IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 OP.No. 1417 of 1998(R) ---------------------- PETITIONER(S): --------------- P.KRISHNAN NAIR, ATTARA VEEDU, PAZHAVANGADI THIRUVANANTHAPURAM.(DIED) ADDL.PETITIONERS 2 TO 5 IMPLEADED. ADDL.P2. S.SANTHAKUMARI AMMA, T.C.42/1, SOWPARNIKA, SREEVARAHAM, MANACAUD P.O. THIRUVANANTHAPURAM. ADDL.P3:- S. LALITHAMBIKA, T.C.42/1, SOWPARNIKA, SREEVARAHAM MANACAUD P.O. THIRUVANANTHAPURAM. ADDL.P4:- K.SHYAMKUMAR, DO. DO. ADDL.P5:- S.MEENAMBIKA, DO. DO. ADDL.PETITIONERS 2 TO 5 ARE IMPLEADED VIDE ORDER DTD.19/2/09 IN C.M.P.NO.56391/2000 BY ADV.SRI.T.KRISHNANUNNI (SR.) BY ADV. SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SRI.ANISH S.AMBADY SMT.BIJIMOL JOSE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE BOARD OF REVENUE (TAXES) THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 4. THE SPECIAL TAHSILDAR SREE PANDARAVAKA LANDS NO.1 THIRUVANANTHAPURAM. 5. R.S.RAMADAS RESIDING IN T.C.33/356, FORT, THIRUVANANTHAPURAM.(DIED) 6. R.S.MOHANDAS, RESIDING IN -DO- -DO- 7. R.S.DEVADAS, RESIDING IN -DO- -DO- 8. SMT.PACHIAMMAL, RESIDING IN -DO- -DO- (DIED) 9. ADDL.R9 AND R10 IMPLEADED ADDL.R9:- LAKSHMI VINAYAKAM T.C.33/356, FORT, THIRUVANANTHAPURAM. ADDL.R10:- SARASU SANKARALINGAM, T.C.33/356, FORT, THIRUVANANTHAPURAM. ADDL.R9 AND R10 ARE IMPLEADED VIDE ORDER DATED 19/2/2009 IN I.A.13276/03 FOR DECEASED 8TH RESPONDENT. ADDL.R11. SWARNALATHA, W/O.LATE R.S.RAMADAS LAKSHMI SADANAM, PAZHAVANGADI, FORT THIRUVANANTHAPURAM. ADDL.R12. SUJATHA SENTHIL, D/O.LATE R.S.RAMADAS LAKSHMI SADANAM, PAZHAVANGADI FORT, THIRUVANANTHAPURAM. ADDL.R13. ANITHA VISWANATHAN, D/O.LATE R.S.RAMADAS LAKSHMI SADANAM, PAZHAVANGADI, FORT, THIRUVANANTHAPURAM. ADDL.R14. R.SOORAJ, S/O.LATE R.S. RAMADAS LAKSHMI SADANAM, PAZHAVANGADI, FORT, THIRUVANANTHAPURAM. (ADDL.R11 TO R14 ARE IMPLEADED VIDE ORDER DATED 19/2/2009 IN I.A.9867/2004 FOR THE DECEASED 5TH RESPONDENT) BY GOVERNMENT PLEADER SRI.BENNY VARGHESE FOR R1 TO R4 BY ADV.SRI.D.KISHORE FOR R7 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/02/2009 THE COURT ON 27/3/2009 DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== O.P. NO. 1417 OF 1998 =========================== Dated this the 27th day of March, 2009 JUDGMENT This petition is filed under Article 226 of the Constitution of India to declare that Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971 does not apply to the land comprised in survey No.2746/2 of Chengazhassery Village and to quash Ext.P4 order passed by Special Tahsildar, Sree Pandaravaka Lands, Trivandrum rejecting the claim of the Writ Petitioner and directing to issue patta in respect of 54 cents in the name of respondents 3 to 8 counter petitioners in SP case 5888/1975 and to quash Ext.P6 order of the District Collector and Ext.P7 order of the Board of Revenue confirming Ext.P4 order and also for a writ prohibiting 4th respondent and other officers appointed under the Act from initiating proceedings for O.P.1417/1998 2 enfranchisement and grant of patta for the land in survey No.2746/2. 2. Case of the petitioner is that he is a member of Attara Veedu family and as per family partition deed dated 20.1.1114 M.E corresponding to 5.9.1938, 65 cents in survey No.2746/2 was allotted to the share of of the petitioner and the tenure of the land is Sree Pandaravaka Kudumbaporuthy as shown in the entries in the revenue registers evidenced by Ext.P1 copy of the Chitta and Ext.P2 copy of the Classification register of the land and Ext.P3 copy of the settlement register. It is contended that Sree Padmanabhaswamy temple, Thiruvananthapuram owned large extent of land and its tenure is Sree Pandaravaka. Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971 (hereinafter referred to as the Act) was enacted for enfranchisement of Sree Pandaravaka Land held by landholders and for vesting in the State of certain Sree Pandaravaka Thanathu lands. Sree Pandaravaka lands as defined under section 3(i) of the Act means any land owned by Sree Pandaravaka O.P.1417/1998 3 temple and registered in the revenue records as Sree Pandaravaka and Sree Pandaravaka Thanathu land as defined under section 3(j) means land registered as Sree Pandaravaka Thanathu and 4th respondent Special Thasildar is the appointed officer under section 10 of the Act for making enquiry and determining the compensation payable by the landholders to the Government and for issue of pattas under the Act. It is contended that that on the erroneous assumption that the Act is applicable to the land in survey No.2746/2 S.P.Case 5888/1975 was initiated and after enquiry under Ext.P4 order dated 22.5.1978, a direction was issued to issue patta in favour of respondents 3 to 8 in respect of 54 cents and also to issue patta to the writ petitioner in respect of the remaining 11 cents. Respondents 3 to 8 are only the heirs of R.Subbiah, an assignee of a licensee granted in respect of 54 cents on 19.11.1947. As the land in survey No.2746/2 of Chengazhassery Village is not Sree Pandaravaka land or Sree Pandaravaka Thanathu land as defined in the Act and is not registered in O.P.1417/1998 4 the revenue records as such and the tenure of the land is Sree Pandaravaka Kudumbaporuthy which is entirely a different tenure and registered in the revenue records and the Act is not applicable to the said land at all. It was contended that for the purpose of administration of Sree Padmanabhaswamy temple, Thiruvananthapuram, properties were divided into Madoms and Attara Veedu family is one of the Madoms and there were 18 Pillamars (Managers) attached to the Madoms called Arumadathil Pillamars and the family of Arumadathil Pillamars held the land which belong to Sree Padmanabhaswamy temple and i.e. Sree Pandaravaka lands for the purpose of conducting poojas and making offerings and these lands held by Madoms were thereafter granted in full proprietorship to the respective madoms and the grants are known as Kudumbaporuthy etymologically means “provisions for the support of the family”. It was contended that consequent to such grants the tenure of lands which belonged to Sree Padmanabhaswamy temple was changed as Sree O.P.1417/1998 5 Pandaravaka Kudumbaporuthy as recorded in the revenue registers and as per granthavaries document 928 M.E (1852-1853 A.D) the grants of the lands in survey No.2746/2 was to Attara Veedu of the petitioner and in 1933 Maharaja of Travancore appointed a Special Officer to submit report regarding the original history of Kudumbaporuthy and other inam lands and he submitted a report where familywise list of Kudumbaporthy lands held by Madathil Pillamars and details of the documents by which the grants were made to each family were shown. Accepting the said report Ext.P5 was issued on 17.12.1934 wherein survey No.2746/2 of Chengazhassery Village is shown held by Attara Veedu in the list of Kudumbaporuthy lands. Under section 2(f) of the Act landholder means a person who holds Sree Pandaravaka land directly under the temple and includes his heirs, legal representatives and assigns but does not include a person who holds Sree Pandaravaka Thanathu lands on Kuthakapattaom and neither R.Subbaih nor his legal O.P.1417/1998 6 representatives are landholders as defined in the Act and hence fourth respondent has no authority to issue Ext.P4 order and it is void. It is contended that though an appeal was filed against Ext.P6 order and when it was dismissed a revision was filed, both authorities failed to consider the relevant aspects and those orders are also void. It is also contended that though in O.S.175/1973 Sub Court, Thiruvananthapuram held the suit in favour of late Subbiah, A.S.648/1992 was pending before this court and as Subbiah or his successors are not landholders and the land is not Sree Pandaravaka Thanathu lands, Ext.P4, P6 and P7 the orders are to be quashed and it is to be declared that the Act is not applicable to the said land. 3. Respondents have filed a counter affidavit denying the contentions raised by the petitioner and contending that the Act applies to the land and the predecessor in interest of respondents 3 to 8 was the landholder and his assignor was not a licensee but a lessee and the Writ Petition is only to be dismissed. O.P.1417/1998 7 4. Learned senior counsel appearing for petitioner relying on the decision of M.Madhavan Nair, J. in Saidalikutty v. Amina Beevi Umma (1967 KLT 176) argued that when under clause (i) of Section 2 of the Act, Sree Pandaravaka, land is defined as land owned by Sree Padmanabhaswamy temple and registered in the revenue records as Sree Pandaravaka, the Act is applicable only if the land is registered in the revenue records as Sree Pandaravaka and when admittedly in the revenue records the land is shown as Sree Pandaravaka Kudumbaporuthy, the Act has no application at all and for that sole reason, it is to be found that fourth respondent Tahsildar has no right to issue patta under Ext.P4 order. The learned senior counsel relying on Ext.P5 proceedings of the Maharaja of Travancore argued that resumption proceedings started in respect of Kudumbaporuthy lands were directed to be dropped and so the Act has no application to Sree Pandaravaka Kudumbaporuthy lands, like the properties in survey No.2746/2 of Chengazhassery Village and it is to be O.P.1417/1998 8 declared. Learned Senior counsel also argued that even if the Act applies, a direction to issue patta could be issued only in favour of a landholder and landholder as defined under clause (f) of Section 2 could only be a person who holds Sree Pandaravaka land directly under the temple on Pattom, Otti, Jenmom, Kudijenmom and Danam or any other tenure by whatever name it is called, inclusive of his heirs legal representatives and assigns and when the contesting respondents are only legal heirs of the assignee from the licensee, they are not the landholders and therefore ExtP4, P6 and P7 orders are void and are to be quashed. 5. Learned senior counsel appearing for the contesting respondents submitted that the tenure of the land cannot be decided based on the registration of the land in the revenue records as Sree Pandaravaka lands and the lands registered as Sree Pandaravaka Kudumbaporuthy is also included within the ambit of the Act. Relying on Tranvancore State Manual Vol.3 by T.K. Velu Pillai learned senior counsel argued that the sirkar O.P.1417/1998 9 lands were sub divided as registered lands, puramboke, tharisu, thanathu, reserved forests and unreserved forest and registered lands, include Sree Pandaravaka Kandukrishi and Sripadam lands and Sree Pandaravaka are the lands belonging to Sree Padamanabhaswamy temple and their origin goes back to remote antiquity. It was also submitted that these lands are more or less similar to pandaravaka lands as regards varieties of tenure and rates of assessment and the bulk of the lands pay, in addition to the revenue due to Sree Pandaravaka, rajabhogam to the Sirkar and inams lies comprising of Adima, Anubhogam, Thiruvulam, Thiruvadayalam etc. and they are grants of lands made by ruling princess chieftains or great jenmis from time to time either for some services, rendered or to be rendered to the State or sovereign or as a mark of royal favour and Kudumbaporuthy is purely a personal inam and not a service inam. It was pointed out that the administration of Sree Padmanabhaswamy temple had originally allocated to various functionaries called Madom and Madaom had O.P.1417/1998 10 its own land and its income was utilised for the pooja and offerings to be performed in the temple and these lands were directly under the management of Madathil Pillamar and they constitute the agency to levy and collect the michavaram due to devaswom on these lands and in the Revenue Settlement all the properties which were till classified under the names of different Madoms were brought under one general designation as Sree Pandaravaka and the families of Pillamar held lands relating to the respective madoms and the said grants are known as Kudumbaporuthy and those grants are generally made in the names of family members and as the grants are personal inams they have been enfranchised at the settlement under the provisions of Section 24 of the Settlement Proclamation and the holders of such lands were given full proprietorship over them. Relying on the Travancore State Manual P.Nagam Aiya Dewan Peishcar, Travancore 1906 Vol.3 it was pointed out that jenmam lands called freeholds were exempted as such from tax of any kind and are divided into three classes namely (1) O.P.1417/1998 11 jenmam lands that are entirely freehold exempt from payment of any kind of tax to Government under any circumstances, (2) Jenmam lands which were originally exempted from payment of any tax, but subsequently became liable to pay tax under certain conditions and (3) Jenmam lands paying light tax called Rajabhogam from the very beginning. It was also pointed out that Sirkar lands are lands other than jenmam properties and are liable to assessment in some form or other which are generally known as Pandaravagai as distinguished from Sree Pandaravagai or properties belonging to Sree Padmanabhaswamy's pagoda at Trivandrum but the tenures of properties under the said head are the same as or similar to those of Sirkar lands proper and hence these two classes of lands and the theory and practice in respect of these lands is that the Government is the landlord and any rights in them owned by ryots must have been derived from the State and the same tenure would seem to have been known by different names in different small principalities which have merged into Travancore O.P.1417/1998 12 and they were classified therein under six heads and one among them is Anubhogam or Inam lands. The class of tenure by name Inam is explained as they are grants of lands made by sovereign, petty chieftains or big jenmis from time to time either for some service rendered or to be rendered to the State or sovereign or as a mark of Royal favour and they are known under different names in the several parts of the State. It was pointed out that with the commencement of settlement operations throughout the State and with the abolition of the Ottivilakkam procedure for increased assessment rules were passed whereunder all service inams to be left undisturbed so long as the services are duly performed, subject to the payment of Rajabhogam at the rate of 1/6 of the pattom and any michavaram due but when the services cease to be performed the inams are to be resumed and assessed with full pattom and all the personal inams in the enjoyment of the original grantee or his heirs are to be exempted from all interference and be continued as inams on payment of 1/6 pattom as O.P.1417/1998 13 Rajabhogam plus any michavaram already due and if any such personal inam be in the enjoyment of individuals or families other than those of the original grantee or his descendants, they should be charged with one half of the pattom assessment and michavaram due being paid as usual and inams include Kudumbaporuthy which are lands given to families of persons who have done distinguished services to the State or special services in the temple. Relying on Travancore Revenue Manual Vol.4, learned senior counsel argued that Sree Pandaravaka Kudumbaporuthy is included in Sree Pandaravaka lands and therefore the Act is applicable to survey No.2746/2 and the contentions of the petitioner is to be rejected. Learned senior counsel argued that the relationship created under 1947 document is that of lessee and lessor and it is a lease and not licence and the predecessor in interest of respondents 3 to 8 who are admittedly the assignees of the lessee are the landholders coming under the purview of the Act and therefore Exts.P4, P6 and P7 orders are O.P.1417/1998 14 perfectly legal. 6. Sree Pandarava Lands (Vesting and Enfranchisement) Act, 1971 (Act 20 of 1971) was enacted to provide for enfranchisement of Sree Pandaravaka lands held by landholders and for the vesting in the Government of certain Sree Pandaravaka Thanathu lands. The Statement of objects & Reasons of the Act shows that Sree Pandaravaka lands are lands owned by the Sree Padmanabhaswamy temple at Trivandrum and held in trust by the former Maharaja of Travancore and these lands lie scattered in the Trivandrum District consisting of about 12,630 acres fetching an annual income of Rs.61,568 to the temple. It shows that in the interests of the holders of Sree Pandaravaka lands, it was considered necessary to extinguish the rights of the temple in those lands on payment of compensation to the temple and to confer full proprietory rights on such holders. It also shows that every landholder who is liable to pay annual rent in respect of all the lands comprised in his holding, which is more than the O.P.1417/1998 15 basic tax payable, the compensation payable should be equal to sixteen times the difference between the annual rent and the basic tax. It also shows that Sree Pandaravaka lands are not liable to basic tax and it is proposed to subject the lands to basic tax. Section 3 is the provision for extinguishment and vesting of certain rights of the temple. Under sub section (1) Notwithstanding anything contained in any law or contract or in any judgment, decree or order of court, with effect on and from the appointed day, all rights, title and interest of the Temple in all Sree Pandaravaka lands held by landholders shall stand extinguished and all rights, title and interest of the temple in all Sree Pandaravaka Thanathu lands, except those referred to in sub section (2) shall vest in the Government and every building which immediately before the appointed day belonged to the Temple and was then being used as an office in connection with the administration of the Melkanganam branch of the Sree Pandaravaka Department and for no other purpose, shall vest absolutely in the Government O.P.1417/1998 16 free of all encumbrances. The Explanation provided under sub section (2) are in respect of lands specified in the Schedule, which are the properties of Sree Padmanabhaswamy temple in Vanchiyoor Village and Sabhapathy Temple at Chalai situated in survey nO.2757 of Chengazhassery. Sree Pandaravaka land, Sree Pandaravaka Thanathu land and landholder are defined in the Act, respectively under clause (i) and clause (j) and clause (f) of Section 2 as follows:- “(i) “Sree Pandaravaka land” means any land owned by the Sree Pdmanbhaswamy Temple and registered in the revenue records as “Sree Pandaravaka”. (j) “Sree Pandaravaka Thanathu land” means land registered as “Sree Pandaravaka Thanathu” in the revenue records and includes such lands held on O.P.1417/1998 17 kuthakapattam. (f)”landholder” means a person who holds Sree Pandaravaka land directly under the Temple on Pattom, Otti,Jenmom, Kudijenmom or Danam or under any other tenure by whatever name called, and includes his heirs, legal representatives and assigns but not include a person who holds Sree Pandaravaka Thanathu lands on Kuthakapattom;” Section 4 provides that notwithstanding anything contained in any law or contract or in any judgment, decree or order of court, every landholder shall have full proprietary right in the land comprised in his holding and such right shall be heritable and alienable and except as provided under section 13, no landholder shall be liable to pay rent to the temple. Under section 5 O.P.1417/1998 18 where in respect of Pandaravaka Thanathu land vested in the Government, there is a lease on kuthakapattom, such lease shall be deemed to continue under the Government on the same terms and conditions as under the temple. Under section 6 the Government shall by way of compensation for the extinguishment of the rights, title and interest of the temple under clause (a) of sub section (1) of Section 3 and for the vesting in the Government of its rights, title and interest under clause (b) and (c) of that sub section, pay to the temple in perpetuity an amount of 58,500/- rupees as annuity in every financial year. Under Section 8 with effect from the appointed day all Sree Pandaravaka lands held by landholders shall be deemed to be pandaravaka lands for all purposes and liable to be charged with basic tax. Under section 9 after the appointed day Government shall issue patta or other documents evidencing the full proprietary rights of the landholders in their holdings and the pattas or other documents issued shall contain such particulars as may be O.P.1417/1998 19 prescribed. Section 10 provides for appointment of authorised officers for the purpose of making enquiry and determining the compensation payable by the land owners to the Government and for issuing pattas or other documents under section 9. Fourth respondent was the appointed Officer under section 10. Section 11 provides an appeal against the order passed under section 10 and Section 12 provides for a revision before the Board of Revenue. Section 17 provides finality for the orders, whereunder any order passed by any officer in respect of matters to be determined for the purpose of the Act shall be final subject to appeal or revision provided under the Act and no such order shall be liable to be questioned in any court of law. 7. Under Rule 3 of Sree Pandaravaka Lands (Vesting and Enfranchisement) Rules, 1974, landholder has to file a statement duly signed by him showing the extent, ownership and other particulars of the Sreepandaravaka lands held by him on the 31st day of July, 1971 within six months O.P.1417/1998 20 from the date of commencement of the Rules which came into force on 16.10.1974 as S.R.0 No.770/1974. Under Rule 4, if any landholder fails to furnish a statement within the period as provided under Rule 4, the Special Tahsildar shall issue a notice in Form No.2 to the land-holder requiring him to furnish the statement within fifteen days from the date of service of notice. Rule 5 provides the procedure to be complied by the Special Tahsildar on receipt of a statement and Rule 7 the procedure for issuing patta. 8. The Act is principally enacted for enfranchisement of Sree Pandaravaka lands held by landholders as defined under the Act. Sree Pandaravaka land as defined under the Act is in any land owned by Sree Padmanabhaswamy temple and registered in the revenue records as Sree Pandaravaka. Sree Pandaravaka Thanathu lands means lands registered as Sree Pandaravaka Thanathu in the revenue records. Ext.P5 proceedings of the Maharaja of Travancore dated 17.12.1934 with the relevant portion of the O.P.1417/1998 21 appendix containing the entry relating to Sy.No.2746 of Changazhassery Village shows that the property is Sree Pandaravaka Kudumbaporuthy. The Appendix to Ext.P5 shows that the said properties were given to Attara family, as per Gradhavaries of 928 relating to the grant of Parakkattu family and document No.8 (h) under Sl.No.38 is the grant to Attara family. Ext.P1 shows that the property in survey No.2746 is registered in the revenue records with the tenure Kudumbaporuthy. Ext.P2 the register of classification of Chengazhassery pakuthy also shows that the tenure of the property is Kudumbaporuthy and the then landholder was Attara Veettil Kali Valliamma and Lekshmi Valli. It is based on Ext.P1 to P3, learned senior counsel Sri.Krishnanunni argued that the finding in Ext.P4 order that the property is Sree Pandaravaka land is not correct and argued that when the Act applies only to Sree Pandaravaka Land as defined under section 2(i) of the Act and that too only if it is shown as Sree Pandaravaka in the revenue O.P.1417/1998 22 records and submitted that the Act does not apply. The argument of the learned senior counsel is that kanam under sub section (22) of Section 2 of the Kerala Land Reforms Act was originally defined that the instrument should be styled as kanam or kanapattom and this court in Saidalikutty's case (supra) has held that in order to attract sub section (22) of Section 2 of Kerala Land Reforms Act, the relevant instrument should be styled as kanam or kanapattom. Importing that principle to the Act it was argued that Sree Pandaravaka land is defined under the Act, that it should be shown as such in the revenue records and the revenue records establish that the land is shown as Kundumbaporuthy and not Pandaravaka the Act has no application. 9. It is to meet the said argument learned senior counsel Sri.S.V. Balakrishna Iyer has invited to the origin of the land in the revenue records and the distinction between the different tenures of the lands with emphasis on the properties of Sree Padmanabhaswamy temple. O.P.1417/1998 23 10. The