Ajoy L.S. v. State of Kerala & Others (DBP No.12 of 2024)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ## **`&`** ## **`THE HONOURABLE MR. JUSTICE G. GIRISH`** ``` WEDNESDAY, THE 20[TH] DAY OF MARCH 2024 / 30TH PHALGUNA, 1945 ``` ## **`DBP NO.12 OF 2024`** ## **`IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - CHENGANNUR`** ``` MAHADEVAR TEMPLE - ENCROACHMENT OF TEMPLE LAND – SUO MOTU PROCEEDINGS INITIATED ON THE BASIS OF A COMPLAINT DATED 12.12.2023 MADE BY ONE AJOY L.S. ``` ## **`PETITIONER:`** ``` * AJOY L.S., THIRUVONAM, KEEZHCHERIMEL, CHENGANNUR P.O. - 689 121 *("SUO MOTU" CORRECTED AS ABOVE BY ORDER DATED 11.01.2024 IN DBP 12/2024) ``` ``` BY ADV SRI.GEORGE SEBASTIAN FOR THE PETITIONER ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.`** - **`2 TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM-695003.`** - **`3 DEVASWOM COMMISSIONER, NANTHANCODE, THIRUVANANTHAPURAM-695003.`** - **`4 *[SPECIAL TAHSILDAR (LAND CONSERVANCY)] TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM-695003.`** ``` *THE DESCRIPTION OF THE 4TH RESPONDENT IS CORRECTED AS 'SPECIAL TAHSILDAR (LAND CONSERVANCY)', INSTEAD OF 'SPECIAL TAHSILDAR (LR)' VIDE ORDER DATED 11/01/2024 IN DBP.12/2024 ``` 2 DBP No.12 of 2024 ``` 5 VILLAGE OFFICER, CHENGANNUR VILLAGE, NEAR CIVIL STATION, CHENGANNUR, ALAPPUZHA-689121. ``` ## **`BY ADV SANTHOSH KUMAR G`** ## **`OTHER PRESENT:`** ``` SRI S.RAJMOHAN – SR. GOVERNMENT PLEADER ``` ``` SRI G.SANTHOSH KUMAR - STANDING COUNSEL - TRAVANCORE DEVASWOM BOARD ``` ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 20.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 DBP No.12 of 2024 ## **ORDER** ## **Anil K. Narendran, J.** This DBP is registered _suo motu_ , vide proceedings dated 09.01.2024, based on a complaint dated 12.12.2023 received from one Ajoy L.S., regarding encroachment of Devaswom land of Chengannur Mahadevar Temple, which is a temple under the management of the Travancore Devaswom Board, by third parties. In the complaint, it is alleged that a Senior Secondary School affiliated to CBSE is also functioning in the temple property. The complainant has produced a copy of the relevant extract of the settlement register obtained from the Central Archives, Thiruvananthapuram and a statement showing survey numbers of the temple property, which are encroached. 2. By the order dated 08.02.2024, Registry was directed to show the name of the complainant in the complaint dated 12.12.2023 as the petitioner in this DBP. The learned Standing Counsel for Travancore Devaswom Board submitted that an affidavit of the 4[th] respondent Special Tahsildar (Land Conservancy) is being filed. The petitioner has also made another complaint dated 11.10.2023, which also relates to the encroachment of Devaswom land of Chengannur Mahadevar Temple. In that complaint, the 4 DBP No.12 of 2024 pendency of O.S.No.191 of 2010 before the Munsiff Court, Chengannur, in which the Travancore Devaswom Board has been arrayed as a defendant, has also been pointed out. 3. The 4[th] respondent has filed an affidavit dated 07.02.2024. Paragraphs 3 to 7 of that affidavit read thus; “3. It is submitted that the aforesaid DBP is registered upon the complaint lodged by one Ajoy.L.S alleging encroachment of temple land of Chengannur Mahadevar Temple. It is alleged that some residents nearby the temple and some commercial establishments have encroached upon and occupied the land belonging to the Mahadevar Temple without any lawful authority. Besides an educational institution viz. Chinmaya Vidyalaya is functioning in the temple land after grabbing the land unauthorisedly. The complainant further alleges that the School building, itself is an illegal construction and is in a dilapidated condition which may cause an imminent danger to life and property. To substantiate his contentions, regarding unauthorised occupation the complainant has furnished the copy of the relevant pages of 7[th] numbered Settlement register of Vadakkekara Pakuthi of Chengannur Taluk along with the complaint. According to the complainant, the lands comprised in Sy.Nos.117/9, 10, 11, 12, 13A, 13B, 14A, 14B, 14C, 118/1C, 2A, 2B, 2C, 4A, 5A, 5B, 6, and 10A are recorded as lands belonging to "Sarkar Chengannur Mahadevaru Kara". Similarly, in the complaint dated 11.10.2023, the complainant has alleged that a number of individuals have encroached upon an extent of 18 acres of land belonging to the Mahadeva Temple. The temple had lost an aggregate extent of 1.57 acres of lands comprised in Sy.Nos. 119/2, 119/3, 119/4A, 119/4B, 119/5-1, 119/6A, 119/6B and 119/6C by way of encroachment. 5 DBP No.12 of 2024 4. It may be noted that some individuals have instituted Civil Suit before the Munsiff's Court, Chengannur as O.S.No.191/2010 arraying the Travancore Devaswom Board as the defendant alleging encroachment of 66 acres of their land by the defendant Board. Apart from the above, the complainant casts a shadow of doubt about this respondent's bona fide in tracing out and evicting the unauthorised occupation of lands belonging to Chengannur Mahadeva Temple. 5. It is submitted that on a preliminary examination of the copy of relevant pages of 7[th] numbered Settlement register of Vadakkekara Pakuthi of Chengannur Temple, which was provided by the complainant, it is discernible that the land comprised in Sy.No.117 and it's sub divisions mentioned in the complaint which are classified in Column 5 of the Settlement register as "Sarkar-Chengannur Mahadevar Pattom" are settled in favour of Pattadars/Individuals with Patta number in Column 18. So, prima facie examination of records reveals that the lands mentioned in the complaint are already settled in the name of private individuals by due process of law. The Settlement register is self explanatory. In such a situation Section 27 of the TCHRI Act cannot be made applicable in this case. However, in case, the Travancore Devaswom Board provides Devaswom Land Register published in 1922 and other relevant documents, this respondent will make a detailed enquiry on Devaswom Land. 6. It may be noted that by virtue of complainant dated 11.10.2023, the complaint has made a specific allegation against this respondent in helping Smt. Meera Gopalakrishnan in demarcating and fixing boundary of land in a biased manner. According to the complainant, Smt.Meera Gopalakrishnan is an encroacher of 20 cents of Mahadevar temple land comprised in Sy.No.119/3. It is respectfully submitted that the allegations raised by the complainant against this respondent is absolutely baseless and hence denied. It may be 6 DBP No.12 of 2024 useful to denote briefly the details of unauthorised occupations of Chengannur Mahadevar Devaswom lands as well as the steps taken by this respondent for the resumption of such lands. On the basis of information received from the Devaswom Commissioner regarding encroachment of Devaswom lands belonging to Chengannur Mahadeva Temple on 28.09.2023, a preliminary examination of records was conducted. Thereafter, a site inspection has been carried out. After detailed survey of land as per records, three encroachments over Devaswom land were detected. Smt.C.S.Rajalekshmi, Sri.Sreekumar and the Secretary Service Cooperative Bank, Chengannur were the persons and institution found to be the unauthorised holders in possession of Devaswom lands. However, the detailed Survey conducted on 06.10.2023 reveals that Smt.Meera Gopalkrishnan doesn't possess any Devaswom land. So no further steps were taken against her. On the other hand, strictly complying with the provisions of the Land Conservancy Act and Rules thereunder, notices under Rule 11(Form C) have been issued to the aforesaid three encroachers on 08.12.2023. The return of the served copy of the said notices are awaited for the resumption of encroached lands. Earlier, after elaborate process of law under the Land Conservancy Act, an extent of 19 square metres of Chengannur Mahadevar Devaswom land situated in Block 7 comprised in Re.Sy.274/1 of Chengannur Village was resumed from the illegal possession of one Sri. Shylesh.R.Nair and handed it over to the Devaswom authorities on 14.10.2022. 7. It is further Submitted that this respondent as a responsible Government Official is duty bound to comply scrupulously the provisions of law entrusted upon by Statutes. This respondent always pays high admiration and reverence to rule of law. This respondents asserts that there are no instances of any biased approach from the part of this respondent in favouring or loathing any party at any point of time during the entire course of 7 DBP No.12 of 2024 conservancy procedure in this case. During the entire course of this case, his respondent has passionately tried to uphold the interest of the Devaswom and resorted to established and statutory ways to find out and remove unauthorised occupations. It is respectfully submitted that during the last two years, this respondent has evicted and handed over to the Devaswom officials an aggregate extent of 8.0932 hectares of lands in 43 cases. Therefore, the allegations raised against this respondent are baseless. This respondent further reserves it's right to file an additional affidavit in this matter in a later stage if found necessary and to produce the supporting documents.” 4. By the order dated 08.02.2024, Registry was directed to issue notice to the complainant intimating the next posting date, enclosing therewith a copy of the affidavit filed by the 4[th] respondent Special Tahsildar. The learned Standing Counsel sought time to file an additional affidavit of the 4[th] respondent on the complaint dated 11.10.2023 made by the petitioner. 5. On 05.03.2024, when this matter came up for consideration, the petitioner-complainant entered appearance through counsel. 6. Heard the learned counsel for the petitionercomplainant, the learned Senior Government Pleader for respondents 1 and 5 and the learned Standing Counsel for Travancore Devaswom Board for respondents for respondents 2 to 4. 8 DBP No.12 of 2024 7. In **Bharat Singh v. State of Haryana [(1988) 4 SCC 534]** the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. 8. In **M/s.Larsen and Toubro Ltd. v. State of Gujarat** **[(1998) 4 SCC 387]** the Apex Court was dealing with a case arising out of the proceedings initiated for the acquisition of land for M/s.Larsen and Toubro Ltd. under the provisions of the Land Acquisition Act, 1894. The Apex Court noticed that, in the absence 9 DBP No.12 of 2024 of any allegation that Rule 3 of the Land Acquisition (Companies) Rules, 1963 had not been complied with and there being no particulars in respect of non-compliance of Rule 4 also, it is difficult to see as to how the High Court could have reached the finding that statutory requirements contained in these Rules were not fulfilled before issuance of notification under Section 4 and declaration under Section 6 of the Land Acquisition Act. High Court did not give any reason as to how it reached the conclusion that Rules 3 and 4 had not been complied with in the face of the record of the case. Rather, it returned a finding which is unsustainable that it was "not possible on the basis of the material on record to hold that there was compliance with Rules 3 and 4". The Apex Court held that, it is not enough to allege that a particular Rule or any provision has not been complied. It is a requirement of good pleading to give details, - i.e., particulars as to why it is alleged that there is non compliance with a statutory requirement. Ordinarily, no notice can be taken on such an allegation which is devoid of any particulars. No issue can be raised on a plea, the foundation of which is lacking. Even where rule nisi is issued, it is not always for the department to justify its action when the court finds that a plea has been advanced without any substance, though ordinarily department may have to place its 10 DBP No.12 of 2024 full cards before the court. On the facts of the case, the Apex Court found that the State has more than justified its stand that there has been compliance not only with Rule 4 but with Rule 3 as well, though there was no challenge to Rule 3 and the averments - regarding non compliance with Rule 4 were sketchy and without any particulars whatsoever. High Court was, therefore, not right in quashing the acquisition proceedings. 9. In **Narmada Bachao Andolan v. State of Madhya Pradesh [(2011) 7 SCC 639]** a Three-Judge Bench of the Apex Court held that, it is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete the Court is under no obligation to entertain the pleas. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned about the questions in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that as a rule relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the 11 DBP No.12 of 2024 pleadings of the parties. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases from being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice. 10. In the instant case, the petitioner-complainant has filed a complaint dated 11.10.2023, which was followed by another complaint dated 12.12.2023 alleging encroachment of Devaswom land of Chengannur Mahadevar Temple by third parties. In the complaint dated 11.10.2023 the petitioner has pointed out the pendency of O.S.No.191 of 2010 on the file of the Munsiff Court, Chengannur, in which the Travancore Devaswom Board is the defendant. The said suit is in respect of 66 cents of land in Old Survey No.119/6A (22 cents), 119/6B (31 cents) and 119/6C (13 cents). The petitioner would point out that he has made a complaint dated 10.07.2023 before the Administrative Officer of Chengannur Mahadevar Temple regarding loss of 1.57 Acres of Devaswom land 12 DBP No.12 of 2024 in Re.Sy.No.282, Block No.7. In the complaint dated 12.12.2023, the petitioner would point out the encroachment of Devaswom land of Chengannur Mahadevar Temple by Chinmaya Vidyalaya, which is conducting a Higher Secondary School in that land. In the complaint dated 12.12.2023, the petitioner would seek interference of this Court to shift the said school from the Devaswom land. 11. The learned Standing Counsel for Travancore Devaswom Board, on instructions, would submit that the Special Tahsildar has already issued notice in Form C, on 08.12.2023, in respect of three encroachers, as stated in paragraph 6 of the affidavit dated 07.02.2024. Further proceedings will be taken without any delay. The learned counsel for the petitioner would submit that there are other encroachments in the Devaswom land of Chengannur Mahadevar Temple. 12. The issues raised in the complaints dated 11.10.2023 and 12.12.2023 regarding encroachment of the Devaswom land of Chengannur Mahadevar Temple, which are not subject matter of any suit pending before the competent civil court, can be dealt with by this Court only in a writ petition filed under Article 226 of the Constitution of India, with proper pleadings and materials, with the necessary parties in the party array. Such issues cannot be decided 13 DBP No.12 of 2024 based on complaints like the complaints dated 11.10.2023 and 12.12.2023. In such circumstances, this DBP is disposed of recording the stand taken by the Travancore Devaswom Board that proceedings have already been issued under the Kerala Land Conservancy Act against certain encroachers of the Devaswom land of Chengannur Mahadevar Temple and without prejudice to the aforesaid right of the petitioner-complainant. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** MIN