Cherukunnu Annapoorneswari Temple of Chirakkal Kovilakam Devaswom v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 4[TH] DAY OF JULY 2022 / 13TH ASHADHA, 1944 ``` ``` W.P.(C)NO.18461 OF 2021 ``` ## **`PETITIONER:`** ``` CHERUKUNNU ANNAPOORNESWARI TEMPLE OF CHIRAKKAL KOVILAKAM DEVASWOMS REPRESENTED BY ITS EXECUTIVE OFFICER, CHIRAKKAL KOVILAKAM DEVASWOMS, KANNUR - 670 011. ``` ``` BY ADVS. ``` ``` MAHESH V RAMAKRISHNAN ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY SECRETARY TO REVENUE (DEVASWOMS) DEPARTMENT, SECRETARIAT P.O., THIRUVANANTHAPURAM - 695 001.`** - **`2 THE COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM P.O., KOZHIKODE - 675 051.`** - **`3 ASSISTANT COMMISSIONER, MALABAR DEVASWAM BOARD, THALASSERY DIVISION, THIRUVANGAD P.O., KANNUR - 670 101.`** - **`4 THE DISTRICT POLICE CHIEF, KANNUR RURAL, KANNUR P.O., KANNUR - 670 002.`** - **`5 THE CIRCLE INSPECTOR OF POLICE, KANNAPURAM POLICE STATION, P.O.KANNAPURAM, KANNUR - 670 301.`** - **`6 THE DISTRICT COLLECTOR, KANNUR P.O., KANNUR - 670 001.`** W.P.(C)No.18461 of 2021 2 - **`7 THE TAHSILDAR, KANNUR TALUK, P.O.KANNUR, KANNUR - 670 001.`** - **`8 THE VILLAGE OFFICER, KANNAPURAM, P.O.KANNAPURAM, KANNUR - 670 301.`** - **`9 RED WINGS ARTS AND SPORTS CLUB, REPRESENTED BY ITS PRESIDENT, EDAYKKEPPURAM SOUTH, KANNAPURAM P.O., CHERUKUNNU, KANNUR - 670 301.`** - **`10 SECRETARY, RED WINGS ARTS AND SPORTS CLUB, REPRESENTED BY ITS PRESIDENT, EDAYKKEPPURAM SOUTH, KANNAPURAM P.O., CHERUKUNNU, KANNUR - 670 301.`** - **`11 POONACHIKOVVAL MINI STADIUM NIRMANA COMMITTEE, REPRESENTED BY ITS AUTHORISED OFFICER, RED WINGS ARTS AND SPORTS CLUB, EDAYKKEPPURAM SOUTH, KANNAPURAM P.O., CHERUKUNNU, KANNUR - 670 301.`** ``` BY ADVS. I.V.PRAMOD K.V.SASIDHARAN ``` ## **`OTHER PRESENT:`** ``` SRI S. RAJMOHAN – SR. GOVERNMENT PLEADER SRI R . LAKSHMI NARAYAN- STANDING COUNSEL, MALABAR DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C)No.18461 of 2021 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, namely, Cherukunnu Annapoorneswari Temple of Chirakkal Kovilakam Devaswom, represented by its Executive Officer, is before this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 4 to 8 to prevent respondents 9 to 11 and their men and workers from encroaching upon the property of Cherukunnu Sree Annapoorneswari Devaswom, covered by Ext.P1 adangal extract of Re-Survey No.394/1 of Kannapuram Village in Kannur Taluk, from changing the lie and nature of property, cutting any trees from the property, making any construction in the property or converting the said property to a mini stadium, in exercise of the powers of respondents 4 to 8 under Section 94A of the Madras Hindu Religious and Charitable Endowments Act, 1951 and by the implementation of the directions contained in Ext.P5 circular dated 12.09.2014 and Ext.P6 circular dated 23.05.2015 of the 1[st] respondent State. The petitioner has also sought for a writ of mandamus commanding respondents 4 and 5 to accord adequate W.P.(C)No.18461 of 2021 4 protection to the properties of Cherukunnu Sree Annapoorneswari Devaswom from any illegal acts by respondents 9 to 11 and to ensure that the ancient property of the temple, covered by Ext.P1 adangal extract, is preserved and protected. 2. The allegations contained in paragraphs 5 to 8 of the writ petition, against respondents 9 to 11, read thus; “5. The petitioner respectfully submits that there have been frequent attempts of forceful attacks, anti-social activities and trespasses into the Devaswom properties and the petitioner herein has been trying to protect the properties from such illegal trespasses from time to time. Recently on 18.08.2021 some persons within the active support and the leadership of the respondents 9 and 10 herein started levelling the property by using JCB by trespassing into the property and by cutting trees from the property. Thereafter, they started unloading gravel in the property to convert the same into a playground. Neither the respondents 9 to 11 nor any other person has got any manner of right to enter the property, to level the property, to cut and remove trees from the property or in any manner deal with the property, which absolutely belongs to this petitioner temple. Immediately on getting information of the illegal activities of the respondents 9 to 11 mentioned above, the petitioner herein along with two workers of the temple and some local persons rushed to the spot and W.P.(C)No.18461 of 2021 5 resisted the illegal activity. However, the petitioner was threatened by the persons who were carrying out the work on behalf of respondents 9 to 11. Immediately, the petitioner lodged a police complaint dated 28.08.2021 before the 5[th] respondent seeking protection. True copy of the police complaint dated 28.08.2021 lodged by the petitioner before the 5[th] respondent is produced herewith and marked as Ext.P2. 6. The petitioner respectfully submits that the petitioner has also approached the District Collector, Kannur, the 6[th] respondent herein seeking appropriate action to preserve and protect the property under Section 94A of the Madras Hindu Religious and Charitable Endowments Act, 1951. True copy of the petition dated 26.08.2021 submitted by the petitioner before the 6[th] respondent is produced herewith and marked as Ext.P3. After the commencement of lock-down restrictions, there is no practice of issuing receipt from the office of the 6[th] respondent. In spite of the steps taken by the petitioner as mentioned above, there was no action from the side of the respondents 5, 6 or 8 to prevent the attack by respondents 9 to 11 over the temple property. 7. The petitioner respectfully submits that subsequently respondents 9 to 11 have started circulating a public notice that a committee viz., 'Ponnachikovval Mini Stadium Nirmana Committee' is formed and they are going to construct a Mini Stadium in the property and seeking financial contributions from the public for the same. The cover page of the said public notice alone was sent to the petitioner by a worshipper through whats app. True copy of the cover page only of public notice issued W.P.(C)No.18461 of 2021 6 by respondents 9 to 11 is produced herewith and marked as Ext.P4. 8. The petitioner respectfully submits that the respondents 4, 5 and 6 are legally bound to protect the properties of the temple from such attacks. The respondents 9 to 11 are highly influential persons and the authorities under the State, who are duty bound to protect the ancient properties of the temples from such attacks keep idle silently consenting such illegal activities which may ultimately result in the loss of the property from the possession of the temple forever. The property in question is a Tharisu paramba as depicted by the name itself and the same was never given to any one in any manner from the possession of the petitioner temple.” 3. On 09.09.2021, when this writ petition came up for admission, this Court admitted the mater on file. The learned Senior Government Pleader took notice for respondents 1 and 4 to 8. The learned Standing Counsel for Malabar Devaswom Board took notice for respondents 2 and 3. Urgent notice by speed post was ordered to respondents 9 to 11. This Court granted an interim order on 09.09.2021, which reads thus; “From the pleadings and materials on record and also the submissions made by the learned counsel on both sides, we find that, for the construction of a mini stadium in the land in question, a committee has formed by the 9[th] respondent, as evidenced by Ext.P4 W.P.(C)No.18461 of 2021 7 notice. There will be an interim order directing respondents 4 to 8 to ensure that there is no construction activity in the property covered by Ext.P1 Adangal Extract or cutting of trees or changing nature and lie of that property by respondents 9 to 11, for a period of two months. The learned Senior Government Pleader and also the learned Standing Counsel shall get instructions and file statement of the concerned respondents, before the next posting date.” 4. On 08.10.2021, respondents 9 and 10 entered appearance through counsel and sought time to file counter affidavit. The learned Senior Government Pleader and also the learned Standing Counsel for Malabar Devaswom Board sought time to file statement. This Court extended the interim order granted on 09.09.2021, for a period of two months. The said interim order, which was extended from time to time, is still in force. 5. On behalf of the 6[th] respondent District Collector, a statement dated 28.04.2022 has been filed. Paragraphs 2 to 5 of that statement read thus; “2. It is submitted that as per village records, an extent of 1.2667 hector (3.13 acres) of land comprised in Survey No.394/1 in Kannapuram Amsom Desom, Kannapuram Chinaclay-Edakkeppuram road passes W.P.(C)No.18461 of 2021 8 through this land. On the South side of this road Kannapuram veterinary Hospital building (Kannapuram G.P. Building No.XII-565) Kerala Khadi & Village Industries Board, Payyanur Khadi Kendram (Kannapuram G.P. Building No.XII-21), Haritha Kerala Vision, Haritha Karma Sena Office of Kannapuram G.P. exist. On the northern side of this road this land is used as burning and burial ground of various communities of Hindu religion for many decades and some buildings exist in connection with this burial purpose. An old building bearing No.XII-354 is situated in the scheduled property. Another road also passes towards north through the East inside of this property. Now the land is leveled by using gravels for a permanent structure for playground by Red Wings Arts and Sports Club, Edakkepuram South. 3. It is submitted that as per village records (A Register) name of this land is 'Ponnachi Kovval Tharissu' and Patta No. and name is '31, Cherukkunu Devaswom Ooralam Chirakkal Kovialakath Valiya Rajavu'. This land popularly known among the public is 'Ponnachi Kovval Smasanam'. Re-survey was not conducted in this village after independence and most of the land possess patta No. and name as '31, Cherukkunu Devaswom Ooralam Chirakkal Kovialakath Valiya Rajavu', but in most cases, land is in possession and enjoyment of individuals. From the official records, it is found that in 2017 'Ponnachi Kovil Service Society, President' paid land tax to an extent of 1.696 hector in this survey No.394/1. 4. It is submitted that this land is used as burning and burial ground of various communities of Hindu religion W.P.(C)No.18461 of 2021 9 for many decades. One part of the ground is used as a play ground by the public for many decades. No complaints were received against leveling of land and cutting of tree. 5. In the light of the above stated facts and circumstances, it is most humbly submitted that there is no merit in the contentions and claims raised by the petitioner in the writ petition and hence, it is prayed that the above writ petition being devoid of merits, may be dismissed.” 6. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 and 4 to 8, the learned Standing Counsel for Malabar Devaswom Board for respondents 2 and 3 and also the learned counsel for respondents 9 and 10. Despite service of notice, none appears for the 11[th] respondent. 7. The grievance of the petitioner is against respondents 9 to 11, in their attempt to convert the Devaswom land covered by Ext.P1 adangal extract of Re.Sy.No.394/1 of Kannapuram Village into a mini stadium. The fact that the land in question is a Devaswom land is not in dispute, in view of the entry in Ext.P1 adangal extract. Respondents 9 to 11 have not chosen to file counter affidavit in this writ petition. During the course of arguments, the learned counsel for respondents 9 W.P.(C)No.18461 of 2021 10 and 10 would submit that the said respondents have no intention to convert the land in question into a stadium or to make any constructions thereon. 8. '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]** . 9. 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 W.P.(C)No.18461 of 2021 11 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. 10. 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 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 W.P.(C)No.18461 of 2021 12 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 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 W.P.(C)No.18461 of 2021 13 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 Court concluded that, viewed from any angle, the compromise decree cannot be sustained and is liable to be set aside. 11. 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 W.P.(C)No.18461 of 2021 14 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. 12. 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 W.P.(C)No.18461 of 2021 15 revision, is visitorial in character. It is a matter of common knowledge that even from very early times religious and charitable institutions in India 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 judgment in **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, W.P.(C)No.18461 of 2021 16 provides no period of limitation for a suit against a person in whom the trust property has become 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. 13. 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 t** he 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 W.P.(C)No.18461 of 2021 17 Court directed that, if any 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. 14. 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 involvement of the Devaswom, securing ‘pattayam’ or such W.P.(C)No.18461 of 2021 18 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. 15. 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 there is a duty cast upon the Court to take every step to ensure that the property of the deity is protected. 16. In the instant case, the property in question is a W.P.(C)No.18461 of 2021 19 Devaswom land, as evident from Ext.P1 adangal extract of Re.Sy.No.394/1 of Kannapuram Village in Kannur Taluk. The said property, which is owned by the deity of Cherukunnu Annapoorneswari Temple of Chirakkal Kovilakom Devaswom is required to be protected and safeguarded. It is the duty of the Trustees, the officials of the Devaswom and also the officers of the Malabar Devaswom Board to take necessary steps to ensure that the property of the deity is protected and safeguarded from any wrongful claims or encroachments. In such circumstances, this writ petition is disposed of by directing respondents 1 to 8 to take necessary steps to protect the Devaswom property covered by Ext.P1 adangal extract of Re.Sy.No.394/1 of Kannapuram Village in Kannur Taluk, from any encroachment by respondents 9 to 11, their men or any other persons. The said property cannot be permitted to be converted as a mini stadium and it has to remain as Devaswom land, without any encroachment whatsoever. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** MIN W.P.(C)No.18461 of 2021 20 ``` APPENDIX OF W.P.(C)No.18461/2021 ``` ``` PETITIONER'S EXHIBITS: ``` - **`Exhibit P1`** - **`TRUE COPY OF THE ADANGAL EXTRACT OF R.S.394/1 OF KANNAPRAM VILLAGE OF KANNUR TALUK.`** - **`Exhibit P2 TRUE COPY OF THE POLICE COMPLAINT DATED 28/08/2021 LODGED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.`** - **`Exhibit P3 TRUE COPY OF THE PETITION DATED 26/08/2021 SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT.`** - **`Exhibit P4 TRUE COPY OF THE COVER PAGE ONLY OF PUBLIC NOTICE ISSUED BY RESPONDENTS 9 TO 11.`** - **`Exhibit P5 TRUE COPY OF THE CIRCULAR DATED 12/09/2014 ISSUED BY THE 1ST RESPONDENT.`** - **`Exhibit P6 TRUE COPY OF THE CIRCULAR 23/05/2015 ISSUED BY THE 1ST RESPONDENT.`** - **`Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 14/06/2019 IN WP(C) 38100 OF 2017.`** - **`Exhibit P8 TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY.`** - **`Exhibit P9 TRUE COPY OF THE PETITION DATED 03/09/2021 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT.`** ## **`RESPONDENT’S/S EXHIBITS: NIL`**