Inaction by State has given leverage to illegal encroachments by religious/charitable organisations: Kerala HC

The Kerala High Court recently observed that reprehensible inaction on the part of Government, political leaders and the society at large has given leverage to massive assaults over the large tracts of properties all over Kerala by some religious/charitable institution/organization.

The bench of Justice P Somarajan said that 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 institutions to dominate the will of Government machinery and it is injurious to our democratic system," the single judge bench stated.

The court was considering petitions relating to the 2018 Church land scam involving alleged irregularities in the sale of land belonging to the Syro-Malabar Church. Court had previously ordered the State government to conduct an enquiry into the allegations that one of the pieces of land sold by the church cardinal was originally government land that had been illegally encroached.

Court observed that there is an invisible conducive atmosphere favourable to the organized encroachers/land mafia in the state which is evident from the fact that nobody has taken up the issue so far.

Court stressed that both the State Government and the Central Government are duty-bound to follow the constitutional mandate and to preserve properties of bona vacantia and property belonging to the public at large.

"The property ostensibly obtained by such bodies/institution has to be enquired into and investigated by taking proper action against the culprits," the court said.

Therefore, stating that the present incident is only the tip of an iceberg, the court held that the state government is duty bound to 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.

Court ordered that in order to find out such incidents all over Kerala, the State Government through Chief Secretary shall constitute a State wise high-power body to conduct a survey. "It is also advisable for the State Government to legislate a state law by incorporating provision 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 suggested.

Court further directed that the State Government is bound to register cases against the erring officers and the culprits under the provisions of Land Conservancy Act.

Furthermore, the court urged the Central Government to constitute a centralized body to address the issues pertaining to the income, expenditure, acquisition and disposal of assets of charitable organization/institution and religious institutions listed in entry No.28 of concurrent list of VIIth schedule of Constitution of India.

“There is no single central legislation which lays down the law governing charity or charitable organizations in India. Now the term 'charity' is largely used to accumulate wealth and property under that guise and to give away the same without accounting the same to any responsible authority. Article 19(1)(c) of the Constitution of India guarantees the right of all citizen to form association or union, but that does not mean that it should be without any legal status or legal recognition, when involves acquisition and accumulation of large quantity of wealth and assets under the guise of charity", the Court stated.

The court has posted the matter on May 31, 2023, for further hearing.