B. Hari Kumar & Rajesh v. State of Kerala, Travancore Devaswom Board, District Collector, Thiruvananthapuram, District Judge, Thiruvananthapuram and others (W.P.(C) No. 28710 of 2021)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 14[TH] DAY OF DECEMBER 2021/23RD AGRAHAYANA, 1943 WP(C) NO. 28710 OF 2021** ## **PETITIONERS:** - **1 B.HARI KUMAR, PRESIDENT, VELLOOR SREE KRISHNA SWAMY TEMPLE ADVISORY COMMITTEE, SARASAMANGALAM, KOTTAMPALLI, AMBALATHINKALA P.O., KATTAKKADA, THIRUVANANTHAPURAM-695572.** - **2 RAJESH, SECRETARY, VELLOOR SREE KRISHNA SWAMY TEMPLE ADVISORY COMMITTEE, SEENA BHAVAN, KOTTAMPALLI, AMBALATHINKALA P.O., KATTAKKADA, THIRUVANANTHAPURAM-695572.** **BY ADVS.R.KRISHNA RAJ E.S.SONI KUMARI SANGEETHA S.NAIR RESMI A.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, DEVASWOM HEAD QUARTERS, NANDANCODE, THIRUVANANTHAPURAM-695003.** - **3 DISTRICT COLLECTOR, THIRUVANANTHAPURAM, KERALA-695043.** -2- WP(C) NO. 28710 OF 2021 - **4 DISTRICT JUDGE, THIRUVANANTHAPURAM-695035.** - **5 LUIS,** **C/O. THANKAPPAN, ROSE BHAVAN, KOTTAMPALLI, AMBALATHINKALA P.O, KATTAKKADA, THIRUVANANTHAPURAM-695572.** - **6 SEBASTIAN,** **C/O. JNANAMUTHAN, THADATHARIKATH HOUSE, KOTTAMPALLI, AMBALATHINKALA P.O, KATTAKKADA, THIRUVANANTHAPURAM-695572.** - **7 THOMAS,** - **C/O. THANKAPPAN, BABY MANDIRAM, KOTTAMPALLI, AMBALATHINKALA P.O, KATTAKKADA, THIRUVANANTHAPURAM-695572.** - **8 ANANDA RAJ,** - **S/O. SATHYANESAN, ABHIJITH BHAVAN, PONGUMOODU, KOOVALASSERY P.O., THIRUVANANTHAPURAM-695512.** - **9 AMBIKA,** - **W/O. ANANDA RAJ, ABHIJITH BHAVAN, PONGUMOODU, KOOVALASSERY P.O., THIRUVANANTHAPURAM-695512.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- WP(C) NO. 28710 OF 2021 ## **JUDGMENT** ## Anil K. Narendran, J. The 1[st] petitioner is the President of Velloor Sree Krishna Swamy Temple Advisory Committee and the 2[nd] petitioner is its Secretary. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 4 to protect the land of the minor Deity of Velloor Sree Krishna Swamy Temple, having an extent of 3.93 Acres situated in Survey Nos.1289, 2616, 2619, 2620 and 2621 of Kulathummal Village, which belongs to said temple, and maintain the same by evicting all encroachers including respondents 5 to 9 and take appropriate steps to secure the said property by protecting it from encroachers and ensure that the said property is exclusively being used for temple purposes, in the light of Ext.P4 order dated 05.07.2018 of the Apex Court in W.P.(C)No.649 of 2018. 2. Going by the averments in the writ petition, the temple property having an extent of 3.93 Acres situated in Survey Nos.1289, 2616, 2619, 2620 and 2621 of Kulathummal Village is clearly recorded in the Settlement -4- WP(C) NO. 28710 OF 2021 Register and in the Litho map as one belongs to the Deity of Velloor Sree Krishna Swamy Temple. In the writ petition, it is alleged that the said property is being encroached upon by the party respondents. The document placed on record as Ext.P5 is a petition dated 17.11.2021 submitted by the petitioners before the District Judge, Thiruvananthapuram in terms of the direction contained in the order of the Apex Court dated 05.07.2018 in W.P.(C)No.649 of 2018. 3. Heard the learned counsel for the petitioners, the learned Senior Government Pleader for respondents 1 and 3 and also the learned Standing Counsel for Travancore Devaswom Board representing the 2[nd] respondent. Considering the nature of relief proposed to be granted, service of notice on the 4[th] respondent and also respondents 5 to 9 is dispensed with. 4. 'Deva' means God and 'swom' means ownership in Sanskrit and the term 'Devaswom' denotes the property of God in common parlance. [see: **Prayar Gopalakrishnan and another v. State of Kerala and others** - **2018 (1) KHC 536]** -5- WP(C) NO. 28710 OF 2021 5. In **A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]** a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such ‘ ’ acts of fences eating the crops should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. 6. In **A.A. Gopalakrishnan** , on the facts of the case on hand, the Apex Court noticed that, when Respondents 3 to 5 claimed ownership of Survey No.1043, which was the front -6- WP(C) NO. 28710 OF 2021 portion of the temple premises in the possession of the temple (in the proposal for settlement dated 06.07.2000), the Devaswom Board, instead of investigating and verifying as to how they could claim ownership over temple property, strangely agreed for a settlement under which the temple was to get Sy.No.1043 (which was a temple land already in its possession), in exchange for giving away another temple land (Sy.No.1042/2) to Respondents 3 to 5. The Board Resolution dated 29.08.2000 agreeing for the settlement proposal clearly records that Sy.No.1043 is already in the possession of the temple. Before the Apex Court, respondents 3 and 4 contended that the settlement in the suit (O.S.No.399 of 1998) was validly arrived at between them (the plaintiffs) and the Devaswom Board (the defendant), that the Devaswom Board had considered the proposal after taking legal advice and had duly passed a resolution to settle the suit. It was further contended that a decree having been made in terms of the compromise and such decree having attained finality, it cannot be questioned, interfered or set aside at the instance of a third party in a writ proceeding. They relied on the -7- WP(C) NO. 28710 OF 2021 provisons of Order XXIII, Rule 3A of the Code of Civil Procedure, 1908, which provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The Apex Court held that, the bar contained in Order XXIII, Rule 3A will not come in the way of the High Court examining the validity of a compromise decree, when allegations of fraud/collusion are made against a statutory authority which entered into such compromise. While it is true that decrees of civil courts which have attained finality should not be interfered with lightly, challenge to such compromise decrees by an aggrieved devotee, who was not a party to the suit, cannot be rejected, where fraud/collusion on the part of officers of a statutory board is made out. Further, when the High Court by the order dated 09.09.1998 had directed the Board to take possession of Sy.No.1042/2 immediately from Respondents 3 and 4 in CDB No.3 of 1996, in a complaint by another devotee, it was improper for the Board to enter into a settlement with Respondents 2 and 3, giving up the right, title and interest in Sy.No.1042/2, without the permission of the court which passed such order. The Apex -8- WP(C) NO. 28710 OF 2021 Court concluded that, viewed from any angle, the compromise decree cannot be sustained and is liable to be set aside. 7. In **Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]** a Division Bench of this Court noticed that in **A.A. Gopalakrishnan [(2007) 7 SCC 482]** the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of parents patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of properties of the Temple itself, the truth of the same can be gone into by the High Court in these proceedings. -9- WP(C) NO. 28710 OF 2021 8. In **Mohanan Nair** the Division Bench relied on the decision in **Achuthan Pillai v. State of Kerala [1970 KLT 838]** , wherein a Full Bench of this Court considered the validity of an order passed by the Government under Section 99 of the Madras Hindu Religious and Charitable Endowments Act, 1951. By the said order the Government cancelled the sanction given for transfer of immovable property of a Devaswom. The initial order, i.e., Ext.P1 order was passed by the Commissioner for sanction to lease 600 acres of forest land belonging to Emoor Bhagavathy Devaswom. The said order was passed in the year 1960 and the Government cancelled the same by Ext.P5 order dated 23.02.1967. The Full Bench traced the principles regarding the rights of an authority to protect the institution like Devaswom in order to prevent fraud. The Full Bench held that the power to cancel a sanction and thereby to make null and void an improvident transfer or alienation of immovable property of a Devaswom, though exercised under the guise of revision, is visitorial in character. It is a matter of common knowledge that even from very early times religious and charitable institutions in India -10- WP(C) NO. 28710 OF 2021 came under the special protection of the ruling authority. The rulers of the country always asserted their right to visit these institutions in order to prevent fraud and redress the abuses in their management. In the celebrated **Rameswar Pagoda case [(1874) 1 Ind App 209]** it was pointed out by the Judicial Committee that the former rulers of this country always asserted the right to visit endowments of this kind to prevent and redress the abuses in their management. The authorities, therefore, support the conclusion that supervision and control of Hindu Religious and Charitable Institutions is a function of government and that Government at all times asserted and exercised the power. The fact that Government did not exercise the power immediately when it became aware of the circumstances vitiating Ext.P1 order cannot prejudice the interest of the Devaswom. If the contention of the petitioner were to prevail, it would mean that because the Government was not very vigilant in exercising the power the interest of the Devaswom should suffer. Section 10 of the Limitation Act, 1963, provides no period of limitation for a suit against a person in whom the trust property has become -11- WP(C) NO. 28710 OF 2021 vested for any specific purpose or against his legal representatives or assigns for the purpose of following in his or their hands such property. The reason behind the section is that an express trust ought not suffer by the misfeasance or non-feasance of a trustee. 9. In **Mrinalini Padhi v. Union of India [2018 SCC OnLine SC 667]** - order dated 05.07.2018 in W.P.(C)No.649 of 2018 - the Apex Court noticed that the issue of difficulties faced by the visitors, exploitative practices, deficiencies in the management, maintenance of hygiene, proper utilisation of offerings and protection of assets may require consideration with regard to all Shrines throughout the India, irrespective of religion practiced in such shrines. It cannot be disputed that this aspect is covered by List III Item 28 of the Seventh Schedule to the Constitution of India and there is need to look into this aspect by the Central Government, apart from State Governments. Section 92 of the Code of Civil Procedure, 1908 permits a court also to issue direction for making a scheme or making an arrangement for any charitable or religious institution. Accordingly, the Apex Court directed that, if any -12- WP(C) NO. 28710 OF 2021 devotee moves the jurisdictional District Judge throughout the India with any grievance on the above aspect, the District Judge may either himself/herself or by assigning the issue/ matter to any other court under his/her jurisdiction examine above aspects and if necessary send a report to the High Court. The High Court will consider these aspects in public interest, in accordance with law, and issue such judicial directions as becomes necessary having regard to individual fact situation. 10. In **Nandakumar v. District Collector and others [2018 (2) KHC 58]** a Division Bench of this Court noticed that the legal position has been made clear by the Apex Court as to the role to be played by the High Court in exercising the ‘parens patriae’ jurisdiction in **Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]** . The said decision was referred to and relied on by a Division Bench of this Court in **Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]** . In the said circumstances, the properties of the Devaswom, if at all encroached by anybody and if any assignment/conveyance has been effected without -13- WP(C) NO. 28710 OF 2021 involvement of the Devaswom, securing ‘pattayam’ or such other deeds, the same cannot confer any right upon the parties concerned, unless the title so derived is clear in all respects. There cannot be any dispute that the remedy to retrieve such property belonging to the Devaswom is by resorting to the course stipulated in the Kerala Land Conservancy Act, 1957. 11. In **A.A. Gopalakrishnan v. Secretary, Cochin Devaswom Board [2018 (3) KHC 549]** a Division Bench of this Court found that the task undertaken by the complainant to ensure that the property of the Devaswom is protected and preserved has ultimately brought out the plain truth that the said property was sought to be appropriated by strangers and that the property in Sy.No.1042/2 has been successfully retrieved by the Devaswom, based on the intervention made by this Court and also by the Apex Court [A.A. Gopalakrishnan - (2007) 7 SCC 482]. Proceedings have to be taken to a logical conclusion in respect of the land in Sy.No. 1043 as well. This is more so since in view of the ‘parens patriae’ jurisdiction being entrusted with the Court in this regard and -14- WP(C) NO. 28710 OF 2021 there is a duty cast upon the Court to take every step to ensure that the property of the deity is protected. 12. As already noticed hereinbefore, in terms of the direction contained in the order of the Apex Court in W.P. (C)No.649 of 2018, the petitioners have already moved Ext.P5 petition before the 4[th] respondent District Judge. In such circumstances, this writ petition is disposed of by directing the 4[th] respondent District Judge to consider Ext.P5 petition submitted by the petitioners, in terms of the directions contained in the order of the Apex Court in W.P. (C)No.649 of 2018 and also the law laid down in the decisions referred to supra, with notice to the petitioners, the 2[nd] respondent Travancore Devaswom Board, the 3[rd] respondent District Collector and also respondents 5 to 9 and other affected parties, if any, and forward a report to this Court, as expeditiously as possible, at any rate, within a period of four months from the date of production of a certified copy of this judgment. It is made clear that this Court has not expressed anything on the merits of the claim made by the petitioners in -15- WP(C) NO. 28710 OF 2021 Ext.P5 petition and it would be open to respondents 5 to 9 or any other affected parties, if any, to raise appropriate legal and factual contentions before District Judge. **Sd/ANIL K.NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV/15/12 -16- WP(C) NO. 28710 OF 2021 ## **APPENDIX OF WP(C) 28710/2021** **PETITIONER EXHIBITS** **Exhibit P1 COPY OF THE SETTLEMENT REGISTER DATED NIL. Exhibit P2 COPY OF THE LITHO MAP DATED 14.3.2007. Exhibit P3 COPY OF THE REVENUE LIST DATED NIL. Exhibit P4 COPY OF THE ORDER IN WPC.649/2018 DATED 5.7.2018. Exhibit P5 COPY OF THE PETITION DATED 17.11.2021.**