Hindu Seva Kendram v State of Kerala and Malabar Devaswom Board 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** **THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944 W.P.(C)NO.18403 OF 2021** ## **P ETITIONER:** **HINDU SEVA KENDRAM, REG NO.563/IV/2019, 68/991, 2ND FLOOR, THARAKANS COMPLEX, K.K. PADMANABHAN ROAD, KOCHI-682018, REPRESENTED BY ITS TREASURER, SREEKUMAR MANKUZHY. BY ADVS. R.KRISHNA RAJ R.PRATHEESH (ARANMULA) 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 MALABAR DEVASWOM BOARD, REPRESENTED BY DEVASWOM COMMISSIONER, OFFICE OF THE MALABAR DEVASWOM BOARD, KOZHIKODE-695033.** **3 ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, IIND FLOOR, MINI CIVIL STATION, TIRUR P.O., MALAPPURAM-676101.** - **4 DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, MALAPPURAM-676505.** - **5 DISTRICT JUDGE, COURT COMPLEX, MANJERI, MALAPPURAM-676121.** - **6 SUPERINTENDENT OF POLICE, ERNAD, MANJERI, MALAPPURAM, KERALA-676521.** W.P.(C) No.18403 of 2021 2 - **7 (ADDL.R7.THE EXECUTIVE OFFICER)* EXECUTIVE OFFICER, KADUNGOTH MAHADEVA TEMPLE, KOOTTILANGADI, MALAPPURAM-676506.** - ***(ADDL. R7 IS IMPLEADED AS PER ORDER DATED 31/1/2022 IN I.A.NO.1/2022 IN W.P. (C)NO.18403/2021).** - **8 (ADDL R8 . DIRECTORATE OF ARCHEOLOGY)* DIRECTORATE OF ARCHEOLOGY, REPRESENTED BY ITS DIRECTOR, SUNDARAVILASAM PALACE, FORT P.O., THIRUVANANTHAPURAM - 695023 *(ADDL R8 IS IMPLEADED AS PER ORDER DATED 21/3/2022 IN I.A.NO.6/2022 IN W.P. (C)NO.18403/2021.) BY ADVS.** **SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD MAHESH V. RAMAKRISHNAN FOR R7** **OTHER PRESENT:** ## **SRI. S. RAJMOHAN – SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION** **ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.18403 of 2021 3 ## **J U D G M E N T** ## **Anil K. Narendran, J** The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to protect the land of the minor deity Lord Siva, the deity of Kadungoth Siva Temple, under the control of the 2[nd] respondent Malabar Devaswom Board, having an extent of 36 cents in Sy.No.21/1 of Koottilangadi Village and maintain the same by evicting all encroachers and take appropriate steps to secure the above property by protecting it from the encroachers and take adequate steps to ensure that the above said property is exclusively used for temple purposes alone. The petitioner has also sought for a writ of mandamus commanding the respondents to take immediate steps to renovate Kadungoth Siva Temple, Koottilangadi and start daily poojas, forthwith, considering the directions contained in Ext.P2 order of the Apex Court dated 05.07.2018 in W.P.(C)No.649 of 2018. 2. Kadungoth Siva Temple is a prominent temple under the control of the 2nd respondent Malabar Devaswom Board. The W.P.(C) No.18403 of 2021 4 temple is centuries old and is presently in a dilapidated condition, without even any daily poojas. The property surrounding the temple has been encroached upon and the encroachers blocked the entry to the temple and as such, daily pooja has been discontinued. Though the temple is in a dilapidated condition, the 2nd respondent Malabar Devaswom Board is not showing any interest in recovering its properties and for conducting daily poojas. The document marked as Ext.P1 along with the writ petition is a relevant extract of the settlement register, in order to show that the temple is having land in Sy.No.21/1 of Koottilangadi Village. In the writ petition, it is alleged that since the entry to the temple is blocked by the encroachers on all sides, even daily poojas are not being conducted for the last so many years. Though the petitioner has complained about such encroachment, the respondents are not taking any action in the matter, despite the specific directions contained in Ext.P2 order of the Apex Court in W.P.(C)No.649 of 2018. 3. On 12.10.2021, when this writ petition came up for admission, the learned Senior Government Pleader and also the W.P.(C) No.18403 of 2021 5 learned Standing Counsel for Malabar Devaswom Board sought time to file statement/counter affidavit. On 06.12.2021, along with I.A.No.1 of 2021, the petitioner has placed on record few photographs of the temple. On 07.12.2021, the learned Senior Government Pleader and also the learned Standing Counsel for Malabar Devaswom Board sought time to get instructions. 4. On 15.12.2021, when this writ petition came up for consideration, the learned standing Counsel for Malabar Devaswom Board placed on record the statement on behalf of the 2[nd] respondent, wherein it is stated that Sree Kadungoth Siva Temple, Koottilangadi in Malappuram district is a public religious institution coming under the purview of Madras Hindu Religious and Charitable Endowments Act, 1951 (for brevity, 'HR & CE Act') and hence under the supervisory control of the 2[nd] respondent Board. The 2[nd] respondent has appointed an Executive Officer. The ownership of the property is vested with the Devaswom. As per the report of the Executive Officer, daily pooja was observed in the temple years back and there were employees, as revealed from the schedule of Establishment. As per the Basic Tax Register of W.P.(C) No.18403 of 2021 6 Koottilangadi Village, in Sy.No.21/1, around 36 cents of land (exempted from payment of tax) is recorded as Devaswom land. Besides, in Sy.No.3, except item Nos.1 to 8 are shown as Devaswom land. Though acres of land was seen owned by Devaswom in other survey numbers, as per revenue records, the tax exempted land is only 36 cents. The temple is facing lack of sufficient infrastructure, employees and paucity of funds to conduct daily poojas and carry out renovation works. Daily poojas were not conducted in the temple for the last so many years, due to various reasons including lack of devotees, unavailability of priests, dilapidated condition of the ancient temple and lack of proper access/road. When a group of employees/devotees attempted to restart nithyapooja years back, they have to abandon the attempt due to severe pressure from the local outfit. 5. The averments in the statement filed by the 2[nd] respondent would show that daily poojas were not being performed in the temple for quite long. In the statement, it is stated that, in view of the provisions under Section 29 of the HR&CE Act, any exchange, sale or mortgage and any lease of any W.P.(C) No.18403 of 2021 7 immovable property belonging to, or given or endowed for the purposes of, any religious institution shall be null and void, unless it is sanctioned by the Commissioner, as being necessary or beneficial to the institution. Under Section 94 of the Act, nothing contained in any Law of Limitation, for the time being in force shall be deemed to vest in any person, the property or funds of any religious institution, which had not vested in such lands as per Amendment Act, 2008 and the lands of the temples are on a par with Government land. As per Section 94(A) of the Act, all lands belonging to the Board and religious institutions, shall be deemed to be the property of the Government for the purpose of the Kerala Land Conservancy Act, 1957 and all the provisions of that Act shall, so far as they are applicable, apply to such lands. The said Act does not confer any power to the Commissioner, to evict encroachments on the property of Devaswom. The proper authority for taking action under the Kerala Land Conservancy Act is the District Collector, which is the only option provided for evicting encroachers of Devaswom properties. As per D.O.No.48834/2014/2021/Dev2/Revenue dated 12.09.2014 of the W.P.(C) No.18403 of 2021 8 Secretary, Revenue Devaswom Department, all Sub Collectors, Tahsildar and Deputy Tahsildar coming under their respective jurisdiction, were directed to remove encroachment as per the Kerala Land Conservancy Act and to impose fine of 3 times the land value and to report the compliance within 15 days. Subsequently, by D.O.No.31698/Rev.2/2015/RD dated 23.05.2015, the Secretary, Revenue Department has given specific directions to the District Collector and the Revenue Department, since it has come to the notice of the Government that temple/devaswom lands were being declared as 'puramboke' by the resurvey and revenue authorities and the Land Tribunals are issuing pattayam without the knowledge of the Malabar Devaswom Board. Therefore, the 1[st] respondent directed the District Collector and the Revenue Department to (i) identify the temples land encroached by private parties; (ii) restore the land where there is no court stay; (iii) make the corrections where mistakes of classification of land as 'puramboke' has happened; and (iv) direct the Land Tribunal not to issue 'pattayam' of temple's land without NOC from the Malabar Devaswom Board.” W.P.(C) No.18403 of 2021 9 6. By the order dated 31.01.2022 in I.A.No.1 of 2022, the Executive Officer of Kadungoth Mahadeva Temple was impleaded as additional 7[th] respondent, which was followed by the order dated 21.03.2022 in I.A.No.6 of 2022, whereby the Directorate of Archaeology, represented by its Director was _suo motu_ impleaded as the additional 8[th] respondent. 7. The additional 7[th] respondent Executive Officer has filed a counter affidavit on 04.03.2022, wherein it is stated that, Sree Kadungoth Siva Temple is an ancient temple, which is having hereditary trustee and the Malabar Devaswom Board is having supervisory control over the temple. The temple is in a totally dilapidated condition. Even access to the temple was completely blocked on account of encroachment and nobody was able to enter the temple property for a long time. A special team consisting of a retired Deputy Collector and retired Village Officer, constituted by the Commissioner, HR&CE (Administration) Department, Kozhikode inspected the property on 09.08.2005, with reference to the concerned Revenue Departments/survey records and measured the property based on such records and submitted Ext.R7(a) report dated 09.08.2005. As per the said report, 0.16 W.P.(C) No.18403 of 2021 10 Acres of land in Resurvey No.21/2, 5 and 0.34 Acre in Resurvey No.21/3 of Koottilangadi Village belongs to the temple. However, the temple is not in possession of the entire extent and the special team recommended for recovery of such land by initiating legal proceedings against the encroachers. A plan of the property was also enclosed along with the report for showing the exact position of the land. In the affidavit, it is stated that, after the additional 7[th] respondent took charge as Executive Officer, the Sub Collector, Perinthalmanna convened a meeting on 23.10.2021. Later, another meeting was convened on 13.01.2022. Pursuant to the said meeting, the Sub Collector, Perinthalmanna issued Ext.R7(b)order dated 25.01.2022 and immediate and temporary arrangements were made to restore access to the temple. Accordingly, a portion of the property was taken over from the encroachers to form a road to the temple by the Sub Collector for vehicular access to the temple. On 30.11.2021, the additional 7[th] respondent submitted a petition before the 4[th] respondent District Collector with a request to initiate proceedings under the Kerala Land Conservancy Act, 1957 read with Section 94A of the HR&CE W.P.(C) No.18403 of 2021 11 Act to evict all the encroachments in the temple properties and recover the same from such illegal encroachers. On 11.02.2022, the Taluk Surveyor, Perinthalmanna measured the property and refixed the boundaries of the property in Resurvey No.21/1, in which the temple situates. After the additional 7[th] respondent took charge as the Executive Officer, temporary arrangements were made to conduct daily poojas, i.e., in the morning as well as in the evening. One 'Shanthi', one 'Kazhakam' and one sweeper were initially appointed on temporary basis, which was submitted for approval before the 3[rd] respondent. 8. In paragraphs 8 to 14 of the counter affidavit, the additional 7[th] respondent has stated the steps already taken for ensuring proper conduct of daily poojas and the reconstruction of the temple. Paragraphs 8 to 14 of the counter affidavit read thus: “8. I respectfully further submit that after I took charge as the Executive Officer, necessary temporary arrangements are made to conduct daily poojas at the temple, i.e., in the morning as well as in the evening. One 'shanthi', one 'kazkakam' and one Sweeper ("adichuthali") were initially appointed, on temporary basis and the same has been submitted for approval before the 3[rd] respondent. At the time when the daily poojas were resumed at the temple, W.P.(C) No.18403 of 2021 12 vazhipadu counter was being dealt with by Mr. C.T.Raju, who was the then Area Committee member of Malappuram Division of the Malabar Devaswom Board, as an honorary service. Later, in order to ensure transparency in the incomeexpenditure of the temple and for proper accounting of such income-expenditure, it has become highly necessary to appoint a Vazhipadu Clerk and accordingly a Vazhipadu Clerk also has been appointed on temporary basis, which is already submitted before the 3[rd] respondent for approval. As such, at present there are four employees at the temple who are working on temporary basis. A bank account is also opened in the name of 'Executive Officer, Sree Kadungoth Devaswom' with the Urban Cooperative Bank Ltd., No. 1758, Perinthalmanna as SB A/c No.19. All the income expenditure of the temple are being done through the said bank account. 9. I respectfully further submit that this respondent further submitted an application before the Malabar Devaswom Board seeking allotment of necessary funds for carrying out the immediate renovation works of the Sanctum Santorum ("Sreekovil") and the "Chuttambalam". The Commissioner, Malabar Devaswom Board as per Order No.J6-733/2022/MDB dated 15.02.2022 approved the plan and estimate for the renovation of the temple and sanctioned a sum of Rs.10 lakhs towards initial expenses of the renovation process. The abstract of estimate is also appended to the said order. True copy of the Order No.J6-733/2022/MDB dated 15.02.2022 (along with the abstract of estimate) issued by the 2[nd] respondent is produced herewith and marked as Ext.R7(d). W.P.(C) No.18403 of 2021 13 Pursuant to the said order, this respondent issued a public notice inviting tenders for the work of renovation of the temple. True copy of the public notice dated 21.02.2022 issued by the additional 7[th] respondent and published in Deshabhimani daily dated 22.02.2022 is produced herewith and marked as Ext.R7(e). As per the said notification, sealed tenders are being received and the same has to be opened on 09.03.2022. 10. I respectfully further submit that out of the amount of Rs. 10 Lakhs sanctioned by the 2[nd] respondent Board for renovation, Rs.7 Lakhs has already received to the bank account of the temple. The renovation work will be started after finalising the tender process. 11. I respectfully further submit that this respondent, after complying with all the necessary procedural formalities and after inviting opinions/objections from the worshippers, revised the Vazhipadu rates and the same is submitted for approval before the 3[rd] respondent. True copy of the revised Vazhipadu rates is produced herewith and marked as Ext.R7(f). 12. I respectfully submit that the contentions to the contrary raised by the petitioner in the writ petition are incorrect and hence denied. All the necessary steps for preserving and protecting the temple in question and also to recover the immovable properties belong to the temple have already initiated. The directions issued by this Hon'ble Court as well as the Hon'ble Apex regarding preserving and protecting the temple properties are scrupulously being followed. The W.P.(C) No.18403 of 2021 14 contention in the writ petition that the Devaswom Board is not showing any interest in recovering the properties of the temple and conduct daily poojas etc., are incorrect and hence denied. 13. I respectfully further submit that this respondent convened a meeting of the worshippers in the locality on 20.02.2022 at the premises of the temple and a committee has been constituted for the purpose of renovation of the temple. This respondent is the Treasurer of the said Committee. The committee has been constituted by following the directions in the Circular No.HRH 5/8246/06 dated 15.06.2007 issued by the 2[nd] respondent. The list of office bearers of the said committee has been submitted before the 3rd respondent for approval and is now pending. 14. I respectfully further submit that one 'Kadungoth Mahadeva Seva Samithi' has started collecting funds for the renovation of the above temple by making requests through various public platforms including social media. Such a Samithi has no manner of sanctity or approval by any statutory authorities under the Madras HR & CE Act, 1951 for collecting funds in the name of the temple/deity. True copy of the social media post published by Kadungoth Mahadeva Seva Samithi made in Facebook is produced herewith and marked as Ext.R7(g). In a video published on behalf of the said Samithi several months back, through social media/Facebook, it was stated that they are already in receipt of more than Rs.6 lakhs from worshippers all over the world towards the renovation of the temple. The entire amount collected by the W.P.(C) No.18403 of 2021 15 said Samithi is in the name of the temple/deity and they are bound to pay the amount to the official accounts of the temple. This respondent will be taking appropriate proceedings seeking payment of such amount to the official accounts of the temple at the earliest.” 9. The petitioner produced various documents along with interlocutory applications, i.e., I.A.Nos.1, 2, 4 of 2021, 9 and 10 of of 2022. The document marked as Ext.P10 is the relevant extract of the settlement register and that marked as Ext.P11 is a petition dated 31.01.2022 filed before the 5[th] respondent District Judge, in terms of the directions contained in Ext.P2 judgment of the Apex Court. The petitioner filed a reply affidavit on 18.03.2022, producing therewith various documents, in order to answer the allegations contained in the counter affidavit filed by the additional 7[th] respondent, regarding collection of amount from public in the name of Kadungoth Mahadeva Seva Samithi. In the said affidavit, it is stated that an amount of Rs.6,73,330.85 has already been received by the Samithi, which is registered as a Trust as on 17.03.2022. Out of which, an amount of Rs.2,96,911.81 was already been spent for the works already undertaken, as evidenced by Exts.P16 to P18 statements. In the reply affidavit, W.P.(C) No.18403 of 2021 16 the petitioner raised various allegations against the additional 7[th] respondent Executive Officer. 10. On 24.03.2022, the additional 7[th] respondent has filed an additional counter affidavit, producing therewith Exts.R7(h) to R7(w). Paragraphs 14 to 18 of that additional counter affidavit read thus: “14. This respondent further respectfully submits that the steps for renovation of the temple was initiated as stated in the counter affidavit filed by me. The Thanthri of the temple is Sri. Sudeep Narayanan Namboothiri of Kuttalloor Mana. This respondent, as per letter dated 10.12.2021 sought necessary instructions from the 'Thanthri' of the temple regarding the renovation of the temple, a true copy of which is produced herewith and marked as Ext.R7(p). In reply to the said letter, the Thanthri issued a letter dated 15.12.2021 to this respondent instructing that the renovation of the temple has to be done as expeditiously as possible. It was further stated in the letter to completely renovate/reconstruct the temple building including the sanctum santorum. It was further suggested to seek advice from the experts in the matter who were named in the letter. True copy of the reply letter dated 15.12.2021 issued by Thanthri of the temple to the additional 7[th] respondent is produced herewith and marked as Ext.R7(q). 15. I respectfully submit that after the receipt of the letter from the temple Thanthri as stated above, Sri. Kanippayyur W.P.(C) No.18403 of 2021 17 Krishnan Namboothiri, an expert in temple construction visited the temple as requested by this respondent and prepared a detailed plan of the proposed renovation of the temple and also for construction of the "balalayam". Based on the plan prepared by them, detailed estimates were prepared by Sri. Ashokan C.V., Retired Engineer from the PWD Department. The plans and estimates for the renovation of the temple and the construction of the "balalayam" were separately submitted by this respondent before the 3[rd] respondent seeking sanction. True copy of the letter dated 07.02.2022 regarding the construction of "balalayam" along with the plan and estimate is produced herewith and marked as Ext.R7(r). Since the old temple building was so dilapidated that it was not possible to continue poojas therein, the "balalayam" was constructed immediately, on the oral consent by the Commissioner of the Malabar Devaswom Board and the formal sanction was sought later as per the above letter. Later, the shifting of deity to the "balalayam" was done on 14.02.2022 by the "Thanthri". 16. I respectfully submit that the request for sanction for renovation of the temple along with detailed plan and estimate was made by this respondent to the 2[nd] respondent Commissioner through the 3[rd] respondent Assistant Commissioner as per letter dated 07.02.2022, a true copy which is produced herewith and marked as Ext.R7(s). It was considering the above application, sanction for renovation was granted by the 2[nd] respondent as per W.P.(C) No.18403 of 2021 18 Ext.R7(d) order. Pursuant to the said sanction, the tender notification (Ext.R7(e)) was issued. The plan of the proposed new temple building and the sanctum sanctorum are prepared exactly the same as that of the presently existing old temple structure. 17. I respectfully further submit that pursuant to Ext.R7(d) order, tender notification (Ext.R7(e)) was issued. In response to the same, sealed tenders were received, which were opened on 09.03.2022. True copy of the relevant pages (Nos.2 and 3) of the Tender Register being maintained by the 7[th] respondent are produced herewith and marked as Ext.R7(t). Both the quotations received were far above the estimated amount. After opening the tender, this respondent has issued letter dated 10.03.2022 to the lowest tenderer for negotiation. True copy of the letter dated 10.03.2022 issued by the 7[th] respondent to Ashokan K.K. is produced herewith and marked as Exhibit R7(u). True copy of the reply dated 17.03.2022 received from Ashokan K.K. is produced herewith and marked as Ext.R7(v). True copies of the photographs of the temple is produced herewith and marked as Ext.R7(w). 18. I respectfully further submit that in view of the pendency of the above writ petition, this respondent is not in a position to further proceed with the matter except with the permission of this Hon'ble Court for renovating the temple. As already submitted above, the entire steps so far taken for renovation of the temple have been done after obtaining permission from the temple Thanthri and the Commissioner, Malabar Devaswom Board. The plan of the proposed new W.P.(C) No.18403 of 2021 19 buildings are prepared by Sri. Kanippayyoor Krishnan Namboothirippad, who is a well known expert in temple construction in India. In Ext.R7(q) letter, the Thanthri of the temple has stated that the entire structure has to be reconstructed. In such circumstances, it has become highly necessary to grant permission to this respondent to proceed with the proposed construction after finalising the tender process.” 11. The document marked as Ext.R7(s) is the detailed plan and estimate made by the 2[nd] respondent Commissioner through the 3[rd] respondent Assistant Commissioner. In the additional counter affidavit, it is stated that, after considering Ext.R7(s), the sanction for renovation was granted by the 2[nd] respondent, as per Ext. R7(d) order dated 15.02.2022. Pursuant to the said sanction, Ext.R7(e) tender notification was issued. In paragraph 16 of the additional affidavit, it is stated that the plan of the proposed new temple building and sanctum sanctorum are prepared exactly the same as that of the presently existing old temple structures. 12. On 31.05.2022, when this writ petition came up for consideration, the learned Senior Government Pleader submitted that an authorised officer from the office of the State Archaeological Department has already conducted an inspection of W.P.(C) No.18403 of 2021 20 the temple. A report with suggestions of the authorised officer shall be placed on record on 03.06.2022. Considering the urgency of the matter, we directed the authorised officer and also the additional 7[th] respondent Executive officer to be personally present before this Court on 06.06.2022, along with the relevant files. 13. Pursuant to the order dated 31.05.2022, Smt. Geetha T.S., Assistant Engineer, Department of Archaeology and Smt. Athira R. Pillai, Curator, Archaeological Museum, Sakthan Thampuran Palace, Thrissur were personally present in Court along with the relevant files. The learned Government Pleader filed a memo dated 06.06.2022 producing therewith inspection report dated 04.06.2022 prepared jointly by the aforesaid persons, who explained the facts noticed in the inspection report. The additional 7[th] respondent Executive Engineer, who was personally present in Court, submitted that daily poojas are being regularly conducted in the temple in question. He pointed out that as per R7(s), the foundation and basement of the proposed structures are using granite and walls are using laterite stones. The elevation of the proposed structure will be similar to the existing structure. 14. Heard the learned counsel for the petitioner, the W.P.(C) No.18403 of 2021 21 learned Senior Government Pleader for respondents 1, 4, 6 and additional 8[th] respondent, the learned Standing Counsel for respondents 2 and 3, the learned counsel for the additional 7[th] respondent at length. 15. Though various contentions are raised in the counter affidavit and the additional counter affidavit filed by the additional 7[th] respondent and also in the reply affidavit filed by the petitioner, we do not propose to consider those issues, in view of the dilapidated condition of the temple structure, which is substantiated by the joint inspection report of the experts in the field. 16. The condition of the temple structure at the time of filing of this writ petition seeking interference of this Court is evident from Exts.P3 to P8 photographs. The said temple, which is a controlled institution under the 2[nd] respondent Malabar Devaswom Board, was remaining without any access to the devotees and without any daily poojas for a considerably long period. During the course of arguments, the submission made by the learned Standing Counsel for Malabar Devaswom Board is that, the hereditary trustee abandoned the temple and it was in W.P.(C) No.18403 of 2021 22 such circumstances, the temple remained unattended. The devotees were also not having any access, since the way to that temple was encroached by nearby residents. Though Section 8B of the HR&CE Act provides for assumption of the direct administration of religious institutions, supervision of temple employees and welfare fund scheme etc., in view of the provisions of sub-section (1) of section 8B, the Board shall have power to assume the direct management of a religious institution provided, the trustee request the Board to take over its management unconditionally. Such a request never came from the hereditary trustee and hence the temple remained unattended. 17. The observations made by the experts in the field, after conducting a joint inspection on 28.05.2022, which is reflected in the report dated 04.06.2022 reads thus: “1. മമേൽᨪ᪏ര ന്ᩖപᩔ᪓്ᨾ ശᩦ᪍മകകോവവിലല, കകവരവിയുപടെ ഭകോഗ്ᨲൾ തകർന മസകോപകോനവല, നമേസകോരമേ്ᩄപതവിപᩙ᪓ ഭകോഗവികമേകോയവി തകർന നവിലയവിലള അധവിഷകോനവല ചു്ᩢ്ᩘലതവിപᩙ᪓ പചെറവിയ ഭകോഗ്ᨲളല മേകോ്ᩔമേകോണണ മᩌ᪔്ᩔതവിപᩙ᪓തകോയവി നവിലവവിൽ അവമശേഷവിᨪ᪎നതണ. 2. മᩌ᪔്ᩔവകോᩜ᪎ കശേലവി ്ᩚകകോരല 500 വർഷതവിലധവികല പഴകല കണകകോകകോവനതകോ പണങവിലല മᩌ᪔്ᩔതവിൽ ഏപതങവിലല തരതവിലള പുരകോലവിഖവിത്ᨲമളകോ മേᩢ᪎ ചെരവി്ᩔപരമേകോയ പതളവിവകമളകോ കപᩂ᪓തകോൻ W.P.(C) No.18403 of 2021 23 കഴവിഞവി്ᨾവില. 3. വകോᩜ᪎ശേകോ᪚➌പരമേകോയ ്ᩚമതᩓ᪔കതകൾ പവᨴ᪎ മനകോᨪ᪎മ്ᩘകോൾ കശേലᩦ᪍പരമേകോയവി ലളവിതമേകോയ അവയവ ഘടെനമയകോടു കൂടെവിയ നവിർമവിതവിയകോണവിതണ. അവയുപടെ മേവിക ഭകോഗ്ᨲളല ഇമᩔ᪓കോൾ ന്ᩖപᩔ᪓്ᨾ നവിലയവിലമേകോണണ. 4. ഈ മᩌ᪔്ᩔതവിനണ മകരള ചെരവി്ᩔതവിൽ സവവിമശേഷമേകോയ സകോന്ᨲൾ എപᩌ᪓ങവിലല അവകകോശേപᩔ᪓ടെകോനുളതകോയവി പതളവിവകൾ ലഭᩓ᪔മേകോയവി്ᨾവിലകോതതവിനകോലല മᩌ᪔്ᩔതവിപᩙ᪓ വകോᩜ᪎ ശേവി്ᩜപരമേകോയ സവവിമശേഷതകളള മേവിക ഭകോഗ്ᨲളല ന്ᩖപᩔ᪓ᨾ᪎മപകോയവിᨾ᪎ളതവിനകോലല 1968 പല മകരള ്ᩚകോചെᩦ᪍ന സകോരക പുരകോവᩜ᪎ സമങത പുരകോവശേവി്ᩖ ആകവിൻ ്ᩚകകോരല ഈ അവശേവി്ᩖ നവിർമവിതവിപയ സലരᩌ᪔വിത സകോരകമേകോയവി ്ᩚഖᩓ᪔കോപവിമകᩂ᪓ തവില എᩐ᪎ കകോണുᩐ᪎. 5. മേകോ്ᩔമേല നവിലവവിൽ പുരകോവᩜ᪎ വകുᩔ᪓ണ സലരᩌ᪔വിᨴ᪎ മപകോരുന മᩌ᪔്ᩔ്ᨲളവിൽ നവിനണ വവിഭവിനമേകോയമതകോ ്ᩚമതᩓ᪔കമേകോയമതകോ ആയ സവവിമശേഷതകൾ അവമശേഷവിᨪ᪎ന ഈ മᩌ᪔്ᩔഭകോഗതവിനണ ഉളതകോയുല കകോണുനവില. 6. മᩌ᪔്ᩔ പരവിസരതണ നടെതവിയ പരവിമശേകോധനയവിൽ ന്ᩖപᩔ᪓്ᨾ മᩌ᪔്ᩔഭകോഗ്ᨲൾ ഒᩐ᪎ല തപന അവമശേഷവിᨪ᪎നതകോയവി കപᩂ᪓തകോൻ സകോധവിചവി്ᨾവില. അതുപകകോᩂ᪎തപന തകർന മᩌ᪔്ᩔപത അമത വᩜ᪎കൾ ഉപമയകോഗവിചണ പുനർനവിർമവിᨪ᪎ക എന കകോരᩓ᪔ല ്ᩚകോമയകോഗവികമേകോയവി സകോധᩓ᪔മേല. 7. ആരകോധന നടെᩐ᪎പകകോᩂ᪓വിരവിᨪ᪎ന മᩌ᪔്ᩔമേകോയതവിനകോൽ നവിലവവിൽ അവമശേഷവിᨪ᪎ന മᩌ᪔്ᩔഭകോഗ്ᨲൾ അമതപടെവി നവിലനവിർതവി മശേഷവിᨪ᪎ന ഭകോഗ്ᨲൾ പുതവിയതുല സമേകോനമേകോയതുമേകോയ വᩜ᪎കൾ ഉപമയകോഗവിചണ പുനർനവിർമവിᨪ᪎നതണ പരവിഗണവികകോവന തകോണണ. ഇതരതവിൽ പുനർനവിർമവിᨪ᪎മ്ᩘകോൾ സകോധᩓ᪔മേകോകുനവിടെമതകോളല പപപൌരകോണവിക നവിലനവിർᩈ᪎നതവിനണ ശമേവിമകᩂ᪓തകോണണ.” 18. The specific stand taken in paragraph 5 of the W.P.(C) No.18403 of 2021 24 additional affidavit filed by the additional 7[th] respondent in support of I.A.No.7 of 2022 and also in paragraph 16 of the additional counter affidavit is that, the plan of the proposed new temple building and its sanctum santorum are prepared exactly the same as that of the presently existing old temple structures. The two images of the temple structure in the dilapidated conditions are reproduced hereunder: **==> picture [307 x 205] intentionally omitted <==** **==> picture [310 x 156] intentionally omitted <==** W.P.(C) No.18403 of 2021 25 19. The elevation of the proposed structures, which is available at page 57 are reproduced hereunder; **==> picture [270 x 119] intentionally omitted <==** 20. When the opinion of the experts, as reported in the joint report dated 04.06.2022, is that any repair or renovation of the temple structure is not practical and the only option available is the reconstruction of the entire structure, we do not find any reason for not granting permission to the 2[nd] respondent Board to proceed with the construction, as per Ext.R7(s) detailed plan and estimate and also the sanction for renovation granted by the Board in Ext.R7(d) order dated 15.02.2022. Such a permission is granted taking note of the specific stand taken by the Board that the plan of the proposed new temple building and sanctum sanctorum are prepared exactly same as that of the presently W.P.(C) No.18403 of 2021 26 existing old temple structures. The permission granted as above is subject to a further condition that the Malabar Devaswom Board shall obtain building permit from the concerned Local Self Government Institution for undertaking the construction. 21. One of the grievance of the petitioner, which is highlighted in this writ petition, is that the temple property is in possession of the encroachers. In view of Ext.P2 order of the Apex Court in W.P.(C)No.649 of 2018, the petitioner has already submitted Ext.P11 petition before the 5[th] respondent District Judge. 22. The additional 7[th] respondent Executive Officer has already submitted Ext.R7(c) petition dated 30.11.2021 before the 4[th] respondent District Collector for initiating proceedings under the Kerala Land Conservancy Act, read with the provisions under Section 94A of the HR&CE Act to evict all the encroachers from the temple properties. 23. 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 W.P.(C) No.18403 of 2021 27 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. 24. 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 W.P.(C) No.18403 of 2021 28 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. 25. 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 W.P.(C) No.18403 of 2021 29 covered by List III Item 28 of the Seventh Schedule to the Constitution of India and there is a need to look into this aspect by the Central Government, apart from State Governments. Section 92 of the Civil Procedure Code, 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 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. 26. In view of the law laid down in the decisions referred to supra, it is for the 4[th] respondent District Collector to consider the request made by the additional 7[th] respondent Executive Officer in Ext.R7(c) request dated 30.11.2021, in accordance with law. It would be open to the petitioner to pursue Ext.P11 petition filed W.P.(C) No.18403 of 2021 30 before the 5[th] respondent District Judge, in case it is one filed in accordance with the directions contained in Ext.P2 order of the Apex Court in **Mrinalini Padhi [2018 SCC OnLine SC 667]** . If Ext.P11 petition is in order, the 5[th] respondent District Judge shall examine the matter and send a report to this Court for necessary action. 27. The learned Standing Counsel for Malabar Devaswom Board and also the learned counsel for the additional 7[th] respondent Executive Officer would point out collection of amounts for renovation of Kadungoth Siva Temple by Kadungoth Seva Samithi. 28. In the reply affidavit filed by the petitioner to the counter affidavit filed by the additional 7[th] respondent, it is stated that the constitution of Kadungoth Seva Samithi is at the initiative of one C.T. Raju, member of the Area Committee of Malabar Devaswom Board, at whose leadership the wild growth in the temple compound was cleared, in order to start daily poojas. The said Samithi was later registered as a Trust, which has opened an account in Dhanalakshmi Bank, Malappuram Branch. An amount of W.P.(C) No.18403 of 2021 31 Rs.6,73,330.85 has already been received by the Samithi, out of which, an amount of Rs.2,96,911.81 has been spent for the works already undertaken, as evidenced by Exts.P16 to P18 statements. 29. The learned counsel for the petitioner would submit that, in view of the permission granted by this Court to the 2[nd] respondent Board to proceed with the reconstruction of the temple as per Ext.R7(s) detailed plan and estimate, based on the sanction granted by the Board in Ext.R7(d) order dated 15.02.2022 and also the specific stand taken by the Board that the plan of the proposed new temple building and sanctum sanctorum are prepared exactly as the same as that of the presently existing old temple structures, the amount available with the Kadungoth Seva Samithi, as evidenced by Exts.P16 to P18 statements, shall be transferred to the account of the additional 7[th] respondent Executive Officer, for utilising the same for the reconstruction of the temple. The said submission made by the learned counsel for the petitioner is recorded. 30. The additional 8[th] respondent shall depute an Assistant Engineer to monitor the reconstruction of the temple in question, W.P.(C) No.18403 of 2021 32 who shall conduct inspection once in six months and submit reports before this Court, through the learned Senior Government Pleader, on the progress of the work. Such reports shall be listed before the Devaswom Bench without any delay. With the aforesaid directions, this writ petition is disposed of. Sd/- ## **ANIL K.NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV W.P.(C) No.18403 of 2021 33 ## **APPENDIX OF W.P.(C)No.18403 OF 2021** ## **PETITIONER'S EXHIBITS:** |**Exhibit P1**|**COPY OF SETTLEMENT REGISTER.**| |---|---| |**Exhibit P2**|**COPY OF THE ORDER IN WPC 649/18.**| |**Exhibit P3**|**COPY OF THE PHOTOGRAPH**| |**Exhibit P4**|**COPY OF THE PHOTOGRAPH**| |**Exhibit P5**|**COPY OF THE PHOTOGRAPH**| |**Exhibit P6**|**COPY OF THE PHOTOGRAPH**| |**Exhibit P7**|**COPY OF THE PHOTOGRAPH**| |**Exhibit P8**|**COPY OF THE PHOTOGRAPH**| |**Exhibit P9**|**COPY OF THE PHOTOGRAPH**| |**Exhibit P12**|**TRUE COPY OF THE ORDER OF THE SUB**| ||**COLLECTOR DATED 25.1.2022**| |**Exhibit P13**|**TRUE COPY OF THE TENDER NOTIFICATION**| ||**DATED NIL**| |**Exhibit P14**|**TRUE COPY OF THE OPINION OF THARANANELLOR**| ||**TANTHRI DATED NIL**| |**Exhibit P15**|**TRUE COPY OF THE PHOTOGRAPH OF THE**| ||**BALALAYAM DATED NIL.**| |**Exhibit P10**|**TRUE COPY OF THE SETTLEMENT REGISTER**| ||**DATED NIL.**| |**Exhibit P11**|**TRUE COPY OF THE COMPLAINT (WITHOUT**| ||**EXHIBIT) FILED BY THE PETITIONER BEFORE**| ||**5TH RESPONDENT DATED 31/01/2022.**| |**Exhibit P16**|**TRUE COPY OF THE STATEMENT OF EXPENDITURE**| ||**DATED NIL**| |**Exhibit P17**|**TRUE COPY OF THE BANK STATEMENT FROM**| ||**22.11.2021 TO 17.03.2022**| |**Exhibit P18**|**TRUE COPY OF THE BANK STATEMENT FROM**| ||**01.01.2021 TO 17.03.2022**| |**Exhibit P19**|**TRUE COPIES OF THE PHOTOGRAPHS SHOWING**| ||**THE OLD AND PRESENT CONDITIONS OF THE**| ||**TEMPLE DATED NIL**| **RESPONDENT'S EXHIBIT:** **Exhibit R7(A) TRUE COPY OF THE REPORT DATED 09.08.2005 SUBMITTED BY THE SPECIAL TEAM CONSTITUTED BY THE HR & CE (ADMN) DEPARTMENT** W.P.(C) No.18403 of 2021 34 **Exhibit R7(B) TRUE COPY OF THE ORDER NO.C 450137/2021 DATED 25.01.2022 ISSUED BY THE SUB COLLECTOR, PERINTHALMANNA Exhibit R7(C) TRUE COPY OF THE PETITION DATED 30.11.2021 SUBMITTED BY THE 7TH RESPONDENT BEFORE THE 4TH RESPONDENT** **Exhibit R7(D) TRUE COPY OF THE ORDER NO.J6-733/2022/MDB DATED 15.02.2022 (ALONG WITH THE ABSTRACT OF ESTIMATE) ISSUED BY THE 2ND RESPONDENT Exhibit R7(E) TRUE COPY OF THE PUBLIC NOTICE DATED 21.02.2022 ISSUED BY THE ADDITIONAL 7TH RESPONDENT AND PUBLISHED IN DESHABHIMANI DAILY DATED 22.02.2022** **Exhibit R7(F) TRUE COPY OF THE REVISED VAZHIPADU RATES Exhibit R7(G) TRUE COPY OF THE SOCIAL MEDIA POST PUBLISHED BY KADUGOTH MAHADEVA SEVA SAMITHI MADE IN FACE BOOK Exhibit R7(H) TRUE COPY OF THE REPRESENTATION DATED 16/09/2021 SUBMITTED BY THE FORMER EXECUTIVE OFFICER OF THE TEMPLE BEFORE THE 4TH AND 6TH RESPONDENTS Exhibit R7(I) TRUE COPY OF THE STATEMENT OF ACCOUNTS OF THE SB A/C NO. 19 OF THE URBAN COOPERATIVE BANK LTD. NO. 1758, PERINTHALMANNA Exhibit R7(J) TRUE COPY OF THE PUBLIC NOTICE DATED 20/12/2021 PUBLISHED BY THE ADDL. 7TH RESPONDENT** - **Exhibit R7(K) TRUE COPY OF THE LETTER DATED 30/12/2021 ISSUED BY THE ADDL. 7TH RESPONDENT TO THE 3RD RESPONDENT** **Exhibit R7(L) TRUE COPY OF THE LETTER DATED 17/12/2021 ISSUED BY THE ADDL. 7TH RESPONDENT TO THE 3RD RESPONDENT Exhibit R7(M) TRUE COPY OF THE DEMAND NOTICE DATED 26/02/2022 ISSUED BY THE ASSISTANT ENGINEER, KSEB, ELECTRICAL SECTION, MAKKARAPARAMBA Exhibit R7(N) TRUE COPY OF THE LETTER DATED 07/03/2022 ISSUED BY THE ADDL. 7TH RESPONDENT TO THE 4TH RESPONDENT** W.P.(C) No.18403 of 2021 35 **Exhibit R7(O) TRUE COPY OF THE LETTER DATED 07/02/2022 ISSUED BY THE ADDL. 7TH RESPONDENT TO THE 2ND RESPONDENT** **Exhibit R7(P) TRUE COPY OF THE LETTER DATED 10/12/2021 ISSUED BY THE ADDL. 7TH RESPONDENT TO THE 'THANTHRI' OF THE TEMPLE** **Exhibit R7(Q) TRUE COPY OF THE REPLY LETTER DATED 15/12/2021 ISSUED BY THE THANTHRI OF THE TEMPLE TO THE ADDL. 7TH RESPONDENT** **Exhibit R7(R) TRUE COPY OF THE LETTER DATED 07/02/2022 REGARDING THE CONSTRUCTION OF BALALAYAM ALONG WITH THE PLAN AND ESTIMATE** **Exhibit R7(S) TRUE COPY OF THE LETTER DATED 07/02/2022 ISSUED BY THE ADDL. 7TH RESPONDENT TO THE 2ND RESPONDENT** **Exhibit R7(T) TRUE COPY OF THE RELEVANT PAGES (NOS. 2 AND 3) OF THE TENDER REGISTER Exhibit R7(U) TRUE COPY OF THE LETTER DATED 10/03/2022 ISSUED BY THE 7TH RESPONDENT TO ASHOKAN K.K.** **Exhibit R7(V) TRUE COPY OF THE REPLY DATED 17/03/2022 RECEIVED FROM ASHOKAN K.K.** - **Exhibit R7(W) TRUE COPIES OF THE PHOTOGRAPHS OF THE TEMPLE** **PETITIONER'S EXHIBITS:** **Exhibit P20 TRUE COPY OF THE PHOTOGRAPHS DATED NIL. Exhibit P21 TRUE COPY OF THE PHOTOGRAPHS DATED NIL Exhibit P22 TRUE COPY OF THE VAZHIPAD RATES FROM 01.03.2022. Exhibit P23 TRUE COPY OF THE VAZHIPAD RATES FROM 14.03.2022.** W.P.(C) No.18403 of 2021 36