Common Judgment:
K. V. Jayakumar, J.
1. W.P.(C) No. 25272 of 2015 is preferred by Sree Kumaramputhur Bhagavathy Devaswom Kshethra Samrakshana Samithi. The 1st petitioner is the Convener of the said Samithi and the 2nd petitioner is a member. The 1st respondent is Malabar Devaswom Board and the 2nd respondent is its Assistant Commissioner. The 3rd respondent is the Secretary to the Government. The respondents 4 to 9 and 11 are the party respondents. The 10th respondent is the Executive Officer of the Sree Kumaramputhur Bhagavathy Devaswom.
2. W.P.(C) No. 8572 of 2020 is preferred by one Jose P. and his wife Thressiamma. The issues of fact and law involved in these Writ Petitions are common and therefore, these Writ Petitions are disposed of by a common judgment. W.P.(C) No. 25272 of 2015 is taken as the lead case. The parties and exhibits are referred in this judgment as stated in the said Writ Petition, unless otherwise specifically indicated.
3. The brief facts of W.P.(C) No. 25272 of 2015 are as follows:
It is stated in the Writ Petition that the 1st petitioner is the Convener of the Kshethra Samrakshana Samithi constituted by the devotees of the five temples existing under Sree Kumaramputhur Bhagavathy Devaswom, which is functioning under the supervisory control of the Malabar Devaswom Board and the 2nd petitioner is a member of the said Kshethra Samrakshana Samithi (hereinafter referred to as ‘the Samithi’).
4. It is stated that Sree Kumaramputhur Temple belongs to Varikkumanchery Mana. In the year 1948, a lease deed was executed by the members of the said Mana pertaining to 22.43 acres of land situated in Survey No. 72/5 A1 Part of Kumaraputhur Village to one Kunjunni Nedungad. Ext. P1 is the true copy of the said document. As per this document, all the 7 items in part A of the schedule and one item in Part B of the schedule are Kumaramputhur Bhagavathy Devaswom Janmam. The said lease was for a period of one year.
5. In spite of the expiry of the lease period, the property was never taken back by the Varikkumanchery Mana and the lessee continued his possession in the property. Later, the possession of the property was taken over by the wife of Kunjunni, namely Bhagheerathy Kovilamma, after his death.
6. Thereafter, vide document No. 3344/1969 sale deed, the said Bhagheerathy Kovilamma had transferred the leasehold right to Smt. Parvathy Ammal. The petitioners contended that sale deed No. 3344/1969 itself is void and inoperative. Thereafter, the said Parvathy Ammal has gifted 19.03 acres of land out of the total extent of 22.43 acres to her brothers as per Ext.P2 gift deed No. 3374/1970 dated 03.12.1970.
7. Subsequently, the brothers of Smt. Parvathy Ammal again transferred the entire property having an extent of 19.03 acres to four persons executing separate sale deeds in the year 1974 and 1979. It is contended that now the said properties are in the possession of respondents 4 to 9.
8. It is further stated in the Writ Petition that the Taluk Land Board, Mannarkkad initiated suo motu proceedings as S.M. No. 116/1977 against Smt. Parvathy Ammal alleging that she is holding excess land and an order was passed directing to surrender 7.43 acres after fixing the ceiling area at 15 acres.
9. The extent of land ordered to be surrendered happened to be in the possession of Smt. Pathumma, the 4th respondent. Therefore, she has filed several petitions before this Court challenging the proceedings initiated by the Land Board at various stages. This Court has remanded the matter several times to the Land Board and ultimately by order in CRP No. 631/2010, this Court has finally remanded the matter to the Land Board directing to consider the claim of the said Pathumma under Section 7(E) of the Kerala Land Reforms Act (hereinafter referred to as ‘KLR Act’). After the remand, the Land Board has considered the claim of the said Pathumma and ultimately found that she is not entitled to claim the benefit of Section 7(E) of the KLR Act and dismissed her claim petition.
10. Smt. Pathumma, the 4th respondent, has once again approached this Hon’ble Court by filing CRP (LR) No. 671 of 2014. It is further submitted that this Hon’ble Court, by order in I.A. No. 2910 of 2014, granted a stay of all further proceedings pursuant to the order of the Land Board dated 07.10.2014 in S.M. No. 116 of 1977. Ext. P4 is a true copy of the order passed in S.M. No. 116 of 1977, and Ext. P5 is a true copy of the interim order passed by this Hon’ble Court granting stay of all further proceedings.
11. In the meanwhile, the devotees of the Devaswom started agitation claiming that respondents 4 to 9 have encroached into the property of the temple, situated on the side of Calicut-Palghat National Highway (NH-213). It is stated that the value of a cent of property is about 5 lakhs. It is further contended that the major portion of these properties are utilised for construction of buildings by the present occupants and the buildings are let out for huge amounts of rent. According to the petitioners, the properties covered by Ext. P1 documents are to be recovered from the illegal occupants, and the income derived therefrom is to be utilised for the upliftment of the five temples included in the Sree Kumaramputhur Devaswom.
12. The petitioners further state that, even though they had filed Exts. P6, P7 and P8 representations, the Devaswom Board refused to take any action against the encroachers. On these assertions, the petitioners have approached this Court seeking the following relief:
Direct respondents 1 to 3 to take immediate steps under the
Kerala Land Conservancy Act to recover 22.43 acres of land in survey No. 72/5A 1 part in Kumaramputhoor Village from respondents 4 to 11 by the issue of a writ of mandamus or such writ or order or direction.
13. Sri. R. Krishna Raj, the learned counsel for the petitioners submitted that respondents 4 to 9 are the encroachers of the Sree Kumaramputhur Bhagavathy Temple. The encroachers are to be evicted by invoking the KLC Act. The learned counsel contended that the deity of a temple is to be considered as a perpetual minor and the Devaswom Board and the trustees in charge of the affairs of the temple have no right to alienate or transfer the property of the deity.
The contentions of the respondents in W.P.(C) No. 25272 of 2015.
14. The 2nd respondent, Malabar Devaswom, filed a counter affidavit, as directed by this Court. Paragraphs 2 to 5 of the counter reads as follows:
“2. It is submitted that the above writ petition has been filed praying for directing the respondents 1 to 3 to take immediate steps under the Kerala Land Conservancy Act to recover 22.43 acres of land in Sy No. 72/5A-1 Part in Kumaramputhoor village from the respondents 4 to 11, through proceedings under the Kerala Land Conservancy Act. Admittedly while the property was continuing under the jenmam of the Deity of Sree Kumaramputhoor Bhagavati Temple, which is an institution under the supervisory control of the H.R & C.E Act of 1951, was got alienated by a Verumpattom document No.1437/1948 and the property was taken over by Executing it by one Kunjunni, for a term of one year. The hereditary trusteeship had been vesting with the family Varikancherry Mana of Manissery of Ottappalam Taluk. Even after the expiry of the term of one year, the lease was not renewed by the lessee and the properties were illegally held under the lessee, and the successors of lessee, without having a valid tenancy had affirmed to have transferred the property to one Parvathy through Doc No.3344 of 1969, and the same has been held under the respondents 4 to 11.
3. It is submitted that the provisions of the Kerala Land Reforms Act, 1963 was got enforced, only to the lawful tenancies. The cultivating tenant was defined in Section 2(8) of the KLR Act as “A tenant who is in actual possession of and is entitled to cultivate the land comprised in his holding”.
4. It is submitted that in the case of the land involved herein, the Doc No.1437/1948 was executed on 14-07-1948 for one year term, which was expired on 13-07-1949, and there was no renewal of the lease as provided in the Malabar Tenancy Act of 1929, and as there was no entitlement to cultivate in it and the claimed possession was illegal. So there was no fixity of tenure, since there was no payment of lease rent also. In the circumstances the property was not vested with the Government as provided in Section 72 of the KLR Act, in the absence of lawful tenancy prior to 01-04-1964. In the absence of a valid lease, the executant of the Doc. No.3344 of 1969, had no title or right to transfer the property and hence the transfer of the property entailed void. So all the transfers thereafter entailed invalid, since the jenmam of the property had been vesting with the deity. Under Sec.94 and 94A of the H.R & C.E Act, 1951, the property can be evicted under the provisions of the Kerala Land Conservancy Act.
5. It is submitted that the property involved is still illegally held under the possession of respondents 4 to 11. So the temple had not been remitting the land tax till now. The trustee being vested with the right of administration, and the District Collector, being the authority under the Kerala Land Conservancy Act, they are necessary parties to this litigation.”
15. The 4th respondent, Pathu @ Pathumma, filed counter affidavit as directed by this Court with the following contentions. She stated in the counter affidavit that the respondents 5 to 7 are her children. It is stated in the counter that the Writ Petition is not legally maintainable and petitioners have approached this Court by suppressing material facts. In further, it is contended that the Kerala Land Conservancy Act (for the sake of brevity ‘the KLC Act’) is a summary proceeding to evict encroachers from Government land which has no application in the case on hand. It is further pointed out that the writ petitioners have not challenged the title deeds of these respondents. The petitioners are not entitled to seek a writ of mandamus without challenging the right, title and interest of the respondents. It is further contended that the 4th respondent, Pathumma, is in possession of the property covered by Ext.P2 document for several decades, uninterruptedly and without any objection. The 4th respondent is paying the land tax regularly. It is contended that the 4th respondent is in absolute possession and enjoyment of the property and is not a trespasser of the property. Therefore, her case would come within the exemptions stated under Section 3(1)(b), 3(1)(d) along with clause (e) of the the KLC Act, as held by this Court in Autumn Woods Resorts v. State (2014(3) KHC 305). Therefore, it is contended that the proceedings under the KLC Act cannot be invoked against the 4th respondent or her children.
16. Sri. M. C. John, learned counsel for the respondents 4 to 7 submitted that respondents 4 to 7 are in continuous possession and enjoyment of the property sought to be evicted by the Devaswom Board invoking the powers of KLC Act, which is a summary procedure. Originally, respondents 4 to 7 obtained leasehold rights over the property. Subsequently, their predecessors got fixity of tenure under the provisions of the KLR Act and their title has become perfect. Since they and their predecessors are in possession of the property for about more than 6 decades, the summary procedure as contemplated under the KLC Act cannot be invoked to evict them.
17. The respondents 4 to 7 have placed reliance on the following judgments:
1. Autumn Woods Resorts (supra)
2. Harrisons Malayalam Ltd. (M/s.) and Another v. State of Kerala and Others (2018 (2) KHC 719)
3. Kshetra Upadeshaka Samithi v. State of Kerala (2023 KHC Online 564)
18. The respondent No.8, Thressiamma, has filed a counter contending that the Writ Petition is not maintainable and is filed suppressing material facts. The KLC Act provides a mechanism for the summary eviction of trespassers or unauthorised occupants from the Government property. The reliefs claimed in the Writ Petition are not allowable.
19. It is further contended that the 8th respondent purchased 81 Ares of property in the year 1974 vide Ext.R8(A) sale deed. According to the 8th respondent, her assigner had obtained a fixity of tenure in the property as per Ext.R8(B) purchase certificate, issued from the Land Tribunal, Ottappalam. She has been in continuous possession and enjoyment of the property right from 1974 and she is remitting basic tax regularly. She is not a trespasser or encroacher of the land and her case would fall within the exemptions provided under Section 3(1) of the KLC Act.
20. The learned counsel for the respondents 9 and 11 have also advanced identical contentions. Sri. Ramdas, learned counsel appearing for the additional 11th respondent would submit that he is sailing along with respondents 4 to 9 and nothing more to submit.
21. The 10th respondent, the Executive Officer of Sree Kumaramputhur Bhagavathy Devaswom has filed a counter contending that there are five temples under the Kumaramputhur Devaswom, one of them is Kumaramputhur Bhagavathy Devaswom (commonly known as Vattambalam), a Durga temple. It is stated in the counter that the Kumaramputhur Devaswom has submitted Ext.R10(a) representation before the Tahsildar Mannarkkad to evict the trespassers of the temple property comprised in Survey No.72/5A-1, admeasuring 22.43 acres of land. The District Collector, Palakkad has issued Ext.R10(c), dated 16.02.2022 communication to the Tahsildar directing that measures be taken to evict the encroachers and to restore the boundaries of the temple.
22. The brief facts in W.P.(C) No. 8572 of 2020 are as follows:
The petitioners, Sri Jose P. and his wife Thressiamma, state that the 1st petitioner is the absolute owner and in possession of 1.095 acres of property in Survey No. 72/5A1 of Kumaramputhur Village, Mannarkkad Taluk, Palakkad District. He purchased the property from one Bose Vadakkel in the year 2003 as per Ext.P1 sale deed. Ext.P2 is the possession certificate dated 22.02.2020 and Ext.P3 is the basic tax receipt for the year 2019.
23. It is further stated that the property along with other items originally belonged to the Varikkumanchery Mana and was in the possession of cultivating tenants. By virtue of the provisions of the KLR Act, 1963, the cultivating tenants acquired fixity of tenure and the leasehold right perfected to absolute title.
24. In the year 1969, one Bhagheerathi Kovilamma and others sold the property along with other items to Parvathy Ammal. The said Parvathy Ammal gifted the property to her brothers, namely, Rajagopalan and Natarajan as per gift deed number 3374/1970. The said Rajagopalan and Natarajan sold the property to one Ealiyamma by registered sale deed number 1120/1974 of the SRO, Mannarkkad. It is further contended that the rights of Ealiyamma were perfected when the Land Tribunal, Ottappalam issued the purchase certificate in the year 1977 (Ext.P4).
25. Later, Ealiyamma transferred the property to Annamma. Thereafter, the said Annamma and Abraham executed an exchange deed and transferred the property mutually in the year 1994. The said Abraham had executed a ‘will’ bequeathing the property in favour of his grandson Bose, who in turn sold the property to the 1st petitioner by Ext.P1 document.
26. The 2nd petitioner, Thressiamma, purchased 2 acres of property as per Ext.P5 sale deed in the year 1974, from the aforesaid Rajagopalan and Natarajan. Her assignors also had tenancy right (fixity of tenure) over the property by Ext.P5. Later, she got Ext.P6 purchase certificate from the Land Tribunal, Ottappalam. Later, she had sold a portion of the property and now she is in possession of 81 cents of land. Ext.P7 is the true copy of the basic tax receipt paid by the 2nd petitioner in the year 2015. The 2nd petitioner in W.P.(C) No. 8572 of 2020, Thressiamma, is the 8th respondent in that Writ Petition.
27. It is further contended that the Samithi, and the officers of the Malabar Devaswom Board placing reliance on Ext.P8 sketch claims that the properties purchased by the petitioners herein are Devaswom properties. Accordingly, the 2nd respondent in W.P.(C) No. 8572 of 2020, Taluk Surveyor, issued Ext.P9 notice to the petitioners. On these assertions, the petitioners in W.P.(C) No. 8572 of 2020 have preferred the Writ Petition seeking the following reliefs:
(I) Call for the records leading to Ext.P9 and quash it issuing a writ in the nature of certiorari;
(II) to issue Writ of mandamus or order or direction or any other appropriate writ directing the respondents not to proceed against the property of the petitioners without adverting to the statutory procedure.
Contentions of Respondents 5 and 6 in W.P.(C) No.8572/2020
28. The respondents 5 and 6 in W.P.(C) No.8572 of 2020, ie., the Executive Officer and Trustee Board Chairman of the Thonippuram Sree Dharma Sastha Temple, one of the temples of Sree Kumaramputhur Devaswom, filed a detailed counter refuting the allegations of the petitioners. It is contended that the deity in a temple is a perpetual minor in the eye of law. The word ‘Devaswom’ means ‘the property of the deity’. Therefore, the deity, being a perpetual minor, any property of the deity cannot be subjected to any transaction. Devaswom Board or the trustee can only maintain the property.
29. It is further contended that the Government as well as the Judiciary are legally bound to protect the interest of the deity, being a perpetual minor. The respondents further state that even if the pattyam is issued to any encroachers, it will have no legal value. Therefore, it is submitted that the Devaswom has ample power to proceed under the KLC Act.
30. The petitioners filed a reply affidavit denying the contentions of the counter affidavit. It is stated that even if the encroachers manage to obtain the purchase certificate from the Land Tribunal, it is void ab inito and ‘non est’ in the eye of law. The learned counsel for the petitioners in the reply affidavit has placed reliance on the following judgments:
1. A.A. Gopalakrishnan v. Cochin Devaswom Board (2007 (4) KLT 965)
2. Nandakumar v. District Collector (2018 (1) KLT 1019)
3. Mrinalini Padhi v. Union of India (2018 KHC 4466)
4. Travancore Devaswom Board v. Mohanan Nair (2013 (3) KLT 132)
5. Prasannakumar v. State of Kerala (2015 KHC 378)
6. Muhammad Haji v. Kunhanni Nair (1993 (1) KLT 227)
31. The main issue involved in these Writ Petitions is whether this Court can issue directions to the Malabar Devaswom Board and its officers to take necessary steps to recover the Devaswom land by evicting the encroachers invoking the powers under the KLC Act.
Judicial Evaluation:
32. Before we proceed further to discuss the issues of fact, it would be useful to refer to the provisions of the following Statutes.
List of Statutes and the relevant Section dealt in this Judgment
i. The Kerala Land Conservancy Act (Sections 3, 4, 5, 7, 11, 12, 15, 16 & 20A)
ii. The Kerala Land Reforms Act (Sections 3(1)(x), 7E, 2(8))
iii. The Code of Civil Procedure (Section 9)
iv. The Specific Relief Act ( Sections 34 and 35)
v. The Travancore Cochin Hindu Religious Institutions Act (hereinafter referred to as ‘TCHRI Act’) (Sections 27 and 50)
vi. The Madras Hindu Religious and Charitable Endowments Act 1951 (hereinafter referred to as ‘MHR&CE Act’) (Sections 94 and 94A)
vii. The Transfer of Property Act (hereinafter referred to as ‘TP Act’) (Section 7)
viii. The Malabar Tenancy Act, 1929 (Chapter III Section 21)
33. Section 3(1)(x) of the Kerala Land Reforms Act is hereunder:
3. Exemptions.-
(1) Nothing in this Chapter shall apply to-
(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:
Provided that nothing in this clause shall affect the rights to which a tenant was entitled immediately before the commencement of this Act under the contract of tenancy or under any law then in force; or
34. Sections 7E and 2(8) of the KLR Act read thus:
“7E. Certain person who acquired lands to be deemed tenants. Notwithstanding anything to the contrary contained in Section 74 or Section 84 or in any other provisions of this Act, or in any other law for the time being in force or in any contract, custom or usage, or in any judgment, decree or order of any Court, Tribunal or other authority, a person who at the commencement of the Kerala Land Reforms (Amendment) Act, 2005, is in possession of any land, not exceeding [1 hectare 61 ares and 87 square metres] in extent, acquired by him or his predecessor-in-interest by way of purchase or otherwise on payment of consideration from any person holding land in excess of the ceiling area, during the period between the date of the commencement of the Kerala Land Reforms Act, 1963 (1 of 1964), and the date of commencement of the Kerala Land Reforms (Amendment) Act, 2005, shall be deemed to be a tenant.”
“2(8) "cultivating tenant" means a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding;”
35. Section 9 of the Code of Civil Procedure, 1908 is reads thus:
“9. Courts to try all civil suits unless barred
The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Section 9 of the Code of Civil Procedure states about the powers vested with the civil court to take cognizance and to try suits of ‘civil nature’ except those which are barred.
36. Before we proceed further it would be useful to extract the relevant provisions of the KLC Act. (Sections 3, 4, 5, 7, 11, 12, 15 and 16)
“3. Property of Government defined.- (1) All public roads, streets, lanes, and paths, the bridges, ditches, dykes and fences on or beside the same the bed of the sea and of harbours and creeks below high water mark, the beds and banks of rivers, streams, irrigation and drainage channels, canals, tanks, lakes, backwaters and water courses, and all standing and flowing water, and all lands wheresoever situated, save in so far as the same are the property of-
(a) Jenmies, Wargdars or holders of Inams; or
(b) persons registered in the revenue records as holders of lands in any way subject to the payment of land revenue to the Government; or
(c) any other registered holder of land in proprietary right; or
(d) any person holding land under grant from the Government otherwise than by way of a lease or licence; or
(e) any person claiming through or holding under any of the persons referred to in Clauses (a), (b), (c) or (d), are, and are hereby declared to be, the property of Government, except as may be otherwise provided by any law for the time being in force, subject to all rights of way and other public rights and to the natural and easement rights of other land owners and to all customary rights legally subsisting.
Explanation I-Lands once registered in the name of a person but subsequently abandoned under the or relinquished, and all lands held by right of escheat, purchase, resumption, reversion or acquisition under Land Acquisition Act for the time being in force, are the property of Government within the meaning of this section.
Explanation IA. Where the ownership and possession, or the possession of any land are or is vested in the Government under Section 86 or Section 87 of the Kerala Land Reforms Act, 1963 (1 of 1964), such land shall, so long as it is in the possession of the Government, be the property of Government within the meaning of this section].
Explanation II. In this section, the expression ‘high water mark’ means the highest point reached by the ordinary spring tide at any season of the year.
Explanation III.- Where, in regard to roads, lanes and canals, survey stones had been, in the original demarcation under the Survey Act in force planted for the sake of convenience and safety inside compound walls and gates of compounds, in house verandhas, door steps, porticoes, masonry, drains and similar structures of a permanent nature, such walls, gates, verandhas, etc., shall not be deemed to be the property of Government within the meaning of this section.
Explanation IV.- (1) Lands belonging to the Government of any other State in India or the Kerala State Electricity Board or to a University established by law or to any Panchayat as defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994)] or any Municipality as defined in the Kerala Municipality Act, 1994 (20 of 1994) owned or controlled by the Government of Kerala or to a Municipal Corporation shall be deemed to be the property of Government within the meaning of this section.]
(2) All unassessed lands within the limits of private estates used or reserved for public purposes or for the communal use of villagers, and all public roads and streets vested in any local authority shall, for the purpose of this Act, be deemed to be the property of Government.
4. " Poramboke" defined.-
(1) "Poramboke" shall mean and include unassessed lands which are the property of Government under section 3 (1) or (2) used or reserved for public purposes or for the communal use of villagers such as.
(a) all public roads, streets, lanes pathways, the bridges, ditches, dykes and fences on or beside the same;
(b) the beds and banks of rivers, irrigation and drainage channels, traffic canals, tanks, lakes, back-waters and water courses;
(c) markets, burial grounds, landing ghauts; and
(d) all other property which the Government may, for the purpose of this Act, from time to time, declare to be poramboke.
(2) " Occupant" defined.– "Occupant" shall mean a person actually in possession or occupation of a land which is the property of Government.
5. Land which is the property of Government not to be occupied without permission.– (1) From and after the commencement of this Act, it shall not be lawful for any person to occupy a land which is the property of Government, whether a poramboke or not, without permission from the Government as may be empowered in this behalf.
Explanation. For the removal of doubts it is hereby declared that the erection of any wall, fence or building or the putting up of any overhanging structure or projection (whether on a temporary or permanent basis) on or over any land aforesaid shall be deemed to be occupation of such land.
(2) Notwithstanding anything contained in sub-section (1), it shall not be lawful for any person to erect or cause to erect any wall, fence or building or put up or cause to put up any overhanging structure or projection (whether on a temporary or permanent basis) on or over any land referred to in sub-section (1) except under and in accordance with the terms and conditions of a licence issued by the Government or such officer of the Government as may be empowered by them in this behalf.
(3) Any person desirous of obtaining a licence referred to in sub-section (2) may apply to the Government or to such officer of the Government as may be empowered by them in this behalf for an appropriate licence.
(4) An application under sub-section (3) shall be in such form and shall contain such particulars and shall be accompanied by such fee, as may be prescribed by rules made under this Act.
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7. Punishment for unauthorisedly occupying land which is the property of Government.– Notwithstanding anything contained in this Act,–
(a) Whoever with the intention of using or holding any land which is the property of Government, whether poramboke or not, for any non-Governmental purpose, unlawfully enters or occupies such land shall be punishable with imprisonment of either description for a term which shall not be less than three years but which may extend to five years and shall also be liable to pay a fine which shall not be less than fifty thousand rupees, but which may extend to two lakhs rupees:
Provided that a person who is occupying any Government land not exceeding 5 cents as on the date of commencement of this Act and is not having any other land in his name or in the name of his family members and is having any of the following documents in order to prove that he was residing therein, namely, record of rights or a ration card or an electoral identity card issued in the address of such Government land which he is so occupying or a proceeding assigning house number to a building in such property or an electric connection or a water connection, issued by the competent authorities of the Government or the Local Self Government Institutions or the respective statutory bodies, as the case may be, shall not be considered as an unlawful occupant for the purpose of imposing punishment;
(b) whoever, for the purpose of effecting transfer of any land which is the property of Government for consideration or otherwise–
(i) commits the offence of cheating by fraudulently or dishonestly creating documents; or
(ii) makes or creates any forged document in support of any claim or title to such land shall be punishable with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to pay a fine which shall not be less than fifty thousand rupees, but which may extend to two lakhs rupees;
(c) Whoever being an officer entrusted with the responsibility of reporting unlawful occupation of land which is the property of Government or of initiating action to remove such unauthorised occupation fails to report or to initiate action to remove such unlawful occupation, shall be punishable with imprisonment of either description for a term which shall not be less than three years but which may extend to five years and shall also be liable to pay a fine which shall not be less than fifty thousand rupees, but which may extend to two lakhs rupees;
(d) Whoever erects or causes to erect any wall, fence or building or puts up or causes to put up any overhanging structure or projection, whether on a temporary or permanent basis in contravention of sub-section (2) of Section 5, shall be punishable with imprisonment of either description for a term which shall not be less than one year but which may extend to two years and shall also be liable to pay a fine which shall not be less than ten thousand rupees, but which may extend to twenty five thousand rupees and in the case of a continuing contravention, such additional fine which may extend to five hundred rupees for each day during which the contravention continues after conviction for the first such contravention.
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11. Liability of unauthorised occupant to summary eviction, forfeiture of crops, etc.– (1) Any person unauthorisedly occupying any land for which he is liable to punishment under Section 7 may be summarily evicted by the Collector, and any crop or other product raised on the land shall be liable to forfeiture, and any building or structure erected or anything deposited thereon shall also if not removed by him after such written notice as the Collector may deem reasonable, be liable to forfeiture. Forfeiture under this section shall be adjudged by the Collector and any property so forfeited shall be disposed of as the Collector may direct.
(2) Mode of eviction.– An eviction under this section shall be made in the following manner, namely:–
By serving a notice on a person reputed to be in occupation or his agent requiring him within such time as the Collector may deem reasonable after receipt of the said notice to vacate the land, and if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and, if the officer removing any such person shall be resisted or obstructed by any person, the Collector shall hold a summary into the facts of the case, and, if satisfied that the resistance or obstruction still continues, may issue a warrant for the arrest of the said person, and on his appearance may send him with a warrant in the Form of the Schedule for imprisonment in the Civil Jail of the district for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance:
Provided that no person so committed or imprisoned under this section shall be liable to be prosecuted under section 183, 186 and 188 of the Indian Penal Code in respect of the same facts.
(3) Notwithstanding anything contained in sub-section (2) where the Collector is of opinion in any case falling under sub-section (1) that it is expedient in the public interest to take urgent action without following the procedure laid down in sub-section (2) he may, after recording his reasons for so doing, issue a notice to the person in occupation calling upon him to vacate the land within such period as may be specified in the notice, and if the land is not vacated within the said period, any officer authorised by the Collector may enter upon the land and take possession of the same, if necessary by using such force as the circumstances may justify.
12. Prior notice to occupant etc.– The Collector shall, before passing an order under this Act, give notice to the occupant or other person likely to be affected by the order, and record any statement which such occupant or person may make and any evidence which he may adduce within a reasonable time, and all orders passed by the Collector under this Act shall be in writing and under his hand.
Provided that no such notice shall be necessary–
(i) When the Collector takes action under sub-section (3) of section 11; or
(ii) in the case of any person unauthorisedly occupying any land which is the property of Government, if, within a period of two years prior to the date of such occupation, he had been evicted from such land under section 11 or had vacated such land voluntarily after the receipt of a notice under this section or section 11.
The Collector may require any subordinate officer not below the rank of Deputy Tahsildar or any other officer authorised by the Government in this behalf to hold the enquiry as prescribed in the preceding paragraph and submit the record to him; and on such record the Collector may pass orders.
For the purpose of Section 199 of the Indian Penal Code the proceedings taken by the Collector under this section shall be deemed to be judicial proceedings.
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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.
16. Appeal and revision.– (1) Any person aggrieved by any decision or order under this Act of any officer authorised under section 15 may appeal,–
(a) where such officer is the Revenue Divisional Officer, to the Collector:
Provided that no such appeal shall lie in any case where the order is passed by the Revenue Divisional Officer on appeal under clause (b); and
(b) in all other cases, to the Revenue Divisional Officer, and the Collector or the Revenue Divisional Officer, as the case may be may pass such order on the appeal as he thinks fit.
(2) The Collector may either suo motu or on application revise any decision made or order passed under this Act by any officer authorised under section 15:
Provided that where such officer is the Revenue Divisional Officer, the Collector shall not on application revise any decision made or order passed otherwise than on appeal:
Provided further that the Collector shall not revise any decision or order if an appeal against such decision or order is pending or if the time for preferring appeal, if any, against such decision or order has not expired.
(3) Any person aggrieved by any decision or order of the Collector under this Act (otherwise than on appeal or revision) may appeal to the Commissioner of Land Revenue, and the Board of Revenue may pass such order on the appeal as it thinks fit.
(4) The Commissioner of Land Revenue may either Suo motu or on application revise any order passed by the Collector on appeal.
(5) The Government may either suo motu or on application revise any order passed by the Commissioner of Land Revenue on appeal.
(6) No order shall be passed under sub-section (1) or sub-section (2) or sub-section (3) or sub-section, (4) or sub-section (5) without giving the party who may be affected thereby an opportunity of being heard.
(7) Pending disposals of any appeal or revision under this Act, the appellate authority or the revising authority, as the case may be, may suspend the execution of the decision or order appealed against or sought to be revised.
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“20A. Bar of jurisdiction of Civil Courts.- (1) No Civil Court shall have jurisdiction to entertain any suit or other legal proceedings against the Government in respect of any action taken by it for the eviction of any person, who is in unauthorised occupation of any land which is the property of Government, whether poramboke or not, or for the recovery of any fine or any other sum due to the Government under this Act.
(2) No suit, prosecution or other legal proceeding shall lie against the Government or [the Commissioner of Land Revenue] or any officer of the Government for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made thereunder.”
37. The Kerala Land Conservancy Act is a comprehensive, special legislation enacted to regulate the unauthorized occupation and encroachment of government lands, establishing a quasi-judicial framework for addressing such issues, including eviction proceedings. It provides specific procedural and appellate remedies, and its scheme emphasizes the authority of designated officers to determine encroachments and possession, with limited scope for judicial interference.
38. Section 3 of the KLC Act defines the term ‘property of government’. Subclause (1) of section 3 states that the government property includes public roads, streets, paths, bridges, — harbours river banks, streams, irrigation and drainage channels, back waters and so on. However, Subclauses (a) to (e) of Subsection (1) carves out the exceptions to subclause (1), such as holders of inams or persons registered in the revenue records as holders of lands and who makes the payment of land revenue to the government or any other registered holder of land or any person holding land under a grant from the Government, and lastly the persons claiming through them.
39. Subsection (2) of the said provision states that property of Government includes all unassessed land within the limits of private estates used or reserved for public purposes or for the communal use of the villages and all public roads and streets vested in any local authority. Section 4(1) of the KLC Act defines the term ‘poramboke’. The term includes unassessed lands which are the property of the Government under Section 3(1) or clause (2) used or reserved for public purposes or the communal use of the villages, such as pubic roads streets, river banks, irrigation and drainage channels, canals, markets, burial grounds ..etc. Sub Section (2) of Section 4 defines the term ‘occupant’ as a person actually in possession or occupation of a land which is the property of the Government.
40. Section 5(1) of the KLC Act enjoins that it shall not be lawful for any person to occupy a land which is the property of the Government whether poramboke or not, without permission from the Government or from the officer empowered. Sub Section (2) prohibits the erection of any wall, fence or building in the property of the Government, except in accordance with the terms and conditions of a licence issued by the Government.
41. Section 7 prescribes the punishment to a person, who unlawfully enters or occupies in the property of the Government. The sentence shall not be less than 3 years which may extend to 5 years and fine which shall not be less than Rs. 50,000/-, which may extend to Rs.2,00,000/- .
42. The proviso to the Section carves out an exception to an occupant of a land not exceeding 5 cents and not having any land in his name or in the name of his family members and is having a ration card or electoral identity card showing the address of such Government land shall not be considered as an unlawful occupant or the purpose of imposing punishment. If the occupant has assigned a house number to a building in such property or an electric connection or water connection issued by the competent authority shall not be considered as an unauthorised occupant for the purpose of imposing punishment.
43. Sub Section (1) of Section 11 states that any person unauthorisedly occupying any land for which he is liable to punishment under Section 7 may be summarily evicted by the Collector. Sub Section (2) states that the mode of eviction under Sub Section (1) by serving a notice on a person in occupation or on his agent to vacate the land within a time frame. In case of non-compliance the Collector may remove the person from the property. If the occupant resists the process of removal, the Collector shall hold a summary enquiry and can issue a warrant for the arrest and put him into civil jail for a period not exceeding 30 days. Sub Section (3), a non obstante clause empowers the Collector to take possession of the land without complying with the procedure mentioned in Sub Section (2), if it is expedient in public interest so to do, after recording reasons.
44. Section 12 mandates that the Collector shall give notice and shall afford an opportunity of being heard to the affected party before passing an order under the KLC Act. Section 15 empowers the Government to notify the authorised officers to exercise the powers conferred on the Collector.
45. In A.A.Gopalakrishnan (supra) a Bench of three judges of the Honourable Apex Court observed that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees, archaks/sebates/employees. Paragraph 10 of Gopalakrishnan (supra) reads thus:
“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.”
46. In Mrinalini Padhi (supra), the Apex Court expressed the view that the protection of assets with regard to shrines, irrespective of religion, is a matter for consideration not only for the State Government, Central Government but also for courts. The Apex Court has issued general direction that every District Judge throughout India may examine such matters himself or through any Court under his jurisdiction and send a report to the concerned High Court so that such report can be treated as PIL on the judicial side.
47. In Nandakumar (supra), this court has reiterated the need for safeguarding and protecting the properties belonging to Devaswom if there is any encroachment. This Court in the said judgment held that the deity of a Hindu temple, being a perpetual minor, this Court can invoke its parens patriae jurisdiction to protect the property of the deity. The properties of Devaswom if at all encroached by anybody and if any assignment/conveyance has been effected without involvement of the Devaswom, the securing pattayam or such other deeds, the same cannot confer any right upon the parties concerned, unless the title so derived is clear in all respects.
48. The doctrine of ‘nemo dat quod non habet’ has been incorporated in Section 7 of the Transfer of Property Act (for the sake of brevity, ‘the TP Act’) . The said provision reads thus:
“7. Persons competent to transfer.—Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.”
49. In Eureka Builders v. Gulabchand ((2018) 8 SCC 67) , the Apex Court observed that, it is a settled principle of law that a person can only transfer to another person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration or otherwise. In other words, whatever interest a person is possessed of in any tangible property, he can transfer only that interest to the other person and no other interest, which he himself does not possess in the tangible property.
50. In Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese ((2022) 7 SCC 90) the Apex Court reiterated that, it is a fundamental principle of the law of transfer of property that “no one can confer a better title than what he himself has” (nemo dat quod non habet).
51. Sections 27 and 50 of the TCHRI Act 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.”
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“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.”
52. Sections 94 and 94A of the Madras HR&CE Act reads as under:
“94. Property of religious institutions not to vest under the Law of Limitation after Commencement of this Act.- Nothing contained in any law of limitation for the time being in force shall be deemed to vest in any person the property or funds of any religious institution which had not vested in such person or his predecessor-in-title before the commencement of this Act.
94A. Applicability of the Kerala Land Conservancy Act, 1957.- All lands belonging to the Board and religious institutions shall be deemed to be the property of the Government for the purpose of the Kerala Land Conservancy Act, 1957 (8 of 1958) and all the provisions of the Act shall, so far as they are applicable, apply to such lands.”
53. It would also be apposite to refer to Section 34 and 35 of the Specific Relief Act and Chapter III of the Malabar Tenancy Act, 1929. Sections 34 and 35 of the Specific Relief Act reads thus:
“34. Discretion of Court as to declaration of status or right.— Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
35. Effect of declaration.—A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees.”
Section 34 of the Specific Relief Act states about the regular suit for declaration as to any right with respect to the property, if such right is denied by another person. Section 35 makes it clear that a declaratory decree is binding on the parties and their legal representatives.
54. Section 21 of the Malabar Tenancy Act, 1929 reads thus:
“Section 21 - Right of certain classes of tenants to fixity of tenure Notwithstanding any contract to the contrary, whether entered into before or after the commencement of this Act, every cultivating verumpattamdar, every customary verumpattamdar, every kanamdar, every kanam-kuzhikanamdar, every kuzhikanamdar, every tenant of a kudiyiruppu and every holder of a protected ulkudi shall have fixity of tenure in respect of his holding and shall not be evicted therefrom except as provided in this Act:
Provided that no tenant of a commercial site shall have fixity of tenure in respect thereof unless immediately before the commencement of the Malabar Tenancy (Amendment) Act, 1951, he had fixity of tenure in such site or a right to obtain a renewal of his tenancy in respect thereof:
Provided further that, in the case of a kanamdar whose kanartham exceeds, forty per cent of the value of the janmi's rights in the holding, the kanamdar shall not have fixity of tenure.
Explanation.--For the purposes of the foregoing proviso, the janmi's rights in the holding shall be valued-
(i) in the case of a kanam existing on the date of the commencement of the Malabar Tenancy Act, 1929, at twenty times the excess of (a) the annual fair rent of the holding as payable on that date under that Act over (b) the annual assessment then payable thereon;
(ii) in the case of a kanam created after such commencement and before the date of the commencement of the Malabar Tenancy (Amendment) Act, 1951, at twenty times the excess of (a) the annual fair rent of the holding as payable under the Malabar Tenancy Act, 1929, on the date of the kanam over (b) the annual assessment then payable thereon;
(iii) in the case of a kanam created on or after the date of the commencement of the Malabar Tenancy (Amendment) Act, 1951, if and to the extent the kanam relates to wet land, at thirty times the excess of (a) the annual fair rent of the holding payable on the date of the kanam under the Malabar Tenancy Act, 1929, as amended by the Amendment Act aforesaid, over (b) the annual assessment then payable thereon, and if and to the extent the kanam relates to garden or dry land, at twenty-five times such excess.”
Section 21 of the Malabar Tenancy Act 1951 confers fixity of tenure to the cultivating tenants in respect of their land holdings.
55. In Autumn Woods (supra) this Court took the view that the provisions of Land Conservancy Act can be invoked only if the land belongs to the Government. The property of the Government is defined under Section 3 of the Land Conservancy Act. It was further observed that presumption of land covered by patta cannot be done without cancelling pattas. The right to cancel patta lies on the competent authority if the pattas have been issued.
56. In Harrisons Malayalam Ltd. (supra) a Bench of this Court opined that a special officer authorized under KLC Act cannot summarily evict unauthorized occupants from Government or puramboke land and cannot adjudicate the title and carry out the eviction.
57. In Kshetra Upadeshaka Samithi (supra), this Court observed that if the occupant is holding the property under a claim having semblance of title in the property, summary procedure under the KLC Act cannot be invoked. Paragraph 21 of Kshetra Upadeshaka Samithi is extracted below.
“21. The learned counsel appearing for respondents No.12 and 13 would submit that the said respondents have been in possession of the property since 1942 and therefore the provisions of the Land Conservancy Act cannot be invoked. The learned counsel placed reliance in this regard on Harrisons Malayalam Ltd. Cochin v. State of Kerala and others, 2014 (4) KHC 245, Harrisons Malayalam Ltd. v. State of Kerala, 2018 (2) KHC 719 and Deviprasad M. N. and others v. District Collector, Wayanad, 2019 (4) KHC 28. In the said decisions, this Court took the view that the summary procedure for eviction of illegal or unauthorised occupation of Government lands cannot be invoked in a case where the alleged trespasser is in legal possession and the dispute concerning the question of title is not appropriately decided. If the person in possession is holding the property under a claim having semblance of title in the property, summary procedure under the Kerala Land Conservancy Act cannot be invoked.”
Unauthorized Occupant v. Occupant
58. A clear distinction is required to be maintained between a rank trespasser or encroacher on Government land and a person who is in occupation of Government land under a colour of title. In the former category, the occupation is wholly unauthorized and illegal ab initio. Such a person enters upon Government land with full knowledge that he has no manner of right, title or interest therein, and his possession is that of a pure trespasser attracting the immediate application of the provisions of the Kerala Land Conservancy Act. In contrast, in the latter category, the occupant enters into possession bona fide under some ostensible authority or document, such as a lease deed, assignment order, sale deed, purchase certificate or similar instrument, and genuinely believes that he has lawful title or authority to occupy the land. Though such belief may ultimately be found to be erroneous in law, the initial entry cannot be equated to a willful encroachment. In cases of rank trespass, the very act of entry constitutes an unlawful occupation warranting prompt action under the Kerala Land Conservancy Act. However, where possession is traceable to a document or claim of right, the dispute assumes the character of a title or civil dispute, and summary proceedings under the Act ought to be invoked with circumspection. Nevertheless, in cases of clear encroachment without any semblance of lawful authority, on the strength of concocted or cooked up documents, and the same is prima facie evident, the writ court would be justified in directing the authorities to invoke and enforce the provisions of the Kerala Land Conservancy Act.
59. From the submissions and materials placed on record, it is discernible that the predecessors-in-interest of the present occupants have been in possession of the subject property for more than seven and a half decades, even prior to the commencement of the Kerala Land Conservancy Act, the TCHRI Act and the Madras HR&CE Act. They hold title deeds in their favour and purchase certificates have been issued by the Land Tribunal, Ottappalam. It is also evident that land tax has been remitted by them continuously for several years.
60. The Malabar Devaswom Board, which is the statutory trustee of the temple properties, remained inactive and failed to assert its rights for several decades. It is trite law that the Devaswom Board, being the custodian of temple properties, is duty-bound to safeguard the interests of the deity. At this belated stage, the Temple Advisory Committee of Kumaramputhur Devaswom has approached this Court seeking directions to the respondent Board and its officers to invoke the provisions of the Kerala Land Conservancy Act.
61. Section 34 of the Specific Relief Act, 1963 provides the statutory remedy for instituting a suit for declaration of right, title or interest in respect of immovable property. Under the said provision, any person entitled to any legal character or right to property may seek a declaration against a person who denies or is interested in denying such right.
62. In the present case, the rights, title and interests of the parties are governed by multiple statutory enactments referred to above. The matter involves numerous disputed questions of fact and law and there exist rival claims with respect to ownership and possession of the property.
63. It is true that the Kerala Land Conservancy Act, 1957 contemplates a summary procedure for eviction of unauthorised occupation of Government land. By virtue of the statutory provisions contained in the TCHRI Act and the Madras HR&CE Act, temple properties are also deemed to be Government land for the limited purpose of applying the provisions of the KLC Act.
64. Where land is claimed to belong to the Government or Devaswom institutions, two remedies are ordinarily available for eviction of occupants, namely:
(i) the summary procedure contemplated under the Kerala Land Conservancy Act; and
(ii) institution of a regular civil suit seeking declaration of title and consequential reliefs under Section 9 of the Code of Civil Procedure read with Section 34 of the Specific Relief Act and the relevant provisions of the TCHRI Act and/or the Madras HR&CE Act, as the case may be.
65. The central issue that arises for consideration in the present case is the extent and scope of jurisdiction under Article 226 of the Constitution of India in issuing directions to the Devaswom Boards to invoke the provisions of the Kerala Land Conservancy Act against persons in occupation of immovable temple properties.
66. We have carefully examined the issue in the light of the statutory scheme of the Kerala Land Conservancy Act, the Specific Relief Act and the allied enactments referred to above, and have also taken note of the authoritative pronouncements of the Hon’ble Supreme Court and this Court.
67. A reading of the scheme of the Kerala Land Conservancy Act makes it manifest that the remedy provided under the Act is intended to operate as a summary mechanism for eviction of rank unauthorised occupants from Government land. The applicability of this summary procedure to Devaswom properties flows from the deeming provisions contained in the TCHRI Act and the Madras HR&CE Act.
68. Sections 3 and 4 of the KLC Act indicate that the primary legislative focus is on protection of lands meant for public and communal purposes, including public roads, streets, bridges, river banks, canals, markets, burial grounds and other common utility lands. Section 7 of the Act prescribes penal consequences for unlawful entry upon or occupation of Government land. Section 11(2) prescribes the procedure for eviction of unauthorised occupants by the District Collector or other competent authority notified under Section 15 of the Act.
69. The object and purpose of the Kerala Land Conservancy Act is to enable removal of unauthorised occupation of Government or poramboke land through a special and summary procedure, thereby dispensing with the ordinary civil process contemplated under Section 9 of the Code of Civil Procedure and Section 34 of the Specific Relief Act. Being an exceptional statutory remedy, the power conferred under the Act is required to be exercised with due care, caution and circumspection. Invocation of the provisions of the Act would be justified particularly where public interest or communal usage is adversely affected by encroachment, such as trespass upon temple access ways, ritual spaces, temple ponds or lands essential for religious functions. In such circumstances, eviction under the summary procedure contemplated under Section 11(2) of the Act would be legally sustainable.
70. However, if the occupant is occupying land for several decades on the strength of sale deed, lease deed and purchase certificates, the court should be loath to direct the competent authority under the KLC Act to order eviction. If an occupant is occupying in the property of the government or that of the Devaswom on the strength of sale deed/lease deed/purchase certificate issued by the competent authority under the KLR Act, his occupation cannot be termed as ‘unauthorised’ or ‘illegal’. In other words, his occupation is supported by some documents issued by the governmental authorities.
71. In the instant case, the occupants or their predecessors are in possession of the property from 1948 onwards. They claim that they have got fixity of tenure under Section 29 of the Malabar Tenancy Act 1929. They have got purchase certificates from the Land Tribunal, Ottappalam. The occupants are paying land tax to the Government. Some of the occupants have constructed buildings and improved their property. The Malabar Devaswom Board, the institution responsible for the protection of the interest of the deity, was sleeping over their rights for the past several decades. Even now, this W.P(C). No.25272/2015 was instituted by the Temple Advisory Committee and not the Board. The purchase certificates issued to the occupants were not even challenged by the petitioner or the Devaswom Board.
72. After a careful consideration of the facts and circumstances, relevant provisions of the statutes referred to above and the dictums laid down by the Apex Court and this Court, we deem it appropriate to relegate the matter to the competent civil court for the effective adjudication of the matter in controversy. There is a bonafide title dispute between the parties which could only be decided by a civil court. These are several disputed questions of fact and law which require detailed evidence to be adduced by the parties. In Kshetra Upadeshaka Samithi, Harrisons Malayalam Ltd and Autumn Woods Resorts (supra) this Court expressed the view that the provisions of KLC Act cannot be invoked to evict an occupant, if he is in legal possession of the government land and the dispute is with respect to the title. In our considered view , the invocation of summary procedure is not just and proper in this matter. Therefore, the reliefs claimed in W.P.(C) No.25272 of 2015 cannot be granted. With regard to the reliefs claimed in W.P.(C) No. 8572 of 2020, we are of the view that Ext.P9 notice and all further proceedings pursuant thereto, are to be set aside and quashed. It would be open to the Malabar Devaswom Board to approach the jurisdictional court , if so advised. In the result,
i. W.P.(C) No.25272 of 2015 is dismissed. However, liberty is granted to the parties to the Writ Petition to pursue their remedies before the competent civil court having jurisdiction, in accordance with law.
ii. W.P.(C) No. 8572 of 2020 is allowed. Ext.P9 notice and all further proceedings pursuant to the notice are hereby quashed.
iii. It would be open to the Malabar Devaswom Board to approach the jurisdictional court , if so advised.
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