order of the Land Tribunal is null and void, no rights have been obtained on the petitioners. The Board had taken possession of 29.945 cents out of 73 cents of land.
8. It is further contended that in the light of Section 20A of the Land Conservancy Act, the civil court also has no jurisdiction in the matter and therefore the power exercised by the third respondent is perfectly justified. The contention mainly is that the kuthakapattom arrangement cannot be treated as a tenancy arrangement under the Land Reforms Act. The land is exempted under Section 3(1)(x) of the Land Reforms Act. The judgment of the Appellate Court in the appeal filed by the petitioners' father from Ext.P8 judgment in O.S. No.124/1960, Ext.R2(c) and the further judgment, Ext.R2 (d) rendered thereafter are without jurisdiction, in the light of Section 20A of the Land Conservancy Act. The petitioners being in unauthorised occupation, they can be evicted by recourse to the proceedings under the Land Conservancy Act. The power conferred on the third respondent under the Land Conservancy Act is perfectly legal and valid and the challenge to the notification under Section 15 is without merit.
9. Learned counsel for the petitioners, Shri P. Chandrasekhar submitted that the provisions of the Land Conservancy Act could not have been invoked on the facts of this case. The emphasis under the relevant Sections of the Land Conservancy Act is to evict trespassers from the properties of the Government. Herein, the possession of the petitioners is evidently as per the purchase certificate issued by the Land Tribunal. Therefore, they cannot be termed as in unauthorised occupation of any land. Therefore, the very premise under which the jurisdiction has been invoked by the third respondent cannot be supported.
10. Learned counsel next submitted that Section 27 of the TCHRI Act, 1950 actually refers to Land Conservancy Act, 1091 which has been repealed. The provisions of Land Conservancy Act, 1957 have not been incorporated under Section 27 of the TCHRI Act and therefore the provisions of Land Conservancy Act, 1957 cannot be called in aid. Only with regard to the properties of the Cochin Devaswom Board, the provisions under the Land Conservancy Act, 1957 have been incorporated in Section 62 of TCHRI Act.
11. It is further submitted that the notification appointing the third respondent issued under Section 15 of the Land Conservancy Act, a copy of which is produced as Ext.R2(i) along with the counter affidavit of the Board, will show that the same is issued by referring to Section 62A of TCHRI Act which does not apply to the Board. For these reasons also the authorisation given to the third respondent is bad in law.
12. Learned counsel for the petitioners further submitted that any claim for eviction of the petitioners can only be by recourse to “due process of law” and herein a civil suit was filed by the Board which has attained finality. The same cannot be undone by a summary procedure by recourse to the provisions of the Land Conservancy Act. The settled possession of the petitioners cannot be called as an unauthorised occupation by any stretch of imagination. Section 11 of the Land Conservancy Act pre supposes that one should be in unauthorised occupation whereas in this case possessory right is already there. Herein, the tenancy was admitted also, going by the judgment of the civil court. Earlier there was an application for resumption of land which was dismissed and this also is a factor in favour of the petitioners. Apart from the same, it is submitted that when question of title is involved, the invocation of summary procedure cannot be justified.
13. It is further submitted that the subsequent amendments to the Land Conservancy Act will not help the Board to seek the aid of Section 27 of TCHRI Act. Going by the principles of “legislation by incorporation ”, in the absence of incorporation of the provisions of Land Conservancy Act specifically in TCHRI Act, 1950, the power could not have been invoked. There is no amendment to the original Section 27 of the TCHRI Act, whereas as the reference therein is only to the Land Conservancy Act, 1091. Learned counsel for the petitioners relied upon the following judgments in support of his arguments:
“Girnar Traders (3) v. State of Maharashtra {(2011) 3 SCC 1}, Government of A.P. v. Thummala Krishna Rao (AIR 1982 SC 1081), Badarla Suryakumari v. Badarala Vamana Murthy & others (AIR 2010 AP 209), Express Newspapers Pvt. Ltd. v. Union of India (AIR 1986 SC 872), Kuruvila Yohannan v. Kumaran (1989) 2 KLT 859), Trivandrum Golf Club v. State of Kerala (2010 (2) KLT 996), Travancore Devaswom Board v. Mohanan Nair (2013 (3) KLT 132), Ramakke & others v. Gopi and others (2011 (3) KHC 491), Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke (1976 KHC 643), Maria Margarida Sequeira Fernandes & others v. Erasmo Jack De Sequeira (dead) through L.Rs. {(2012) 5 SCC 370} and Union of India v. Sohan Lal Paulia {(2004) 1 SCC 768}.
14. Per contra, learned Standing Counsel for the Board, Shri P. Gopal raised the following contentions. It is submitted that the suit was decreed initially as per Ext.P8 judgment. It was found correctly by the trial court that the provisions of Land Reforms Act cannot come to the aid of the petitioners' father since it is Temple property and being a tenancy in respect of site and premises of the Temple, it is exempted under Section 3(1)(x) of the Land Reforms Act. It is submitted that the petitioners' father was never a cultivating tenant. The grant of kuthakapattom under Ext.R2(b) agreement will not confer any right on the father of the petitioners as a cultivating tenant. It is only a licence. He was never allowed to cultivate the land. What was permitted is to take usufructs for a period of six years on payment of Rs.55/- per annum subject to the conditions stipulated in Ext.R2 (b). It is clearly specified that after the period is over any occupation will be treated as unauthorised and follow up action will be taken if the property is not entrusted back to the Board. Therefore, the very premise under which the Land Tribunal has issued the pattayam is unsupportable, as the land is one exempted, being premises of the Temple. The structures of the Temple including sanctum sanctorum, two ponds and other structures are situated in the very same property. It is further pointed out that the judgment rendered by the Appellate Court, Ext.R2(c), in A.S. No.60/1972 and the subsequent decree and judgment of the trial court, Ext.R2(d) are without jurisdiction, in the light of Section 20A of the Land Conservancy Act, 1957. It bars the civil court from entertaining any suit filed by the Board for evicting unauthorised occupants from Devaswom land. It applies to the pending suits as well. Hence, the civil court lacked inherent jurisdiction to deal with it. The decree of the civil court being passed in such a manner overlooking Section 20A of the Land Conservancy Act, the objection with regard to the inherent lack of jurisdiction being basic and fundamental, can be raised even in collateral proceedings and even in execution proceedings, which principle is well settled. It is further contended that the notification appointing the third respondent as Special Tahsildar and Executive Magistrate, is by invoking Section 15 of the Land Conservancy Act, 1957.
15. Learned counsel submitted - with regard to the applicability of the provisions of Land Conservancy Act - that in Section 27 of the TCHRI Act, the Land Conservancy Act, 1091 is adopted by reference and it is not by way of incorporation of any specific provisions of the Land Conservancy Act. Therefore, even if the said Act is repealed, the provisions of the Land Conservancy Act, 1957 and the amended provisions thereof will apply. It is therefore submitted that the notification Ext.R2(i) appointing the third respondent by invoking Section 15 of the Act is perfectly justified. It is not one issued under Section 62A of the TCHRI Act and reference to that provision under the Explanatory Note to the said notification is only by way of a mistake which cannot invalidate the notification.
16. With regard to the purchase certificate obtained by the petitioners' father, learned Standing Counsel for the Board submitted that the same is issued without complying with the mandatory provisions under Sections 72F(3A) and 105 of the Land Reforms Act, 1963 and Rules 7A to 7F and 9 and 10 of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970. Therefore, the order passed by the Land Tribunal amounts to a nullity. Reliance is placed on the judgment of this Court in Travancore Devaswom Board v. Mohanan Nair M.N. (ILR 2013 (2) Ker. 883 = 2013 (3) KLT 132) in that context. The order was passed by the Land Tribunal in a hasty manner, even without the parties being present. No evidence was taken also. At any rate, learned counsel submitted that this Court will be exercising the jurisdiction in the light of parens patriae principles which are squarely applicable to the facts of this case, so as to protect the Temple property. Therefore, since the order passed by the Land Tribunal is null and void, the present order passed by the third respondent as per Ext.P7 is perfectly justified. Learned counsel further submitted that since the order passed by the Land Tribunal is null and void, the principles of estoppel, waiver, acquiescence or even res-judicata have no application.
17. It is submitted that the Land Conservancy Act and TCHRI Act are self contained enactments and both Acts can be implemented without conflict, harmoniously. It is therefore submitted that the contention that the invocation of provisions of Land Conservancy Act is unjustified, cannot be supported. After the kuthakapattom arrangement was over, the document Ext.R2(b) itself speaks that any attempt to continue in occupation of the property without surrendering it to the Devaswom Board will be treated as unauthorised occupation. Therefore, the provisions of Land Conservancy Act can be invoked to evict the persons. The Board cannot file a suit against the encroachers of Devaswom land and for recovery of possession, in view of the express bar under Section 20A of the Land Conservancy Act. Learned Standing Counsel for the Board relied upon the following judgments:
“Inacio Martins (deceased through Lrs.) v. Narayan Hari Naik and others{(1993) 3 SCC 123}, Smt. Sooraj and others v. S.D.O. Rehli and others (AIR 1995 SC 872), Annamreddi Bodayya and another v. Lokanarapu Ramaswamy (dead) by L.Rs.) (AIR 1984 SC 1726), Hasham Abbas Fayyad v. Usman Abbas Fayyad {(2007) 2 SCC 355}, Durga Hotel Complex v. Reserve Bank of India (2007 (2) KLT 717), Maharashtra State Road Transport Corporation v. State of Maharashtra and others {(2003) 4 SCC 200}, Bajya v. Gopikabai (AIR 1978 SC 793), Mohd. Zakir v. Delhi Administration (AIR 1982 SC 696), Girnar Traders v. State of Maharashtra and others {(2011) 3 SCC 1}, Cantonment Board and another v. Church of North India {(2012) 12 SCC 573}, Travancore Devaswom Board v. Mohanan Nair (ILR 2013 (2) Ker.
883) and Shamsudeen v. Travancore Devaswom Board (2001 (1) KLT 292).”
The learned Government Pleader, Shri Ranjith Submitted that the notification issued under Section 15 of the Land Conservancy Act is perfectly valid and hence the third respondent has got jurisdiction.
18. First we will refer to the provisions of TCHRI Act, 1950.
Section 2 contains definitions and Section 2(c) defines “Incorporated Devaswoms” and “Unincorporated Devaswoms”. “Incorporated Devaswoms” means Devaswoms mentioned in Schedule I. Schedule I of the Act gives the list of such Devaswoms and “Thirumani Venkitapuram” is a Devaswom included in Vaikom Group in Vaikom Taluk. Under Section 3 of the Act, the administration of incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds shall vest in the Travancore Devaswom Board. Section 27 reads as follows:
“27. Devaswom properties.-- Immovable properties entered or classed in the revenue records as Devaswom vaga or Devaswom poramboke and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30th Meenam, 1097 corresponding to the 12th April, 1922, shall be dealt with as Devaswom properties. The provisions of the Land Conservancy Act of 1091 (IV of 1091) shall be applicable to Devaswom lands as in the case of Government lands.”
Therefore, the properties described in the revenue records as Devaswom vaga or Devaswom puramboke as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30th Meenam, 1097 corresponding to the 12th April, 1922, shall be dealt with as Devaswom properties. The provisions of the Land Conservancy Act of 1091 shall be applicable to Devaswom lands as in the case of Government lands. Going by Section 50 of the TCHRI Act, the Land Conservancy Act has been made applicable to unassigned lands of Devaswoms under the Board also and we extract the said provision hereunder for easy reference:
“50. Applicability of Land Conservancy Act to unassigned lands of Devaswoms under the Board.-- All unassigned lands belonging to any Devaswom under the sole management of the Board shall be deemed to be the property of the Government for the purpose of the Land Conservancy Act of 1091 (IV of 1091) and all the provisions of that Act shall, so far as they are applicable, apply to such lands.”
Section 62A is also extracted below which is in Chapter VIII under the heading “The Cochin Devaswom Board”:
“62A. Devaswom Properties.-- All immovable properties vested in the Cochin Devaswom Board under sub-section (1) of Section 62 shall be dealt with as Devaswom properties. The provisions of the Kerala Land Conservancy Act, 1957 (8 of 1958) shall be applicable to Devaswom lands as in the case of Government lands.”
Therein, it is provided that the provisions of the Land Conservancy Act, 1957 shall be applicable to Devaswom lands as in the case of Government lands. This was inserted by Act 14 of 1990.
19. Since the very authority of the third respondent and his jurisdiction is challenged by the petitioners, we will first deal with the said contention. The main argument of Shri P. Chandrasekhar, learned counsel for the petitioners is that the Land Conservancy Act, 1957 and its provisions have not been incorporated in Section 27 of TCHRI Act, 1950 or under any other provisions of it. It is therefore to be considered whether the non mentioning of Land Conservancy Act, 1957 in Section 27 of TCHRI Act will have any adverse consequence.
20. Shri P. Gopal relied upon the judgments of the Apex Court in Bajya's case (AIR 1978 SC 793), Western Coalfields Ltd.'s case (AIR 1982 SC 697) and Maharashtra State Road Transport Corporation's case {(2003) 4 SCC 200} to contend that the provisions of Land Conservancy Act, 1091 have been adopted in the TCHRI Act, 1950 by reference and therefore all the amendments from time to time are also applicable.
21. Shri P. Chandrasekhar mainly relied upon the decision of the Apex Court in Girnar Traders' case {(2011) 3 SCC 1}, to counter the above point. The same is by a Constitution Bench of five Judges. Their Lordships have elaborately considered the doctrine of “legislation by reference” and “legislation by incorporation” in the context of Maharashtra Regional and Town Planning Act, 1966 and Land Acquisition Act, 1894. The important question considered therein is with regard to the effect of amendment of Land Acquisition act, 1894 by Act 68 of 1984. Their Lordships have also referred to various judgments of the Apex Court in that context including Maharashtra State Road Transport Corporation's case {(2003) 4 SCC 200}. The concepts of “legislation by reference” and “legislation by incorporation” have been explained in paragraph 87 thus:
“87...........When there is general reference in the Act in question to some earlier Act but there is no specific mention of the provisions of the former Act, then it is clearly considered as legislation by reference. In the case of legislation by reference, the amending laws of the former Act would normally become applicable to the later Act; but when the provisions of an Act are specifically referred and incorporated in the later statute, then those provisions alone are applicable and the amending provisions of the former Act would not become part of the later Act. This principle is generally called legislation by incorporation. General reference, ordinarily, will imply exclusion of specific reference and this is precisely the fine line of distinction between these two doctrines. Both are referential legislations, one merely by way of reference and the other by incorporation. It, normally, will depend on the language used in the later law and other relevant considerations. While the principle of legislation by incorporation has well-defined exceptions, the law enunciated as of now provides for no exceptions to the principle of legislation by reference. Furthermore, despite strict application of doctrine of incorporation, it may still not operate in certain legislations and such legislation may fall within one of the stated exceptions.”
These principles have been further explained in paragraph 89 thus:
“89. With the development of law, the legislature has adopted the common practice of referring to the provisions of the existing statute while enacting new laws. Reference to an earlier law in the later law could be a simple reference of provisions of earlier statute or a specific reference where the earlier law is made an integral part of the new law i.e. by incorporation. In the case of legislation by reference, it is fictionally made a part of the later law. We have already noticed that all amendments to the former law, though made subsequent to the enactment of the later law, would ipso facto apply and one finds mention of this particular aspect in Section 8 of the General Clauses Act, 1897. In contrast to such simple reference, legal incidents of legislation by incorporation is that it becomes part of the existing law which implies bodily lifting provisions of one enactment and making them part of another and in such cases subsequent amendments in the incorporated Act could not be trated as part of the incorporating Act.”
Thus, when there is only a general reference to a former Act without specific mention of any provisions of the former Act, it is legislation by reference. The amending laws of the former Act will become applicable to the later Act. When provisions of an Act are incorporated in a later Act, it is legislation by incorporation and amending provisions of the former would not become applicable. The distinction is therefore quite important when construing the respective enactments. With regard to the provisions of Maharashtra Regional Town Planning Act and Land Acquisition Act, 1894, their Lordships held that it is clearly a case of legislation by incorporation as evident from paragraph 107 of the judgment and we extract the said paragraph hereunder to understand as to how the said principle was applied to the fact situation:
“107. The specific reference to the provisions of the Land Acquisition Act and purpose to be achieved is clear from the language of the abovereferred provisions of the State Act. In other words, wherever the State Legislature considered it appropriate, it has made specific reference to a particular provision of the Land Acquisition Act and for attainment of a particular purpose. There is no general reference to the Land Acquisition Act in any of the provisions of the MRTP Act to say that the provisions of the former Act, in their entirety, will be applicable to all kind of proceedings and purposes under the later Act. Another aspect which would support the view that it is legislation by incorporation and there is every legislative intent to exclude legislation by reference is that wherever there was a general reference to the provisions of the Land Acquisition Act like Section 127 of the MRTP Act, the same stands excluded/deleted by amendment of 2009.” (emphasis supplied by us) It was held that there was specific reference to a particular provision of the Land Acquisition Act and it was not a case of general reference to the said Act to any of the provisions of MRTP Act. In paragraph 108 the following significant observation has also been made:
“If the legislature intended to apply the provisions of the Land acquisition Act generally and wanted to make a general reference and implementation of those provisions, it could have said that the provisions of the Land Acquisition Act would be applicable to the MRTP Act. Such expression is conspicuous by its very absence.” (underlining by us) After referring to various judgments, their Lordships have further held in paragraph 121 as follows:
“121. These are the few examples and principles stated by this Court dealing with both the doctrines of legislation by incorporation as well as by reference. Normally, when it is by reference or citation, the amendment to the earlier law is accepted to be applicable to the later law while in the case of incorporation, the subsequent amendments to the earlier law are irrelevant for application to the subsequent law unless it falls in the exceptions stated by this Court in M.V. Narasimhan case {(1975) 2 SCC 377} ”
Applying those principles, it was further held in paragraph 123 with regard to MRTP Act that “the State Legislature while enacting the MRTP Act has referred to the specific sections of the Land Acquisition Act in the provisions of the State Act. None of the sections require application of the provisions of the Land Acquisition Act generally or mutatis mutandis. On the contrary, there is a specific reference to certain sections and/or content/language of the section of the Land Acquisition Act in the provisions of the MRTP Act.” These findings will also bring in the distinction between the two doctrines.
22. Shri P. Chandrasekhar specifically invited our attention to paragraphs 141 and 149 of the said decision. Paragraphs 141 and 149 read thus:
“141. One of the pertinent principles that the Court should keep in mind while applying referential legislation as a tool of interpretative application is that such interpretation should not, in any way, defeat the object and essence of principal legislation. The likelihood of any interference with the scheme under the principal Act would tilt against accepting such an interpretation.”
149. It will be useful to apply the “test of intention” and “test of unworkability” with their respective contextual reference while determining the applicability of either of the doctrines and for that matter, even on the applicability of the amended law to the later law. Impact analysis on the workability of the respective legislation shall be a relevant consideration for resolving such an issue. There can be instances where the amended law, if applied and treated as incorporated in the principal legislation, may be apparently unadjustable to the scheme of that legislation. In that circumstance, it will be unfair to interpret the amended law as deemed to be incorporated, irrespective of its consequences on the implementation of the provisions of the principal Act.”
In paragraph 150 exceptions to the rule of “legislation by reference” have also been explained and we extract the said exceptions hereunder:
“(a) Legislation by reference should not result in defeating the object and purpose of the later Act:
(b) Where the amendments to the earlier law are read into the subsequent law as a result of legislation by reference, if the result is irresolvable conflict between their provisions or it results in destroying the essence and purpose of the principal Act (later law).”
Therefore, it has to be found out whether while applying the doctrine of “legislation by reference”, it would defeat the object and purpose of the later Act and whether it results in irresolvable conflict between their provisions or it results in destroying the essence and purpose of the principal Act (later law).
23. In the light of the above principles, we will have to find out as to whether it is “legislation by reference” or “legislation by incorporation” that will apply when we read Section 27 of the TCHRI Act. The important limb of the same is that “the provisions of the Land Conservancy Act of 1091 (IV of 1091) shall be applicable to Devaswom lands as in the case of Government lands.” No particular provisions of the Land Conservancy Act have been incorporated or bodily lifted and made part of TCHRI Act. Therefore, the doctrine of “legislation by reference” alone will apply and not “legislation by incorporation”. If that be so, going by the principles stated by the Constitution Bench in Girnar Traders' case {(2011) 3 SCC 1}, the subsequent amendments will squarely apply.
24. We are also of the view that by applying the provisions of Land Conservancy Act, 1957 it will not defeat the purpose of either the provisions of Land Conservancy Act or the provisions of TCHRI Act and no conflict also will be there.
25. In Land Conservancy Act, 1957, Section 20A provides for bar of jurisdiction of civil courts and we extract the same hereunder:
“20A. Bar of jurisdiction of Civil Courts.-- (1) No Civil Court shall have jurisdiction to entertain any suit or proceeding for the eviction of any person who is in unauthorised occupation of any land which is the property of Government, whether a poramboke or not, of the recovery of any fine, assessment, or prohibitory assessment of the value of any trees destroyed or appropriated or any compensation or damages, payable under this Act or cost of eviction or removal of encroachments, or any portion of such fine, assessment, prohibitory assessment, value of trees, compensation, damages or cost.”
This was inserted by Act 11 of 1971 with effect from 5.1.1971. Going by the said provision, the jurisdiction of the civil court has been ousted as far as eviction of any person who is in unauthorised occupation of any land is concerned.
26. In this context, Shri P. Chandrasekhar, learned counsel for the petitioners relied upon a decision of a Full Bench of the Andhra Pradesh High Court in Badarla Suryakumari v. Badarla Vamana Murthy and others (AIR 2010 AP 209). The provisions of Sections 83 and 85 of Wakf Act and the effect of constitution of Wakf Tribunal are considered therein. It was held that there was no provision for transferring pending cases and hence the jurisdiction of the civil court will not be ousted in respect of pending cases. Going by the discussion in paragraph 22 of the judgment, their Lordships considered the effect of the words “shall lie” in Section 85 of the Wakf Act. It was held that “if the section is read, it is clear that no suit or other legal proceedings shall lie i.e. Admissible or sustainab le, in future, in any Civil Court in respect of any dispute, which is required by or under the Act to be determined by a Tribunal. In other words, “no suit shall lie” would mean no fresh suit can be filed before the Civil Court i.e. It is having only prospective effect.” The situation herein is different. Section 20A of the Land Conservancy Act, the important words are “no civil court shall have jurisdiction to entertain any suit or proceeding for eviction of any person ”
27. Learned Standing Counsel, Shri P. Gopal relied upon the decision of the Apex Court in Durga Hotel Complex's case (2007 (2) KLT 717 - SC) wherein the meaning of the word “entertain” was considered in paragraph 10. Therein, a complaint was filed before the Banking Ombudsman and later the Bank approached the Debt Recovery Tribunal and the question was whether the proceedings before the Banking Ombudsman could be continued. In paragraph 10, their Lordships have held as follows:
“Dealing with the expression 'entertain' this Court held in Lakshmi Rattan Engineering Works Ltd. v. Asst. Commr., Sales Tax, Kanpur Anr., (1968) 1 SCR 505) that it means to deal with or admit to consideration. The Court approved the views expressed by some of the High Courts that the word 'entertain' meant not 'receive' or 'accept' but 'proceed to consider on merits' or adjudicate upon. The Court also accepted the Dictionary meaning of the word as 'admit to consider'. This was also the view that was subsequently taken by this Court in Hindustan Commercial Bank Ltd. v. Punnu Sahu (Dead) Through Legal Representatives, (1971) 3 SCC 124). It was held therein that the expression “entertain” in O.XXI R.90 of the Code meant, to 'adjudicate upon' or to 'proceed to consider on merits' and not 'initiation of proceeding' alone.”
It was finally held that the Ombudsman cannot proceed with the matter. Therefore, the word “entertain” in Section 20A of the Land Conservancy Act, prevents the civil court from considering the matter on merits or adjudicating the matter. Therefore, we reject the contention of the learned counsel for the petitioners that Section 20A of the Land Conservancy Act will not have any effect. Apart from the same, in the light of the express language of Section 20A of the Land Conservancy Act and the decision of a learned Single Judge of this Court in Shamsudeen v. Travancore Devaswom Board (2001 (1) KLT 292) which we respectfully agree, we cannot accept the said argument.
28. A learned Single Judge of this Court in Shamsudeen's case (2001 (1) KLT 292) held that the bar is only in respect of a suit for eviction and suit for declaration and injunction is maintainable. In paragraph 11 of the judgment, it has been held as follows:
“In the light of the above Section no civil suit is maintainable for eviction of the trespassers who are in occupation of the Government lands whether puramboke or not. By virtue of S. 50 of the Travancore Cochin Hindu Religious Institution Act, all unassigned lands belonging to any Devaswom under the sole management of the Board shall be deemed to be the property of the Government for the purpose of the Land Conservancy Act, 1091 and all the provisions of that Act shall, so far as they are applicable, only to such lands assigned by the Devaswom to any person. This land is an unassigned land belonging to the Devaswom. At present, the Travancore Devaswom Board is in sole management of the property. Therefore, this property shall be deemed to be the property of the Government for the purpose of Land Conservancy Act, 1091 and as such S. 20A of the Act squarely applies to the facts of this case and hence, there is a bar of jurisdiction of civil courts for eviction of the defendants who are in occupation of the land. The suit is filed for declaration of title and consequential injunctions also. Therefore, the suit is maintainable for declaration and injunction.”
29. Shri P. Chandrasekhar then relied upon another judgment of a Division Bench of this Court in Kuruvilla Yohannan v. Kumaran (1989 (2) KLT 859) in this context. Therein, the Division Bench considered the question whether Section 20A of Land Conservancy Act excludes from its ambit suits under Section 6 of the Specific Relief Act. In the said case, the plaintiffs were in occupation of Government puramboke land which their predecessor-in-interest had reduced into possession since 1950. On 10.8.1981, their neighbour, the first defendant forcibly took possession of the property which led to the filing of a suit under Section 6 of the Specific Relief Act, It was held that such a suit will not be barred under the provisions of Section 20A of the Land Conservancy Act. We extract the relevant portions of the judgment hereunder:
“It is true that in the first flush it may appear, that S.20A provides a bar of jurisdiction of civil courts to entertain any suit or proceeding for eviction of any person who is in unauthorised occupation of any land which is the property of Government and therefore a person having possessory title in Government land may not approach the civil court for recovery of possession from a trespasser. But the latter portions of that section make it unmistakably clear that the bar operated only against Government filing a suit or any other proceeding in a civil court for eviction of persons in unauthorised occupation of Government lands, or for recovery of fine, assessment, or prohibitory assessment or the value of any trees destroyed or appropriated or any compensation or damages, payable under the Act, or cost of eviction or removal of encroachments, or any portions of such fine, assessment, prohibitory assessment, value of trees, compensation, damages or cost etc. If the former portion is to be read as prohibiting a suit by a person having title like the plaintiff, the latter portion cannot be reconciled because such a person cannot file a suit or proceeding for recovery of fine, assessment, prohibitory assessment, value of trees destroyed, cost etc. That can be done only by Government. It cannot be said that the Kerala Legislature intended to exclude suits by persons in occupation of Government lands to seek the assistance of courts to maintain possessory title against forcible dispossession. It cannot be assumed that the Legislature meant to create a situation where the policy of the law as understood and interpreted by courts should be set at naught and substituted by recognising lawlessness as law in respect of possession of Government lands. Hence S.20A of the Act has to be read in a restricted sense as disabling the Civil Courts from entertaining suits filed by the State and only the State for eviction of persons in unauthorised occupation of any land which is the property of the Government whether poramboke or not and for other reliefs for which specific provisions are made in Ss.7 to 12 of the Act. It does not operate to bar suits by persons in occupation of Government lands for recovery of lost possession under S.6 of the Specific Relief Act. As a matter of fact, it does not have any application where the plaintiff is any one other than the Government or other authority which can seek remedies under Ss.7 to 12 of the Kerala Land Conservancy Act.”
The first part of the above dictum will not have any application here, as the facts are quite different. It was held that the bar will not apply in cases under Section 6 of the Specific Relief Act, where the plaintiff is a person other than the Government or other authority which can seek remedies under the Land Conservancy Act. Thus, in the light of the finding that the bar will apply if a suit is filed by the State or other authority, the same will also support the plea of the Board. It can be seen that the view of the learned Single Judge in Shamsudeen's case (supra) is that a suit for eviction of persons who are in unauthorised occupation as per Section 20A of the Land Conservancy Act, cannot be entertained by the civil court. Herein, when Section 20A of the Land Conservancy Act applies as far as the properties of the Board is concerned, such a suit, filed by the Board, will be barred.
30. When we come to the question of applicability of the provisions of Land Conservancy Act, 1957, what we find in the light of the decision of the Constitution Bench of the Apex Court in Girnar Traders' case (supra), is that in Section 27 of TCHRI Act, the particular provisions of Land Conservancy Act, 1091 have not been incorporated. Therefore, the doctrine of “legislation by reference” alone will apply. Automatically, the provisions of Land Conservancy Act, 1957 and the amendments will apply. The Legislature was also conscious of the same, as evident from the introduction of Section 62A in TCHRI Act, 1950, in the year 1990 by Act 14. Unlike Section 27 of the said Act, there was no provision concerning Cochin Devaswom Board at that point of time. In the light of the doctrine of “legislation by reference”, no amendment of Section 27 was necessary. Therefore, we reject the contention of Shri P. Chandrasekhar that the provisions of Land Conservancy Act cannot be invoked by the Board.
31. The next question is therefore whether the third respondent lacks jurisdiction. Section 15 of the Land Conservancy Act is the relevant section which empowers the Government to authorise any officer to exercise all or any of the powers conferred on a Collector under the Act and the same is extracted below:
“15. Officers to exercise powers of Collector.-- The Government may, by notification in the Gazette, authorise any officer including the Secretaries of Panchayats and Municipalities by name or by virtue of his office to exercise all or any of the powers conferred on a Collector under this Act.”
Section 11 of the Land Conservancy Act confers power to order summary eviction of any person unauthorisedly occupying any land. The notification herein authorising the third respondent with powers, has been produced by the Board along with its counter affidavit as Ext.R2(i). We extract the same hereunder:
“S.R.O.No.819/2008.-- In exercise of the powers conferred by section 15 of the Kerala Land Conservancy Act, 1957 (8 of 1958), the Government of Kerala hereby authorise the Special Tahsildar, Land Conservancy Unit (Travancore Devaswom Board), Thiruvananthapuram to exercise all the powers conferred on a Collector under the said Act within the jurisdiction of Thiruvananthapuram, Kollam, Pathanamthitta, Alappuzha, Kottayam, Idukki, Ernakulam and Thrissur Revenue Districts in respect of the properties of Travancore Devaswom Board, except the power of hearing appeals under Section 16 of the Act.” Evidently, it is issued under Section 15 of the Land Conservancy Act and the Special Tahsildar, Land Conservancy Unit (Travancore Devaswom Board), viz. the third respondent herein has been specifically authorised to exercise all the powers conferred on a Collector under the said Act except the powers of hearing appeals under Section 16 of the Act.
32. It is true that in the Explanatory Note a mistake has been made stating that as per Section 62A of the TCHRI Act, 1950 the provisions of the Kerala Land Conservancy Act, 1957 has been made applicable to the properties of the Travancore Devaswom Board. Actually, it was Section 27 of the Act, but that will not make the notification invalid. It is mentioned in the Explanatory Note further as follows:
“The Government have created a Land Conservancy Unit under the control of Special Tahsildar for detecting and evicting encroachments and preserving the landed properties of Travancore Devaswom Board vide G.O.(Ms) No.220/2008/RD dated 19th July, 2008. The Special Tahsildar, Land Conservancy Unit, Thiruvananthapuram is to be authorised under the provisions of the Kerala Land Conservancy Act, 1957 to exercise the powers conferred on a Collector under the Act, for the purpose.”
Therefore, the real purport of the notification is evident from the same and we do not find any reason to accept the case of the petitioners that the said notification is invalid and we reject the said contention.
33. The next question is whether the decree passed by the civil court will survive, in the light of Section 20A of the Land Conservancy Act. The suit filed as O.S. No.124/1970 was in the year, 1970. Section 20A was introduced in the Land Conservancy Act, 1957 by Act 11 of 1971 with effect from 5.1.1971. The suit was filed for recovery of possession of 73 cents of land. Evidently, such a suit will not lie in the light of the applicability of Section 20A of the Land Conservancy Act. Initially, the suit was decreed as per Ext.P8. By Ext.R2(c) judgment in A.S. No.60/1972 it was remanded back and Ext.R2(d) judgment is rendered on 18.3.1976.
34. While remanding the matter, the Appellate Court was of the view in paragraph 6 that “admittedly the defendant is a tenant in possession”. Shri P. Gopal, learned Standing Counsel for the Board submitted that the said observation was totally incorrect as there was no such admission, going by the averments in the plaint. The Appellate Court remanded the matter to find out whether the entire extent of 73 cents will be required for the purposes of the Temple, for the applicability of Section 3(1)(x) of the Kerala Land Reforms Act. After remand, the trial court held that the extent necessary will be 27.945 cents and held in paragraph 9 that “in view of the appellate court's judgment, it has to be further held that the defendant is entitled to fixity of tenure in respect of the remaining portion.”
35. The question is whether these two judgments could survive in the light of the inherent lack of jurisdiction. Shri P. Chandrasekhar submitted that the said judgments have become final and therefore the Devaswom Board cannot, in these proceedings, raise a contention otherwise. The question will be whether Section 20A of the Land Conservancy Act will apply to pending suit as well and with the aid of the decisions of the Apex Court in Annamreddi Bodayya and another v. Lokanarapu Ramaswamy (dead) by L.Rs. (AIR 1984 SC 1726), Inacio Martins (deceased through Lrs) v. Narayan Hari Naik and others {(1993) 3 SCC 123} and Smt. Sooraj and others v. S.D. O., Rehli and others (AIR 1995 SC 872), Shri P. Gopal submitted that the same will apply. On the express terms of Section 20A of the Land Conservancy Act, there is a total bar. Under the Land Conservancy Act, against an order issued under Section 15 by the authorised officer, there is a remedy of appeal under Section 16 and there is a provision for revision also from it. Therefore, it is a complete code in that regard. In Annamreddi Bodayya's case (AIR 1984 SC 1726), the question of ouster of jurisdiction of civil court in the light of Section 56 of A.P. (Andhra Area) Estates Abolition and Conversion into Ryotwari Act (26 of 1948) was considered. It was held that in the light of Section 56 of the said Act, the civil court has no jurisdiction to decide the question as to who is the lawful ryot in respect of the holding. It was held that the Settlement Officer had jurisdiction to decide in respect of the same. The judgment of the High Court holding the view that the civil court has jurisdiction, was reversed. In the subsequent decision in Smt. Sooraj's case (AIR 1995 SC 872), the provisions of Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 was considered. In paragraph 7 it has been held as follows:
“Thereby, the legislative intention is that the proceedings initiated under the provisions of Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 shall be pursued only in the manner provided thereunder, namely, right of appeal and right of revision, and the jurisdiction of Civil Court has been barred to impugn any question settled or decision made or matter dealt with by the Competent Authority under the Act. Thereby the civil suit also has been barred by operation of Section 46.Though none of these questions have been raised nor dealt with by the Courts below since they are pure questions of law untrammelled by any questions of facts we have adverted to and found that the suit is not maintainable for these reasons.”
In Inacio Martins' case {(1993) 3 SCC 123} also a similar question was considered.
36. We have already referred to the decision of the learned Single Judge in Shamsudeen's case (2001 (1) KLT 292) and we are in complete agreement with the principles stated in paragraph 11 of the judgment that the Devaswom Board cannot file a suit for eviction of unauthorised occupants and for recovery of possession, in view of the express bar under Section 20A of the Land Conservancy Act. The decision of the Division Bench in Kuruvilla Yohannan's case (1989 (2) KLT 859) which we have already referred to, will also fortify our view. Therefore, it is clear that the civil suit was barred. The law is well settled that the question of lack of inherent jurisdiction can be raised even in execution or in collateral proceedings.
37. Learned Standing Counsel for the Board relied upon the decision of the Apex Court in Cantonment Board and another v. Church of North India {(2012) 12 SCC 573} (paragraph 15) in that context wherein the said principle has been examined. Their Lordships have held therein as follows:
“It is undoubtedly true that objection to the maintainability of a proceeding must be raised at the earliest but an objection that the authority did not have the jurisdiction to entertain the proceedings over the subject-matter goes to the root of the proceeding. In a number of judgments, this Court has held that a defect, with respect to the lack of inherent jurisdiction is basic and fundamental and validity of such an order can be challenged at any stage, even in execution or in collateral proceedings. (for reference see a judgment of a Bench of three Judges of this Court in Balvant N. Viswamitra v. Yadav Sadashiv Mule - {(2004) 8 SCC 706}”.
38. Since there is inherent lack of jurisdiction, the consequent judgment will become null and void. Therefore, the respondent Board is perfectly justified in contending that the judgments Ext.R2(c) and R2(d) lack jurisdiction, and they are null and void. Those do not survive for consideration at all. Incidentally is the question whether the principles of estoppel, waiver, acquiescence, etc. will apply since it is argued by the learned counsel for the petitioners, Shri P. Chandrasekhar that those judgments have become final and therefore the finality of those judgments cannot be attacked in these proceedings.
39. We, in this context, refer to the dictum laid down by the Apex Court in Hasham Abbas Sayyad v. Usman Abbas Sayyad and others {(2007) 2 SCC 355}. For easy reference, we extract paragraphs 22 and 23 hereunder:
“22. The core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so. The principles of estoppel, waiver and acquiescence or even res judicata which are procedural in nature would have no application in a case where an order has been passed by the Tribunal/Court which has no authority in that behalf. Any order passed by a court without jurisdiction would be coram non judice being a nullity, the same ordinarily should not be given effect to. [See Chief Justice of Andhra Pradesh and Another v. L.V.A. Dikshitulu and Others, AIR 1979 SC 193 and MD Army Welfare Housing Organisation v. Sumangal Services (P) Ltd. (2004) 8 SCC 619].
23. This aspect of the matter has recently been considered by this Court in Harshad Chiman Lal Modi v. DLF Universal Ltd. and Another [(2005) 7 SCC 791], in the following terms :
"We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. Sofar as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity."
Their Lordships held that any order passed by a court without jurisdiction would be coram non judice, being a nullity, the same ordinarily should not be given effect to. In that view of the matter, as we have already held, the bar under Section 20A of the Land Conservancy Act excludes the jurisdiction of the civil court, and since there is inherent lack of jurisdiction, Exts.R2(c) and R2(d) have become null and void. Therefore, the finding therein that the defendant is a tenant, cannot come to the aid of the petitioners.
40. The proceedings issued as per Ext.P7 holds the view that since the property in question was exempted under the provisions of the Land Reforms Act, the Land Tribunal lacks jurisdiction to consider the application for grant of pattayam and the same is null and void. Kuthakapattom can never be assigned by the Land Tribunal as per the provisions of the Kerala Land Reforms Act.
41. As far as the application of the predecessor in interest of the petitioners is concerned, a copy of the same has been produced as Ext.R2(e). The original records of the Land Tribunal are also before us. In Ext.R2(e), against column No.3 which directs the applicant to specify the names of the tenancy like kanam, kuzhikanam, kudiyiruppu, karaima, verumpattom, etc., what is mentioned in the right hand side column is “kuthakapattom”. In answer to column No.11 with regard to the kararpattom which should have been given for the land in possession, it is mentioned that the kuthakapattom provided was Rs.55/-. Ext.R2(b) is the kuthakapattom agreement. Section 72B of the Land Reforms Act is the provision invoked for filing the application for purchase of landlord's right. The order passed by the land Tribunal is produced as Ext.R2(h). It is a printed one, with certain columns left blank, which have been filled up wherever required. Therein, column I is that the right, title and interest of the respondent/land owner in respect of the holding have been vested in Government with effect from 1.1.1970. The order also shows that what is produced is a copy of Ext.R2(b) as well as the judgment of the civil court in O.S. No.124/1970. No other evidence with regard to the cultivations, if any, and the right claimed as cultivating tenant were there before the Land Tribunal.
42. Ext.R2(b) is executed on 24.9.1960 between the Superintendent, Vaikom Group as first party for the Devaswom Board and Shri Padmanabhan, father of the petitioners as second party. It is in respect of 73 cents of land in Sy. No.61/15. Rupees fifty-five is fixed as kuthakapattom and the period is from 1.3.1960 for a period of six years. The trees mentioned are coconut trees. It has been given with fifteen conditions governing the rights of the parties. The main conditions are the following:
“(a) Rs.55/- will have to be paid in two instalments in July and February, within 15th of those months. If it is not paid, it will be adjusted towards the 'day money' remitted by the second party which is equal to one year's kuthakapattom.;
(b) If the above conditions are not complied with, then the kuthakapattom arrangement will be cancelled and the right will be reauctioned, for which the first party is fully entitled to;
© For any default made, interest is payable by the second party;
(d) For the trees, if any tax is payable to the Government, the same also will have to be paid by the second party;
(e) The second party cannot transfer the kuthakapattom rights in respect of any of the trees;
(f) The second party cannot withdraw from the kuthakapattom arrangement till the period is over. He will have to take care of the trees including manuring from time to time. If any damage is caused to any of the trees, it will have to be informed to the first party without any delay and if any loss is caused to due to the negligence of the second party, the first party is allowed to realise the same and the amount will be fixed by the Assistant Commissioner of the first party;
(g) If any new saplings are planted by the first party during the period of kuthakapattom, the second party will have to take care of the same also.
(h) The first party retains the right to inspect the property and the trees and the second party cannot object to the same;
(i) Clause 14 is important which states that on the expiry of the period of kuthakapattom arrangement, the second party will have to entrust back the trees to the first party and if any failure occurs, further continuance will be treated as unauthorised and appropriate steps can be taken by the first party.”
Apart from Ext.R2(b), the Board has not granted or created any tenancy right in favour of the predecessor-in-interest of the petitioners. In the application filed by the petitioners' predecessor also, only Ext.R2(b) is relied upon and it is specifically mentioned that the arrangement is by way of kuthakapattom.
43. Going by the definition of 'tenant' in Section 2(57) of the Land Reforms Act, “a tenant means any person who has paid or agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease that land.” It is an inclusive definition. Sub- sections (a) to (j) name different types of tenants which will be covered by the said provision and a person holding kuthakapattom has not been included in the definition of “tenant”. The definition of “cultivating tenant” under the Act under Section 2(8) which shows that a “cultivating tenant”
means “a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding.” Recently, a Division Bench of this Court wherein one of us (Ramachandran Nair, J.) was a party, has examined the scope of an identical kuthakapattom arrangement in respect of another Temple under the Board, in the decision reported in Travancore Devaswom Board v.Mohanan Nair (ILR 2013 (2) Ker. 883 = 2013 (3) KLT 132). (S.L.P.Nos.21376-21378/2013 dismissed on 24/7/2013) It was held that kuthakapattom licence cannot mature into a tenancy and even the use of the word “rent” in a receipt will not be conclusive to show existence of tenancy agreement. The right to take usufructs given in an auction alone has been granted, without any right to cultivate and raise produce in the land. It is only a mere licence. The various provisions of the Land Reforms Act have been considered therein. In paragraph 21, after considering the effect of Sections 2(8), 2(49) and 2(57) of the Land Reforms Act, viz. the definitions of “cultivating tenant”, “rent” and “tenant”, it was held as follows:
“The definition of 'cultivating tenant' will show that a tenant should be one who is “entitled” to “cultivate the land” comprised. Going by the definition of 'rent', it should be a case of payment in money or in kind or in both by a person “permitted to have the use and occupation of any land to the person so permitting”. Therefore, there should be permission for use and occupation of the land by a competent person. The definition of 'tenant' will also show that there should be an agreement to pay rent or other consideration for being allowed to "possess and to enjoy the land”, with a person who is “entitled to lease the land.” Therefore, without any interest being created in the land, nobody can claim to be a cultivating tenant.”
Herein also, the same is the situation. It was held in paragraph 30 that the right obtained by way of kuthakapattom is only a mere licence and not a tenancy right. Similar is the position herein also, as there was no demise of the land and no tenancy right has been created. It was held further in paragraph 36 thus:
“36. The principle that the intention of the parties is relevant, while considering whether a transaction is lease or licence, has been reiterated by the Apex Court in Konchadu Ramamurty Subudhi'case (AIR 1968 SC 919) in para 8 in the following words:
“To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form. The real test is the intention of the parties; whether they intended to create a lease or a licence. If the document creates an interest in the property, it is a lease but if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence. If under the document a party gets exclusive possession of the property, prima facie he is considered to be a tenant, but circumstances maybe established which negative the intention to create a lease.”
Therefore, in the case of a transaction, only if an interest in the property is created, it will be a lease and if permission alone is given to use the property, it is a licence. The use of the word 'rent' alone will not be conclusive to indicate a lease.”
Therefore, in the case of a transaction, only if an interest in the property is created, it will be a lease and if permission alone is given to use the property, it is a licence.
44. It was further held by the Division Bench in paragraph 41, by relying upon a decision of this Court in Lekshmi v. Hendry (1981 KLT SN 71 (C. No.128), that only a cultivating tenant is entitled for assignment. We extract the said paragraph herein, since the same will have much application on the facts of this case also:
“41. In fact, this Court had occasion to interpret the word 'cultivate' under the Kerala Land Reforms Act while considering a similar plea in Lekshmi v. Hendry (1981 KLT SN 71). It was held that only a cultivating tenant is entitled for assignment. We extract the entire paragraph hereinbelow:
“A cultivating tenant as per its definition must be a person in possession entitled to cultivate the land comprised in the holding. The expression "cultivate" as defined in the Act makes out the intention of the legislature that the cultivation is relating to land for the purpose of raising the produce of the land. From a reading of Ext. A2 it is clear that the purpose of the lease in the present case, is not for cultivation and the tenant is not a cultivating tenant within the meaning of the Act. It is only the right, title and interest of the landlord in respect of a holding held by a cultivating tenant that would vest in the Government, and it is only in respect of such rights vested that a cultivating tenant is entitled to assignment. Since I find that the tenant in this case is not a cultivating tenant, the right, title and interest of the landlord do not vest in the Government and the tenant is not entitled to apply for assignment of the same.” (emphasis supplied) The above legal position will also lend support the argument of the learned Standing Counsel for the Board that at no point of time permission was given to the predecessor-in-interest of the fourth respondent to cultivate and raise produce of the land, as the auction was only for taking usufructs from the standing trees alone. In the definition of 'tenant' under the Land Reforms Act a person having kuthakapattom rights is not at all included. Hence, a mere licence cannot mature into a tenancy at all. One more aspect to be relevant here is that the amount shown and described as 'pattom', is the same amount returned in the auction, viz. Rs.46.75. It represents only the payment for collecting usufructs from the standing trees. This is also significant and will weaken the case of the fourth respondent of any tenancy arrangement.”
Identical is the situation herein also. In this case, the amount of Rs.55/- represents the amount returned in the auction and it is for collecting usufructs from the trees. Therefore, it is clear that the predecessor-in- interest of the petitioners was not at all a cultivating tenant and therefore the landlord's right has not been vested with the Government on the appointed day, viz. as on 1.1.1970. Hence, he was not entitled to purchase the landlord's right and thus no order of assignment could have been granted by the Land Tribunal.
45. Herein, the Land Tribunal did not have before it any other item of evidence also, except the judgment of the civil court as well as Ext.R2(b). There was total non application of mind in granting assignment of landlord's rights. The purchase certificate is totally inaccurate on the face of it.
46. In this context, we also will have to address another aspect, viz.
the exemption clause under the Land Reforms Act in respect of sites and premises of a Temple from the purview of the Act itself. Chapter II of the Act relates to Provisions Regarding Tenancies. Section 3 is under the heading “Exemptions” which states as follows:
“Exemptions.-- (1) Nothing in this Chapter shall apply to--
(i) to (ix) omitted (x) 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.”
47. In Mohanan Nair's case (2013 (3) KLT 132), the Division Bench had occasion to consider the above aspect also. Herein, there is no dispute that the Temple sites including the sanctum sanctorum are situated in the entire extent of 73 cents in Sy. No.61/15B. No part of this property has been excluded by Ext.R2(a). We have already referred to the contentions in the counter affidavit. The petitioners have also no dispute about the same and no reply also is filed. It is clearly averred in paragraph 5 of the counter affidavit that the Temple is situated in 73 cents of land comprised in Survey No.61/15B of Vaikom Village. It is stated in paragraph 11 that the sanctum sanctorum of the Temple is situated within the 73 cents of land and there was no boundary wall separating the temple and the remaining 73 cents of land. It is further averred in the said paragraph that the land now assigned is a portion of land wherein the sanctum sanctorum is situated. Definitely, it will be coming within the exemption clause under Section 3(1)(x) of the Land Reforms Act as premises of the Temple. The description of the property in the settlement register, a copy of which has been produced as Ext.R2(a), is also important. The 73 cents of land in Sy. No.61/15B is described as “Saraswathi Devaswom vaka” (belonging to Saraswathy Devaswom). It has been held by the Division Bench in Mohanan Nair's case (supra) in paragraph 53 as follows:
“We are of the view that the provision clearly exempts tenancies in respect of sites, tanks and premises of any temple. The words “including sites belonging to a temple, mosque or church on which religious ceremonies are conducted” cannot be understood as limiting the scope of the first limb, viz. “premises of any temple” and it cannot be said that for attracting exemption, invariably the property should be used for religious ceremonies. When the word “include” is there in a definition clause, it actually enlarges the meaning of words or phrases occurring in the body of the statutory provision. This legal position has been explained by the Apex Court in various decisions and the true legal effect of the word 'include' has been analysed by the Apex Court in Regional Director, Employees' State Insurance Corporation v. High Land Coffee Works of P.F.X. Saldanha and Sons and another {(1991) 3 SCC 617}.”
It was further held as follows:
“In the light of the above, it cannot be said that to get exemption for a plot within the premises and contiguous to a temple, it should be further established that religious ceremonies are conducted there.”
In that context, the Division Bench affirmed the view taken by a learned Single Judge of this Court in Madhavi v. Maheswaran Namboodiri (1987 (2) KLT 759) with regard to the requirements under Section 3(1)(x) of the Land Reforms Act. The learned Single Judge, in the above decision, significantly had held that “the adversities which have befallen these religious institutions, had not deprived them of the status of a temple, and the premises, the position of temple sites.” Therefore, being temple premises, the entire extent of 73 cents will come within the exemption clause under Section 3(1)(x) and hence the Land Tribunal was not right in issuing the purchase certificate to a portion of the same. This is the view taken in Ext.P7 also by the third respondent and we uphold the same.
48. We will now consider the argument about violation of mandatory provisions under the Land Reforms Act and the Rules. The Board, in the counter affidavit, has also taken a stand that none of the mandatory provisions including Section 72F(3) of the Land Reforms Act and the relevant rules were followed by the Land Tribunal while granting the order and therefore the entire proceedings is a nullity. Learned Standing Counsel elaborated the contentions during the arguments also. He relied upon the findings in regard to the very same points in Mohanan Nair's case (2013 (3) KLT 132). Section 72F(3A) and sub-section (5) of Section 72F(3B) are relevant in this context which we extract hereunder:
“(3A) The Land Tribunal shall furnish a copy of the public notice under sub-section (1), along with a statement containing the names and addresses of the persons to whom individual notices have been issued under sub-section (2) and such other particulars as may be prescribed, to the village committee of the village in which the holding is situate, or, where the holding is situate in more than one village, the village committee of each such village and require the village committee or village committees, as the case may be, to advise the Tribunal on the matters mentioned in sub-section (3B) before such date as may be specified in the requisition;
72F(3B)(5).-- 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 ”
(a) to (i) omitted.
The above section makes it mandatory for the Land Tribunal to communicate the details to the Village Committee of the village in which the holding is situate, who had to advise the Tribunal on matters mentioned in sub-section (3B). The Land Tribunal will have to consider the advice received from the Village Committee also. The rules which we have extracted below, details the procedure for such steps to be taken by the Land Tribunal. Rules 7A to 7F of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970 are also relevant which we extract below:
“7A. Requisition by the Land Tribunal to the village committee.-- A requisition by the land Tribunal to the village committee under sub-section (3A) of Section 72F shall be in Form E1.
7B. Procedure to be followed by the village committee.--
(1) On receipt of the requisition referred to in Rule 7A, the convener of the village committee shall assign a number to every such requisition strictly according to the order in which it is received, and enter it in a register to be maintained by the village committee. The register shall be in Form E2.
(2) The convener of the village committee shall also maintain a book in which a separate page shall be allotted to each survey number in the village, the survey number being entered in the chronological order.
(3) Each page of the book maintained under sub-rule (2) shall be in Form E3.
7C. Village committee may furnish further particulars.-- The village committee may, in addition to the matters mentioned in sub-section (3B) of Section 72F, furnish any other particulars it considers relevant to the case pending before the Land Tribunal.
7D. Manner of obtaining information.-- When the village committee desires to obtain any information, such committee or any one of its members may obtain it in anyone or more of the following modes; namely.--
(a) by making such enquiry as the village committee or member may deem fit;
(b) by local inspection;
© by reference to any Government record; or
(d) in such other manner as the village committee or member deems fit.
7E. Further procedure to be followed by village committee.--
(1) After obtaining necessary information, the village committee shall give an opportunity to the persons concerned to be heard regarding the correctness of the information.
(2) For the purpose of sub-rule (1) the village committee may secure the presence of the persons concerned and read over the information received by the committee to such persons.
(3) The committee may also examine documentary evidence produced by the persons concerned or received by it from any other person.
7F. Advice to be forwarded to the Land Tribunal.-- As soon as may be after the completion of the enquiry under Rule 7E, the village committee shall, before the date specified in the requisition received from the Land Tribunal under Rule 7A, forward its advice to the Land Tribunal. the advice shall be in Form E4.”
After referring to them, it was held in Mohanan Nair's case (supra) in paragraph 25 as follows:
“The first step is a requisition by the Land Tribunal to the village committee, under sub-section (3A) of Section 72F. The manner of obtaining information by the village committee is clear from Rule 7D. Rule 7E obliges the village committee to give an opportunity to the persons concerned to be heard regarding the correctness of the information and sub-rule (3) provides for examination of the documentary evidence obtained from any person concerned.”
The other important rules are Rules 9 and 10 and we extract paragraph 26 of the said judgment hereunder, wherein those rules have been considered:
“26. Rules 9 and 10 are also relevant for the purpose of this case which are extracted below:
“9. Dispute about tenancy or vesting.-- (1) Where after the publication of the public notice under sub-section (1) of Section 72F and the service of the individual notice under sub- section (2) of that section in respect of a holding, any of the parties to the proceedings pleads that the land comprised in such holding is not held by any cultivating tenant or that the right, title and interest of the landowner and the intermediaries in respect of such holding have not vested in the Government, the Land Tribunal shall decide such question as a preliminary point and pass an order thereon with reasons for such order.
(2) Where the order under sub-rule (1) is that such land is not held by any cultivating tenant or that such right, title and interest have not vested in the Government, the Land Tribunal shall forthwith reject the application referred to in Rule 4 or discontinue the proceedings referred to in Rule 5 and such order for rejection or discontinuance, as the case may be, shall be deemed to be an order under Section 72F for all purposes of the Act.
10. Further proceedings for assignment and determination of compensation, purchase price, etc.-- (1) Where in any proceedings for the assignment of the right, title and interest of the landowner and intermediaries in respect of a holding vested in the Government, to the cultivating tenant, there is no dispute of the nature referred to in sub-rule (1) of Rule 9, or, where there is such a dispute, the Land Tribunal has ordered that the holding is held by a cultivating tenant or that the right, title and interest of the landowner and intermediaries have vested in the Government, as the case may be, the Land Tribunal shall, after perusal and consideration of the application, if any, referred to in Rule 4, the information referred to in Rule 5, the written statement, if any, filed by the parties, other documentary evidence, if any, produced and the report, if any, of the officer appointed under Section 105A and after such further enquiries as it may deem necessary and after giving a reasonable opportunity of being heard to all the persons to whom individual notices have been issued under sub-section (2) of Section 72F, and to the other persons who have preferred claims and objections and appeared before the Tribunal in pursuance of the notice issued under sub-section (1) of that section, pass an order under sub-section (5) of the said section.
(2) The Land Tribunal shall before passing the order under sub-section (5) of Section 72F ascertain from persons claiming to be cultivating tenants, in case they appear before it, as to whether they opt to pay the purchase price in a lump.”
Thus, under Rule 9(1) the Land Tribunal is expected to decide the preliminary point whether the holding is one held by a cultivating tenant or such holding have not vested in the Government by a reasoned order. Rule 10(1) contains the detailed procedure before a final order is passed. The important among them are the following:
“(a) The Land Tribunal will have to peruse and consider the information given under Rule 5 (in respect of suo motu action), the written statement, if any, filed by the parties, the other documentary evidence, if any, produced and the report, if any, of the officer appointed under Section 105A of the Act;
(b) The Land Tribunal will have to make further enquiries as it may deem necessary;
(c) It will have to give a reasonable opportunity of being heard to all the persons to whom individual notices have been issued under Section 72F(2) and to the other persons who have preferred claims and objections.”
Even if no preliminary order happened to be passed under Rule 9(1), the Land Tribunal is obliged under Rule 10(1) to consider all matters, conduct due enquiries and to afford reasonable opportunity of hearing to all the parties. The principles of natural justice have been fully engrafted in these Rules at every stages including the enquiry by the Village Committee.”
The above rules will definitely apply herein also which was never complied with.
49. The effect of non compliance of these rules were considered by a Full Bench of this Court in Muhammed Haji v. Kunhunni Nair (1993 (1) KLT 227 - FB). The relevant portion of the Full Bench decision in paragraph 22, has been extracted in paragraph 43 of the judgment in Mohanan Nair's case (supra) and we extract paragraph 43 hereunder:
“43. The next argument is one concerning the nullity and void nature of the order. The effect of non compliance of the rules under the Kerala Land Reforms (Vesting and Assignment) Rules was considered by a Full Bench of this Court in Muhammed Haji v. Kunhunni Nair (1993 (1) KLT 227 - FB). In para 22 the Full Bench has held as follows:
“22. Respondents’ counsel Mr. V.P. Mohan Kumar also highlighted the fact that in rendering the decision in O.A. No.17732 of 1976, the Land Tribunal failed to comply with the provisions specified in rules 9 and 10 of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970 and S.72F of the Act. It was argued that Rules 9 and 10 aforesaid contemplate passing of a preliminary order regarding the vesting of the right, title and interest of the landowner and intermediaries in respect of such holding. It is only where the Tribunal passes an “order” to the effect that the holding is held by a cultivating tenant or that the right, title and interest of the land owner and intermediaries have vested in the Government, then the Land Tribunal shall, follow the procedure specified in Rule 10; consider the application, gather information referred to in Rule 5, peruse the written statement and other documentary evidence, if any, produced and the report, if any, of the officer appointed under S.105A and after such further enquiries as it may deem necessary - (S.72F (3A),(3B) etc. of the Act) and after giving a reasonable opportunity of being heard to “all” the persons, pass an order in accordance with S.72Fof the Act. It is seen from the records that only a final order was passed in O.A- No.17732 of 1976. The application was posted for filing written statement on 10-8-1977 and adjourned to 24-8-1977. On 26-5-1977 the second respondent in this appeal (5th respondent in the suit) filed a written statement stating that the Land Tribunal has already answered the matter on31-12-1976, in O.A.No.l234 of 1974. There was no sitting of the Tribunal on 24-8-1977. The first respondent- Devaswom filed another written statement on 24-8-1977. The matter was adjourned to 26-9-1977. On that day, the matter was part-heard and was adjourned to 17-10-1977 and on that day the order in O.A. No.17732 of 1976 was passed. A bare perusal of the way in which the matter stood posted from time to time and was considered by the Land Tribunal would go to show that the Land Tribunal has failed to conform strictly to the procedure specified” in S.72F of the Act and Rules 9 and 10 of the Vesting and Assignment Rules, 1970. The statutory Tribunal failed to comply with the provisions of the Act and the Rules. No order on the preliminary point, as to whether the land comprised is held by a cultivating tenant or not or that the right, title and interest of the landowner and intermediaries in respect of such holding have vested in the Government or not, seems to have been passed. It is only thereafter further proceedings for assignment and determination of compensation purchase price etc., should be pursued. That is not the way in which the Land Tribunal has proceeded in disposing of O.A. No.17732 of 1976. The application for assignment filed under Rule 4 and the written statement filed by the parties seem to have been perused. But, it does not appear that the Land Tribunal has complied with S 72F(3A) of the Act and obtained the advice of the village committee under S.72F(3B) of the Act.
It is not clear whether any report was obtained form the officer appointed under S.105A of the Act. The procedure contemplated by S.72F(3A) and (3B) of the Act was not followed which is necessary before passing an order under S.72F of the Act. The statutory tribunal failed to act in conformity with the procedure prescribed by S.72F of the Act read with Rules 9and 10 of the Vesting and Assignment Rules. We perused through the order of the Land Tribunal in O.A. No.17732 of 1976 dated 17-10-1977. The order states that the notices contemplated by S.72F of the Act were published and issued to the interested parties and the application and the written statement and evidence adduced during the enquiry were perused. There is not even a formal recital that the procedure contemplated by S.72F(3A) and (3B) were followed. There is also no formal recital even, that the report, if any, of the officer under S.105 A of the Act was ‘obtained. As to whether any further enquiry was made is not clear. The order passed under S.72F does not even mention whether the advice was received from the village committee contemplated by S.72F(3B) of the Act. We are constrained to hold that the order passed by the Land Tribunal, in the circumstances, is perfunctory and it is obvious that the provisions of the Act and the Rules have not been complied with. The fundamental principles of judicial procedure, as required by the Act, were totally contravened. In such cases, the jurisdiction of the civil court is not excluded, as stated by the Privy Council in Secretary of State v. Mask & Co. (AIR 1940 PC105 at p.110) and Ram Swarup’s case (AIR 1966 SC 893-para 17). This is another fundamental infirmity in the later decision rendered by the Land Tribunal, rendering it a nullity.” (emphasis supplied by us) Rules 9 and 10 of the Rules as well as Section 72F of the Act were considered therein. It was held that the non compliance of the rules will result in rendering the decision a nullity. Therein also the Bench was of the view that the procedure contemplated under Sections 72F (3A) and (3B) was not followed which is necessary before passing an order under Section 72F of the Act. It was further held that the statutory tribunal failed to act in conformity with the procedure prescribed by Section 72F of the Act read with Rules 9 and 10 of the Vesting and Assignment Rules. After referring to the order passed by the Land Tribunal, the Bench found that there is not even a formal recital that the procedures contemplated by Section 72F(3A) and (3B) were followed and there is also no formal recital even that the report if any, of the officer under Section 105A of the Act was obtained and that it was also not clear whether any enquiry was made. No reference about any advice of the Village Committee was also there. Therefore, the situation herein is also similar.”
In this case also, we find on a perusal of the original records from the Land Tribunal that the matter was not referred to the Village Committee and no such enquiry as specified in the Rules was conducted. In the light of violation of the mandatory rules including Section 73F(3B), we are of the view that it is a fundamental infirmity and therefore the decision rendered by the Land Tribunal is a nullity. The same position applies herein also. The view taken by the Full Bench in Mohammed Haji's case (1993 (1) KLT 227) will squarely apply here.
50. The above provisions and the procedure prescribed therein could not have been dispensed with by the Land Tribunal. Apart from the same, the Land Tribunal did not independently examine whether the land is one coming under the exempted category under Section 3(1)(x) of the Land Reforms Act and no information was sought on that regard also. Only if the said issue was resolved, the Land Tribunal will get jurisdiction.
51. Shri P. Chandrasekhar submitted that in the light of Section 72K of the Land Reforms Act, the purchase certificate is conclusive proof of the fact that the recipient is a cultivating tenant. It is also submitted that the decision of the Land Tribunal to issue purchase certificate has not been challenged by the Board by filing an appeal or revision. Reliance is placed on the decision of a Division Bench of this Court in Ramakke and others v. Gopi and others (2011 (3) KHC 491) which considered Section 72K of the Land Reforms Act. It was held that in the absence of an objection that purchase certificate has been obtained by fraud, the evidentiary value of the certificate may have to be accepted. Herein, we find that the predecessor-in- interest of the petitioners was never a cultivating tenant. He was only holding under a kuthakapattom arrangement. The land itself being Temple premises, the same is exempted under Section 3(1)(x) of the Act. Apart from the same, it was issued in violation of the mandatory provisions of the Act and Rules which made the order itself null and void, by the decision of the Full Bench in Muhammed Haji's case (1993 (1) KLT 227 - FB). Therefore, the certificate is totally inaccurate on the face of the records itself. If that be so, it cannot be said that it is conclusive andno other contentions could be raised. This Court in Chacko v. Joseph (1986 KLT SN page 34, C. No.56) has held that when it is totally inaccurate, the benefit of Section 72K will not be available. The same view has been taken in Sree Karikad Devaswom v. Wandoor Jupiter Chits (P) Ltd. (1980 KLT 760). Coupled with this, is the non-compliance of the provisions of the Act which will take away the conclusiveness of the said certificate. Further, the basic parameters are absent here. All these will defeat the claim of conclusiveness of the certificate. The Division Bench in Ramakke's case (2011 (3) KHC491), was considering a suit for partition. One Manju Gatty had obtained a purchase certificate claiming as cultivating tenant, as he obtained a lease from the real owner and they applied for J form under the Land Reforms Act and obtained an order of assignment. It is in that context the certificate of purchase was admitted. The situation herein is totally different.
52. In the light of the above, we are justified in concluding that the entire proceedings before the Land Tribunal is a nullity and the purchase certificate cannot enure to the benefit of the petitioners and that the same will have to be declared as invalid in law and is void ab initio.
53. The necessity of the Board in again taking recourse under due process of law, in filing a suit is emphasised by Shri P. Chandrasekhar, learned counsel for the petitioners, by relying upon certain decisions of the Apex Court. Learned counsel relied upon a decision of the Apex Court in Express Newspapers Pvt. Ltd. And others v. Union of India and others (AIR 1986 SC 872) in that context.
54. In this context, we will refer to the decisions of the Apex Court in Rame Gowda (dead) by Lrs. v. M. Varadappa Naidu (dead) By Lrs. And another {(2004) 1 SCC 769} and Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira (dead) through Lrs. {(2012) 5 SCC 370}. The concept of settled possession has been examined by the Apex Court in paragraph 9 of th decision in Rame Gowda's case (supra) and it was held as follows:
“The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Supreme Court in Puran Singh case, (1975) 4 SCC 518, 527, para 12, has laid down tests which may be adopted as a working rule for determining the attributes of “settled possession”.
The said legal position was examined in respect of a suit filed under Section 6 of the Specific Relief Act, 1963. Shri P. Chandrasekhar invoked the said principle while contending for the position that the proceedings under the Land Conservancy Act cannot be sustained, as the petitioners' predecessor- in-interest was in occupation of the land under the purchase certificate and the petitioners continued even after the demise of their father as beneficiaries of the purchase certificate. We have already found that the purchase certificate cannot survive, as it is totally null and void. Therefore, the same will not help the petitioners.
55. Maria Margarida Sequeira Fernandes's case {(2012 (5) SCC 370}, is also a case where provisions of Sections 6, 5, 38 and 39 of Specific Relief Act, 1963 came up for interpretation. The concept of due process of law has been explained in paragraph 79 thus:
“79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law s satisfied the moment rights of the parties are adjudicated upon by a competent court.”
We are of the view that the said legal position will not help the petitioners herein. The third respondent has passed the order after considering the objections of the petitioners and the evidence produced by them. The machinery under the Land Conservancy Act and the enquiry envisaged under the Act have been properly undertaken before Ext.P7 order was passed. Even though it is stated that only one petitioner has given notice, both are claiming under the very same purchase certificate and the contentions are the same, going by the averments in the writ petition also. Even though it is submitted that the Board has availed the remedy before the civil court earlier and thus they are binding, we have already rejected the said contention. Since we have held that the decrees cannot survive in the light of the express bar under Section 20A of the Act, the procedure under the provisions of the Land Conservancy Act alone can be invoked by the Board.
56. In this context, Shri P. Chandrasekhar relied upon the decision of the Apex Court in Government of Andhra Pradesh v. Thummala Krishna Rao and another (AIR 1982 SC 1081) to contend for the position that when there is a title dispute, summary procedure for eviction cannot be resorted to. Therein, the Apex Court has held that the question as to the title to the three plots could not appropriately be decided in a summary enquiry contemplated by Sections 6 and 7 of the Act. Therein, the provisions under the Andhra Pradesh Land Encroachment Act was considered. Herein, apart from relying upon the order of the Land Tribunal and the purchase certificate, no other claim of title has been raised by the petitioners. Therefore, the validity of the same alone had to be considered by the third respondent. Therefore, the said principle also will not come to the aid of the petitioners.
57. In the context of finality of Exts.R2(c) and R2(d), learned counsel for the petitioners relied upon the decision of a learned Single Judge of this Court in George Kutty v. Ouseph Varkey (1990 KHC 107), especially paragraph 4, stating that even a wrong decision of a court having jurisdiction is as much binding on the parties thereto as a right one unless it be that the said decision is superseded by appellate or revisional orders or higher tribunals or reviewed by the said court provided law recognises the same. This was relied upon while considering the question whether the parties to a remand order are bound by the said order. Significantly, this Court held that the decision should be of a court having jurisdiction.
58. Herein, we have already held that the civil court has no jurisdiction in the light of Section 20A of the Land Conservancy Act. Therefore, the said decision cannot help the petitioners herein.
59. In fact, in Exts.R2(c) and R2(d) orders of the civil court, it was assumed that the father of the petitioners was a tenant which is totally incorrect and unsustainable, in the light of the discussion we have already made above. There is clear apparent error in the approach made by the appellate court in Ext.R2(c) and the trial court in Ext.R2(d) judgments in assuming that the petitioners' father was a cultivating tenant. In the light of the facts revealed which we have already adverted to, the proceedings of the Land Tribunal and the consequential issuance of the purchase certificate cannot be recognised in law at all.
60. As far as the property of the Temple is concerned, this Court will be right in exercising the parens patriae jurisdiction. The Division Bench in paragraphs 61 and 63 of the judgment in Mohanan Nair's case (2013 (3) KLT 132) has considered two aspects, viz. the power of this Court to interfere even if there is inaction on the part of the Board and the importance of protecting the interest of Deity. Herein, what we find from Ext.P7 order is that a complaint was made by the Temple Advisory Committee which was considered by the learned Ombudsman appointed by this Court for Travancore and Cochin Devaswom Boards. The learned Ombudsman had also directed the third respondent to take urgent action for recovery of Devaswom property. In paragraph 62 of the judgment in Mohanan Nair's case (2013 (3) KLT 132) this Court relied upon the judgment of the Apex Court in Gopalakrishnan v. Cochin Devaswom Board (2007 (4) KLT 965) wherein the duty of the courts to protect and safeguard the interest of the Deity has been highlighted. We extract the entire paragraph 62 of Mohanan Nair's case (supra), hereunder:
“62. The Apex Court, in a recent decision reported in Gopalakrishnan v. Cochin Devaswom Board (ILR 2007 (4) Ker.
181), has emphasised that it is the duty of the Courts to protect and safeguard the interest and properties of the religious and charitable institutions. The Bench presided over by Chief Justice K.G. Balakrishnan (as he then was), in para 10 has held as follows:
“10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their Trustees/Archaks/Sebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the concerned authorities. Such acts of 'fences eating the crops' should be dealt with sternly. The Government, members or trustees of Boards/Trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.” (emphasis supplied by us) That was also a similar case wherein the alleged encroachment of Temple property was raised in a complaint filed by a devotee.”
In paragraph 61, the Division Bench has considered an earlier Full Bench decision of this Court in Achuthan Pillai v. State of Kerala (1970 KLT 838 - FB). We extract the entire paragraph hereunder which will support our view.
“61. We will now come to the decisions relied upon by both sides. A Full Bench decision of this Court in Achuthan Pillai and others v. State of Kerala and others (1970 KLT 838 - FB) was relied upon by the learned counsel for the Temple Advisory Committee to show that in respect of matters concerning Hindu Religious Institutions and Temples, a contention regarding limitation/delay, etc. alone cannot deny the jurisdiction and hence this Court will be properly justified in considering the matter in detail. That was a case where the Full Bench considered the validity of an order passed by the Government under Section 99 of the Hindu Religious and Charitable Endowments Act, 1951 (Madras). By the said order the Government cancelled the sanction given for transfer of immovable property of a Devaswom. The initial order was passed by the Commissioner for sanction to lease 600 acres of forest land belonging to Emoor Bhagavathy Devaswom. The said order was passed in the year 1960 and the Government cancelled the same by Ext.P5 order dated 23.2.1967. The Full Bench, speaking through K.K. Mathew, J. (as he then was), traced the principles regarding the rights of an authority to protect the institution like Devaswom in order to prevent fraud. The relevant parts of the discussion contained in paragraphs 5 and 6 are extracted below:
“5. The power to cancel a sanction and thereby to make null and void an improvident transfer or alienation of immovable property of a Devaswom, though exercised under the guise of revision, is visitorial in character. It is a matter of common knowledge that even from very early times religious and charitable institutions in India came under the special protection of the ruling authority. The rulers of the country always asserted their right to visit these institutions in order to prevent fraud and redress the abuses in their management. In the celebrated Rameswar Pagoda case, LR. 1 I. A. 299 it was pointed out by the Judicial Committee that the former rulers of this country always asserted the right to visit endowments of this kind to prevent and redress the abuses in their management. ...............
6. The authorities, therefore, support the conclusion that supervision and control of Hindu Religious and Charitable Institutions is a function of government and that government at all times asserted and exercised the power. Although India is today a secular State, “that would not preclude the secular administration of religious institutions”. (See the observations of B.K. Mukherjee, J. in Commr. HRE v. Swamdur - AIR 1954 SC 282). The fact that government did not exercise the power immediately when it became aware of the circumstances vitiating Ext.P1 order cannot prejudice the interest of the devaswom. If the contention of the petitioner were to prevail, it would mean that because the government was not very vigilant in exercising the power the interest of the devaswom should suffer. S.10 of the Limitation Act, 1963, provides no period of limitation for a suit against a person in whom the trust property has become vested for any specific purpose or against his legal representatives or assigns for the purpose of following in his or their hands such property. The reason behind the section is that an express trust ought not suffer by the misfeasance or non-feasance of a trustee ”
Their Lordships were of the view that “an express trust ought not suffer by the misfeasance or non-feasance of a trustee.” This principle is important in the context of this case also. The Full Bench was also of the view that “if the contention of the petitioner were to prevail, it would mean that because the government was not very vigilant in exercising the power the interest of the devaswom should suffer.” This also is significant in the context of this case. If we accept the plea of the learned counsel for the fourth respondent that the Board has approached the Appellate Authority only after a long lapse of time and is also now arguing for cancellation of the purchase certificate after a long lapse of issuance of it, definitely the same will affect adversely the interest of the Temple. The misfeasance or non-feasance of a trustee cannot affect the trust itself. Therefore, if the fourth respondent has no right to take the benefit of the purchase certificate, we are of the view that power is not lacking for this Court to interfere even if some years have passed and there was inaction on the part of the Board for certain period.”
The findings of the Full Bench will go against the contentions of the petitioners herein also. The inaction, if any, of the Board for a long time cannot be a ground to interfere with Ext.P7 order. Therefore, as the petitioners have no right to take the benefit of the purchase certificate, power is not lacking for this Court, even if some years have passed in the matter. The Full Bench was also of the view that the misfeasance or non- feasance of a trustee and the time lag in the matter and inaction on the part of the Board will not deter the court from passing appropriate orders.
The Division Bench in paragraph 63 held further as follows:
“63. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. This Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, viz. the powers of revision, this 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 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 this Court in these proceedings.”
Shri P. Chandrasekhar points out that in that case the revision petitions filed under Section 103 of the Land Reforms Act were also before this Court which is absent herein. But in the light of the principles rendered by the Full Bench in Achuthan Pillai's case (1970 KLT 838 - FB) as well as that of the Apex Court in Gopalakrishnan's case (2007 (4) KLT 965) the absence of a revision petition under Section 103 of the Act will not prevent this Court, from acting, especially in the light of the inherent jurisdiction available to this Court and the applicability of the doctrine of parens patriae. Apart from the contentions based on the purchase certificate obtained from the Land Tribunal, no other legal contentions are there in Ext.P6 objection filed before the third respondent. The petitioners are fully relying upon the purchase certificate alone. They are tracing their right only to the purchase certificate, which cannot be recognised at all, in the light of the discussion already made by us above. In that view of the matter, we find no reason to interfere with Ext.P7 order passed by the third respondent.
For all these reasons, we dismiss the writ petition. No costs.
(T.R.RAMACHANDRAN NAIR, JUDGE) (P.V.ASHA, JUDGE) kav/