JUDGMENT

The question of law involved in this Original Petition is whether a lease hit by Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951 could be termed as an alienation so as to attract an application under SRO.No.718/78, which provides for a court fee of only `15/- for filing a suit for recovery of possession.

2. An extent of 327 acres of land belonging to Sree Emoor Bhagavathy Devaswom, Kallekulangara, Akathethara, Palakkad was taken on lease by the petitioner and seven others as per the registered lease deed dated 23.4.1969, executed between them and the trustee of the Devaswom. The lease deed authorizes cutting of trees for the purpose of planting the property with rubber. A lease rent of `5/- per acre was fixed for a period of six years from the commencement of the lease. Thereafter, an increased rent of `7.50 per acre was fixed. The lease was for a period of 36 years commencing from the date of lease.

3. The Department of Forests claimed that the property is a private forest which vested in the Government under the Kerala Private Forests (Vesting and Assignment) Act, 1971. The lessees filed applications before the Forest Tribunal claiming exemption under Section 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Forest Tribunal allowed the applications. The State and the Conservator of Forests filed M.F.A.No.567 of 1980 challenging the order passed by the Forest Tribunal. The High Court dismissed the appeal filed by the State and the Conservator of Forests. Though R.P.No.272 of 1984 was filed by the appellants therein, that was also dismissed on 23.7.1993.

4. The Government, in exercise of the powers under Section

99 of the Madras Hindu Religious and Charitable Endowments Act, 1951, issued G.O.(MS) No.238/2002 dated 20.7.2002 to cancel the lease on the ground that the lease was created contrary to Section 29 of the Act. The Government granted an opportunity of being heard to the lessees. Thereafter, a Government Order was issued, by which, the lease was cancelled. The petitioner challenged the order cancelling the lease in O.P.No.3918 of 2003, which was dismissed by the Division Bench, as per the judgment dated

24.1.2008, holding that, at any rate, the period of 36 years fixed in the lease deed had expired and, therefore, the lessees had no right to continue in possession.

5. Sree Emoor Bhagavathy Devaswom filed O.S.No.568 of

2009 on the file of the Court of the Munsiff of Palakkad for recovery of possession of the property covered by the lease. A court fee of `15/- was paid by the plaintiff, relying on SRO.718/78 issued by the Government. SRO.718/78 reads as follows:

“SRO.No.718/78:-- .... In exercise of the powers conferred by Section 75 of the Kerala Court Fees and Suits Valuation Act, 1959 (Act 10 of 1960), the Government of Kerala hereby reduce to a maximum of rupees fifteen the fee payable under the said Act in respect of suits to recover possession of immovable property belonging to the Hindu Religious Institutions coming under the purview of the Hindu Religious and Charitable Endowments (Administration) Department and which have been unauthorisedly alienated by the Trustees of the said institutions. (Notification No.14912/G4/77/Law dt. 12/07/1978, published in K.G.No.29 dt.18/07/1978.)”

6. The petitioner, in his written statement, contended that the court fee paid is not correct and therefore, the plaintiff is not entitled to the relief claimed. The court below raised issue No.3 as to whether the court fee paid is correct and answered the said issue holding that the suit is properly valued for the purpose of court fee. The abovementioned notification issued by the Government fixing the court fee as `15/- was relied on by the court below. The finding on issue No.3 is under challenge in this Original Petition.

7. Learned counsel for the petitioner submitted that the order passed by the court below is illegal and unsustainable. The counsel contended that a lease is not an