Ramachandran Nair, J.These three cases are on a common issue and therefore they have been heard together and are disposed of accordingly. The core question is regarding the legality of the order passed by the Land Tribunal in respect of the property of a Temple administered by the Travancore Devaswom Board as per which purchase certificate was issued to a party. First we will refer to D.B.P. No. 21/2009 which is a suo motu proceedings initiated based on TDB-Report No. 51 of 2009 in Complaint No. 105 of 2008, submitted by the learned Ombudsman appointed for Travancore and Cochin Devaswom Boards. After considering the report this Court issued notice and the contesting party respondent is additional fourth respondent. The first respondent is the Secretary of the Travancore Devaswom Board, Thiruvananthapuram, the second respondent is the State of Kerala represented by the Principal Secretary to Revenue (Devaswom) Department and the third respondent is the Secretary, Temple Advisory Committee, Sree Dharmasastha Temple, Ezhumuttam.

2. The report was submitted pursuant to complaint No. 105/2008 filed by the third respondent, viz. the Secretary of the Temple Advisory Committee. The substance of the allegation therein is that the Temple owned 2.26 acres of land as per the land register and settlement register and except 25 cents, the rest is in the possession of the fourth respondent, illegally and steps will have to be taken to get back the property. The learned Ombudsman addressed a letter to the District Collector, Idukki requesting to conduct an enquiry through the Tahsildar to find out the details. The Temple comes within Thrikkariyoor Group in Thodupuzha Sub Group under the Travancore Devaswom Board (for short the Board). The Tahsildar informed the learned Ombudsman that in respect of the disputed land, one Velayudhan Nair Narayanan Nair, the father of the fourth respondent was given purchase certificate. It was also reported that there is no document in the Devaswom office to show that the property was given to the said Narayanan Nair and about his leasehold right.

3. Annexure I submitted along with the report is another detailed report submitted by the Land Special Officer of the Board, who was also directed by the learned Ombudsman to look into the complaint. The detailed report submitted by him refers to the entire history of the Temple and the alleged illegalities in issuing the purchase certificate. One of the points mentioned in the report is that the land is exempted u/s 3(1)(x) of the Kerala Land Reforms Act (for short the Act), being premises of the Temple and thus the Land Tribunal has no jurisdiction to issue the purchase certificate. It is also reported that a suo motu proceedings as S.M.P. No. 84/1977 was got booked by the Land Tribunal, based on a report by the Special Village Officer. It was finalised within a short span and that the Land Tribunal had ordered the assignment illegally and the tenancy claimed is a false one. Shri Narayanan Nair had filed an earlier O.A. No. 234/1970 seeking assignment of the landlords right in respect of the very same property, which was not seen granted. Learned Ombudsman therefore recommended for settlement of the matter by this Court, since various issues arise for consideration.

4. The fourth respondent has filed counter affidavits and the third respondent Temple Advisory Committee and the first respondent have also filed their respective affidavits.

5. C.R.P. Nos. 256/2011 and 257/2011 are filed by the Board as petitioner, aggrieved by the orders passed by the Land Reforms Appellate Authority (LR), Alappuzha dismissing the appeal filed from the order issuing purchase certificate and I.A. No. 30/2010 filed for condoning the delay, that too without hearing the Board, who was the appellant therein. The Appellate Authority confirmed the order passed by the Land Tribunal, allegedly without hearing the appellant and the respondent thus without giving a chance to address the arguments.

6. We have heard learned Standing Counsel Shri P. Gopal and Shri P. Viswanathan, appearing for the Board in the respective cases, Shri S.K. Muraleedhara Kaimal, learned counsel appearing for the fourth respondent in D.B.P. No. 21/2009 who is also appearing for the contesting party respondents in both the revision petitions, Shri Krishnakumar Mangot, amicus curiae appearing for the learned Ombudsman, Senior Government Pleader Shri K. Ramaprasad Unni, appearing for the State and Shri Lakshminarayanan and Smt. R. Ranjini, learned counsel appearing for the Temple Advisory Committee.

7. In D.B.P. No. 21/2009 various interim orders have been passed by this Court. After referring to the various aspects, by order dated 18.2.2010 this Court directed the fourth respondent to show cause why the certificate issued by the Land Tribunal shall not be treated as not binding on the Board and the Temple and as to why appropriate proceedings shall not be ordered in accordance with law to dispense with any occupation.

8. Learned Standing Counsel appearing for the Board in D.B.P. No. 21/2009, Shri P. Gopal invited our attention to the contents of Annexure I report submitted by the Land Special Officer and the details of the reply affidavit filed by the Board. Learned Standing Counsel submitted, inter-alia that the purchase certificate has been obtained by fraud and collusion by the predecessor-in-interest of the fourth respondent. It is submitted that the historical aspects will show that the Temple is more than 200 years old. The Devaswom is scheduled in the Devaswom Proclamation of the year 1097 ME (1922) issued by the Travancore Government and in the Schedule to the Travancore Cochin Hindu Religious Institutions Act. As per the entries in the settlement register and revenue records, the land measuring 2.26 acres in old Sy. No. 1507/4 is classified as puramboke and it is described as kavu (Holy Grove). In the land register containing details of the properties of the Devaswom the description is as puramboke and kshethram irippu sthalam of Ezhumuttam Sree Dharmasastha Temple. Lord Ayyappa is the presiding deity.

9. It is mentioned in Annexure I report by the Land Special Officer that the Temple was constructed by the Travancore Maharajas when the place Karicode was their temporary headquarters, in the long past and the Kizhumalanada Rajas were expected to look after and manage the affairs of the Temple. There is a road in front of the Temple now, which was a forest way for pedestrians to cross towards Theni and Madhura in the State of Tamil Nadu.

10. According to the learned counsel for the Board, the premises of the Temple are exempted from the provisions of the Land Reforms Act as per Section 3(1)(x). Therefore, the Land Tribunal had no jurisdiction to initiate suo motu proceedings u/s 72C of the Act. It is submitted that at no point of time the Board had created any tenancy in favour of the predecessor-in-interest of the fourth respondent, Shri Narayanan Nair. Shri Narayanan Nair was granted the right to take usufructs from the trees standing in 2.01 acres, in an auction conducted on 20.11.1953 for a period of six years, at an amount of Rs. 46.75 per annum. The arrangement was by way of kuthakapattom. It was not renewed beyond six years from 1.12.1953. The occupation thereafter was unauthorised and no leasehold rights have been created. An arrangement by way of kuthakapattam will not create a tenancy under the Act. It is also pointed out that the Land Tribunal has acted in an illegal manner while initiating S.M.P. No. 84/1977 based on the report of the Special Village Officer. In the suo motu proceedings the report is seen submitted by the Special Village Officer on 13.6.1977 and notice was ordered on 14.6.1977 which was received in the office of the Board only on 17.6.1977. But the proceedings have been finalised by order dated 20.6.1977 without taking any evidence. The Land Tribunal did not consider the important aspect that the land is not assignable and exempted in the light of, Section 3(1)(x) of the Act. No attempt was made to find out whether the person is a cultivating tenant. No notice was given to the Board on the report of the Special Village Officer and only a notice inviting objection alone was issued without forwarding the copy of the report also. It is also submitted that the person who had given the report which is the basis for taking action, is a Special Village Officer who is not authorised under Sections 105 and 105A of the Act, to submit such a report. There is no notification empowering such officers to submit a report in such matters.

11. By inviting our attention to the Kerala Land Reforms (Vesting and Assignment) Rules, 1970 (for short the Rules) learned counsel further submitted that the Land Tribunal did not comply with any of the mandatory rules before passing the order, including Rules 7 to 10. It is submitted that under Rule 7A the Land Tribunal had to furnish a request to the Village Committee who will have to comply with the procedure under Rule 7B of the Rules for submitting a report on the matter. It is without requesting for any report by the Village Committee the Land Tribunal proceeded with the matter. Rule 9 insists for a preliminary order to be passed by the Land Tribunal which was not done and Rule 10 obliges the Land Tribunal to conduct enquiries also in the matter, but no enquiry was conducted and no evidence worth the same was before the Land Tribunal, even from the part of the claimant. Learned counsel therefore submitted that there is gross violation of the rules as well as Section 72F(3A) of the Act. It is therefore submitted that the order granting purchase certificate is one without jurisdiction and the order passed in violation of the provisions of the Act and Rules itself, is a nullity, in the light of the principles stated in various decisions of this Court and the Apex Court. It is submitted that the order passed by the Land Tribunal is vitiated by fraud and collusion. The Board was never given a reasonable time to contest the matter. The purchase certificate therefore cannot enure to the benefit of the present occupants who are the sons of Shri Narayanan Nair. It is also submitted that this Court may quash the proceedings and direct the Special Tahsildar to initiate proceedings under the Land Conservancy Act in the light of Section 27 of the Travancore Cochin Hindu Religious Institutions Act, to evict the illegal occupant of valuable Temple property. Learned counsel took us through the various documents produced along with the report of the learned Ombudsman and produced by the Board along with their affidavit, in support of the arguments.

12. Shri P. Viswanathan, learned Standing Counsel appearing for the Board in the Civil Revision petitions elaborated his arguments by pointing out that none of the provisions of the Act and Rules were complied with by the Land Tribunal and undue haste has been shown in concluding the proceedings. What was obtained by Shri Narayanan Nair was only a licence and the kuthakapattam cannot be treated as one enabling him to claim tenancy. Nothing is referred to in the report of the Special Village Officer about any cultivation. It is submitted that the oral lease based on which the fourth respondent has now set up a right before this Court, is clearly without any substance, as the Board alone is the authority to grant lease and no oral lease has been granted by the Board. By referring to the auction diary, learned Standing Counsel submitted that it is only a case where the right to collect usufructs from the standing trees alone was put to auction and there was no arrangement by way of tenancy in respect of the property. It is also submitted that before the Land Tribunal concerned, O.A. No. 227/1970 was filed by one Mani Chacko in respect of 50 cents out of the total extent of 2.26 acres u/s 72B of the Act claiming assignment and Shri Narayanan Nair himself had filed another O.A. No. 234/1970. No purchase certificate was issued pursuant to the applications filed by these parties. It is presumed that both the applications were dismissed and therefore the suo motu action initiated thereafter cannot survive at all. We were taken to the various infirmities in the proceedings of the Land Tribunal as well as the report submitted by the Special Village Officer. It is further submitted by the learned Standing Counsel that the Deity is a minor and the rights of the Temple cannot be lost if at all, by the inaction of the trustee which is the Board.

13. Learned Counsel Shri Lakshminarayanan appearing for the Temple 3 Advisory Committee also submitted that there is a total lack of jurisdiction on the part of the Land Tribunal to consider the matter, as the land is situated within the Temple premises which is exempted u/s 3(1)(x) of the Act. It is submitted that the purchase certificate is obtained by fraud, which is clear from the undue haste shown by the Tribunal in the matter. It is submitted that the entire proceedings are to be nullified and the learned counsel submitted that this Court will be fully justified in setting aside the proceedings and since the property is vested in the Temple, the alleged delay from the date of the proceedings of the Land Tribunal cannot be an impediment for this Court which is having ample power to protect the interest of the devotees of the Temple and the Temple properties. Learned counsel also relied upon various decisions of this Court and the Apex Court in that context.

14. Learned counsel Shri Muraleedhara Kaimal appearing for the fourth respondent submitted that there is no element of collusion or fraud. It is mainly contended that the area is not Temple premises as the Temple is situated in 25 cents of land and the remaining extent of 2.01 acres is clearly demarcated now by kayyala (compound wall). It is submitted that in the suo motu proceedings initiated, notice was issued to the Board, who did not file any objection in the matter. Therefore, non compliance of Rules 7 to 10 of the Rules is not fatal. According to him, no Village Committees were functioning till 1978 and there is no need to pass a preliminary order since no objections were filed before the Land Tribunal. It is submitted that Section 12 of the Act enables the party to prove real nature of transaction and herein it is a case where after the auction was settled in favour of Shri Narayanan Nair and after the expiry of six years on the basis of an oral lease he continued and he clearly comes within the definition of cultivating tenant. It is submitted that the Board had filed an application u/s 26 of the Act for recovery of arrears of rent (O.A.T. 131/1967) and another application as O.A.T. No. 712/1965 for resumption and therefore the tenancy is one admitted. It is submitted that there is no basis in the complaint filed by the Temple Advisory Committee at this long distance of time. The Board also did not file appeals within a reasonable time and therefore the Appellate Authority was right in dismissing the appeal. It is submitted that the reference made by the learned Ombudsman cannot therefore survive and before submitting the report the learned Ombudsman did not hear the fourth respondent. It is submitted that re-survey was conducted and proceedings have been issued under Survey and Boundaries Act and no objections have been filed by the Board regarding the re-survey also. It is also submitted that after the purchase certificate was issued, the property was divided among the fourth respondent and his brother who is working abroad, by a will deed executed by his father. The brother is not made a party in DBP 7 No. 21/2009 even though in the civil revision petitions he has been arrayed as a party respondent. It is also submitted, based on certain decisions of this Court, that whether the predecessor-in-interest of the fourth respondent was entitled for assignment or not, is a question of fact which cannot be interfered with by this Court in the revision petitions, as the appeals have also been disposed of as against the Board. It is submitted that the plea that there is fraud and collusion raised at this distance of time cannot be countenanced and they have been keeping quiet for a long time. Learned counsel therefore sought for dismissal of the D.B.P. as well as the revision petitions.

15. In the light of the arguments on both sides, we will have to refer to the essential factual aspects as well as the question whether any tenancy has been Created in favour of the deceased Narayanan Nair and whether the exemption u/s 3(1)(x) will apply and if so, whether the purchase certificate could survive.

16. The Temple in question, viz. Ezhumuttom Sree Dharma Sastha Temple is situated in Karikode Village, Thodupuzha Taluk. The entire history leading to the inclusion of the Temple in the schedule to the Travancore Cochin Hindu Religious Institutions Act, has been given in the reply affidavit filed by the Board dated 10.2.2011. As far as the Temples in the princely State of Travancore are concerned, during the period when Col. Munro was the Dewan-Resident the Management of the Devaswoms were taken over by the Government in the year 987 ME (1811-1812) which were being administered by the Revenue Department. We will extract paragraphs 2 and 3 of the reply affidavit for having a glimpse of the entire history:

2. The Ezhumuttom Sree Dharma Sastha Devaswom situated at Ezhumuttom in Karikode Village, Thodupuzha Taluk is an incorporated Devaswom within the meaning of that term in the Travancore-Cochin Hindu Religious Institutions Act, 1950. The Devaswom is mentioned in the schedule to the Travancore Devaswom Proclamation of the year 1097 ME as well as in the schedule to the Travancore Cochin Hindu Religious Institutions Act.

3. This Devaswom is one of the Devaswoms taken over by the Government of the State of Travancore while Col. Munro was the Dewan-Resident of that State in the year 987 ME (1811-1812). The Devaswoms so taken over by the Government were being administered by the Revenue Department. Subsequently a separate Devaswom Department for administering the Devaswoms taken over by the State was formed in the year 1097 ME. The Devaswoms were transferred by the Revenue Department to the Devaswom Department. The Land Registers signed by official of the Revenue Department in token of having handed over possession of Devaswom properties to the Devaswom Department were prepared.

In fact, it is clear that when the Devaswom Department was formed, Land Registers were being maintained in respect of the properties of the Temples.

17. The said part of the historical aspects have been explained by a Division Bench of this Court in M. Muraleedharan Nair Vs. State of Kerala and Others, : M. Muraleedharan Nair Vs. State of Kerala and Others, consisting of the Honourable Judges K.S. Paripoornan (as he then was) and K.A. Nayar, JJ.). Para 9 of the judgment refers to the entire history including the coming into force of the Travancore Cochin Hindu Religious Institutions Act, 1950 and the formation of the Devaswom Boards and the same is extracted below for easy reference:

9. The Hindu temples in the State of Travancore were mostly under private management called Ooralars or Karukars. When those bodies were found mismanaging the institutions, Col. Munro decided in 987 ME (1811-1812 AD) that the State should assume control over them and therefore the Government assumed the management of these temples with their properties movables and immovables. With a view to secure better efficiency in the management and control of the Devaswoms, M/s. Chempakaraman Pillai and N. Rajaram Rao were deputed in July 1905 to investigate the question of regulating their expenditure both as regards pathivus and as regards the purificatory ceremonies. As the information collected by these officers was merely of a preliminary character, Mr. M.K. Ramachandra Rao, a Puisne Judge of the High Court was, in May 1907, placed on special duty to make a more detailed investigation into the affairs of the Devaswoms and to formulate proposals which would enable the Government to secure a more efficient management and control. Thereafter the Government appointed a mixed Committee of Hindus and non-Hindus to consider and report upon the exact character of the assumptions of those Devaswoms, the feasibility of separating their administration from the Land Revenue Department and the nature and cost of the additional staff that might be necessary if the organisation of a separate department be deemed desirable. The Committee, in their report recommended that the administration of the Devaswom should be separated from the Land Revenue Department and entrusted to a distinct agency. The members of the Committee differed in one respect. While the majority held the view that the State being a Sovereign Proprietor is legally accountable to none for their management.. The dissenting member was of the opinion that the assumption extended only to management, thereby constituting the State a trustee of the Devaswoms and that as the State has mixed up the trust property with its own, the entire expenditure in connexion with the Devaswoms, however large, is a legitimate charge upon its general revenue. The Government of Travancore after taking necessary legal opinion came to the conclusion that the States assumption of these Hindu Religious Institutions in the days of Col. Munro was an act done in the exercise of the traditional right of Melkoima inherent in the Hindu Sovereigns of the State and that it was not an act of confiscation. The Government therefore were under the undoubted obligation to maintain the Devaswoms for all time properly and efficiently. The Government also came to the conclusion that for the proper discharge of this obligation the creation of a separate department which will devote its attention exclusively to the administration of Devaswoms is necessary. Considering that it is the solemn right and duty of the Government to maintain efficiently and in good condition the Hindu Religious Institutions in the State of Travancore irrespective of the income from such institution or the cost of such maintenance and in pursuance of such right and duty of the State the Travancore Government issued the Devaswom Proclamation on 12th April, 1922 corresponding to 30th Meenom, 1097. It also constituted a Devaswom fund for the Devaswoms mentioned in the schedule to the proclamation. S. 7 of the Proclamation provided for creation of a Department for better and more efficient management and more effective control over the Devaswoms. Clause 7 is as under:

7(1) Our Government may for the better and more efficient management and more effective control of the Devaswoms mentioned in the schedule organise a Devaswom Department of the State consisting of such member of officers and other servants as they think fit.

2. The expenditure in connection with the said Department shall, notwithstanding anything contained in Ss. 3 and 4, be met out of the general revenues of the State." The Devaswom under the proclamation is managed by a Devaswom Department of the State consisting of such number of officers and other servants. The Government had power under S. 8 to define the powers and duties of the officers of the Devaswom Department to regulate the scale of expenditure of the Devaswoms and to make rules generally for carrying out the purpose of the proclamation. The Devaswom Department has become a part of the Government Department. The Maharaja did not want to leave the administration of the Devaswoms to the State Government in the new set up. Therefore on 10-8-1123 (23-3-1948), yet another proclamation was issued by which the Maharaja assumed control and management of Devaswoms and Devaswom Department of the Government. A material change also made in respect of funds from which expenditure was to be made. It was also provided that expenditure to be made not from general revenue but only from Devaswom fund. Thereafter when Travancore-Cochin States were integrated it was provided by S. 8(c) of the Covenant that the administration of the Devaswoms, Hindu Religious Institutions and Endowments and their properties and funds would vest with effect from 1-8-1949 in a Board known as Travancore Devaswom Board. The Hindu Religious Institutions Ordinance 10 of 1124 was promulgated which came into force on 1-8-1949. Before expiry of the period of Ordinance, Act 15 of 1950, namely the Travancore-Cochin Hindu Religious Institutions Act, 1950 was enacted. S. 3 of the Act provided that the administration of incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds as well as the fund constituted under the Devaswom Proclamation which were under the management of the Ruler of Travancore prior to the first day of July, 1949 except the Sree Padmanabhaswamy Temple shall be vested in the Travancore Devaswom Board. S. 4 of the Act provided the constitution of the Travancore Devaswom Board.

18. The Temple herein was included in the Devaswom Proclamation issued on 30th Meenom, 1097 M.E. (corresponding to 12.4.1922). Section 27 of the Act of 1950 is worth mentioning herein, which is reproduced below:

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.

Therefore, the properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke will have to be dealt with as Devaswom properties. Section 2(c) of the Act defines Incorporated Devaswoms as follows:

(c) Incorporated Devaswoms means the Devaswoms mentioned in Schedule I, and "unincorporated Devaswoms" means those Devaswoms including Hindu Religious Endowments whether in or outside Travancore which were under the management of the Ruler of Travancore and which have separate accounts of income and expenditure and are separately dealt with.

Ezhumuttom Sree Dharmasastha Temple is included in Schedule I to the Act which is thus an incorporated devaswom. Section 3 provides for vesting of administration in Board, of incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds. Therefore, the Board is clearly acting as a trustee which legal position is beyond dispute also. A copy of the land register has been produced along with Annexure I report as well as the reply affidavit of the Board as Annexure X1. The old survey number of the property is 1507/4 which is described as puramboke-kavu and kshethram irippu sthalam. Therefore, the land register as well as the settlement register will establish the plea of the Board that the property having an extent of 2.26 acres is Temple property. Thus, Section 27 of Act of 1950 is clearly attracted and the property is clearly Devaswom property. The list of trees is also available in the land register which are the following

The fourth respondents father Naryanan Nair came into the picture when the right to take usufructs was auctioned.

19. We will now refer to the details of the auction conducted which is available in the auction diary produced along with Annexure I report. The details will show that the right to take usufructs from 17.8.1953 was auctioned on 6.7.1953. Due to lack of bidders for reasonable amount it was not confirmed and the same was postponed. Next auction was held on 7.8.1953. The maximum bid amount was only Rs. 42/- and the said auction was also not confirmed. A fresh auction was held on 20.11.1953 and on that day Shri Velayudhan Nair Narayanan Nair, Madappally House, Karicode (father of the fourth respondent) bid at Rs. 46.75 per annum. This was confirmed being the highest one. The right to take usufructs from the trees standing in 2.26 acres excluding 25 cents for a period of six years from 17.8.1953 was thus granted to him by way of kuthakapattom. After the expiry of six years period no fresh auction was conducted. These facts are averred in Annexure I report as well as in the reply affidavit filed in D.B.P. No. 21/2009 by the Board. Thus, what was obtained by Shri Narayanan Nair was only a right to take usufructs from the trees and there was no demise of the land. Right was not given for cultivation or for effecting improvements. In fact, in the counter affidavit filed by the fourth respondent on 16.3.2010 pursuant to the show cause notice issued by this Court in DBP No. 21/2009 in para 3.2 the said aspects are admitted and it is stated as follows:

3.2. The usufructs over the said 2.01 acres viz. coconut-5, Arecanut-25, Jack-5, Mango-4, Cashew-4 and Palm-2 were put in public auction for grant of kuthakapattom on 20.11.1953 for a period of 6 years from 1.12.53 at Rs. 46/75 per annum. It was knocked down in favour of my father Narayanan Nair and he was put in possession of the property for use and enjoyment thereof. Travancore Devaswom Board did not auction the property on expiry of grant. Possession continued by my father and began cultivation of various crops with the consent of the Board and on payment of rent as originally stipulated for excluding the temple land....

Thus, after admitting that his father was given the right to take usufructs from the trees in a public auction, the fourth respondent has stated that "with the consent of the Board, cultivation was being carried out". As rightly pointed out by the learned Standing Counsel for the Board, there are no proceedings of the Board creating any tenancy in 1953 and in 1959. The plea of oral lease also cannot therefore stand scrutiny. The Board being a statutory authority, such a claim of oral lease is clearly without any merit. The decisions are being taken in the meetings of the Board as per the provisions of the Act and other relevant Rules. None of the lower functionaries of the Devaswom are competent also to grant any lease.

20. The next question is whether any payment even in later years by Shri Naryanan Nair, by way of an equal amount of Rs. 46.75 could be termed as rent for the purpose of the Kerala Land Reforms Act. Some of the important definitions under the above Act are relevant in this context. We will have to refer to the definition of cultivating tenant, rent as well as tenant which are given under Sections 2(8), 2(49) and 2(57) and they are extracted herein below:

2(8) "Cultivating tenant" means a tenant who is in actual possession of, and is entitled to cultivate the land comprised in his holding;

2(49) "Rent" means whatever is lawfully payable in money or in kind or in both by a person permitted to have the use and occupation of any land to the person so permitting, and includes michavaram, but does not include customary dues;

2(57) "Tenant" means any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease that land.

The definition of cultivating tenant will show that a tenant should be one who is "entitled" to "cultivate the land" comprised. Going by the definition of rent, it should be a case of payment in money or in kind or in both by a person "permitted to have the use and occupation of any land to the person so permitting". Therefore, there should be permission for use and occupation of the land by a competent person. The definition of tenant will also show that there should be an agreement to pay rent or other consideration for being allowed to "possess and to enjoy the land", with a person who is "entitled to lease the land." Therefore, without any interest being created in the land, nobody can claim to be a cultivating tenant. Much arguments have been raised by the learned Standing Counsel for the Board based on the scheme and various provisions of the Kerala, Land Reforms Act, 1963. We will refer to those provisions now.

21. When we Come to the provisions regarding fixity of tenure, Section 13 gives right to the tenants to fixity of tenure. Section 72 is under the heading "Vesting of landlords rights in Government". Going by sub-section (1), the said vesting of landlords rights is in respect of the holdings held by cultivating tenants. Section 72B(3) provides that "any cultivating tenant entitled to assignment of the right, title and interest in respect of a holding or part of a holding under sub-section (1) may apply to the Land Tribunal within whose jurisdiction such holding or part is situate within two years from the date of vesting of such right, title and interest in the Government u/s 72, or such further time as may be allowed by the Government in this behalf, for such assignment to him." u/s 72B(1) the cultivating tenant of a holding in respect of which the right, title and interest has been vested in the Government u/s 72, shall be entitled to assignment of such right, title and interest by sub-section 72(1). Section 72C provides for assignment suo motu by the Land Tribunal and the said provision reads as follows:

72C. Assignment where application is not made by cultivating tenant.-- Notwithstanding anything contained in sub-section (3) of Section 72B or Section 72BB, the Land Tribunal may, subject to such rules as may be made by the Government in this behalf, at any time after the vesting of the right, title and interest of the land owners and intermediaries in the Government u/s 72, assign such right, title and interest to the cultivating tenants entitled thereto, and the cultivating tenants shall be bound to accept such assignment.

22. It is important to notice from the above provisions that an application for assignment can be filed u/s 72B within the original period of two years form the date of vesting or within the further time allowed. Section 72C proceedings could be invoked in cases where there is no application. 1.1.1970 was the date of vesting.

23. Section 72EE provides for constitution of Village Committees by Government for the purpose of performing the functions of the village committee under the Act. The procedure for issuance of purchase certificate is governed by Section 72F. Sections 72F(3A) and (5) are relevant which are extracted below:

(3A) The Land Tribunal shall furnish a copy of the public notice under sub-section (1), along with a statement containing the names and addresses of the persons to whom individual notices have been issued under sub-section (2) and such other particulars as may be prescribed, to the village committee of the village in which the holding is situate, or, where the holding is situate in more than one village, the village committee of each such village and require the village committee or village committees, as the case may be, to advise the Tribunal on the matters mentioned in sub-section (3B) before such date as may be specified in the requisition;

(5) The Land Tribunal shall, after considering the claims and objections received in pursuance of the notice issued under sub-section (1) or sub-section (2) and the advice received from the village committee or village committees before the date specified therefor and hearing any person appearing in pursuance of the notice issued under sub-section (1) or sub-section (2), and after making due enquiries, pass an order specifying....

(a) to (i) omitted.

24. The relevant rules under the Kerala Land Reforms (Vesting and Assignment) Rules, are Rules 5 and 7 to 10. Rule 5 relates to initiation of suo motu proceedings. Sub-rule(1) which is relevant for the purpose of this case, reads as follows:

5. Land Tribunal to initiate suo motu proceedings.-- (1) Where a Land Tribunal receives information that the right, title and interest of the landowner and intermediaries in respect of a holding or part of a holding situate within its jurisdiction have vested in the Government u/s 72, it shall, notwithstanding that an application referred to in Rule 4 has not been received in respect of that holding or part, as the case may be, of its own motion assign such right, title and interest to the cultivating tenants entitled thereto in the manner hereinafter provided.

Rule 7 provides for issuance of notice u/s 72F and the public notice shall be in Form D and the individual notice under sub-section (2) shall be in Form E. Rules 7A to 7F relate to the manner of functioning of the Land Tribunals, after getting information through the Village Committee. They are extracted below:

7A. Requisition by the Land Tribunal to the village committee.--A requisition by the land Tribunal to the village committee under sub-section (3 A) of Section 72F shall be in Form E1.

7B. Procedure to be followed by the village committee.-- (1) On receipt of the requisition referred to in Rule 7A, the convener of the village committee shall assign a number to every such requisition strictly according to the order in which it is received, and enter it in a register to be maintained by the village committee. The register shall be in Form E2.

(2) The convener of the village committee shall also maintain a book in which a separate page shall be allotted to each survey number in the village, the survey number being entered in the chronological order.

(3) Each page of the book maintained under sub-rule (2) shall be in Form E3. 7C. Village committee may furnish further particulars.-- The village committee may, in addition to the matters mentioned in sub-section (3B) of Section 72F, furnish any other particulars it considers relevant to the case pending before the Land Tribunal.

7D. Manner of obtaining information.-- When the village committee desires to obtain any information, such committee or any one of its members may obtain it in anyone or more of the following modes; namely.-

(a) by making such enquiry as the village committee or member may deem fit;

(b) by local inspection;

(c) by reference to any Government record; or

(d) in such other manner as the village committee or member deems fit.

7E. Further procedure to be followed by village committee.-- (1) After obtaining necessary information, the village committee shall give an opportunity to the persons concerned to be heard regarding the correctness of the information.

(2) For the purpose of sub-rule (1) the village committee may secure the presence of the persons concerned and read over the information received by the committee to such persons.

(3) The committee may also examine documentary evidence produced by the persons concerned or received by it from any other person.

7F. Advice to be forwarded to the Land Tribunal.-- As soon as may be after the completion of the enquiry under Rule 7E, the village committee shall, before the date specified in the requisition received from the Land Tribunal under Rule 7A, forward its advice to the Land Tribunal, the advice shall be in Form E4.

The first step is a requisition by the Land Tribunal to the village committee, under subsection (3A) of Section 72F. The manner of obtaining information by the village committee is clear from Rule 7D. Rule 7E obliges the village committee to give an opportunity to the persons concerned to be heard regarding the correctness of the information and sub-rule (3) provides for examination of the documentary evidence obtained from any person concerned.

25. Rules 9 and 10 are also relevant for the purpose of this case which are extracted below:

9. Dispute about tenancy or vesting.-- (1) Where after the publication of the public notice under sub-section (1) of Section 72F and the service of the individual notice under sub-section (2) of that section in respect of a holding, any of the parties to the proceedings pleads that the land comprised in such holding is not held by any cultivating tenant or that the right, title and interest of the landowner and the intermediaries in respect of such holding have not vested in the Government, the Land Tribunal shall decide such question as a preliminary point and pass an order thereon with reasons for such order.

(2) Where the order under sub-rule (1) is that such land is not held by any cultivating tenant or that such right, title and interest have not vested in the Government, the Land Tribunal shall forthwith reject the application referred to in Rule 4 or discontinue the proceedings referred to in Rule 5 and such order for rejection or discontinuance, as the case may be, shall be deemed to be an order u/s 72F for all purposes of the Act.

10. Further proceedings for assignment and determination of compensation, purchase price, etc.-- (1) Where in any proceedings for the assignment of the right, title and interest of the landowner and intermediaries in respect of a holding vested in the Government, to the cultivating tenant, there is no dispute of the nature referred to in sub-rule (1) of Rule 9, or, where there is such a dispute, the Land Tribunal has ordered that the holding is held by a cultivating tenant or that the right, title and interest of the landowner and intermediaries have vested in the Government, as the case may be, the Land Tribunal shall, after perusal and consideration of the application, if any, referred to in Rule 4, the information referred to in Rule 5, the written statement, if any, filed by the parties, other documentary evidence, if any, produced and the report, if any, of the officer appointed u/s 105A and after such further enquiries as it may deem necessary and after giving a reasonable opportunity of being heard to all the persons to whom individual notices have been issued under sub-section (2) of Section 72F, and to the other persons who have preferred claims and objections and appeared before the Tribunal in pursuance of the notice issued under sub-section (1) of that section, pass an order under subsection (5) of the said section. (2) The Land Tribunal shall before passing the order under sub-section (5) of Section 72F ascertain from persons claiming to be cultivating tenants, in case they appear before it, as to whether they opt to pay the purchase price in a lump.

Thus, under Rule 9(1) the Land Tribunal is expected to decide the preliminary point whether the holding is one held by a cultivating tenant or such holding have not vested in the Government by a reasoned order. Rule 10(1) contains the detailed procedure before a final order is passed. The important among them are the following:

(a) The Land Tribunal will have to peruse and consider the information given under Rule 5 (in respect of suo motu action), the written statement, if any, filed by the parties, the other documentary evidence, if any, produced and the report, if any, of the officer appointed u/s 105A of the Act; (b) The Land Tribunal will have to make further enquiries as it may deem necessary;

(c) It will have to give a reasonable opportunity of being heard to all the persons to whom individual notices have been issued u/s 72F(2) and to the other persons who have preferred claims and objections.

Even if no preliminary order happened to be passed under Rule 9(1), the Land Tribunal is obliged under Rule 10(1) to consider all matters, conduct due enquiries and to afford reasonable opportunity of hearing to all the parties. The principles of natural justice have been fully engrafted in these Rules at every stages including the enquiry by the Village Committee.

26. Since arguments have been raised with regard to the incompetency of the Special Village Officer based on whose report suo motu case was registered by the Land Tribunal, we will have to refer to Sections 105 and 105A of the Act which concern furnishing of information and filing of report, etc. Both these sections are extracted below:

105. Authorised officer empowered to obtain information from persons.-

(1) For the purpose of carrying into effect the provisions of this Act, any officer, not below the rank of a Revenue Inspector authorised by the Government in this behalf (hereinafter in this section referred to as the "authorised officer") may, by notice, require any person to furnish any information relating to the extent of land held by such person, the number of members of the family, if any, of such person, and such other particulars as may be prescribed, the person aforesaid shall furnish the information to such officer within such time as may be specified in the notice or within such further time not exceeding thirty days as the authorised officer may, in his discretion, allow.

(2) (a) Where any person on whom notice under sub-section (1) has been served fails to furnish the information within the time specified in that notice or within the further time allowed by the authorised officer under sub-section (1) the authorised officer may obtain, in such manner as may be prescribed, the necessary information either by himself or through such agency as he thinks fit.

(b) The authorised officer shall, as soon as may be after obtaining the information under clause (a), give to the person concerned a reasonable opportunity of making him representation and of adducing evidence, if any, in respect of such information and consider any such representation and evidence and pass such orders as he deems fit.

105A. Appointment of officers for certain purposes.-- (1) The Government may appoint any officer not below the rank of a Revenue Inspector for bringing to the notice of the land Tribunal or the land Board or the Taluk land Board any fact or information required by the Land Tribunal or the Land Board or the Taluk Land Board, as the case may be, or for moving the Land Tribunal or the Land Board or the Taluk Land Board to take any action necessary for the implementation of the provisions of this Act.

(2) The Land Tribunal or the Land Board or the Taluk Land Board may depute any officer appointed under sub-section (1) to make local enquiry, investigation or inspection and to collect any data, and the report and the records submitted by such officer may be used without examining him as evidence in the proceedings before the land Tribunal or the Land Board or the Taluk Land Board.

(3) The Land Tribunal or the Land Board or the Taluk Land Board may, if it thinks fit, summon and examine any officer referred to in sub-section (2).

Both provisions will show that the person authorised to furnish information, viz. the Authorised Officer should not be below the rank of a Revenue Inspector. We have already seen that under Rule 10 of the Rules, the Land Tribunal is obliged to get a report from an officer appointed u/s 105A of the Act before passing an order with regard to the proposal for assignment. Sub-section (2) of Section 105A authorises the Land Tribunal to depute such an officer to make local enquiry, investigation or inspection and to collect any data, and report and the records submitted by such officer may be used without examining him as evidence in the proceedings. But herein since the argument is that the Special Village Officer is an incompetent person, we will deal with the said aspect now.

27. Shri P. Gopal, learned Standing Counsel for the Board invited our attention to the Special Rules, viz. Kerala Revenue Ministerial Subordinate Service Rules. It will show that the post of Village Officer is only a feeder category post to the post of Revenue Inspector in 35% of vacancies and the method of filling up is by transfer. Apparently Sections 105 and 105A confer statutory power on the Government to authorise an officer not below the rank of Revenue Inspector to furnish information u/s 105 and report u/s 105A. The report herein cannot thus form a basis for an action u/s 72C. This cuts at the root of the entire proceedings of the Land Tribunal. Therefore, definitely the Special Village Officer who had submitted the report in this case was not competent to do so.

28. The various notifications issued by the Government show that by SRO No. 243/1970 issued u/s 105, the Revenue Divisional Officer and Personal Assistant to District Collectors were authorised to exercise powers and duties under the said Section.; S.R.O. No. 244/1970 was issued u/s 105A((1) appointing Deputy Tahsildars and Revenue Inspectors working under each Land Tribunal for bringing to the notice of that Land Tribunal any fact or information required by the Land Board or for moving the Land Tribunal to take any action necessary for the implementation of the provisions of the Act; S.R.O. No. 245/1970 was issued appointing the District Collectors, Personal Assistants to District Collectors, Revenue Divisional Officers and Taluk Tahsildars for bringing to the notice of the Land Board any fact or information required by the Land Board or for moving the Land Board to take any action necessary for the implementation of the provisions of the Act, as per S.R.O. No. 2/71 issued u/s 105(1) of the Act, the Government of Kerala authorised the Deputy Tahsildars working under the Taluk Tahsildars to exercise the powers and discharge the duties of the authorised officer under the said section, within their respective jurisdiction; S.R.O. No. 122/71 was issued u/s 105 of the Act authorising the Special Deputy Tahsildars (Land Reforms) to exercise the powers and discharge the duties of the authorised officer under the said section within their respective jurisdiction; and S.R.O. No. 310/71 was issued u/s 105(1) of the Act authorising the Firka Revenue Inspectors working under the Taluk Tahsildars to exercise the powers and discharge the duties of the authorised officer under the said Section within their respective jurisdiction. It is evident, therefore, that there is no notification appointing a Special Village Officer as authorised officer for the purposes of Sections 105 and 105A of the Land Reforms Act. Therefore, the contention on this score by the learned Standing Counsel is well founded.

29. We have seen that there is no demise of the land in favour of the predecessor in interest of the fourth respondent and if at all any tenancy right can be created, the same can be done by the Board only by appropriate proceedings. Therefore, the right he had obtained is only by way of kuthakapattom, which is a mere licence and not a tenancy right.

30. Now we will deal with an argument of the learned counsel for the fourth respondent, Shri Muraleedhara Kaimal that in the receipts issued by the Local Devaswom Officer the payment is mentioned as pattom which is rent itself and therefore the same is conclusive. Along with the counter affidavit dated 30.6.2009 the fourth respondent has produced Annexures 1 (a) and 1 (b) receipts issued for collection of Rs. 46.75 which is mentioned as "pattom". Therefore, learned counsel submits that the same is conclusive and will support the plea of the fourth respondent that his father was a cultivating tenant.

31. This is answered by Shri P. Gopal and Shri P. Viswanathan, learned Standing Counsel appearing for the Board in the respective cases, by submitting that in various decisions of the Apex Court and this Court it has been explained that the mentioning of the word rent alone in a receipt will not be conclusive to show the relationship of landlord and tenant. We will refer to the decisions relied upon by the parties in that context. The following are the decisions relied upon by the learned Standing Counsel: Dr. H.S. Rikhy and Others Vs. The New Delhi Municipal Committee, , State of Punjab and Another Vs. British India Corporation Ltd., , Suhas Yeshwant Chopde Vs. Sachhidanand D. Purekar, , Konchada Ramamurthy Subudhi and Another Vs. Gopinath Naik, and Sorab Vs. Viswanatha Menon and Another, : Sorab Vs. Viswanatha Menon and Another, .

32. In Dr. H.S. Rikhy and Others Vs. The New Delhi Municipal Committee, , the question whether the use of the word rent in receipts will be conclusive in showing the relationship of landlord and tenant, was considered in para 6 and the Apex Court has held as follows:

6. The use of the word "rent" is not conclusive of the matter. It may be used in the legal sense of recompense paid by the tenant to the landlord for the exclusive possession of premises occupied by him. It may also be used in the generic sense, without importing the legal significance aforesaid, of compensation for use and occupation. Rent in the legal sense can only be reserved on a demise of immovable property. Reference may be made in this connection to paragraphs 1193 and 1194 of Halsburys Laws of England (Third Edition, Vol. 23) at pages 536-537. Hence, the use of the term -rent cannot preclude the landlord from pleading that there was no relationship of landlord and tenant. The question must, therefore depend upon whether or not there was a relationship of landlord and tenant in the sense that there was a transfer of interest by the landlord in favour of the tenant.

Therefore, the important aspect pointed out by the Apex Court is to find out whether there is a transfer of interest by the landlord to the tenant.

33. In State of Punjab and Another Vs. British India Corporation Ltd., the principles have been stated thus:

15. The next question is: what is the meaning of "rent" in clause (ii) of Rule 18 (4). In its wider sense rent means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. In its narrower sense it means payment made by tenant to landlord for property demised to him.

34. In Suhas Yeshwant Chopde Vs. Sachhidanand D. Purekar, also, in para 6 it is held as follows:

The substance of the agreement was that it was an agreement of sale of the flat and Rs. 40,000/- was to be paid as security deposit. There was no provision that in the event of the sale transaction not going through or not fructifying, the respondent would continue as a tenant. It is true that the document used the words "monthly rent of Rs. 1,000/-" but it is now well settled by several decisions of the Supreme Court that mere use of the word "rent" is not decisive of the relationship between the parties. The document dated 24-3-1984 is an agreement for sale coupled with a licence agreement. It was not an agreement to sell coupled with a lease.

35. The principle that the intention of the parties is relevant, while considering whether a transaction is lease or licence, has been reiterated by the Apex Court in Konchada Ramamurthy Subudhi and Another Vs. Gopinath Naik, in the following words:

To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form. The real test is the intention of the parties; whether they intended to create a lease or a licence. If the document creates an interest in the property, it is a lease but if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence. If under the document a party gets exclusive possession of the property, prima facie he is considered to be a tenant, but circumstances maybe established which negative the intention to create a lease.

Therefore, in the case of a transaction, only if an interest in the property is created, it will be a lease and if permission alone is given to use the property, it is a licence. The use of the word rent alone will not be conclusive to indicate a lease.

36. In Sorab alias S.P. Kavinas case (1974 KHC 118), the distinction between lease and licence was explained and it was held that if an interest in immovable property, entitling enjoyment is created, it is a lease and if permission is given to use the land without right to exclusive possession alone, it is a licence.

37. A similar situation where the word pattom was used in a receipt, was considered by this Court in Balakrishnan and Others Vs. Parameswaran Namboodiri, : Balakrishnan and Others Vs. Parameswaran Namboodiri, wherein the general principle stated by the Apex Court that the use of the word rent alone will not be conclusive, was reiterated to reject a similar argument. We shall refer to para 9 wherein this question was considered. The relevant portion is extracted below:

9 Counsel stressed on the use of the word "pattom (rent) in Ext. A1. But the word rent, as been observed by the Supreme Court in Mrs. M.N. Clubwala and Another Vs. Fida Hussain Saheb and Others, is not always indicative of a lease. In the context in which the word occurs in Ext. Al it can only mean the rental estimate of the property which has been made the basis for fixation of the residual pilots, that the mortgagee has to pay to the mortgagor year by year. By definition, a usufructuary mortgage may provide for appropriation of a portion only of the profits of the property in lieu of interest on the mortgage amount, when the mortgagee will have to pay the mortgagor the residue of the profits. In that event, the parties may agree to estimate the profits and quantify the residue that the mortgagee has to pay the mortgagor annually, in order to avoid a cumbrous accounting year by year.

It may be of advantage to refer to para 10 of the very same judgment wherein reliance was placed by the learned Judge on the judgment of a Division Bench of this Court consisting of Raghavan, J. and K.K. Mathew, J. (as Their Lordships then were), in A.S. No. 512/1960. We extract the said paragraph hereinbelow:

10 Counsel contended that, even apart from the above, the defendants are tenants as they have paid consideration for their possession and enjoyment of the property. The primary part of the definition in the Act I of 1964, defines a tenant to mean "any person who has paid or has agreed to pay rent or other consideration for his being allowed by another to possess and enjoy the land of the latter." The contention is that for his possession and enjoyment of the property the defendant has paid the consideration under Ext. A1. In Gopalakrishna Menon v. Gopala Panicker A.S. No. 512 of 1960 decided on 10-1-1967 Raghavan J., with concurrence of Mathew J., has observed:

In this definition the expression other consideration is obviously ejusdem generis rent, i.e., it must: be akin to rent, a periodical payment for being allowed to enjoy the land of the landlord.

Much the same thing I have also held in Kunhamina Umma v. Pant Amma 1967 KLT. 596 : 1967 ICO 564, Para 12. The amount advanced under a usufructuary mortgage cannot be other consideration in the above-quoted definition of a tenant in the Act 1 of 1964.

38. Their Lordships were considering the very same enactment, viz. Kerala Land Reforms Act. We have seen that the definition of the word rent in Section 2(49) refers to other considerations also and the Division Bench explained that "In this definition the expression other consideration-is obviously ejusdem generis rent, i.e., it must: be akin to rent, a periodical payment for being allowed to enjoy the land of the landlord".

39. Therefore, what is of importance is the question whether there was anything by way of demise in favour of Shri Naryanan Nair to enjoy the land itself. The same is totally absent. There was no intention to create a lease when the auction was conducted for taking usufructs. The plea of oral lease set up by the fourth respondent, now, is also unsupportable. The Board has not granted any lease of the land to the predecessor in interest of the fourth respondent. Therefore, the argument relying upon the receipts wherein the word pattom is incorporated, cannot survive. The cumulative conclusions that can be drawn from the above are that: (a) the word pattom in Annexures 1 (a) and 1(b) receipts is not conclusive; (b) the use of the word rent in a receipt will not be conclusive to show that there is a tenancy arrangement; and (c) the predecessor-in-interest of the fourth respondent was not at a cultivating tenant.

40. In fact, this Court had occasion to interpret the word cultivate under the Kerala Land Reforms Act while considering a similar plea in Lekshmi v. Hendry (1981 KLT SN 71). It was held that only a cultivating tenant is entitled for assignment. We extract the entire paragraph hereinbelow:

A cultivating tenant as per its definition must be a person in possession entitled to cultivate the land comprised in the holding. The expression "cultivate" as defined in the Act makes out the intention of the legislature that the cultivation is relating to land for the purpose of raising the produce of the land. From a reading of Ext. A2 it is clear that the purpose of the lease in the present case, is not for cultivation and the tenant is not a cultivating tenant within the meaning of the Act. It is only the right, title and interest of the landlord in respect of a holding held by a cultivating tenant that would vest in the Government, and it is only in respect of such rights vested that a cultivating tenant is entitled to assignment. Since I find that the tenant in this case is not a cultivating tenant, the right, title and interest of the landlord do not vest in the Government and the tenant is-not entitled to apply for assignment of the same.

(Emphasis supplied)

The above legal position will also lend support the argument of the learned Standing Counsel for the Board that at no point of time permission was given to the predecessor-in-interest of the fourth respondent to cultivate and raise produce of the land, as the auction was only for taking usufructs from the standing trees alone. In the definition of tenant under the Land Reforms Act a person having kuthakapattom rights is not at all included. Hence, a mere licence cannot mature into a tenancy at all. One more aspect to be relevant here is that the amount shown and described as pattom, is the same amount returned in the auction, viz. Rs. 46.75. It represents only the payment for collecting usufructs from the standing trees. This is also significant and will weaken the case of the fourth respondent of any tenancy arrangement.

41. Therefore, as the predecessor-in-interest of the fourth respondent was not at all a cultivating tenant, then the landlords rights have not been vested in the Government on the appointed day (as on 1.1.1970), u/s 72 of the Act. Therefore, he was not entitled. to purchase the landlords rights also. Thus, the irresistible conclusion is that no order of assignment could have been granted by the Land Tribunal.

42. The next argument is one concerning the nullity and void nature of the order. The effect of non compliance of the rules under the Kerala Land Reforms (Vesting and Assignment) Rules was considered by a Full Bench of this Court in Muhammed Haji and others Vs. Kunhunni Nair and others, : Muhammed Haji and others Vs. Kunhunni Nair and others, . In para 22 the Full Bench has held as follows:

22. Respondents counsel Mr. V.P. Mohan Kumar also highlighted the fact that in rendering the decision in O.A. No. 17732 of 1976, the Land Tribunal failed to comply with the provisions specified in rules 9 and 10 of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970 and S. 72F of the Act. It was argued that Rules 9 and 10 aforesaid contemplate passing of a preliminary order regarding the vesting of the right, title and interest of the landowner and intermediaries in respect of such holding. It is only where the Tribunal passes an "order" to the effect that the holding is held by a cultivating tenant or that the right, title and interest of the land owner and intermediaries have vested in the Government, then the Land Tribunal shall, follow the procedure specified in Rule 10; consider the application, gather information referred to in Rule 5, peruse the written statement and other documentary evidence, if any, produced and the report, if any, of the officer appointed under S. 105A and after such further enquiries as it may deem necessary-(S. 72F (3A), (3B) etc. of the Act) and after giving a reasonable opportunity of being heard to "all" the persons, pass an order in accordance with S. 72F of the Act. It is seen from the records that only a final order was passed in O.A.-No. 17732 of 1976. The application was posted for filing written statement on 10-8-1977 and adjourned to 24-8-1977. On 26-5-1977 the second respondent in this appeal (5th respondent in the suit) filed a written statement stating that the Land Tribunal has already answered the matter on 31-12-1976, in O.A. No. 1234 of 1974. There was no sitting of the Tribunal on 24-8-1977. The first respondent-Devaswom filed another written statement on 24-8-1977. The matter was adjourned to 26-9-1977. On that day, the matter was part-heard and was adjourned to 17-10-1977 and on that day the order in O.A. No. 17732 of 1976 was passed. A bare perusal of the way in which the matter stood posted from time to time and was considered by the Land Tribunal would go to show that the Land Tribunal has failed to conform strictly to the procedure specified" in S. 72F of the Act and Rules 9 and 10 of the Vesting and Assignment Rules, 1970. The statutory Tribunal failed to comply with the provisions of the Act and the Rules. No order on the preliminary point, as to whether the land comprised is held by a cultivating tenant or not or that the right, title and interest of the landowner and intermediaries in respect of such holding have vested in the Government or not, seems to have been passed. It is only thereafter further proceedings for assignment and determination of compensation purchase price etc., should be pursued. That is not the way in which the Land Tribunal has proceeded in disposing of O.A. No. 17732 of 1976. The application for assignment filed under Rule 4 and the written statement filed by the parties seem to have been perused. But, it does not appear that the Land Tribunal has complied with S 72F(3A) of the Act and obtained the advice of the village committee under S. 72F(3B) of the Act. It is not clear whether any report was obtained form the officer appointed under S. 105A of the Act. The procedure contemplated by S. 72F(3A) and (3B) of the Act was not followed which is necessary before passing an order under S. 72F of the Act. The statutory tribunal failed to act in conformity with the procedure prescribed by S. 72F of the Act read with Rules 9 and 10 of the Vesting and Assignment Rules. We perused through the order of the Land Tribunal in O.A. No. 17732 of 1976 dated 17-10-1977. The order states that the notices contemplated by S. 72F of the Act were published and issued to the interested parties and the application and the written statement and evidence adduced during the enquiry were perused. There is not even a formal recital that the procedure contemplated by S. 72F(3A) and (3B) were followed. There is also no formal recital even, that the report, if any, of the officer under S. 105A of the Act was obtained. As to whether any further enquiry was made is not clear. The order passed under S. 72F does not even mention whether the advice was received from the village committee contemplated by S. 72F(3B) of the Act. We are constrained to hold that the order passed by the Land Tribunal, in the circumstances, is perfunctory and it is obvious that the provisions of the Act and the Rules have not been complied with. The fundamental principles of judicial procedure, as required by the Act, were totally contravened. In such cases, the jurisdiction of the civil court is not excluded, as stated by the Privy Council in AIR 1940 105 (Privy Council) and Ram Swarups case (AIR 1966 SC 893 [LQ/SC/1965/312] -para 17). This is another fundamental infirmity in the later decision rendered by the Land Tribunal, rendering it a nullity.

(emphasis supplied by us)

Rules 9 and 10 of the Rules as well as Section 72F of the Act were considered therein. It was held that the non compliance of the rules will result in rendering the decision a nullity. Therein also the Bench was of the view that the procedure contemplated under Sections 72F(3A) and (3B) was not followed which is necessary before passing an order u/s 72F of the Act. It was further held that the statutory tribunal failed to act in conformity with the procedure prescribed by Section 72F of the Act read with Rules 9 and 10 of the Vesting and Assignment Rules. After referring to the order passed by the Land Tribunal, the Bench found that there is not even a formal recital that the procedures contemplated by Section 72F(3A) and (3B) were followed and there is also no formal recital even that the report if any, of the officer u/s 105A of the Act was obtained and that it was also not clear whether any enquiry was made. No reference about any advice of the Village Committee was also there. Therefore, the situation herein is also similar.

43. Herein, significantly, the matter was not referred to the Village Committee and thus it prevented the Village Committee from making any enquiry after hearing the parties. No report of the authorised officer u/s 105A of the Act was called for and no further enquiry was made and the parties were not given a reasonable opportunity of hearing. Therefore, the above view taken by the Full Bench in Muhammed Hajis case (supra) will squarely apply to the facts of this case also.

44. Learned counsel for the fourth respondent, Shri Muraleedhara Kaimal submitted that the land Tribunal was not obliged to comply with these procedures, in the absence of any formal objection by the Board.

45. We will now refer to the report of the Special Village Officer which has been produced along with Annexure-I report as well as by the fourth respondent in the counter affidavit and the Board as Annexure X4 along with the reply affidavit: The report is dated 13.6.1977. It is in a printed form and some details have been filled up against the relevant columns. Column 13 requires to attach the copy of the Devaswom Settlement Register, in the case of incorporated Devaswoms. It has not been produced. Instead of the same, it is mentioned that "the annuity application from the Devaswom Board is attached." But the same is also not attached to it as rightly pointed out by the learned Standing Counsel for the Board and learned counsel appearing for the Temple Advisory Committee. We have also perused the original files of the Land Tribunal wherein also no such application has been attached. The said recital is an incorrect one. Further, there is no question of submitting an annuity application to claim annuity before the Special Village Officer, as rightly pointed out by the learned Standing Counsel for the Board. Against column 13, what is stated is that out of the total extent of 2.26 acres, 2.01 acres is in the possession of Shri Narayanan Nair and the rest, viz. 25 cents is set apart for the Temple and the pathway. This alone is the report. Along with the said report, the copy of the settlement register and land register of the Devaswom have not been produced. In column 9 the rent is shown as Rs. 46.75 which is also significant, as already noticed. Therefore, even the information furnished was not full or comprehensive. Since the report is not by an authorised officer, the Land Tribunal could not have initiated the suo motu proceedings.

46. We find from the proceedings that a notice under Rule 7(1) of the Rules in Form E was issued to the Board. No copy of the report has been forwarded along with the said notice. The notice is dated 14.6.1977 and the appearance date is 20.6.1977. The order passed by the Land Tribunal is in a printed form which is dated 20.6.1977 itself. Not even formal evidence by the claimant is there in support of the claim. No further enquiries have been conducted and the order is passed on the premise that no dispute has been raised with regard to the status of the cultivating tenant. No report of the Village Committee has been called for and a report of the authorised officer u/s 105A of the Act was also not called for.

47. We are not impressed by the argument of the learned counsel for the fourth respondent that in the absence of appearance of the Board on the first posting date, the Land Tribunal was only obliged to pass a final order under Rule 10. In fact, the significant issue to be considered by the Land Tribunal was whether the right, title and interest of the landlord has been vested with the Government. In the report submitted by the Special Village Officer, the property is mentioned as "puramboke" against column 13. The requirement of column 13 is the following: "Whether the copy of the Devaswom Settlement Register has been incorporated (in respect of incorporated Devaswoms, the same should be added)". The report is made without producing the above crucial document. Therefore, this ought to have normally alerted the Land Tribunal to pass a preliminary order after granting a reasonable opportunity to the Board. But it has chosen to conclude the proceedings on the first day itself. We are fortified in this view by a decision of this Court in M.V. Mayan Vs. N.N. Ramanathan and Others, by K.S. Paripooman, J. (as he then was), which dealt with the suo motu proceedings u/s 72-C of the Act itself. The view taken therein is that in suo motu proceedings, assignment can be declined for want of proof. It was held in para 2 as follows:

Under S. 72-C of the Act, even in a case where the cultivating tenant has not made an application, it is open to the Land Tribunal to assign the right, title and interest of the land owner and intermediaries to the cultivating tenant. It can be so done only if the cultivating tenant is entitled thereto. Rules 138 to 141 of the Kerala Land Reforms (Tenancy) Rules provide for particulars to be furnished, manner of obtaining information, verification of the information and the procedure to be followed by the authorised officer. Detailed enquiry is contemplated. R. 5 of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970 permits the Land Tribunal to initiate suo motu proceedings and assign the right, title and interest, which have vested in the Government under S. 72 of the Act. But such assignment can be only to cultivating tenants "entitled thereto". S. 72-C of the Act, read along with R. 5 of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970 and also Rules 138 to 141 of the Kerala Land Reforms (Tenancy) Rules make it abundantly clear that only in cases where the tenant is entitled to the assignment, the authority can pass appropriate orders.

Emphasis was made to the effect that "but such assignment can be only to cultivating tenants entitled thereto." It was held that Section 72-C will have to be read along with Rule 5 of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970 and also Rules 138 to 141 of the Kerala Land Reforms (Tenancy) Rules. Rules 138 to 141 of the Tenancy Rules deal with the procedure to be followed by the authorised officer to obtain information and to conduct enquiries with notice to all parties, before filing the report.

48. Even if no preliminary order is passed, Rule 10 of the Rules obliges the Land Tribunal to conduct further enquiries. The question is whether the procedure prescribed for reference of the matter to the Village Committee and for getting the report of the authorised officer can be dispensed with by the Land Tribunal, that too so lightly. We cannot agree with the argument of the learned counsel for the fourth respondent that the absence of objection at the first posting itself will normally result in a favourable order to the party concerned. In fact, 20.6.1977 was the first posting date. No reference about the claimant or his presence on that day, is there in the order. He has also not filed any claim statement.

49. Another crucial aspect that was lost sight of by the Land Tribunal is that the property belonged to the Devaswom. Therefore, the Land Tribunal had to examine whether the land will come under the exempted category u/s 3(1)(x) of the Act for which no information was sought for. This aspect was never verified also. The Tribunal will get jurisdiction only after satisfying about the conditions u/s 3(1)(x) of the Act. The proviso to the said section relied upon by the learned counsel for the fourth respondent does not also save the situation as what is intended in the proviso is 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." Herein, there was no contract of tenancy in favour of the predecessor-in-interest of the fourth respondent and it was elementary for the Land Tribunal to consider whether it is having jurisdiction in the matter, which was also not verified. The Land Tribunal also did not consider whether the report of the Special Village Officer is correct or not and whether it can be accepted, as he is not authorised by the Government by way of a notification. Therefore, the entire procedure adopted by the Land Tribunal is illegal and the order passed is a nullity in the light of the decision of the Full Bench in Muhammed Hajis case (1993 (1) KLT 227-FB).

50. The next aspect is whether the exemption u/s 3(1)(x) will apply. What is mentioned under the provision is that the tenancies in respect of sites, tanks and premises of any Temple, etc. are exempted. The contention by the fourth respondent is that now there is a structure (kayyala) separating the extent of 2.01 acres from the remaining extent of 25 cents.

51. As far as the property herein is concerned, the land register and the settlement register produced herein are relevant. The property having the entire extent of 2.26 acres is described as kavu (holy grove) in the settlement register. In the land register also it is described as kshethram irippu sthalam (property where the temple is situated). No other document or other evidence is there to prove the contrary. Therefore, these documents will definitely show that the item of property will fit in with the requirement of Section 3(1)(x) of the Act. When the right to take usufructs from the trees standing in 2.01 acres was put in public auction, temple structures were situated in the 25 cents. That by itself cannot affect the character and description of the entire extent as Temple Premises. In this context, learned counsel for the Board relied upon a decision of a learned Single Judge of this Court in Madhaviv. Maheswaran Namboodiri (1987 (2) KLT 759)::1987 ICO 1648 wherein the requirement u/s 3(1)(x) was considered. There the description of the property was as Ambalaparambu. We extract para 2 therein for easy reference:

The description of the property even in the records is Ambala Paramba meaning temple premises. The features of the temple and the properties as borne put by the records including a very elaborate report of the Advocate Commissioner would fully justify the view taken by the authorities below. The sacrificial stone (that would be the literal translation of Balikallu), Sastha Temple in close proximity, temple well, the basement of Kuthambalam, compound wall, Astabalikallus, the sites for offering devotion like Namaskaramandapa, the daily lighting (Nithya Vilakku), and other adjuncts and appurtenance would add up to all that is attributed to a Kerala Temple. Due to many changes in the social and economical field, the temples and families which own them have become crisis-ridden financially, Crumbling walls, gloomy corridors, ill--lit: lamps, and neglected routines, present the tragic sight of such-temples. Some little support is forthcoming from the spontaneous reaction of the devotees of the locality. Quite often, they provide an ad hoc administration and conduct their yearly festivals. The adversities which have befallen these religious institutions, had not deprived them of the status of a temple, and the premises, the position of temple sites. I had occasion to consider some attributes of the temple in the light of earlier judgments in OP 5720 of 1986-E. Judged by these principles laid down therein, I have no hesitation to hold that there was a temple and the land in the proceedings before the authorities below were temple premises.

The situation herein is also similar, as in the land register the property is described as kshetnram irippu sthalam, clearly meaning "temple premises". Therefore, no amount of argument, without any iota of evidence will help the fourth respondent to show that the land does not come within the purview of temple premises for the purpose of Section 3(1)(x) of the Act.

52. In this context we will also refer to another decision of this Court relied upon by the learned counsel for the fourth respondent, viz. Travancore Devaswom Board v. Sasidharan Pillai (1988 (2) KLT SN page 63, C. No. 91). Therein, Section 3(1)(x) of the Act came up for consideration. For easy reference, we extract the said provision herein:

3. Exemptions.-- (1) Nothing in this Chapter shall apply to-- (i) to (ix), (xi) and (xii) omitted

(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.

The learned Judge has expressed the following view:

Tenancies in respect of sites, tanks and premises of any temple, -64- church or mosque form an exempted category. A tenant of such a property will not be entitled to get the benefits under Chapter II of the Act. Though tenancy in respect of a temple site is exempted under the Act, such exemption cannot be claimed to a land which is adjacent to a temple and which forms not a temple site. The exemption cannot be extended to a plot merely because it is contiguous to a temple, mosque or church. To get exemption for such plots it must further be established that religious ceremonies are conducted there. If there is no evidence to hold that a property adjacent to a temple is not used for conducting religious ceremonies, it will not come under S. 3(1)(x) of the Act.

The above view happened to be taken in the special facts of the said case, as evident from para 3 of the full text of the judgment. Therein, the learned Judge has observed as follows:

In the case in hand there is no evidence that any religious ceremonies are conducted in the property in dispute. The property is on the western side of the temple. Of course, the distance from the temple and the property is only about 50 feet. The temple faces east and on the eastern side of the temple there is a vacant plot. Then there is a road and on the eastern side of the road also temple has a property. The property claimed by the first respondent though lies on the western side of the temple is not on the same level as that of the temple site. There is sufficient evidence in the case that cultivation of tapioca, ginger, etc. has been done in the property. Revenue Inspectors report discloses various cultivation in the property.

We are of the view that the provision clearly exempts tenancies in respect of sites, tanks and premises of any temple. The words "including sites belonging to a temple, mosque or church on which religious ceremonies are conducted" cannot be understood as limiting the scope of the first limb, viz. "premises of any temple" and it cannot be said that for attracting exemption, invariably the property should be used for religious ceremonies. When the word "include" is there in a definition clause, it actually enlarges the meaning of words or phrases occurring in the body of the statutory provision. This legal position has been explained by the Apex Court in various decisions and the true legal effect of the word include has been analysed by the Apex Court in Regional Director, Employees State Insurance Corporation Vs. High Land Coffee Works of P.F.X. Saldanha and Sons and Another, their Lordships have held as follows:

...The word "include" in the statutory definition is generally used to enlarge the meaning of the preceding words and it is by way of extension, and not with restriction. The word include is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used, these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include. (See (i) Strouds Judicial Dictionary, 5th edn. Vol. 3 p. 1263 and (ii) Commissioner of Income Tax, Andhra Pradesh Vs. Taj Mahal Hotel, Secunderabad, , (iii) The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, .

In the light of the above, it cannot be said that to get exemption for a plot within the premises and contiguous to a temple, it should be further established that religious ceremonies are conducted there. The said view taken in the above judgment cannot be said to be a true interpretation of the provision concerned and the observations by the learned Judge that "The exemption cannot be extended to a plot merely because it is contiguous to a temple, mosque or church. To get exemption it should be further established that religious ceremonies are conducted there", can only be confined to the particular facts of the said case. If such a test is applied, then even if the property forms premises of any temple, it will go out of the purview of the exemption if proof regarding conduct of religious ceremonies are not there. Such is not the import of the inclusive term provided in the section. Therefore, we affirm the view taken in Madhavis case (1987 (2) KLT 759).

53. Herein we will refer, with advantage, to paragraph 2.4 of Chapter II of the Book "Temples of Kerala" published by the Directorate of Census Operations, Kerala, authored by Shri S. Jayashanker. Chapter 2 is under the heading "The Temple Site". It examines the various aspects regarding temple worship and other aspects. Para 2.4 is under the heading "Selection of temple site" and we extract the following under the said paragraph which will give an insight to the manner in which the site and premises of a temple will have to be understood:

All texts on Indian architecture insist on the greatest attention required for the selection of site of the House of God, as the temples are centres of Indias cultural and spiritual life. It is prescribed in sacred texts that the temple should be built on the banks of a theerthha (place of pilgrimage), river, lake, seashore, on a hill-top or mountain slope; in a forest, grove or garden; midst of a village, town or city or in any other lovely place. The availability of water exclusively for temple rites is a must. The very concept of a temple or kshethra is moksha, the final liberation. This ultimate aim adds to the importance and suitability of the site. According to Thanthra Samucchaya, a land is classified into three types based on flora, terrain, texture of soil, sope etc., i.e. utthama (best or virtuous), madhyama (ordinary) and adhama (lowest). The characteristics of the land are that it should have a level ground with trees, fruit groves, flowery plants, cows and people and with a slope towards east. A place where a river flows in clockwise direction is considered ideal. The fitness of the soil is also important and is tested in several ways. A pit is dug and the earth which has been taken out is put back again. In a descending order of quality, it then either exceeds the pit in quantity, is level with it or lower; or water is poured into the pit over night: the quality of the soil is judged according to the quantity of the water found there in the morning; or a flame put into the pit bums or else is extinguished, in the latter instance the soil is unsuitable, and has to be abandoned. These and other practical tests are described in the Brahath-Samhitha (L.II.90-92) and elsewhere, they are performed after the sound, smell, taste, shape or the consistency and colour have been examined; finally, the fertility of the soil must be tested.

With regard to the selection of site, it is noted therein as follows: " It is prescribed in sacred texts that the temple should be built on the banks of a theerthha (place of pilgrimage), river, lake, seashore, on a hill-top or mountain slope; in a forest, grove or garden; midst of a village, town or city or in any other lovely place." This has got some significance with regard to the facts of the present case also. A temple can be built in a grove or garden, etc. We have seen that the item of property involved in this case is described in the land register and settlement register as a "kavu", meaning "holy grove". Such a place is normally understood as interspersed with different items of trees, bush, creepers, etc. Therefore, the word "premises" in Section 3(1)(x) of the Act will have to be understood in that context also as far as the present case is concerned. If so, the entire extent of 2.26 acres described as a "holy grove" can safely be treated as "temple premises" for the purposes of Section 3(1)(x)-Any artificial boundary fixed by a kayyala (boundary wall) now, to separate the temple structures from the holy grove will not result in losing the importance of the entire area as "temple premises". Hence the view taken in Sasidharan Pillais case (1988 (2) KLT 63 [LQ/SC/1988/389] , C. No. 91) cannot represent the true interpretation of Section 3(1)(x) of the Act.

54. Therefore, we are clearly of the view that it is a case where exemption u/s 3(1)(x) applied and therefore no suo motu proceedings could have been initiated as the land is exempted under the provisions of the Act and that the order passed by the Land Tribunal is without jurisdiction.

55. The haste with which the order is passed also is highlighted by the learned Standing Counsel for the Board and learned counsel appearing for the Advisory Committee. We have noted from the proceedings that the posting date given was so short for the Board to appear and contest the case. The suo motu proceedings was registered on 13.6.1977. The notice was sent on 14.6.1977 which was received on 17.6.1977 and the entire proceedings were closed on 20.6.1977 without any further enquiry. Even though it is vehemently contended by the learned counsel for the fourth respondent that there is no illegality in the proceedings, we cannot agree. The Tribunal which is vested with the power to assign landlords right, cannot act like this with undue haste and throwing into the winds every mandatory statutorily fixed procedures and this has paved way for an allegation of fraud and collusion. We have noted that the Special Village Officer who has submitted the report, was also not competent. No relevant aspects were considered, no enquiries were conducted, no report u/s 105A was called for and none of the relevant rules were complied with also. Therefore, the order is clearly vitiated for these reasons also.

56. Another objection raised by the learned counsel for the fourth respondent is that the Board filed an application u/s 26 of the Act claiming arrears of rent and had also filed another application for resumption and therefore these orders will stand in the way of the contentions raised by the Board. We will now refer to those orders. First of them has been produced along with the counter affidavit of the fourth respondent dated 30.6.2009 as Annexure 2 which is an order passed in O.A.T. 131/1967. The only point considered was: "What is the amount due to the applicant" There is no discussion of the question whether the predecessor-in-interest of the fourth respondent is a cultivating tenant. Therefore, the said question was not at all decided therein. The next one is an order passed by the Land Tribunal in O.A. No. 712/1965, an application for resumption. Section 14 of the Kerala Land Reforms Act insists for filing an application for resumption along with a certificate by the Collector that the land is needed for the purpose of extending the place of public religious worship. The application was not considered on merits as the same was not accompanied by a certificate of the Collector. Therein also it is not a considered order. Therefore, it was not an order on merits. A copy of the order has been produced as Ext. R3(a). In respect of both these orders it can be seen that these proceedings were initiated before the Act 35 of 1969 came into force. The order passed by the Land Tribunal herein granting assignment is u/s 72C after Act 35 of 1969 came into force. Learned counsel for the fourth respondent wanted us to presume that tenancy is an admitted one, in the light of the above two proceedings. We find that there is no admission of any right of the predecessor in interest of the fourth respondent as a cultivating tenant therein. The matter was not considered on merits, or on the issues concerning tenancy. Therefore, these two orders will not help the fourth respondent to ward off the attack against the purchase certificate obtained by his predecessor in interest.

57. One of the points heavily relied upon by the learned Standing Counsel for the Board is that the suo motu proceedings has no legs to stand in the light of the rejection of O.A. No. 234/1970 filed by the predecessor-in-interest of the fourth respondent u/s 72B of the Act for purchase of landlords right. There was another application as O.A. No. 227/1970 filed by one Mani Chacko for assignment of an extent of 50 cents of land out of 2.01 acres. The notices issued in the above applications to the Travancore Devaswom Board have been produced along with the reply affidavit filed by the Board as Annexures X2 and X3. Even though we directed the learned Senior Government Pleader to produce the entire files concerning those cases, it is reported that they are not traceable. As rightly pointed out by the learned Standing Counsel, the fact that the predecessor-in-interest of the fourth respondent and Shri Mani Chacko did not succeed in getting orders of assignment, is clear. What is pleaded by the learned counsel for the fourth respondent is that he is not aware of any such proceedings initiated by his father. But Annexures X2 and X3 will show that such proceedings were initiated before the Land Tribunal u/s 72B of the Act Evidently, no purchase certificate has been obtained u/s 72B of the Act The notice Annexure X3 clearly gives the address of Shri Narayanan Nair as Madappillil House, Ezhumuttom P.O., Karimannoor, the same predecessor-in-interest of the fourth respondent. In the notice Annexure X2 issued in respondent the application filed by Shri Mani Chacko, the name of Shri Narayanan Nair is shown against the column of intermediary. There is no evidence of grant of purchase certificate in those proceedings in favour of Narayanan Nair and Mani Chacko. Suo motu action u/s 72C can be invoked by the Land Tribunal only if an application u/s 72B was not made.

58. The order passed by the Land Reforms Appellate Authority which are under challenge in the civil revision petitions, has not addressed any of these points. In fact, the order is dated 10.3.2011. In the last paragraph it is stated that on the said date the appellant was absent. The proceedings papers show that the respondent was also absent on the said date. After referring to the counter affidavit filed by the respondent, the appeal has been dismissed. In fact, none of the photo copies of the documents produced along with the counter affidavit has been marked in evidence and there is no appendix to the said order. We find from the records of the Appellate Authority that I.A. No. 30/2010 has been filed by the respondent producing photo copies of certain documents and the list of documents also is given. The Appellate Authority has noted in the order therein as follows: "The case dismissed for default but on merit." Learned Standing Counsel for the Board submitted that this itself will show that the Appellate Authority has not acted properly. Whatever that be, the Appellate Authority has chosen to rely upon the copy of the order in O.A.T. 712/1965 and the order dated 21.12.1988 in the re-survey proceedings to show that the fourth respondent is "in possession". One of the documents relied upon is the interim order passed by this Court in I.A. No. 2412/2009 in DBP No. 21/2009. Actually that has no relevance to the question whether the fourth respondent is a cultivating tenant. By the said interim order this Court allowed the rubber trees and ten aged and deceased coconut trees to be cut and removed with certain conditions. The fourth respondent was directed to deposit 50% of the sale proceeds before this Court. The interim order passed, was evidently subject to the final outcome of the DBP. The Appellate Authority assumed that these documents will show that the fourth respondent and his predecessor-in-interest were in possession. We have already held that mere licence without having the status and right as a cultivating tenant, will not entitle the person to claim assignment of landlords right and issuance of purchase certificate, as the scheme of the Act is totally different. Therefore, any unauthorised occupation of the land after the six year period from 1.12.1953 is over, will not cloth the fourth respondent and his predecessor-in-interest, the right as a tenant. This crucial aspect was lost sight of by the Appellate Authority. Therefore, the orders passed by the Appellate Authority are also liable to be set aside.

59. Even though learned counsel for the fourth respondent vehemently contended that the reference by the learned Ombudsman being one made after decades of issuance of the purchase certificate, cannot be considered, we find nothing wrong in the reference. It is clear that the Temple Committee had been following the matter and their complaint has resulted in the enquiry by the learned Ombudsman and furnishing of report as Annexure I by a responsible officer. The same therefore has unearthed the various details in the matter.

60. We will now come to the decisions relied upon by both sides. A Full Bench decision of this Court in Achuthan Pillai and Others Vs. State of Kerala and Others, : Achuthan Pillai and Others Vs. State of Kerala and Others, was relied upon by the learned counsel for the Temple Advisory Committee to show that in respect of matters concerning Hindu Religious Institutions and Temples, a contention regarding limitation/delay, etc. alone cannot deny the jurisdiction and hence this Court will be properly justified in considering the matter in detail. That was a case where the Full Bench considered the validity of an order passed by the Government u/s 99 of the Hindu Religious and Charitable Endowments Act, 1951 (Madras). By the said order the Government cancelled the sanction given for transfer of immovable property of a Devaswom. The initial order was passed by the Commissioner for sanction to lease 600 acres of forest land belonging to Emoor Bhagavathy Devaswom. The said order was passed in the year 1960 and the Government cancelled the same by Ext. P5 order dated 23.2.1967. The Full Bench, speaking through K.K. Mathew, J. (as he then was), traced the principles regarding the rights of an authority to protect the institution like Devaswom in order to prevent fraud. The relevant parts of the discussion contained in paragraphs 5 and 6 are extracted below:

5... The power to cancel a sanction and thereby to make null and void an improvident transfer or alienation of immovable property of a Devaswom, though exercised under the guise of revision, is visitorial in character. It is a matter of common knowledge that even from very early times religious and charitable institutions in India came under the special protection of the ruling authority. The rulers of the country always asserted their right to visit these institutions in order to prevent fraud and redress the abuses in their management. In the celebrated Rameswar Pagoda case, LR. 1 I.A. 299 it was pointed out by the Judicial Committee that the former rulers of this country always asserted the right to visit endowments of this kind to prevent and redress the abuses in their management....

6. The authorities, therefore, support the conclusion that supervision and control of Hindu Religious and Charitable Institutions is a function of government and that government at all times asserted and exercised the power. Although India is today a secular State, "that would not preclude the secular administration of religious institutions". (See the observations of B.K. Mukherjee, J. in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., ). The fact that government did not exercise the power immediately when it became aware of the circumstances vitiating Ext. P1 order cannot prejudice the interest of the devaswom. If the contention of the petitioner were to prevail, it would mean that because the government was not very vigilant in exercising the power the interest of the devaswom should suffer. S. 10 of the Limitation Act, 1963, provides no period of limitation for a suit against a person in whom the trust property has become vested for any specific purpose or against his legal representatives or assigns for the purpose of following in his or their hands such property. The reason behind the section is that an express trust ought not suffer by the misfeasance or non-feasance of a trustee....

Their Lordships were of the view that "an express trust ought not suffer by the misfeasance or non-feasance of a trustee." This principle is important in the context of this case also. The Full Bench was also of the view that "if the contention of the petitioner were to prevail, it would mean that because-the government was not very vigilant in exercising the power the interest of the devaswom should surfer." This also is significant in the context of this case. If we accept the plea of the learned counsel for the fourth respondent that the Board has approached the Appellate Authority only after a long lapse of time and is also now arguing for cancellation of the purchase certificate after a long lapse of issuance of it, definitely the same will affect adversely the interest of the Temple. The misfeasance or non-feasance of a trustee cannot affect the trust itself. Therefore, if the fourth respondent has no right to take the benefit of the purchase certificate, we are of the view that power is not lacking for this Court to interfere even if some years have passed and there was inaction on the part of the Board for certain period.

61. The Apex Court, in a recent decision reported in A.A. Gopalakrishnan Vs. Cochin Devaswom Board and Others, : A.A. Gopalakrishnan Vs. Cochin Devaswom Board and Others, , has emphasised that it is the duty of the Courts to protect and safeguard the interest and properties of the religious and charitable institutions. The Bench presided over by Chief Justice K.G. Balakrishnan (as he then was), in para 10 has held as follows:

10. 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.

(Emphasis supplied by us)

That was also a similar case wherein the alleged encroachment of Temple property was raised in a complaint filed by a devotee.

62. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. This Court therefore is the guardian of the Deity and apart from the jurisdiction u/s 103 of the Land Reforms Act, viz. the powers of revision, this Court is having inherent jurisdiction and the doctrine of parents patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Advisory Committee which was formed by the devotees of the Temple about the loss of properties of the Temple itself, the truth of the same can be gone into by this Court in these proceedings.

63. The judgment of the Apex Court in Balvant N. Viswamitra and Others Vs. Yadav Sadashiv Mule (dead) through Lrs. and Others, relied upon by the learned Standing Counsel for the Board brings out the difference between a void decree as well as illegal, incorrect or irregular decree. It has been held that "where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio." We extract paragraphs 9 and 15 of the said judgment hereunder:

9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be null and void. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings.

15. From the above decisions, it is amply clear that all irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings.

Since exemption u/s 3(1)(x) of the Act applies to Temple premises, the order passed by the Land Tribunal was totally without jurisdiction.

64. In answer to the contention by the learned counsel for the fourth respondent that the Board has acquiesced with the matter, Shri P. Gopal, learned Standing Counsel for the Board relied upon a decision of the Apex Court in Hasham Abbas Sayyad Vs. Usman Abbas Sayyad and Others, to contend that the principles of estoppel, waiver and acquiescence will not have any application in a case where the order passed by the authority is a nullity. We extract para 22 of the judgment as under:

22. The core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so. The principles of estoppel, waiver and acquiescence or even res judicata which are procedural in nature would have no application in a case where an order has been passed by the Tribunal/Court which has no authority in that behalf. Any order passed by a court without jurisdiction would be coram non judice being a nullity, the same ordinarily should not be given effect to. [See Chief Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu and Others, & M.D., Army Welfare Housing Organisation Vs. Sumangal Services Pvt. Ltd., ].

The same will definitely support the stand of the Board.

65. The Apex Court in Harshad Chiman Lal Modi Vs. DLF Universal and Another, has held that an order passed by a court which is not having any jurisdiction, is a nullity.

66. Regarding the scope of Section 103 of the Act, learned counsel for the fourth respondent relied upon a decision of the Apex Court in P.K. Mohd. Shaffi Vs. Pallath Mohd. Haji (dead) by L.Rs. and Others, and that of this Court in Gopalan Bhavani v. Raghavan Aravindakshan (1989 (2) KLT 118): 1989 ICO 1347. In P.K. Mohd. Shaffi Vs. Pallath Mohd. Haji (dead) by L.Rs. and Others, , the following observations were made in para 10:

If the appellant had adduced relevant evidence and it had been appreciated by the fact-finding tribunals in the proper legal perspective, it is not open to the High Court in exercise of revisional power to reverse the findings of the tribunals on mere re-appreciation of evidence.

According to us, the same will not help the contentions of the fourth respondent. The Apex Court was pleased to observe that if relevant evidence had been adduced and the same was appreciated by the fact finding authority in the proper perspective, in exercise of the revisional power, the same cannot be reversed. Herein, no relevant evidence was adduced by the predecessor-in-interest of the fourth respondent also. The Land Tribunal has failed to conduct any enquiry worth the same. Therefore, the said judgment will not help the contentions of the fourth respondent. Even though learned counsel relied upon the decision of this Court in Gopalan Bhavanis case (1989 (2) KLT 118, especially para 28, we find that a similar view has been taken by the Division Bench. The view taken by the Bench in the said case is clear from the following sentence:

The findings were recorded by the authorities on a proper appreciation of evidence bearing in mind the norms to be applied in appreciating the evidence to record a finding of fact.

Therefore, it was also a case where there was relevant evidence before the Tribunal. Herein, it is a case of clear absence of evidence and the right claimed by the predecessor-in-interest could not have been considered as a cultivating tenant and it was only a licence given to him by way of kuthakapattom.

67. In Mammu Vs. Hari Mohan and Another, with regard to the scope of Section 103 of the Act, the Apex Court, in para 13, has held the view that the power of revision vested in the High Court is wide and is not limited only to the questions of law or jurisdiction. We extract the relevant findings in para 13 where the above principle has been adopted:

Section 103 which provides for revision by the High Court, lays down in sub-section (3) that the High Court may after giving an opportunity to the parties to be heard, pass such orders as it deems fit and the order of the Appellate Authority or the Land Board, or the Taluk Land Board as the case may be, shall, wherever necessary, be modified accordingly. In sub-section (3), suo motu power is vested in the High Court for the purpose of satisfying itself that an order made by the Land Tribunal u/s 26 in cases where the amount of arrears of rent claimed does not exceed five hundred rupees was according to law, call for the records and pass such order with respect thereto as it thinks fit. From the afore-noted statutory provisions, it is manifest that the power of revision vested in the High Court is wide and it is not limited only to the question of law or jurisdiction. It hardly needs to be emphasised that the revisional power to disturb findings of fact or law recorded by the Land Tribunal or the Land Board or the Taluk Land Board as the case may be, (sic) only in appropriate cases in which the Court is satisfied that such interference is necessary in the interest of justice and for proper adjudication of the dispute raised by the parties.

Hence the power of revision is wide and is not limited only to the question of law or jurisdiction.

68. The decision of a learned Single Judge of this Court in Chakkan Ayyappan Vs. Narayanan Namboodiri and Others, : Chakkan Ayyappan Vs. Narayanan Namboodiri and Others, was relied upon by the learned counsel for the fourth respondent to contend that the delay in filing the appeal cannot be condoned, as the appeal was filed long after the order was passed. That was a case where this Court considered the effect of Section 5 of the Limitation Act wherein the statutory period fixed under Rule 11(2) of the Land Reforms (Tenancy) Rules, 1970 for deposit of amount while ordering resumption, was over and there was no extension of time also. It was held that "when there is an automatic cessation of time by the expiry of a period to do a thing, Section 5 is out of place." The facts are totally different.

69. Cochin Devaswam Board Vs. Captain E. M. George and Others, is a decision of the Apex Court where, with regard to Section 72 of the Act, it was held that the same is not subject to the provisions of Section 66(9) and a uniform date is fixed for vesting of the right of the landlords in all cases u/s 72 and a different date is not specified or contemplated regarding lands belonging to religious institutions. Here, the said question does not arise.

70. The decision of a learned Single Judge of this Court in Krishna Pillai v. Sreedevi Amma (1987 (1) KLT 648) : 1987 ICO 1383 is one explaining the applicability of the principles of res judicata in filing an (application for purchase of kudikidappu rights u/s 80B of the Act. There was an earlier rent control proceedings which was decided ex-parte. An application was filed before the Land Tribunal later, u/s 80B of the Act. This Court held that a party who had slept over his rights cannot be allowed to raise the same at a later stage and avoid the earlier decision on the plea of res judicata. We do not find any reason to apply the said principle here, on the facts of this case.

71. State of Punjab and Others Vs. Gurdev Singh, is a decision of the Apex Court wherein it has been held as follows:

The party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for.

The said observation was made in the case of dismissal of an employee wherein a suit for declaration is governed by Article 113 of the Constitution of India. It is only in that context the said findings were rendered.

72. Sneh Gupta Vs. Devi Sarup and Others, is another decision of the Apex Court wherein the Apex Court considered Article 123 of the Limitation Act. It was held that "party aggrieved by invalidity of order has to approach Court for relief of declaration that order against him is inoperative and not binding upon him."

73. Another decision of a learned Single Judge of this Court in Velappan v. Thomas (1979 KLT 412: 1979 ICO 920 is relied upon to contend for the position that the Land Reforms Appellate Authority constituted under the Act cannot be deemed to have the power to decide cases in which the orders are attacked on the ground of fraud or collusion.

74. In fact, we have considered the matter on the merits of the claim itself. We therefore, are of the view that the Land Tribunal has acted totally in violation of the provisions of the Act while granting purchase certificate in favour of the predecessor-in-interest of the fourth respondent.

75. One of the alternative contentions raised by the fourth respondent in the additional counter affidavit is that the land is a puramboke and therefore it is a Government land. In fact, in the first counter affidavit he himself has averred that it was owned by the Temple. As rightly pointed out by Shri R Viswanathan, learned Standing Counsel for the Board, the predecessor-in-interest of the fourth respondent obtained the right to collect usufructs in the auction conducted by the authorities of the Temple. Apart from that, in the light of Section 27 of the Travancore Cochin Hindu Religious Institutions Act and in the light of the settlement register and land register, the property is described as Temple puramboke and not Government puramboke. Further Government lands are covered by the exemption u/s 3(1)(x) of the Land Reforms Act and therefore he cannot claim any fixity of tenure. There is no claim by the Government here to the property.

76. We, therefore, have no hesitation to hold that the entire proceedings leading to the issuance of purchase certificate is illegal. Without any iota of evidence, the status of cultivating tenant has been found in favour of the predecessor-in-interest of the fourth respondent and the additional respondent in the civil revision petitions, who is the brother of the fourth respondent. Even though it is contended that the brother of the fourth respondent is not a party to DBP No. 21/2009, he is a party in the civil revision petitions and all the cases have been heard together. The fourth respondent and his brother had divided the property between themselves in terms of the will executed by their father. The decision of the Full Bench in Muhammed Haji and others Vs. Kunhunni Nair and others, , has also held that Section 72K of the Act will not save the purchase certificate. It has been held in para 23 that "Existence of a valid order u/s 72F of the Act is a prerequisite or a sine quo non for passing the consequential order u/s 72K of the Act, whereby a certificate of purchase is issued. We have held that the order passed u/s 72F of the Act is without jurisdiction and a nullity and so of no legal effect. In the result, the consequential order passed u/s 72K of the Act should also share the same fate." The same, on all fours, will apply here.

77. One of the points raised by the learned counsel for the fourth respondent is that in the resurvey conducted, notice was issued to the Board and they did not raise any objection at that point of time. In fact, in a resurvey, the question like the one herein does not arise. Now that we have held that the purchase certificate will not enure to the benefit of the predecessor-in-interest of the fourth respondent and the successors including the brother of the fourth respondent, any proceedings in the resurvey and the mutation effected in their favour cannot help them. It is well settled that the mutation of a property cannot confer title as against the real owner.

78. Therefore, we allow D.B.P. No. 21/2009 and quash the proceedings before the Land Tribunal in S.M. No. 84/1977 and the order passed by the Land Tribunal therein, produced as Annexure 3 along with the counter affidavit of the fourth respondent and the purchase certificate, which have been marked as Annexures X6 and X7 in the reply affidavit filed by the Board. In the light of the above view we have taken in D.B.P. No. 21/2009, it is un-necessary for us to deal with the matter elaborately in C.R.P. Nos. 256/2011 and 257/2011, as the said view will govern those revision petitions. We set aside the orders passed by the Appellate Authority, which are under challenge in the civil revision petitions and C.R.P. Nos. 256/2011 and 257/2011 are allowed.

79. We declare that the property having an extent of 2.01 acres in old Sy. No. 1507/4 (re-survey No. 53/8) is liable to be restored to Ezhumuttom Sree Dharma Sastha Temple. We direct the fourth respondent and his brother who is impleaded as additional fourth respondent in the civil revision petitions, to vacate the premises and hand over peaceful possession to the Board within one month from today. If not, the Special Tahsildar of the Board will initiate proceedings under the Land Conservancy Act to evict them. Appropriate changes will be made in the Revenue records also. Pursuant to the interim order passed by this Court in I.A. No. 2412/2009 an amount of Rs. One Lakh has been deposited by the fourth respondent representing 50% of the sale proceeds of the trees cut and removed. The amount has been deposited in a bank and F.D. receipt issued by the Bank of Baroda, Kalamassery, No. 176561 dated 18.9.2009 has been produced before this Court, which is evident from the order in I.A. No. 2810/ 2009 dated 24.9.2009. In the light of the order already passed by us, the amount will have to go to the Temple. Accordingly, we direct the Bank to release the amount in favour of the Board. The same will be utilised for the purpose of the Temple.

The D.B.P. and the Civil Revision Petitions are allowed as above. No costs.