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Religious & Charitable Organizations Encroach Upon Govt Land, Dominate Its Will, Injure Democracy: Kerala High Court Orders Action

Navya Benny
27 Oct 2022 11:37 AM GMT
Kerala High Court
Court recommended State to enact law for periodical survey to find out encroachments.

The Kerala High Court on Thursday addressed the issue of massive encroachment upon Government properties, particularly by religious/ charitable institutions and expressed dismay at the inaction on part of the Government, political leaders and the society at large.

"A congenial environment is still in existence in the entire State of Kerala promoting encroachment over the Government land with the apparent acquisition of properties by such institutions. This has given immense wealth and authority to religious institution to dominate the will of Government machineries and it is injurious to our democratic system and the principle of equality and liberty guaranteed under the Constitution".

Justice P. Somarajan thus directed that both the State and Central Government would be duty bound to follow the Constitutional mandate and preserve properties of bona vacantia and property that belong to the public at large. The Court directed that the properties obtained by such religious or charitable bodies and institutions have to be enquired into and investigated by taking proper action against the culprits.

The State government was directed to take over all property of bona vacantia and to preserve it, remove all sorts of encroachment over the Government land, to scrutinize the validity of pattayam, if any obtained under the garb of Land Assignment Act by misusing its provisions and to conduct a survey which was to be completed within 6 months, in order to find out such incidents all over Kerala. For this purpose, the State Government through its Chief Secretary has been directed to constitute a high power body and to supervise the survey besides formation of District level body headed by the respective District Collector and revenue head of each district and the Tahsildar.

The Court added that the assistance of forest officials could also be obtained for the said purpose. The Court further recommended the enactment of a State law for periodical/ quinquennial survey so as to find out any encroachment or invasion over the property of State Government/ public property/ property of bona vacantia.

The Court further vested the State Government the responsibility to register cases against the erring officers and the culprits under the provisions of Land Conservancy Act, and added that misdeeds and mischief done by various persons/ institutions to extort the property of public ought to be investigated through the agencies available under the State Government such as Vigilance and Anti-Corruption Bureau etc.

The Issue

The issue came to light when a batch of seven cases challenging criminal action against the Major Archbishop of Syro Malabar Church reached the Court, with respect to property approximating 99.500 cents. The case related to the sale of the land, in which there were irregularities in the land deals, as the sale deed of the properties had been finalized even before receiving the payment for the same, and the property had even been undervalued in the said deed.

While disposing of the plea, the High Court had directed the Government to investigate the matter so as to satisfy itself whether the settlement deed of the year 2007 was executed with respect to any Government land or puramboke land and also the inaction on part of the concerned officials, who were bound by the provisions of law including Land Conservancy Act.

In pursuance of the above order, the Court noted today that a 'half-baked report' had been submitted by the State Government without going into the aspects of the nature of the property or even its ownership. The Court further found that the manipulation of several documents under the garb of 'Power of Attorney' had also not been addressed by the Government.

In fact, the Court found that there was no provision as such for executing a power of attorney by an inanimate body, yet they were still used 'invariably and indiscriminately' to obtain properties.

"...powers of attorney were invariably and indiscriminately used to ostensibly obtain property left out by an unincorporated charitable association by the appellation "Sisters of Destitute". The transfer of the property in favour of another unincorporated religious congregation of brothers of Roman Catholic community by name "Alexian Brothers" and power of attorney alleged to have been given by the said association in the name of one Fr.Sebastian Vadakkumpadam and the document of transfer created based on such power of attorney, though prima facie evident from the document annexed to the report, was not properly addressed. The question as to whether it is a bona vacantia property was also mystifyingly given the short shrift", the Court noted.

The Court found the transfer of property to Alexian Brother to be devoid of legal validity, and found that it came within the purview of bona vacantia. As per the events that unfurled, it could be seen from the recitals in the Sale Deed that some properties were purchased in the name of Kaderu, from whom it was purchased by the Sisters of Destitute, and from whom it was given to Alexian Brothers, without obtaining any sanction under Section 92 CPC for alienating the property held in trust by the Sisters of Destitute to the Alexian Brothers.

In fact, the Court categorically ruled that it was due to this very fact of this bona vacantia property being taken away and concealed for a long period of time, which indicated that there had been a "series of fraud" committed over the property, in total violation of Section 92 CPC, and because of which the Union Government and the CBI had been suo motu impleaded in the case.

"If it is a property obtained in trust for the benefit of destitute by an unincorporated association by name "Sisters of Destitute", it cannot simply be alienated or transferred....The property held in trust for the benefit of destitute cannot be alienated or transferred by undermining the purpose and object of the trust set up for a laudable and altruistic goal", the Court observed, noting that the property appears to have been purchased for the purposes of the benefit of destitute, in which direction the unincorporated entity Sisters of Destitute worked towards.

The Court discovered fraud at play over the property, when it found that the said property was finally settled in the name of Major Archbishop Varkey Cardinal Vidayathil by one Fr.Sebastian Vadakkumpadam, who claimed to be the power holder of "Alexian Brothers", and found the same to be violative of all cannons of law.

"Firstly, there is no provision for executing a power of attorney by an unincorporated association by name "Alexian Brothers". So the very status of the power holder Fr.Sebastian Vadakkumpadam and creation of power of attorney in his favour would tell upon what is behind it. The ostensible transfer of trust property by way of settlement deed in favour of Major Arch Bishop Varkey Cardinal Vidayathil is a clear attempt to snatch away the property of destitute held in trust which is morally repugnant, ethically heinous and absolutely erroneous and malafide. There is no scope for executing a power of attorney by an inanimate unincorporated Association especially with respect to the property acquired in trust for the benefit of destitute, for which, no explanation was given by the State Government in their report. I am at a loss to understand as to how and under what capacity an inanimate body had given a power of attorney, that too, without disclosing the legal entity or jural entity", the Court reasoned.

The Court further lamented that the State had come to the position where any person or group of persons could acquire properties under the garb of a religious name or charity, without the liability to account for it or its utilization.

The Court found that the property involved in the instant case falls under bona vacantia and reverts to the State Government, and that it was not permissible for any person or group of persons to organize any new association in the name and style of "Sisters of Destitute" to bypass the same. The Court cautioned the State government to keep vigil over the formation of of such fictitious organizations.

The Court also found that public property, puramboke land, and government property were also vulnerable to such massive and organized rapacious encroachment, thus necessitating rigorous judicial scrutiny. The court also berated the Government for the casual manner in which it had submitted its report.

"Even after the amendment to the Land Conservancy Act by incorporating penal provisions as against the revenue officials, nothing has been mentioned in the Act as to who has to take cognizance. No body has been specified therein or constituted under the said Act", the Court noted while terming the provision as "mere eyewash".

The Court further addressed the issue that while there were several judgments pertaining to illegal encroachment over the government land and the public property, the same were not implemented due to lack of an agency to proceed with the same.

"Ultimately, the judgment/order for removal of encroachment over the Government land/public property would go unattended and unimplemented", the Court observed while noting that such unsurveyed land would be liable to mischief and encroachments especially by religious organization, which would be perpetuated by obtaining pattayam under the garb of Land Assignment Act especially during the conduct of 'Pattayamela'".

The Court also critiqued the conduct of such Pattayamelas in the State for creating a 'conducive atmosphere' for organized encroachers under the guise of religious institutions.

"It is a fact that nobody will dare to touch on it or challenge it because of the political and religious power held by those institutions on account of the vote bank and it is quite easy for them to get pattayam over the said property".

The Court further added that,

"fact that nobody has taken up the issue so far and I would say nobody would have the effrontery to take up the issue against such organized encroachers, would show the existence of an invisible conducive atmosphere favourable to the organized encroachers/land mafia and the upper hand they enjoyed without challenge from any corner".

Uniform Central Legislation For Regulation Of Religious/Charitable Organizations

The Court in this light, also dwelt upon the results of the Study conducted by Ministry of Statistics & Programme in 2012, which revealed the existence of 31,74,420 non-profit institutions across India, and also that there were several other unregistered organizations. The court found that due to the absence of any legislation governing charity or charitable organizations, the term 'charity' was simply being employed to "accumulate wealth and property under that guise and to give away the same without accounting the same to any responsible authority".

While terming the incident which brought the attention of the Court to issue at hand as only a "tip of the iceberg", the Court further requested the Central Government to explore the possibility of a uniform central legislation to regulate the functioning of charitable organization/ institution and religious institutions listed in entry No.28 of List III of VIIth schedule of Constitution of India including the constitution of a centralized body to address the issues pertaining to the income, expenditure, acquisition and disposal of assets of such bodies.

The matter has been posted again on May 31, 2023.

Case Title: Cardinal Mar George Alencherry v. State of Kerala

Citation: 2022 LiveLaw (Ker) 550

Click Here To Read/Download The Order

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