SOUTH KERALA PROVINCE OF ORDER OF DISCALCED CARMELITES RELIGIOUS AND CHARITABLE TRUST Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the South Kerala Province of the Order of the Discalced Carmelites (OCD), Religious and Charitable Trust represented by its Provincial Superior, which is stated to be a monastery, order of Discalced Carmelites (OCD) Friars, which in turn is stated to be a religious monastic denomination of the Roman Catholic Church. It is averred that the petitioner is a monastery which is engaged in religious and charitable activities and that Ext.P-1 is the copy of the Trust Deed No.20 of 1999 registered before the Sub Registrar's Office, Kottiyam, Kollam. It is averred that it has been specifically declared in Ext.P-1 deed that it is a public religious and charitable institution and no part of the Trust property or its income shall be applied for purposes other than public religious and charitable in nature. Further, it is averred that the Trust is registered as religious Trust under the Income Tax Act and the Rules as a public Trust and it is subjected to assessment under the Income Tax and Rules on that basis. Ext.P-2 is stated to be the proceedings granting exemption by the Commissioner of Income Tax. The petitioner also has got registration under the provisions of the Foreign Contribution (Regulation) Act, 1976 from the Ministry of Home, Government of India at the and a copy of the same has been produced as Ext.P-3. By Ext.P-4 sale deed No.108/2014 of Enadimangalam SRO, the petitioner had purchased 07.22.80 Hectares rubber plantation and that as title holder on owner in possession, the petitioner has submitted application for effectuating mutation. But that 4th respondent-Taluk Land Board, Konny, Pathanamthitta District has registered a ceiling case as S.M.No.1/17/KNI against the petitioner. Ext.P-5 is the copies of individual drafts issued in Form No.2 under Rule 10 and Form No.3 under Rule 12 (1) of the Kerala Land Reforms (Ceiling) Rules, 1970. As against Ext.P-2 notice, the petitioner has submitted Ext.P-5 notice and as against Ext.P-5 notice, the petitioner has submitted Ext.P-6 objection before the 4 th respondent-Taluk Land Board along with the supporting documents. Wherein, the petitioner has contended that the petitioner Trust is entitled for the benefit of Sec.98A of the Kerala Land Reforms Act and therefore, the proceedings initiated by the Taluk Land Board under the Kerala Land Reforms (Ceiling) Rules, is without jurisdiction. But that without considering the said objections of the petitioner, the 4th respondent-Taluk Land Board has issued Ext.P-8 notice of surrender in Form No.9 under Rule No.17 and has directed the petitioner to surrender the property.

(2.) The petitioner would contend that it is an institution of public nature for religious and charitable purposes maintained by religious denomination as envisaged in Sec.98A of the Kerala Land Reforms Act, 1963 and that by the mandate of the Explanation rendered in Sec.98A, if any question arises as to whether an institution is one of a public nature for religious and charitable purposes maintained by a religious denomination or section thereof, that question shall be decided by the Government. On that basis the petitioner would contend that the ceiling case and the subsequent proceedings initiated against the petitioner by the 4th respondent-Taluk Land Board is illegal and ultra vires. It has been held by this Court in the case in Mother Superior v. Taluk Land Board,1989 1 KerLT 267 that the Taluk Land Board has no jurisdiction to decide the question as to whether or not a person is entitled to get the benefit of Sec.98A and that question has to be decided only by the State Government in view of the Explanation appended to Sec.98A. The petitioner has already approached the 1st respondent-State Government by submitting Ext.P-7 representation dated 20.10.2017 contending that it is entitled for the benefit of Sec.98A of the Kerala Land Reforms Act, 1963 and claiming that it is an institution of a public nature for religious and charitable purposes established and maintained by religious denomination or any section thereof, as envisaged in that provision. On this basis the petitioner would contend that since the said question under Sec.98A can be exclusively decided only by the 1st respondent-State Government and not by the 4 th respondent-Taluk Land Board, the present proceedings at Ext.P-8 notice directing the petitioner to surrender the property, without taking into account the provisions contained in Sec.98A of the Kerala Land Reforms Act is illegal and ultra vires. It is in the light of these factual averments, the petitioner has filed the instant Writ Petition (Civil) with the following prayers:

(3.) Heard Sri.George Varghese (Manachirackel), lerned counsel appearing for the writ petitioner and Sri.M.L.Sajeev, learned Special Government Pleader (Revenue) appearing for the respondents.