DBP No.29 of 2020 in the matter of Travancore Devaswom Board – TDB Report No.26/2020 in C.Nos.34 & 34A of 2019 – Matters Relating to Enclosing of Devaswom Land – Malayinkeezhu Devaswom Neyyattinkara Group – Suo Motu Proceedings Initiated

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` TUESDAY, THE 12[TH] DAY OF SEPTEMBER 2023 / 21ST BHADRA, 1945 ``` ``` DBP NO.29OF 2020 ``` ``` IN THE MATTER OF TRAVANCORE DEVASWOM BOARD – TDB REPORT ``` ``` NO.26/2020 IN C.NOS.34 & 34A OF 2019 – MATTERS RELATING TO THE ENCLOSING OF DEVASWOM LAND – MALAYINKEEZHU DEVASWOM NEYYATTINKARA GROUP – SUO MOTU PROCEEDINGS INITIATED - REG. ``` ``` ------------ ``` ## **`PETITIONERS:`** - **`1 RAGHAVAN NAIR, AGED 50 YEARS, SREENILAYAM, KIZHAKKENADA, MALAYINKEEZHU THIRUVANATHAPURAM (CNO.34/2019)`** - **`2 THE GENERAL SECRETARY, MALAYINKEEZHU MADHA KAVI SAMSKRITHI KENDRAM, PADMA NIVAS, MALAYINKEEZHU, THIRUVANANTHAPURAM (CNO.34A/2019)`** ``` BY ADVS.V.G.ARUN (K/795/2004) NEERAJ NARAYAN ``` - **`V.JAYA RAGI`** - **`R.HARIKRISHNAN (KAMBISSERIL)`** ## **`RESPONDENTS:`** - **`1 THE SECRETARY, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM - 695 003`** - **`2 THE EXECUTIVE ENGINEER (ESTATE DIVISION), TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM - 695 003`** - **`3 THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM - 695 003`** - **`4 THE EXECUTIVE ENGINEER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM - 695 003`** 2 DBP No.29 of 2020 ``` 5 THE LAND SPECIAL OFFICER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM - 695 003 ``` ``` R BY SRI.G. SANTHOSH KUMAR, SC, TDB SRI. S.RAJMOHAN, SR. GP, SRI.P. RAMACHANDRAN, AMICUS CURIAE ``` ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 12.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 DBP No.29 of 2020 ## **ORDER** ## Anil K. Narendran, J. This DBP is registered based on TDB Report No.26 of 2020 of the learned Ombudsman in Complaint No.34 of 2019, which was one made by the 1[st ] petitioner and three others, who are devotees of Malayinkeezhu Sree Krishna Swami Temple, which is a temple under the management of the Travancore Devaswom Board, alleging that the officials of the Travancore Devaswom Board are attempting to cut and remove the trees standing in the Devaswom land for the purpose of forming a road to the building constructed by Malayinkeezhu Madhava Kavi Samskrithi Kendram, through the Devaswom land, though there is already a pathway to that building. A copy of the complaint is marked as Annexure O1 in the TDB Report. 2. In the said complaint, the 2[nd] respondent Executive Engineer submitted Annexure O2 reply dated 28.06.2019, wherein it is stated that based on the order dated 28.07.2017 of the Travancore Devaswom Board, an auction to cut and remove the trees standing on the Devaswom land was held on 07.02.2019. However, due to the absence of the Sub Group Officer, the process could not be executed. In the statement, it is stated that if the trees standing in front of the gate of the building constructed by Malayinkeezhu Madhava Kavi Samskrithi Kendram are removed, vehicular entry is possible to that building, through the Devaswom land. It is necessary to enclose the 4 DBP No.29 of 2020 Devaswom land in front of Malayinkeezhu Sree Krishna Swami Temple, constructing a compound wall on the eastern side. Hence an estimate for Rs.1,75,000/- for the said work was prepared by the Assistant Engineer, Neyyattinkara, which has already been forwarded to the Chief Engineer (General), vide letter dated 11.03.2019. After getting sanction from the Chief Engineer, further steps will be taken. The 1[st] respondent Secretary of Travancore Devaswom Board filed Annexure O3 reply dated 02.07.2019 before the learned Ombudsman, wherein it is stated that as per the letter dated 01.07.2019 of the 5[th] respondent Land Special Officer, a date has already been fixed for inspecting the Devaswom land. In the report of the learned Ombudsman, it is stated that the Chief Engineer (General) sanctioned an estimate for Rs.2,30,000/-, for the construction of the compound wall. For contract sanction after completing the tender formalities in favour of the contractor, the Executive Engineer submitted a letter dated 03.12.2019 before the Chief Engineer (General). 3. Malayinkeezhu Madhava Kavi Samskrithi Kendram through its General Secretary, the 2[nd] petitioner herein, filed Annexure O4 complaint dated 11.12.2019 before the learned Ombudsman, which was numbered as Complaint No.34A of 2019, seeking a direction to the Travancore Devaswom Board to cut and remove the trees standing near the building of Samskrithi Kendram, in a dangerous condition. In that complaint, the 5[th] respondent Land Special 5 DBP No.29 of 2020 Commissioner submitted Annexure O5 report dated 06.01.2020, which was followed by Annexure O6 report dated 10.01.2020 of the Secretary of the Travancore Devaswom Board, wherein it is stated that on the complaint made by Samskrithi Kendram, reports have been called for from the 4[th] respondent Executive Engineer (Estate Division) and also from the 3[rd] respondent Devaswom Commissioner and after getting the reports, the matter will be considered by the Board. 4. In the TDB Report, the learned Ombudsman has stated that the only question that arises for consideration is as to whether the two trees on the temple property are standing in a dangerous condition and whether the same is required to be removed immediately. 5. On 22.06.2020, when this DBP came up for admission, notice was ordered to the petitioners. The learned Standing Counsel for the Travancore Devaswom Board took notice for the respondents. The respondents were directed to file their responses in respect of the issues involved in the DBP. 6. The notice issued to the 1[st] petitioner, i.e., the complainant in Complaint No.34 of 2019 returned unclaimed. The 2[nd] petitioner has filed an affidavit dated 13.08.2023, producing therewith Annexures A to K documents. The document marked as Annexure F is a photograph of the trees standing in front of the arch constructed by the 2[nd] 6 DBP No.29 of 2020 petitioner Samskrithi Kendram, which would prima facie show that the trees are not standing in a dangerous position. The said photograph is reproduced hereunder; **==> picture [214 x 277] intentionally omitted <==** 7. The learned Standing Counsel for Travancore Devaswom Board has placed on record an affidavit dated 18.08.2023 sworn to by the Secretary of the Board, on behalf of respondents 1 to 5, producing therewith Annexure R1(a) communication dated 07.08.2020 of the Secretary of the Board addressed to the 3[rd] respondent Devaswom Commissioner, whereby the decision taken by the Board not to cut and remove the trees standing on the Devaswom land of Malayinkeezhu Sree Krishna Swami Temple was communicated to the Devaswom Commissioner. In Annexure R1(a), it is stated that there is no necessity to cut and remove the trees since those trees are not 7 DBP No.29 of 2020 standing in a dangerous position. Further, once the trees are cut and removed it would result in the formation of a motorable road with - four wheeler access to Samskrithi Kendram. The Board took such a decision after considering the report dated 03.07.2020 of the 2[nd] respondent Executive Engineer (Estate Division) and the report dated 22.07.2020 of the 3[rd] respondent Devaswom Commissioner. 8. Heard the learned counsel for the 2[nd] petitioner and the learned Standing Counsel for the Travancore Devaswom Board for the respondents. 9. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per sub-section (3) of Section 1 of the Act, substituted by the Kerala Adaptation of Laws Order, 1956, Part I of the Act shall extend to Travancore, Part II of the Act shall extend to Cochin and Part III of the Act shall extend to the whole of the State of Kerala, excluding the Malabar District. 10. Chapter II of the Act deals with the Travancore Devaswom. As per Section 3, the administration of incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds as well as the fund constituted under the Devaswom Proclamation, 1097 ME and the surplus fund constituted 8 DBP No.29 of 2020 under the Devaswom (Amendment) Proclamation, 1122ME which were under the management of the Ruler of Travancore prior to the first day of July, 1949, except the Sree Padmanabhaswamy Temple, Sree Pandaravaka properties and all other properties and funds of the said temple, and the management of all institutions which were under the Devaswom Department shall vest in the Travancore Devaswom Board. As per sub-section (2) of Section 4, the Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board. 11. As per sub-section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per sub-section (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their jurisdiction. As per Section 15A, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious 9 DBP No.29 of 2020 institutions are performed promptly; (ii) to monitor whether the administrative officials and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions; (iv) to establish and maintain proper facilities in the temples for the devotees. Section 16 of the Act deals with supervision and control by the Board. As per Section 16, the Board shall, subject to the provisions of Part I of the Act, exercise supervision and control over the acts and proceedings of all officers and servants of the Board and of the Devaswom Department. 12. Section 27 of the Act deals with Devaswom properties. As per Section 27, immovable properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30[th] Meenam, 1097 corresponding to 12[th] April, 1922, shall be dealt with as Devaswom properties. The provisions of the Land Conservancy Act of 1091 (IV of 1091) shall be applicable to Devaswom lands as in the case of Government lands. 13. Section 31 of the Act deals with the management of Devaswoms. As per Section 31, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated, and unincorporated as 10 DBP No.29 of 2020 heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. 14. In **Payappar Sree Dharmasastha Temple Advisory Committee v. A.K. Joseph [(2009) 14 SCC 628]** , the Apex Court noticed that it is clearly mentioned in Section 27 of the TravancoreCochin Hindu Religious Institutions Act that the immovable properties entered or classed in the revenue records as Devaswom property, which is in the possession or enjoyment of the Devaswom effective from 12[th] April, 1922 shall be dealt with as Devaswom properties. On the facts of the case on hand, the Apex Court noticed that, in the suit filed by the Travancore Devaswom Board a number of documents were placed on record, namely, Exhibit A6 and Exhibit A7 Revenue Register for the period from 17.08.1949 as also other relevant documents like Exhibit A10 Kuthakapattom Register relating to the land in question, but it appears from the Judgment passed by the High Court that the High Court came to the conclusion that the Board could not produce any document which shows that the schedule property belongs to the Board. 15. '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]** 11 DBP No.29 of 2020 16. 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 ‘fence 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. 17. 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 12 DBP No.29 of 2020 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. 18. In view of the statutory provisions referred to hereinbefore and the law laid down in the decisions referred to supra, the Travancore Devaswom Board has a statutory duty to protect and safeguard the interest and properties of Malayinkeezhu Sree Krishna Swami Temple. As evident from Annexure R1(a) communication dated 07.08.2020, the Board has already decided that there is no necessity to cut and remove the trees standing in front of the arch constructed by the 2[nd] petitioner Samskrithi Kendram since those trees are not standing in a dangerous position. Further, once the trees are cut and removed it would result in the formation of a motorable road with four-wheeler access to Samskrithi Kendram through the Devaswom land of Malayinkeezhu Sree Krishna Swami Temple. 19. The learned counsel for the petitioners would submit that the right of the petitioners to challenge the decision taken by the 13 DBP No.29 of 2020 Board, as evidenced by Annexure R1(a) communication dated 07.08.2020, may be left open. 20. As already noticed hereinbefore, the 2[nd] petitioner Samskrithi Kendram filed Annexure O4 complaint dated 11.12.2019 before the learned Ombudsman, which was numbered as Complaint No.34A of 2019, seeking a direction to the Travancore Devaswom Board to cut and remove the trees standing in a dangerous condition in the Devaswom land Malayinkeezhu Sree Krishna Swami Temple, near the building of Samskrithi Kendram. Annexure F photograph of the trees standing in front of the arch constructed by the 2[nd] petitioner Samskrithi Kendram, which is reproduced hereinbefore at paragraph 6, prima facie shows that the trees are not standing in a dangerous position. As evident from Annexure R1(a) communication, the Board has also arrived at such a finding, while taking the decision that there is no necessity to cut and remove the trees standing in front of the arch constructed by the 2[nd] petitioner Samskrithi Kendram since those trees are not standing in a dangerous position. The petitioner can certainly challenge that factual finding in appropriate proceedings, in case those trees are standing in a dangerous position, likely to fall. However, that will not entitle the 2[nd] petitioner Samskrithi Kendram to - stake a claim for a motorable road with four wheeler access to the Samskrithi Kendram, through the Devaswom land of Malayinkeezhu Sree Krishna Swami Temple. 14 DBP No.29 of 2020 21. In the above circumstances, this DBP is disposed of by directing the respondents to take necessary steps to protect the Devaswom land in front of Malayinkeezhu Sree Krishna Swami Temple by constructing a compound wall on the eastern side, after complying with the required formalities. Respondents shall also take necessary steps to ensure that no Devaswom land of Malayinkeezhu Sree Krishna Swami Temple is included in the asset register of the concerned Grama Panchayat. Necessary steps in this regard shall be taken as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this order. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **VIJU ABRAHAM, JUDGE** AV 15 DBP No.29 of 2020 ## **`APPENDIX OF DBP 29/2020`** |**`PETITIONER ANNEXURES`**|| |---|---| |**`ANNEXURE-A`**|**`THE TRUE COPY OF CERTIFICATE NO.TVM/TC/`**| ||**`1451/2013 ISSUED BY THE REGISTRAR OF`**| ||**`SOCIETIES UNDER THE PROVISIONS OF THE`**| ||**`TRAVANCORE-COCHIN LITERARY SCIENTIFIC AND`**| ||**`CHARITABLE SOCIETIES REGISTRATIONS ACT, 1955`**| ||**`DATED 2-12-2013`**| |**`ANNEXURE-B`**|**`THE TRUE COPY OF SALE DEED NO. 1975 OF 2003,`**| ||**`REGISTERED AT MALAYINKEEZHU SUB REGISTRY`**| ||**`DATED 23-06-2003`**| |**`ANNEXURE-C`**|**`THE TRUE COPY OF LAND TAX RECEIPT DATED`**| ||**`02.05.2023 ISSUED BY MALAYINKEEZHU VILLAGE`**| ||**`OFFICE`**| |**`ANNEXURE-D`**|**`THE TRUE COPY OF WILL DEED NO. 6 OF THE YEAR`**| ||**`1996, REGISTERED AT MALAYINKEEZHU SUB`**| ||**`REGISTRY DATED 26-02-1996`**| |**`ANNEXURE-E`**|**`THE TRUE COPY OF THE OWNERSHIP CERTIFICATE`**| ||**`DATED 18.05.2022 ISSUED BY MALAYINKEEZHU`**| ||**`GRAMA PANCHAYAT`**| |**`ANNEXURE-F`**|**`THE TRUE PHOTOGRAPHS OF THE ARCH OF`**| ||**`MALAYINKEEZHU MADHAVA KAVI SAMSKRITHI KENDRAM`**| |**`ANNEXURE-G`**|**`THE TRUE COPY OF LETTER DATED 11.07.2017`**| ||**`FORWARDED BY SECRETARY, TRAVANCORE DEVASWOM`**| ||**`BOARD TO THE EXECUTIVE ENGINEER, ESTATE`**| ||**`DIVISION, TRAVANCORE DEVASWOM BOARD`**| |**`ANNEXURE-H`**|**`THE TRUE COPY OF LETTER DATED 29.01.2018`**| ||**`FORWARDED BY DEVASWOM COMMISSIONER TO THE`**| ||**`EXECUTIVE ENGINEER, ESTATE DIVISION FOR`**| ||**`REMOVING THE DAMAGED TREES`**| |**`ANNEXURE-I`**|**`THE TRUE COPY OF REPORT DATED 28.01.2019`**| ||**`FORWARDED BY THE SUB GROUP OFFICER,`**| ||**`MALAYINKEEZHU TO ASSISTANT DEVASWOM`**| ||**`COMMISSIONER, NEYYATTINKARA GROUP`**| 16 DBP No.29 of 2020 ``` ANNEXURE-J THE TRUE COPY OF THE REPORT FORWARDED BY INSPECTOR OF POLICE, VIGILANCE AND SECURITY OFFICE, TDB, THIRUVANANTHAPURAM TO THE SUPERINTENDENT OF POLICE, VIGILANCE AND SECURITY OFFICE, TDB DATED 01.04.2019 ANNEXURE-K THE TRUE COPY OF THE COMPLAINT DATED 11.12.2019 FILED BY THE SOCIETY BEFORE THE HON'BLE DEVASWOM OMBUDSMAN RESPONDENT ANNEXURES ANNEXURE-R1(A) TRUE COPY OF THE DECISION DATED 07/08/2020 TAKEN BY THE BOARD AND COMMUNICATED BY THE SECRETARY, TDB TO THE DEVASWOM COMMISSIONER. ```