Need uniform legislation, says Kerala HC, Legal News, ET LegalWorld – Legal Firms

KOCHI: The Union government should consider bringing in uniform legislation to prevent encroachment of government lands by religious and charitable institutions, the Kerala high court said in an order on Thursday.

Justice P Somarajan issued the order in the case related to the alleged encroachment of ‘bona vacantia’ (ownerless) land that was noticed by the court while hearing petitions filed by cardinal George Alencherry to quash the cases related to Syro Malabar Church land-sale row. ‘Bona vacantia’ lands belong to the government as per law.

Through a 25-page order, the court said the legal provision against the encroachment of lands belonging to the government in the Land Conservancy Act, despite an amendment, is an eyewash as no authority is specified to take action.

The term ‘charity’ is now used to accumulate wealth and to give them away without accounting the same to any authority, the order said. The constitutional right to form an association does not mean unregistered associations that involve in accumulation of large quantities of wealth and assets under the guise of charity, the court noted.

Lack of action is also due to the existence of a multitude of laws, the court pointed out while stressing the need for a uniform legislation by the union government to regulate charity and religious organizations and institutions and the organized encroachment of government lands by them. Properties belonging to the government are under threat of encroachment by religious organizations due to the lack of an agency to take action against it, the court added.

The court also said an atmosphere conducive to organized land encroachment is present in Kerala as the government conducts ‘pattayamelas’ (fairs for assigning land to the landless), which is utilized by organized encroachers, under the guise of religious and charitable organizations, to snatch away the properties from the assignees. Reducing the ban on alienation of assigned properties to seven years and then to three years also aided such land mafia, the court said. Nobody touches the subject due to the political and religious clout of the religious organizations, as they represent vote banks, the court added.

Having such a conducive atmosphere for encroachment, especially organized encroachers under the guise of religious groups, is injurious to the democratic system and goes against the right to equality, the court said while reminding that the union and state governments are duty-bound to act against this as per law.

In the order, the court said, “The legal framework governing charitable organizations in India is quite complex due to the multiplicity of legislations. The formation of a trust is designed to be on a different footing as it is not necessary to create a trust by a formal document. This would show the unavoidable necessity for a central legislation in order to regulate charitable organizations and its working. Hence, the same is placed before the Central Government so as to explore the possibility of central uniform legislation to regulate the functioning of charitable organizations/institutions and religious institutions listed in Entry No.28 of Concurrent List of VIIth Schedule of the Constitution of India.”

Within six months, the state government should form a high-power body, conduct a survey of encroachments, and file a report, the court directed. Agencies such as the VACB should be engaged to take action against the encroachers and the state government should also consider legislating, the court said.

Through the order, the court pointed out the state government has filed a half-baked report in response to the court’s directive for an enquiry into the alleged encroachment of a ‘bona vacantia’ land of around one acre by the church. The land that belonged to ‘Sisters of Destitute’ was sold to ‘Alexian Brothers’, a religious congregation of brothers of the Roman Catholic community, in 1996. The court said the property could not have been sold without sanction from a civil court as property held in trust cannot otherwise be sold. Under a power of attorney, a priest named Sebastian Vadakkumpadam conveyed the property in 2007 to Major Arch Bishop Varkey Cardinal Vidayathil.

Not only was such transfer of property of a trust through power of attorney not permissible, but it also amounted to snatching away the property of the destitute held in trust, which is morally repugnant, ethically heinous, and absolutely erroneous and malafide, the court said. It was a colossal subterfuge, the order stated while deriding the government’s inaction.