UDAYAN NARAYANAN NAMBOODIRI Vs. STATE OF KERALA

JUDGEMENT

(1.) CONSTITUTIONAL validity of the Kerala Service Inam lands (Vesting and Enfranchisement) Act, 1981 (Act, 17 of 1981), hereinafter referred to as 'the Act', is in issue in this Original Petition.

(2.) CERTAIN lands were given as tax free inams for performance of Tantra Viruthi in the Sherthallai Bhagavathi Temple to the petitioner's family. These lands were given for the future performance of Tantra Viruthi in that temple from time immemorial. Ceremonies attached to tantra Viruthi were and are being carried on by the male members of the family. The performance of the ceremonies by its very nature and immemorial use is stated to have become recognised as inseparable from the lands which were given as tax free inams. The religious practices known as Vara Vahana, Avastha vahanaj Prathista, Jeeva Vahana, Sthoola Vahana and Stotra Vahana are obligatory religious practices attached to Sherthallai Bhagavathi Temple which are to be performed only by competent members of the petitioner's family. According to the petitioner eventhough the tenure of the property was stated in the settlement register as Sherthallai Devaswom Vaka Inam, the properties do not belong to the Devaswom. Being service inam lands the properties are in-alienable and hence respondents 4 to 21 who are having possession over parts of the said property are not entitled to claim any right as tenants. Their possession, if any, are terminable at the will of the petitioner's family. It is the petitioner's case that the service inam lands granted for Tantra Viruthi is inseparable and is inextricable connected with the service. Hence the lands cannot be divorced from the service for the purpose of ex-proprietary legislation like Act 17 of 1981. Hence, it is contended that the lands cannot be taken away from the ownership of the petitioner and his family by a legislation abolishing Tantra Viruthi. Abolition of that right, according to the petitioner, will be violative of Art. 25 of the Constitution of India. As per the provision contained in S. 4 of the Act. the right, title and interest of the land owner will vest with the Government. Those rights which are inextricably connected with the performance of Tantra Virutbi cannot vest in the Government. Nor can the duty to perform Tantra Virutbi vest in the government. The Government cannot abolish the practice of Tantra Viruthi either. On these averments, it is contended that Act 17 of 1981 is a fraud on the Constitution of India and a colourable piece of legislation. 2. On behalf of the State a detailed counter affidavit has been filed. According to the counter affidavit Act 17 of 1981 was passed with a view to bring almost all the lands in the State in one classification or category and to bring down various categories of lands by abolishing tenures like Pandaravaka, Edavaka, Sreepadam. Service Inam etc. It is stated that tantra Viruthi is an obligatory religious service which is being made by a particular family to the Sherthallai Bhagavathi Temple by virtue of having obtained possession over an extent of land in lieu of the service being done to the Temple. Tantra Viruthi is a category of service inam defined in S. 2 (f) of the Act. When the rights of the land owner vest in the Government and thereby obligation attached to the land to perform service stands abolished, it will not amount to stopping the ceremonies in the Temple. The Institution is free to engage anybody to perform the service as per the conditions stipulated at each time. S. 7 of the Act provides for payment of compensation to the land. The rate of compensation fixed in the Act is very high when compared with the provisions of the Kerala Land Reforms Act. The Act is intended to assign the land to the holders and to confer clear title on them. If the petitioner is at-present the land bolder in respect of Inam land be is to pay the purchase price for the land to be assigned in his favour.

(3.) THE members of the petitioner's family were entrusted with the duty of performing the religious ceremones in the Sherthallai bhagavathi Temple. For that they were and are to be paid. Instead of effecting the payments as and when the ceremonies were conducted, they were given certain lands as tax-free inams for the performance of Tanra Viruthi THE idea was that the income from the properties was to be appropriated towards the fee due to the petitioner for performing the ceremonies. Thus, the grant of land was for the future performance of the ceremonies. THE petitioner or his family was not in possession of the entire land for their own enjoyment. Respondents 4 to 21 were put in possession of various portions of the land with liability to. pay rent or pattom to the petitioner. THE petitioner resorted to that mode of enjoyment of the property instead of holding it for himself by enjoying the same. This aspect I emphasise to show that the conduct of Tantra Viruthi in the temple was in no way connected with the land. In other words, the mode of enjoyment of the property by leasing it out to strangers clearly establishes the fact that no particular land forming part of Tantra Viruthi Inam land, was required to be possessed by the petitioner for performance of the ceremonies in the Temple.