Devi S. Menon v. State of Kerala & Sree Kooodalmanikyam Devaswom & Administrator, Sree Kooodalmanikyam Devaswom & Commissioner of Devaswoms

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 7[TH] DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943** ## **W.P.(C)NO.10766 OF 2018** ## **PETITIONER/S:** **DEVI S. MENON, 83 YEARS, D/O.LAKSHMIKUTTY AMMA, AYYAMPILLY HOUSE, PADINJARE NADA, IRINJALAKUDA, THRISSUR DISTRICT. BY ADV. SRI.V.M.KRISHNAKUMAR** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEVASWOM DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 2 SREE KOODALMANIKYAM DEVASWOM, REP. BY ITS ADMINISTRATOR, OFFICE OF SREE KOODALMANIKYAM DEVASWOM, IRINJALAKUDA, THRISSUR DISTRICT, PIN-680121. 3 ADMINISTRATOR, SREE KOODALMANIKYAM DEVASWOM, OFFICE OF SREE KOODALMANIKYAM DEVASWOM, IRINJALAKUDA, THRISSUR DISTRICT, PIN-680121. 4 COMMISSIONER OF DEVASWOMS SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** ## **OTHER PRESENT:** ## **SRI S. RAJMOHAN, SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)NO.10766 OF 2018 2 ## **“CR”** ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, a devotee of Sangameswara Swami of Sree Koodalmanikyam Temple, Irinjalakuda, who owns land comprised in Survey No.657/1 of Manavalassery Village with a residential building situated therein, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent State and the 2[nd] respondent Koodalmanikyam Devaswom to consider Ext.P2 representation dated 03.03.2015 and Ext.P3 representation dated 17.10.2016, within a time limit to be fixed by this Court, after affording her an opportunity of being heard. The petitioner has also sought for a writ of certiorari to quash Ext.P5 communication dated 05.12.2017 of the 3[rd] respondent Administrator, Koodalmanikyam Devaswom, whereby she is required to remove the encroachments on 5 cents of Devaswom land comprised in Survey No.658/1 & 2 of Manavalassery Village, within a period of one week, and give vacant possession to Koodalmanikyam Devaswom, failing which legal proceedings will be initiated against her. W.P.(C)NO.10766 OF 2018 3 2. In Ext.P5, the 3[rd] respondent has pointed out that the 2[nd] respondent Devaswom had initiated proceedings against the petitioner, requiring her to remove the encroachments in the aforesaid land and give vacant possession. The petitioner challenged those proceedings by filing O.S.No.547 of 2008 before the Munsiff Court, Irinjalakuda, which has already been withdrawn. The petitioner was informed vide Ext.P4 reply dated 10.11.2016 of the 3[rd] respondent that, Devaswom land having an extent of 5 cents comprised in Survey No.658/1 & 2 of Manavalassery Village cannot be assigned to her, in view of the provisions under the Koodalmanikyam Devaswom Act, 2005, as sought for in the representations already submitted. 3. On 27.03.2018, when this writ petition came up for admission, the learned Standing Counsel for Koodalmanikyam Devaswom sought time to get instructions from respondents 2 and 3. On 13.04.2018, while granting time to the learned Standing Counsel for Devaswom to file statement, this Court has passed an interim order to maintain _status quo_ . The said interim order, which was extended from time to time, is still in W.P.(C)NO.10766 OF 2018 4 force. 4. On 19.03.2021 the petitioner filed I.A.No.1 of 2021, seeking an order directing the 1[st] respondent State to consider Ext.P2 representation dated 03.03.2015, wherein a request has been made to assign Devaswom land having an extent of 5 cents comprised in Survey No.658/1 & 2 of Manavalassery Village, on payment of the land value to be fixed by the 1[st] respondent State. 5. On 28.06.2021, when this writ petition came up for consideration, this Court passed the following order; “The recitals in Ext.P2 would reveal that the petitioner herself would admit the fact that she is not having title over the property. Earlier, O.S.No.547 of 2008 was instituted by her before the Munsiff Court, Irinjalakuda against Koodalmanikyam Devaswom. Ext.P2 would reveal that subsequently it was withdrawn. That apart, Ext.P2 would also reveal that the intention of the petitioner is to purchase the property in question. We are at loss to understand how the petitioner can claim an absolute right to purchase the property, especially when the property belongs to a Devaswom and going by the legal position, the Devaswom is only a trustee of the property of the d eity concerned, who is a perpetual minor. Though in Ext.P2 the petitioner discloses the factum of institution of an original suit and the W.P.(C)NO.10766 OF 2018 5 subsequent withdrawal of the same, the reason therefor, is not very clear from Ext.P2. In the said circumstances, the petitioner shall disclose such aspects by filing an additional affidavit. The question of extension of the order initially granted on 13.04.2018 and extended from time would be decided then. However, taking note of the fact that an interim order was passed on 13.04.2018 and it is still in force till today, we are extending the interim order passed on 13.04.2018 till 14.07.2021.” (underline supplied) Thereafter, the interim order was extended further on 13.07.2021, 19.07.2021, 05.08.2021 and 13.08.2021. 6. On 06.07.2021, the petitioner has filed I.A.No.2 of 2021 producing therewith Ext.P6 order of the Principal Munsiff Court, Irinjalakuda, in I.A.No.1225 of 2013 in O.S.No.547 of 2008, whereby she was permitted to withdraw that suit with liberty to file fresh suit on the same cause of action. It is averred in paragraph 3 of the affidavit filed before this Court, in support of I.A.No.2 of 2021, that the petitioner had earlier filed O.S.No.547 of 2008 before the Munsiff Court, Irinjalakuda, which was subsequently withdrawn. However, despite the direction contained in the order of this Court dated 28.06.2021, the petitioner has not disclosed in the said affidavit, the reason for withdrawing O.S.No.547 of 2008. W.P.(C)NO.10766 OF 2018 6 7. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for the 1[st] respondent State and the learned Standing Counsel for Koodalmanikyam Devaswom, for respondents 2 to 4. 8. The petitioner owns land comprised in Survey No.657/1 of Manavalassery Village with a residential building situated therein. By Ext.P5 communication dated 05.12.2017 of the 3[rd] respondent Administrator, which is under challenge in this writ petition, the petitioner is required to remove the encroachments on 5 cents of Devaswom land comprised in S urvey No.6 58/1 & 2 of Manavalassery Village, within a period of one week, and give vacant possession to Koodalmanikyam Devaswom, failing which legal proceedings will be initiated against her. 9. In the year 2008, the petitioner challenged the proceedings initiated by Koodalmanikyam Devaswom, requiring her to remove the encroachments in the Devaswom land comprised in Survey No.658/1 & 2 of Manavalassery Village, by filing O.S.No.547 of 2008 before the Munsiff Court, Irinjalakuda. By Ext.P6 order of the Principal Munsiff Court, W.P.(C)NO.10766 OF 2018 7 Irinjalakuda, dated 06.06.2013 in I.A.No.1225 of 2013, the petitioner was permitted to withdraw O.S.No.547 of 2008, with liberty to file fresh suit on the same cause of action. 10. The recitals in Ext.P2 representation made by the petitioner (paragraphs 4 and 5) would show that, in the survey conducted in the year 2005 it was found that she is in possession of 5 cents of Devaswom land comprised in Survey No.658/1 & 2 of Manavalassery Village and accordingly, she was issued with a notice. On receipt of that notice, she filed O.S.No.547 of 2008 before the Munsiff Court, Irinjalakuda, contending that, the measurement of Devaswom property was not properly done in the survey already conducted. During the pendency of that suit, the property was again measured, as directed by the Munsiff Court and it was found that she is in possession of the aforesaid Devaswom land having an extent of 5 cents. Therefore, the petitioner sought permission of the Munsiff Court to withdraw O.S.No.547 of 2008 and accordingly that suit was dismissed as withdrawn, by the order dated 06.06.2013, with liberty to file fresh suit on the same cause of action. As already noticed, despite the direction contained in the order of this Court dated 28.06.2021, the petitioner has W.P.(C)NO.10766 OF 2018 8 not disclosed in the affidavit filed before this Court in support of I.A.No.2 of 2021, the reason for withdrawing O.S.No.547 of 2008. 11. The recitals in Ext.P2 representation and also the averments in this writ petition would show that, the petitioner who owns land comprised in Survey No.657/1 of Manavalassery Village with a residential building situated therein, is in possession of 5 cents of Devaswom land comprised in Survey No.658/1 & 2 of Manavalassery Village. After the dismissal of O.S.No.547 of 2008, the petitioner submitted Exts.P2 and P3 representations, with an intention to purchase the said Devaswom land having an extent of 5 cents, on payment of the land value to be fixed by the 1[st] respondent State. 12. Section 11 of Koodalmanikyam Devaswom Act, 2005 deals with alienation of Devaswom properties. As per - sub-section (1) of Section 11, no movable property of non perishable nature which is in the possession of the Committee and the value of which is more than five thousand rupees and no jewellery shall be sold, pledged or otherwise alienated unless it is sanctioned by the Commissioner as being W.P.(C)NO.10766 OF 2018 9 necessary or beneficial to the Devaswom. As per sub-section (2) of Section 11, any exchange, sale, mortgage or lease of any immovable property belonging to, given or endowed for the purposes of the Devaswom shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the Devaswom. As per sub-section (3) of Section 11, before according sanction under sub-section (1) or subsection (2), the Commissioner shall publish the particulars relating to the proposed transaction in such manner as may be prescribed inviting objections and suggestions with respect thereto and shall duly consider all objections and suggestions received from the Committee or other persons having interest in the Temple. 13. As per sub-section (4) of Section 11 of the Act, the Commissioner, on according sanction under sub-section (1) or sub-section (2), may impose such conditions and give such directions as he may deem necessary regarding the utilization of the amount raised by the transaction, the investment thereof, and, in the case of mortgage, regarding the discharge of the same within a reasonable period. As per sub-section (5) of Section 11, a copy of the order made by the Commissioner W.P.(C)NO.10766 OF 2018 10 under this Section shall be communicated to the Government and to the Committee and shall be published in such manner as may be prescribed. As per sub-section (6) of Section 11, the Committee may, within three months from the date of receipt of the copy of order, and any person having interest in the temple, may, within three months from the date of publication of the order, institute a suit in the court to modify the order or to set aside it. As per sub-section (7) of Section 11, notwithstanding anything contained in sub-section (1), no antiquity belonging to the Devaswom shall be sold, pledged or otherwise alienated. As per Explanation to sub-section (7), for the purpose of this sub-section ‘antiquity’ shall have the same meaning as in the Antiquities and Art Treasures Act, 1972 14. 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, require 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 W.P.(C)NO.10766 OF 2018 11 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. 15. 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]** a Three-Judge Bench of 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. That was a case wherein the alleged encroachment of Temple property was raised in a complaint filed by a devotee. The Division Bench noticed that 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 Court is the guardian of the deity and W.P.(C)NO.10766 OF 2018 12 apart from the revisional jurisdiction under Section 103 of the Kerala Land Reforms Act, 1963, the Court is having inherent jurisdiction and the doctrine of _parens patriae_ will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the 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 the proceedings in DBP No.21 of 2009 and the CRPs filed under Section 103 of the Kerala Land Reforms Act. 16. In the instant case, the property in question, having an extent of 5 cents, comprised in Survey No.658/1 & 2 of Manavalassery Village, is Devaswom property. As per Section 2(e) of Koodalmanikyam Devaswom Act, ‘Devaswom’ means the Temple, and includes its properties and endowments and the subordinate temples attached thereto. As per Section 2(i), ‘Temple’ means Koodalmanikyam Temple at Irinjalakuda. The property in question having an extent of 5 cents is that of the deity of Sree Koodalmanikyam Temple, a perpetual minor. 17. The role of Koodalmanikyam Devaswom, its Managing Committee constituted under Section 3 of the Koodalmanikyam Devaswom Act and also the Administrator W.P.(C)NO.10766 OF 2018 13 appointed under Section 14 of the said Act, is that of a trustee in management of the properties vested in the deity, a perpetual minor. The Managing Committee is legally bound to administer, control and manage Devaswom properties in accordance with the provisions of the said Act. The Administrator and also the Commissioner shall function within the frame work of the statute. They have a duty to safeguard Devaswom properties from any wrongful claims of ownership tenancy or adverse possession. They should be vigilant to prevent any such usurpation or encroachment of Devaswom properties. Since the deity being a perpetual minor, applying the doctrine of _parens patriae_ , this Court is having inherent jurisdiction to protect and safeguard the properties of Sree Koodalmanikyam Temple from any such wrongful claims or misappropriation. In view of the provisions under sub-section (2) of Section 11 of the Act, any exchange, sale, mortgage or lease of any immovable property belonging to, given or endowed for the purposes of the Devaswom shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the Devaswom. Therefore, any sale, exchange or lease of the aforesaid Devaswom land having an W.P.(C)NO.10766 OF 2018 14 extent of 5 cents for the beneficial enjoyment of the petitioner, who owns land comprised in Survey No.657/1 of Manavalassery Village, is legally impermissible. Therefore, no interference is warranted on Ext.P5 communication issued by the 3[rd] respondent Administrator or any proceedings initiated by the 2[nd] respondent Devaswom and its Administrator, in accordance with law, to remove the encroachments on the aforesaid Devaswom land having an extent of 5 cents and for vacant possession of the said land to Koodalmanikyam Devaswom. 18. Another relief sought for in this writ petition is a writ of mandamus commanding the 1[st] respondent State and the 2[nd] respondent Koodalmanikyam Devaswom to consider Ext.P2 representation dated 03.03.2015 and Ext.P3 representation dated 17.10.2016, within a time limit to be fixed by this Court, after affording her an opportunity of being heard. 19. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. W.P.(C)NO.10766 OF 2018 15 In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. 20. As already noticed hereinbefore, the petitioner is in possession of 5 cents of Devaswom land comprised in Survey No.658/1 & 2 of Manavalassery Village. In the survey conducted in the year 2005 and also in the survey conducted during the pendency of O.S.No.547 of 2008 it was found that the petitioner is in possession of the said Devaswom land. After the dismissal of O.S.No.547 of 2008, the petitioner submitted Exts.P2 and P3 representations, with an intention to purchase the said Devaswom land, on payment of the land value to be fixed by the 1[st] respondent State, for the beneficial enjoyment of the petitioner, who owns land comprised in Survey No.657/1 of Manavalassery Village. Since any sale, exchange or lease of the aforesaid Devaswom land for the beneficial enjoyment of the petitioner, who owns land W.P.(C)NO.10766 OF 2018 16 comprised in Survey No.657/1 of Manavalassery Village, is legally impermissible, the petitioner cannot seek a writ of mandamus commanding respondents 1 and 2 for time bound consideration of the request made in Exts.P2 and P3, since no mandamus can be issued to direct respondents 1 and 2 to do something which is contrary to law. In the result, the petitioner is not entitled to any of the reliefs sought for in this writ petition. The writ petition fails and the same is accordingly dismissed. No order as to costs. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/K. BABU, JUDGE** MIN W.P.(C)NO.10766 OF 2018 17 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 PHOTOGRAPH SHOWING THE HOUSE IN WHICH PETITIONER IS RESIDING.** **EXHIBIT P2** **TRUE COPY OF THE REPRESENTATION DATED 03.03.2015 FILED BY THE PETITIONER BEFORE THE SECRETARY DEVASWOM DEPARTMENT WITHOUT ANNEXURES.** **EXHIBIT P3** **TRUE COPY OF THE REPRESENTATION DATED 17.10.2016 BEFORE THE DEVASWOM COMMISSIONER WITH COPY TO CHAIRMAN, SREE KOODALMANIKYAM DEVASWOM MANAGING COMMITTEE.** **EXHIBIT P4** **TRUE COPY OF THE LETTER DATED 10.11.2016 OF THE ADMINISTRATOR TO DEVASWOM BOARD.** **EXHIBIT P5** **TRUE COPY OF LETTER OF THE ADMINISTRATOR DATED 05.12.2017.** **EXHIBIT P6** **TRUE COPY OF THE ORDER OF THE COURT OF THE PRINCIPAL MUNSIFF, IRINJALAKUDA IN I.A.NO.1225/13 IN OS.NO.547/2008 DATED 06.06.2013.**