IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 CRP.No. 435 of 2010() ------------------------------- TLB.NO. 119/CHLA/2010 of TALUK LAND BOARD, CHERTHALA .................... REVN. PETITIONER(S): PETITIONER ---------------------------------------------------- ST.JOSEPH'S RETREAT HOUSE, REPRESENTED BY MOTHER SUPERIOR, REV.SR.BILLIA FCC, PATTANAKKAD P.O., CHERTHALA. BY ADV. SRI.ROY CHACKO RESPONDENT(S): RESPONDENTS --------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE TALUK LAND BOARD, CHERTHALA. R1 & R2 BY SPL.GOVERNMENT PLEADER SMT.SUSHEELA BHAT THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts CRP.NO.435/2010 APPENDIX PETITIONER'S ANNEXURES: ANNEX A1(A) COPY OF THE SALE SANNATH DATED 25/6/1997 ANNEX A1(B) COPY OF THE SALE SANNATH DATED 25/2/1976 ANNEX A1(C) COPY OF THE SALE SANNATH DATED 25/6/1997 ANNEX A1(D) COPY OF THE SALE SANNATH DATED 25/2/1976 ANNEX A1(E) COPY OF THE SALE SANNATH DATED 25/2/1976 ANNEX A1(F) COPY OF THE SALE SANNATH DATED 25/2/1976 ANNEX A1(G) COPY OF THE SALE SANNATH DATED 25/2/1976 ANNEX A1(H) COPY OF THE SALE SANNATH DATED 25/2/1976 ANNEX A1(I) COPY OF THE SALE SANNATH DATED 23/7/1976 ANNEX A1(J) COPY OF THE SALE SANNATH DATED 23/7/1976 ANNEX A2 COPY OF THE REPRESENTATION DATED 5/3/2005 ADDRESSEDTO THE HON'BLE MINISTER FOR REVENUE. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.435 of 2010 ----------------------------------- Dated this 25th day of August, 2011 ORDER When the Taluk Land Board (for short, "the TLB”) refers the question whether an institution is a religious, charitable or educational institution of a public nature for decision to the Government, are the Government bound to hear the party affected before it decides the question? That question is urged for a decision in this civil revision. 2. Dispute arose regarding liability to surrender an extent of 6.49 Acres of wet land in survey 341/1-1 of Aroor village which belong to the petitioner, the St.Joseph's Retreat House. The TLB (Cherthala) by its order dated 27.07.1977 directed petitioner to surrender the said land as excess land under the Kerala Land Reforms Act (for short, "the Act”) That order was challenged in this Court in C.R.P.No.922 of 1978 and by order dated 04.04.1978 the said order was set aside. The TLB was directed to consider the matter afresh since petitioner claimed exemption under Sec.81(t)(ii) of the Act. The TLB, by order dated 29.02.1988 held that petitioner is not entitled to the protection of the said provision and directed petitioner to surrender the land. C.R.P.No.435 of 2010 -: 2 :- That order was challenged in this Court in C.R.P.No.795 of 1988. This Court considered the question whether it was for the TLB to decide whether petitioner is a religious, charitable or educational institution of a public nature in view of the explanation to Sec.98A of the Act. By order dated 03.01.1989 (Mother Superior Vs. Taluk Land Board - 1989(1) KLT 267) this Court held that the TLB has no power to decide that question and that the decision in that regard has to be rendered by the Government. The TLB was directed to refer the said question to the Government for a decision and based on the decision of the Government the TLB was directed to decide whether petitioner is liable to surrender any land. 3. According to the petitioner, it had no information about the case for quite some time and while so, learned that the Government have decided that petitioner is not an institution coming under Sec.81(t)(ii) of the Act. Petitioner preferred Annexure-A2, representation to the Minister for Revenue complaining that the Government rendered an adverse decision without notice to and hearing petitioner. Based on the decision of the Government as aforesaid, the TLB has passed final order on 18.06.2010 directing petitioner to surrender excess land C.R.P.No.435 of 2010 -: 3 :- which is under challenge in this civil revision. 4. Learned counsel for petitioner has contended that the principles of natural justice required the Government to hear petitioner before any decision was rendered as to whether it is an institution coming under Sec.81(t)(ii) of the Act. It is also contended that in the meantime, Sec.7E was introduced in the Act with effect from 18.10.2006 and petitioner is entitled to the protection of the said provision as well. The TLB, after receipt of decision of the Government did not give opportunity to the petitioner to establish its claim under Sec.7E of the Act. Hence the order of the TLB cannot stand and is liable to be set aside, it is contended. 5. Learned Government Pleader has contended that in view of Sec.98A of the Act it is for the Government to give its 'interpretation' whether petitioner is an institution falling under Sec.81(t)(ii) of the Act. It involves no adjudication but only an 'interpretation'. Hence, for the Government to give its interpretation in the matter, it is not necessary to hear petitioner. The relevant provisions also do not contemplate hearing the party concerned, it is argued. It is further contended by the learned Government Pleader that though, petitioner has claimed C.R.P.No.435 of 2010 -: 4 :- protection of Sec.7E of the Act, it was not for the TLB to decide that question in view of Sec.106B of the Act introduced by the Amendment Act which says that it is for the Land Tribunal to decide whether a person seeking protection of Sec.7E of the Act is a deemed tenant or not. Since petitioner has not approached the Land Tribunal, it cannot claim protection under Sec.7E of the Act before the TLB, it is contended. It is also pointed out that the instruction given to the learned Government Pleader is that pursuant to a decree obtained by the Cochin Bank against the founder of petitioner, the property in question was sold in Court auction and purchased by ten nuns and now those nuns are holding the property in their individual capacity. 6. Sec.81(t)(ii) of the Act exempts from the provisions regarding excess land a “religious, charitable or educational institution of a public nature”. Petitioner claims to be so. Sec.98A of the Act has, as its heading, “Interpretation”. The Explanation to Sec.98A added by Act 27 of 1979 states that if any question arises as to whether an institution is an institution of a public nature for religious and charitable purposes maintained by a religious denomination or any section thereof, the question shall be “decided” by the Government and such “decision” shall C.R.P.No.435 of 2010 -: 5 :- be final. 7. Referring to the said Explanation, this Court in Mother Superior Vs. Taluk Land Board (supra) held that the TLB has no power to decide the question and that it is for the Government to decide it. Thus it is for the Government to “decide” whether petitioner is a religious, charitable or educational institution of a public nature, or not. 8. It is the grievance of petitioner that though the TLB referred the said question to the Government, there was no response from the Government to the petitioner and petitioner was not heard before the Government decided that petitioner does not qualify to come under Sec.81(t)(ii) of the Act. According to the learned Government Pleader, Sec.98A of the Act only contemplates an 'interpretation' and for giving that 'interpretation', it is not necessary that parties concerned are heard. 9. True, Sec.98A of the Act does not say in so many words that before the Government 'decides' the question or as the learned Government Pleader puts it, gives its 'interpretation' in the matter, it is required to hear the party who may be affected thereby. But it is relevant to note that though Sec.98A of the Act C.R.P.No.435 of 2010 -: 6 :- carries the heading, “Interpretation” the Explanation to the said provision says that the question referred to in the Explanation (to Sec.98A) shall be “decided” by the Government and such “decision” shall be final. Hence what is involved is not merely an interpretation, but is a “decision” of the Government which shall be final. The expression “decide” means, “to determine, to form a definite opinion, to render judgment, to give judgment for or against a party to suit or other proceeding in Court, to determine (a question, controversy or cause)”. It is also to be remembered that the 'decision' the Government takes as per the Explanation to Sec.98A of the Act has a civil consequence - that 'decision' leads to the question whether the institution concerned is liable to surrender any land as excess land. If the decision of the Government is adverse to the said institution,, it has to surrender excess land. In that situation, notwithstanding that Sec.98A of the Act does not specifically say that before deciding the question the Government have to hear the party who may be affected by such 'decision', principles of natural justice requires the Government to do so. So far as there is no express or implied provision in the Act that the party has no right to be heard before the Government takes the 'decision', it must be taken that the C.R.P.No.435 of 2010 -: 7 :- fundamental principles of natural justice of giving opportunity of being heard is implicit in the provision. In Canara Bank Vs. Shri. Debasis Das and Anr. (AIR 2003 SC 2041) it is held that adhering to the principles of natural justice is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties or any administrative action involving civil consequence is in issue. The old distinction between a judicial act and an administrative act has withered away (in the matter of applying the principle). In Automotive Tyre Manufacturers Association Vs. Designated Authority and Ors. ((2011)2 SCC 258) it is held that if the statute has not excluded the principles of natural justice either specifically or by necessary implication, they must generally be read into the statute particularly when the order challenged has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The 'decision' of the Government under Explanation to Sec.98A of the Act has a civil consequence - it deprives petitioner of its right over property in that, based on the said decision the TLB has held that it is not entitled to the exemption under Sec.81(t)(ii) of the Act and has asked it to surrender the land. Hence it was C.R.P.No.435 of 2010 -: 8 :- necessary that before the Government decided the question referred to it by the TLB, it heard petitioner also. The question raised is answered accordingly. 10. As the decision of the Government is rendered against petitioner without hearing it, the said decision and the final order passed by the TLB on 18.06.2010 based on that decision are liable to set aside. 11. Petitioner has claimed the benefit of Sec.7E of the Act. The said provision says that if the person who, at the commencement of the Kerala land Reforms Amendment Act, 2005 is in possession of any land, not exceeding four hectares 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 and the date of commencement of the Kerala Land Reforms Amendment Act, 2005, shall be deemed to be a tenant. Sec.106B of the Act states that notwithstanding anything to the contrary contained in any other provisions of the Act or any other law for the time being in force a person claiming to be a deemed tenant under Sec.7E of the Act may apply, within C.R.P.No.435 of 2010 -: 9 :- such time and in such manner as may be prescribed, to the Land Tribunal having jurisdiction over the area for a certificate of title in respect of the land held by him. Petitioner can prove before the appropriate authority that it is entitled to the protection of Sec.7E of the Act. 12. Learned Government Pleader pointed out that the land in question was purchased by ten nuns in Court sale. It is not the contention of learned Government Pleader that therefore, the property is exempt from surrender. Whether the sale certificate issued to the (alleged) purchasers following the Court sale would exempt them from the provisions of the Act is not a matter which is required to be decided in this proceeding. That question is left open for decision at the appropriate stage at the instance of the parties concerned. 13. In the view I have taken above, the decision taken by the Government that petitioner is not an institution falling under Sec.81(t)(ii) of the Act and the consequent order passed by the TLB on 18.06.2010 are liable to set aside. I do so. Resultantly this civil revision is allowed as follows: (i) The decision taken by the Government that petitioner is not an institution coming under Sec.81(t)(ii) of the Act and the consequent order C.R.P.No.435 of 2010 -: 10 :- dated 18.06.2010 of the TLB, Cherthala are set aside. (ii) The TLB, Cherthala is directed to refer the question whether petitioner is an institution coming under Sec.81(t)(ii) of the Act to the Government for decision. The Government shall decide that question afresh after hearing petitioner as well. (iii) Based on the decision of the Government after such hearing, the TLB shall pass appropriate order whether petitioner is liable to surrender excess land or not. (iv) It is made clear that it is open to the petitioner to prove before the appropriate authority as the Act provides, its claim, if any under Sec.7E of the Act, as well. (v) Parties shall suffer their cost in this proceeding. (THOMAS P JOSEPH, JUDGE) Sbna/-