Dhanesh Mothanga 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 G. GIRISH ``` ``` THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 ``` ## **`WP(C)NO.43944 OF 2023`** ## **`PETITIONER:`** ``` DHANESH MOTHANGA AGED 43 YEARS ``` ``` S/O DAMODARAN, CHENGAL NATTARKULAM P.O, PAZHAYANGADI, KANNUR, PIN – 670303 ``` ## **`BY ADV CHITRA JOHNSON`** ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM)DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695001 ``` ``` 2THE DISTRICT COLLECTOR COLLECTORATE, KANNUR, PIN – 670002 3MALABAR DEVAWOM BOARD REP. BY ITS SECRETARY, HOUSEFED COMPLEX, P.O. ERAHNIPALAM, KOZHIKODE, PIN – 673006 4THE COMMISSIONER , MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, P.O. ERAHNIPALAM, KOZHIKODE, PIN – 673006 ``` ``` 5SREE CHERUKUNNU ANNAPOORNESWARI DEVASWOM REPRESENTED BY ITS EXECUTIVE OFFICER, CHIRAKAL KOVILAKOM DEVASWOMS, P.O. CHIRAKKAL, KANNUR, PIN – 670011 ``` 2 W.P(C)No.43944 of 2023 ``` 6ANNAPOORNESWARI KSHETRA SEVA SAMITHI REPRESENTED BY ITS SECRETARY, SREE CHERUKUNNU ANNAPOORNESWARI DEVASWOM CHIRAKAL KOVILAKOM DEVASWOMS, P.O. CHIRAKKAL, KANNUR, PIN – 670011 ``` ``` BY ADVS. MAHESH V RAMAKRISHNAN LEENA C ``` ``` SRI S.RAJMOHAN - SR. GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION FOLLOWING: ``` 3 W.P(C)No.43944 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is a devotee of Sree Annapoorneswari Temple, which is a controlled institution under the 3[rd] respondent Malabar Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus, commanding the 2[nd] respondent District Collector, Kannur, to take appropriate steps to re-convert the paddy/wetland, which has been reclaimed unauthorisedly by the 6[th] respondent Annapoorneswari Kshetra Seva Samithi and to recover the cost from that Samithi; and a writ of mandamus, commanding respondents 2 to 5 to take immediate steps to preserve and protect the property of Sree Annapoorneswari Temple, from any illegal reclamation. 2. The grievance of the petitioner is against the illegal reclamation of paddy land belonging Sree Annapoorneswari, the deity of the 5[th] respondent Sree Cherukunnu Sree Annapoorneswari Devaswom, by the 6[th] respondent Annapoorneswari Kshetra Seva Samithi. According to the petitioner, the land belonging to the Devaswom was illegally transferred to the 6[th] respondent Samithi. Now, the Samithi is illegally reclaiming the paddy land using red soil, as evident from Ext.P1 photograph. There is a small paddy field in front of the temple, in which paddy is cultivated. The paddy 4 W.P(C)No.43944 of 2023 cultivated in the said land will be offered to the deity during ‘Niraputhari’, which is an ancient custom in the temple, which is considered to be a sacred activity. ‘Niraputhari’ will have to be discontinued, if the temple land utilised for paddy cultivation in connection with ‘Niraputhari’ is reclaimed. Aggrieved by the illegal and unauthorised reclamation of paddy land, the petitioner submitted Ext.P2 representation dated 27.11.2023 before the 2[nd] respondent District Collector; however, no action has been taken. 3. On 22.12.2023, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 and 2 and the learned Standing Counsel for Malabar Devaswom Board for respondents 3 and 4. Urgent notice on admission by speed post was ordered to respondents 5 and 6, returnable within three weeks. 4. By the order dated 22.12.2023, this Court directed the 2[nd] respondent District Collector to take necessary action on Ext.P2 representation dated 27.11.2023 made by the petitioner, with notice to the petitioner and also to the 6[th] respondent Kshetra Seva Samithi, in case there is illegal reclamation of paddy land, within 10 days from the date of production of a copy of that order. It was ordered that, till such a decision is taken, the _status quo_ as on 5 W.P(C)No.43944 of 2023 22.12.2023, in respect of the land in question shall be maintained. 5. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 and 2 and the learned counsel for respondents 5 and 6. 6. There is a change in the Standing Counsel for Malabar Devaswom Board. Since the Board is only a formal party, we deem it appropriate to dispose of this matter, without the Board being represented by a Standing Counsel. 7. '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]** 8. In **M.V. Ramasubbiar v. Manicka Narasimachara** **[(1979) 2 SCC 65]** , in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court explained the nature of the fiduciary position of the trustee and his duties and obligations. It is the duty of the trustees of the property to be faithful to the Trust and execute any document with reasonable diligence in the manner - of an ordinary prudent man of business would conduct his own af fairs. A trustee could not, therefore, occasion any loss to the Trust 6 W.P(C)No.43944 of 2023 and it is his duty to sell the property if at all that was necessary, to the best advantage. Paragraph 4 of that decision reads thus; “4. There is some controversy on the question whether defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs.21,500, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed Ext.B13 dated July 14, 1960. The fact, however, remains that Defendant 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the trust and it was his duty to sell the property, if at all that was necessary, to best advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, 7 W.P(C)No.43944 of 2023 directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee's partner or son, for that would, in fact and substance, indirectly benefit the trustee. Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner. The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law although it had a direct bearing on the controversy before it.” (underline supplied) ## 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, 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 setting up false claims of 8 W.P(C)No.43944 of 2023 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. 10. 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. The Division Bench further 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 High Court is the guardian of the deity and apart from the revisional jurisdiction under Section 103 of the Kerala Land Reforms Act, 1963, the High Court has inherent jurisdiction and the doctrine of _parens patriae_ will also apply in exercising the jurisdiction. 9 W.P(C)No.43944 of 2023 11. Sree Annapoorneswari Temple is a controlled institution under the Malabar Devaswom Board. As held in the decisions referred to supra, it is the duty of the hereditary trustee of the Devaswom to be faithful to the Devaswom and manage, protect and safeguard the interest and properties of the Devaswom, with reasonable diligence. The Malabar Devaswom Board and its officials are duty-bound to exercise their supervisory control in order to ensure that the interests and properties of the Devaswom are protected and safeguarded by its trustees and the employees of the Devaswom. Any act of ‘fence eating the crops’ should be dealt with sternly by the Board and its officials. 12. The learned counsel for the 6[th] respondent Kshetra Seva Samithi would submit that the disputed paddy land is presently owned by the Samithi. There is no reclamation of that paddy land and the Samithi has no intention to cause any obstruction to ‘Nira’ ritual of Sree Annapoorneswari Temple, which is marking the harvesting season. The learned counsel would point out that, though Ext.P2 representation was listed before the 2[nd] respondent District Collector on 01.02.2024, there was no representation for the petitioner. 13. Having considered the submissions made at the Bar, we 10 W.P(C)No.43944 of 2023 deem it appropriate to dispose of this writ petition, leaving open the legal and factual contentions raised by both sides, by directing the 2[nd] respondent District Collector to consider and pass appropriate orders on Ext.P2 representation dated 27.11.2023 made by the petitioner, with notice to the petitioner and also to respondents 5 and 6, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. Till such orders are passed, the order of _status quo_ granted by this Court on 22.12.2023 shall continue to be in force, which will not stand in the way of conducting ‘Nelluvithaykkal’ and other customary practices in the said paddy land, in connection with ‘Nira’ ritual of Sree Annapoorneswari Temple. **Sd/-** **Sd/G. GIRISH, JUDGE** vgd 11 W.P(C)No.43944 of 2023 ``` APPENDIX OF WP(C) 43944/2023 ``` ``` PETITIONER’S EXHIBITS ``` ``` EXHIBIT P1PHOTOGRAPHS OF TEMPLE LAND FILLING UP WITH RED SOIL EXHIBIT P2TRUE COPY OF REPRESENTATION PREFERRED BY THE PETITIONER TO THE 2[ND] RESPONDENT DATED 27.11.2023 ```