Jyothish C. and Arun Gopi G. v. State of Kerala, Travancore Devaswom Board, Poruvazhy Grama Panchayat 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 15[TH] DAY OF FEBRUARY 2024/26[TH] MAGHA, 1945 ``` ``` WP(C) NO.20498OF 2023 ``` ## **`PETITIONERS:`** ``` 1JYOTHISH.C AGED 42 YEARS, S/O CHELLAPPAN, PANAMOOTIL, ERAICHIRA EAST, SOORANAD P.O, KOLLAM, PIN 690 522 ``` ``` 2ARUN GOPI. G, AGED 33 YEARS, S/O GOPI, ARUN VIHAR, NADUVILEMURI, PORUVAZHY, CHATHAKULAM P.O, KOLLAM, PIN – 690 520 ``` ``` BY ADVS. R.KRISHNA RAJ E.S.SONI KUMARI SANGEETHA S.NAIR R.PRATHEESH (ARANMULA) ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE (DEVASWOM) KERALA GOVERNMENT SECRETARIAT, THIRUVANANATHAPURAM, PIN – 695 001 ``` ``` 2TRAVANCORE DEVASWOM BOARD DEVASWOM BOARD OFFICE, NANTHANCODE, THIRUVANANTHAPURAM,REPRESENTED BY ITS SECRETARY, PIN – 695 003 ``` ``` 3PORUVAZHY GRAMA PANCHAYAT AMBALATHUMBHAGOM P.O., PORUVAZHY, KOLLAM, PIN – 690 520 ``` - **`*ADDL.R4 THE SPECIAL TAHSILDAR,`** ``` LAND CONSERVANCY UNIT, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM, PIN-695003 (IS SUO MOTU IMPLEADED VIDE ORDER DATED 07.09.2023 ``` 2 W.P.(C)No.20498 of 2023 ## **`IN WPC 20498 OF 2023)`** - **`*ADDL.R5 THE TAHSILDAR (L.R),`** ``` KUNNATHUR TALUK, KOLLAM, PIN – 690 540 (IS SUO MOTU IMPLEADED AS PER ORDER DATED 13.11.2023 IN WPC 20498 OF 2023) ``` - **`*ADDL.R6 SALAM,`** ``` S/O. SULAIMAN, AGED 61 YEARS, RESIDING AT CHARUVILA THAZHETHUNDIL, ERAVICHIRA EAST, SOORANAD SOUTH, KOLLAM DISTRICT – 690 522 (MOB:9544938372) ``` - **`ADDL.R7 NAZURUDEEN.S,`** - **`S/O. SULAIMANKUTTY, AGED 48 YEARS, CHIRAYUDETHEKETHIL, PALLIMURI, SOORANAD P.O., PORUVAZHI, KOLLAM – 690 522 (MOB:9946548858)`** - **`ADDL.R8 SHASUDHEEN RAWTHER.S, S/O. SHAHUL HAMEED RAWTHER, AGED 43 YEARS, KUZHUVELI PUTHANVEEDU, PALLIMURI, AMBALATHIMBHAGAM, PORUVAZHI – 690 520, KOLLAM DISTRICT (MOB:9947727587)`** - **`*ADDL.R9 NAJEEB M.,`** - **`S/O. MUHAMMED KUNJU, AGED 38 YEARS, PALLIYUDE KIZHAKKATHIL, PALLIMURI, AMBALATHIMBHAGAM, PORUVAZHI P.O., KOLLAM 690 520 (MOB:7510933745)`** - **`*ADDL.R10 MIDHILAJ H.,`** - **`S/O. HANEEFA, AGED 37 YEARS, CHATHOTHEKKATHIL, THEKKEMURI, SOORANAD NORTH, SOORANAD P.O., KOLLAM – 690 522 (MOB:9207557659)`** - **`*ADDL.R11 ANEESH S.,`** ``` S/O. SALEEM, AGED 37 YEARS, CHENCHIRAKUZHI PUTHUVEEDU, PADINJATTINKIZHAKKU, SOORANAD P.O., KOLLAM - 690622 (MOB:7736571411) ``` ``` [ADDITIONAL RESPONDENTS 6 TO 11 ARE IMPLEADED AS PER ORDER DATED 20-12-2023 IN IA No.2 OF 23 IN WPC 20498 OF 2023] ``` ## **`DISTRICT SURVEY SUPERINTENDENT, KOLLAM,`** - **`PIN – 691 001`** - **`ADDL.R12`** ``` [ADDITIONAL R12 IS SUO MOTU IMPLEADED AS PER ORDER DATED 15.02.2024 IN W.P.(C)No.20498 OF 2023] ``` 3 W.P.(C)No.20498 of 2023 ``` BY ADVS. ``` ``` VINOY VARGHESE KALLUMMOOTTIL ``` ``` N.UNNIKRISHNAN ``` ``` SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ; SRI G.SANTHOSH KUMAR - STANDING COUNSEL – TRAVANCORE DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 W.P.(C)No.20498 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioners, who are the devotees of Chakkuvalli Sree Parabrahma Temple, which is a temple under the management of the 2[nd] respondent Travancore Devaswom Board, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent Board to evict the 3[rd] respondent Poruvazhy Grama Panchayat from the Devaswom land of Chakkuvalli Sree Parabrahma Temple comprised in Survey No.478/7/1 of Poruvazhy Village, where the Panchayat has established a public market and to stop the functioning of that public market forthwith. The petitioners have also sought for a writ of mandamus commanding the 1[st] respondent State to pay compensation for the property of Chakkuvalli Sree Parabrahma Temple, encroached upon for establishing Government Higher Secondary School, Poruvazhy, which is situated in Survey No.478/7 of Poruvazhy Village and Survey No.62/1, 7 of Sooranadu North Village, together with interest from the date of encroachment; and a writ of mandamus commanding the 3[rd] respondent Grama Panchayat to pay back the entire amount to the Devaswom, received as revenue from the operation of the market established in the property of the 5 W.P.(C)No.20498 of 2023 Chakkuvalli Devaswom, situated in Survey No.478/7 of Poruvazhy Village. 2. The document marked as Ext.P1 is the settlement register in respect of the Devaswom land of Chakkuvalli Sree Parabrahma Temple, having an extent of 14.01 Acres, comprised in Survey No.478/7/1 and Survey No.62/1, 7 of Sooranadu North Village. According to the petitioners, at present the temple is in possession of around 7 Acres of land and the remaining land is illegally encroached upon by the Government as well as the Grama Panchayat. The 2[nd] respondent Board is not taking any earnest efforts to see that the property encroached upon by the Government as well as the Grama Panchayat is recovered and protected. In support of the said contention, the petitioners have placed on record various documents. 3. On 05.07.2023, when this writ petition came up for admission, the learned Standing Counsel for Travancore Devaswom Board and also the learned Standing Counsel for Poruvazhy Grama Panchayat sought time to get instructions. By the order dated 07.09.2023, the Special Tahsildar, Land Conservancy Unit, Travancore Devaswom Board, was _suo motu_ impleaded as the additional 4[th] respondent. 4. By the order dated 30.10.2023, this Court directed 6 W.P.(C)No.20498 of 2023 the Secretary of the 3[rd] respondent Grama Panchayat to be personally present before this Court on 13.11.2023 at 10.15 a.m., along with the original asset register maintained by the Grama Panchayat, which contains an entry regarding the disputed land. 5. On 13.11.2023, when this writ petition came up for consideration, I.A.No.1 of 2023 filed by third parties to get themselves impleaded as additional respondents 5 to 10 was dismissed by a detailed order, however without prejudice to their right to file a fresh application with appropriate pleadings. On 13.11.2023, the Secretary of the 3[rd] respondent Grama Panchayat was personally present in Court along with records, including an attested copy of the relevant page of the Asset Register, which is being maintained in Sajithra software. He pointed out that the year “2013” mentioned in Ext.R3(a) asset register is the year of renovation of the panchayat market by constructing permanent structures. The auction register maintained in the Panchayat would show that the stalls in the market were auctioned in the year 1982-83. The learned Standing Counsel submitted that an additional affidavit of the Secretary, explaining the facts and circumstances, with specific reference to the respective registers shall be placed on record 7 W.P.(C)No.20498 of 2023 within two weeks. By the order dated 13.11.2023 the Tahsildar (LR), Kunnathoor Taluk was suo motu impleaded as the additional 5[th] respondent and the learned Senior Government Pleader sought time to get instructions. 6. The 3[rd] respondent has filed a counter affidavit dated 10.08.2023, producing therewith Ext.R3(a) document. It was followed by an additional counter affidavit dated 19.09.2023, producing therewith Exts.R3(b) to R3(h) documents. The document placed on record as Ext.R3(c) is a common judgment of this Court dated 11.11.2016 in W.P.(C)Nos.5025 and 7899 of 2010. 7. By the order dated 20.12.2023 in I.A.No.2 of 2023, additional respondents 6 to 11, were impleaded. Along with I.A.No.4 of 2023, the petitioners have placed on record Exts.P15 to P22 additional documents. Along with I.A.No.5 of 2023, the 3[rd] respondent Grama Panchayat has placed on record Exts.R3(i) to R3(j) documents. The petitioners have filed a reply affidavit dated 03.01.2024. 8. Heard the learned counsel for the petitioners, the learned Senior Government Pleader for the 1[st] respondent and also for additional respondents 5 and 12, the learned Standing Counsel for Travancore Devaswom Board for the 2[nd] respondent 8 W.P.(C)No.20498 of 2023 and additional 4[th] respondent, the learned Standing Counsel for Poruvazhy Grama Panchayat for the 3[rd] respondent and the learned counsel for additional respondents 6 to 11. 9. The issue raised in this writ petition centers around the Devaswom land of Chakkuvalli Devaswom, which is comprised in Survey No.478/7/1 of Poruvazhy Village and Survey No.62/1, 7 of Sooranadu North Village. According to the petitioners, the public market conducted by the 3[rd] respondent Grama Panchayat situates in the Devaswom land of Chakkuvalli Sree Parabrahma Temple. Similarly, the Government has encroached upon the Devaswom land for establishing Government Higher Secondary School, Poruvazhy. On the other hand, relying on various documents placed on record along with the counter affidavit and additional counter affidavit, the learned Standing Counsel for the 3[rd] respondent Grama Panchayat would contend that the public market of the Grama Panchayat is not on the Devaswom land. 10. During the course of arguments, the learned counsel for the petitioners would point out that the Special Leave Petition filed by the Grama Panchayat against Ext.R3(c) judgment of this Court dated 11.11.2016 in W.P.(C)Nos.5025 and 7899 of 2010 ended in dismissal. 9 W.P.(C)No.20498 of 2023 11. The learned Standing Counsel for Travancore Devaswom Board would point out that Chakkuvalli Sree Parabrahma Temple is a temple which is included in the Devaswom Proclamation of 1097 ME. 12. '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]** 13. 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 affairs. A trustee could not, therefore, occasion any loss to the Trust 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 10 W.P.(C)No.20498 of 2023 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, 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 11 W.P.(C)No.20498 of 2023 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) ## 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 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 12 W.P.(C)No.20498 of 2023 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]** the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of _parens 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, 13 W.P.(C)No.20498 of 2023 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. ## 16. In **Nandakumar v. District Collector and others** **[2018 (2) KHC 58]** a Division Bench of this Court noticed that the legal position has been made clear by the Apex Court as to the role to be played by the High Court in exercising the ‘ _parens patriae_ ’ jurisdiction in **Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]** . The said decision was referred to and relied on by a Division Bench of this Court in **Travancore** **Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]** . In the said circumstances, the properties of the Devaswom, if at all encroached by anybody and if any assignment/conveyance has been effected without the involvement of the Devaswom, securing ‘pattayam’ or such other deeds, the same cannot confer any right upon the parties concerned, unless the title so derived is clear in all respects. There cannot be any dispute that the remedy to retrieve such property belonging to the Devaswom is by resorting to the course stipulated in the Kerala Land Conservancy Act, 1957. 17. In **A.A. Gopalakrishnan v. Secretary, Cochin Devaswom Board [2018 (3) KHC 549]** a Division Bench of this Court found that the task undertaken by the complainant to 14 W.P.(C)No.20498 of 2023 ensure that the property of the Devaswom is protected and preserved has ultimately brought out the plain truth that the said property was sought to be appropriated by strangers and that the property in Sy.No.1042/2 has been successfully retrieved by the Devaswom, based on the intervention made by this Court and also by the Apex Court in **A.A. Gopalakrishnan** **[(2007) 7 SCC 482]** . Proceedings have to be taken to a logical conclusion in respect of the land in Sy.No. 1043 as well. This is more so since in view of the ‘ _parens patriae_ ’ jurisdiction being entrusted with the Court in this regard, there is a duty cast upon the Court to take every step to ensure that the property of the deity is protected. 18. In **Mrinalini Padhi v. Union of India [(2018) 7 SCC 789 : 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 India, irrespective of religion practised in such shrines. It cannot be disputed that this aspect is covered by List III Item 28 of the Seventh Schedule to the Constitution of India and there is a 15 W.P.(C)No.20498 of 2023 need to look into this aspect by the Central Government, apart from State Governments. Section 92 of the Code of Civil Procedure, 1908 permits a court also to issue directions 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 India with any grievance on the above aspect, the District Judge may either himself/herself or assign 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 become necessary, having regard to the individual fact situation. Paragraphs 10, 11 and 20 of the order dated 05.07.2018 in W.P.(C)No.649 of 2018 [2018 SCC OnLine SC 667] read thus; “10. The issue of difficulties faced by the visitors, exploitative practices, deficiencies in the management, maintenance of hygiene, proper utilization of offerings and protection of assets may require consideration with regard to all shrines throughout India, irrespective of religion practised in such shrines. It cannot be disputed that this aspect is covered by List III Item 28 of the Seventh 16 W.P.(C)No.20498 of 2023 Schedule to the Constitution of India, and there is need to look into this aspect by the Central Government, apart from State Governments. 11. Section 92 of the Code of Civil Procedure permits a Court also to issue directions for making a scheme or making an arrangement for any charitable or religious institution. Accordingly, we direct that if any devotee moves the jurisdictional District Judge throughout 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 the above aspects and if necessary, send a report to the High Court. We have no doubt that the High Court will consider these aspects in public interest, in accordance with law, and issue such judicial directions as become necessary, having regard to the individual fact situation. xxx xxx xxx xxx 20. We may sum up our directions in today's orders, in addition to the orders dated 08.06.2018, as follows; i) Report of the District Judge dated 26.6.2018 is accepted in principle and action to be taken by the temple administration. ii) District Judge, Puri may send further report, if any by 31.8.2018, preferably by e-mail. iii) The State Government may submit report of the Committee constituted by it on or before 31.8.2018. iv) The Central Government may constitute its Committee, as already directed, within two 17 W.P.(C)No.20498 of 2023 weeks from today and place its interim report on record of this Court on or before 31.8.2018. v) Copy of the Report of the District Judge may be placed on the websites of the temple management, Ministry of Culture and website of the Supreme Court for two weeks. vi) The directions in the order dated 8.6.2018 may be complied with by all concerned and noncompliance thereof may be reported to this Court for appropriate action if necessary. vii) The temple management may consider, subject to regulatory measures, with regard to dress code, giving of an appropriate declaration or compliance with other directions, permitting every visitor irrespective of his faith, to offer respects and to make offerings to the deity. viii) We have noted that Hinduism does not eliminate any other belief and is eternal faith and wisdom and inspiration of centuries, as noted in earlier judgments of this Court. ix) Difficulties faced by the visitors, deficiencies in management, maintenance of hygiene, appropriate utilisation of offerings and protections of assets with regard to shrines, irrespective of religion is a matter for consideration not only for the State Government, Central Government but also for Courts. Every District Judge throughout India may examine such matters himself or through any court under his jurisdiction and send a report to the High Court concerned so that such report can be treated as PIL on the judicial side and such direction may be issued as may be 18 W.P.(C)No.20498 of 2023 considered necessary having regard to individual fact situation. x) Learned amicus is at liberty to engage with all stakeholders and to give suggestions for bringing about improvements and also to give a report to this Court. However, this will not stand in the way of the Committee of the State Government, Committee of the Central Government or any District Judge considering matters in terms of above directions.” (underline supplied) ## 19. In **Ganapathy Namboothiri v. State of Kerala** **[2024 (1) KLT 599 : 2024 (2) KHC 1]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party, held that the directions issued by the Apex Court in clauses (i) to (viii) and (x) of paragraph 20 of the order dated 05.07.2018 in W.P.(C)No.649 of 2018 - **Mrinalini Padhi [2018** **SCC OnLine SC 667]** are in respect of the issue of public importance highlighted in that writ petition relating to the difficulties faced by the visitors to Shri Jagannath Temple at Puri and their harassment or exploitation by the Sevaks of the temple. Before the Apex Court, it was pointed out that the environment of the surroundings is not hygienic, as it ought to be, and there are encroachments. There are deficiencies in the management of the shrine and the rituals are commercialised. See: Para 1 of the order dated 08.06.2018 in W.P.(C)No.649 of 19 W.P.(C)No.20498 of 2023 2018 **[2018 SCC OnLine SC 602]** . It is in that context that the Apex Court issued a general direction in clause (ix) of para 20 of the order dated 05.07.2018 in W.P.(C)No.649 of 2018 - **Mrinalini Padhi [2018 SCC OnLine SC 667]** for redressal of the difficulties faced by the devotees of all shrines throughout India, irrespective of religion practised in such shrines, on account of harassment or exploitation by those in management, unhygienic surroundings, encroachments, deficiencies in management, etc. The general direction contained in clause (ix) of para 20 is to the effect that difficulties faced by the visitors, deficiencies in management, maintenance of hygiene, appropriate utilisation of offerings and protection of assets with regard to shrines, irrespective of religion is a matter for consideration not only for the State Government, Central Government but also for Courts. Every District Judge throughout India may examine such matters himself or through any court under his jurisdiction and send a report to the High Court concerned so that such report can be treated as PIL on the judicial side and such direction may be issued as may be considered necessary having regard to individual fact situation. ## 20. In **Ganapathy Namboothiri [2024 (2) KHC 1]** the Division Bench held that the petition that can be moved by a 20 W.P.(C)No.20498 of 2023 devotee in terms of the general direction contained in clause (ix) of paragraph 20 of the aforesaid order dated 05.07.2018 - **Mrinalini Padhi [2018 SCC OnLine SC 667]** of the Apex Court is not one invoking the provisions under Section 92 of the Code of Civil Procedure, since that provision of the Code, which deals with public charities, can be invoked only in the manner provided - in sub section (1) of Section 92, to obtain a decree of any of the - reliefs set out in clauses (a) to (h) of sub section (1) of Section 92, in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust. In terms of the general direction contained in clause (ix) of paragraph 20 of the order dated 05.07.2018 of the Apex Court, which is one issued for redressal of the difficulties faced by the devotees on account of deficiencies in management, maintenance of hygiene, appropriate utilisation of offerings or protection of assets of shrines, a devotee can approach the District Judge having jurisdiction, with a petition pointing out the difficulties faced by him on account of any such matters, in which event the District Judge may examine such matters by himself or through any court under his jurisdiction and send a report to the High Court 21 W.P.(C)No.20498 of 2023 concerned, for consideration of that report in the judicial side, for issuing any direction as may be considered necessary, having regard to individual fact situation. 21. In **Jayaprakashan K. v. State of Kerala and others [2023 (3) KHC SN 14 : 2023 (3) KLT 541]** a Division Bench of this Court, in which one among us (Anil K. Narendran, J.) was a party, noticed that in view of the provisions under subsection (1) of Section 3 of the Kerala Land Reforms Act, 1963, nothing in Chapter II (i.e., provisions regarding tenancies) shall apply to leases or tenancies of land referred to in clauses (i) to (xii) of the said sub-section. As per clause (x) of sub-section (1) of Section 3, nothing in Chapter II shall apply to tenancies in respect of sites, tanks and premises of any temple, mosque or church (including sites belonging to a temple, mosque or church on which religious ceremonies are conducted) and sites of office buildings and other buildings attached to such temple, mosque or church, created by the owner, trustee or manager of such temple, mosque or church. In view of the provisions under subsection (1) of Section 74, after the commencement of the Act, no tenancy shall be created in respect of any land. As per subsection (2) of Section 74, any tenancy created in contravention - of the provisions of sub section (1) shall be invalid. In view of 22 W.P.(C)No.20498 of 2023 the provisions under sub-section (1) of Section 57, as soon as may be after the receipt of the application under Section 54, the Land Tribunal shall give notice to the landowner, the intermediaries and all other persons interested in the holding, to prefer claims or objections with regard to the application. As per sub-section (2) of Section 57, the land Tribunal shall, after considering the claims and objections received and hearing any - person appearing in pursuance of the notice issued under sub section (1) and after making due enquiries, pass orders - (i) on the application, if any, pending before it from the landowner or intermediary for resumption in accordance with the provisions of Section 22; and (ii) on the application for purchase under Section 54. In view of the provisions under sub-section (1) of Section 72, on a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyiruppus and holders of karaimas) entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the Government free from all encumbrances created by the landowners and intermediaries and 23 W.P.(C)No.20498 of 2023 subsisting thereon on the said date. In view of the provisions under sub-section (1) of Section 72B, the cultivating tenant of any holding or part of a holding, the right, title and interest in respect of which have vested in the Government under Section 72, shall be entitled to assignment of such right, title and interest. As per clause (a) to the proviso to sub-section (1) of Section 72B, no cultivating tenant shall be entitled to assignment of the right, title and interest in respect of any holding or part of a holding under this section if he, or if he is a member of a family, such family, owns an extent of land not less than the ceiling area. As per clause (b) to the proviso to sub-section (1) of Section 72B, where the cultivating tenant or, if he is a member of a family, such family, does not own any land or owns an extent of land which is less than the ceiling area, he shall be entitled to the assignment of the right, title and interest in respect of only such extent of land as will, together with the land, if any, owned by him or his family, as the case may be, be equal to the ceiling area. In view of the provisions under subsection (1) of Section 72BB, any landowner or intermediary whose right, title and interest in respect of any holding have vested in the Government may apply to the Land Tribunal for the assignment of such right, title and interest to the cultivating 24 W.P.(C)No.20498 of 2023 tenant and for the payment of the compensation due to him under Section 72A. As per Section 72C, notwithstanding anything contained in sub-section (3) of Section 72B or Section 72BB, the Land Tribunal may, subject to such rules as may be made by the Government in this behalf, at any time after the vesting of the right, title and interest of the landowners and intermediaries in the Government under Section 72, assign such right, title and interest to the cultivating tenants entitled thereto, and the cultivating tenants shall be bound to accept such assignment. In view of the provisions under Section 72F, the Land Tribunal has to issue notices and determine the compensation and purchase price. As per sub-section (1) of Section 72F, as soon as may be after the right, title and interest of the landowner and the intermediaries, if any, in respect of a holding or part of a holding have vested in the Government under Section 72, or, where an application under Section 72B or Section 72BB has been received by the Land Tribunal, as soon as may be after the receipt of such application, the Land Tribunal shall publish or cause to be published a public notice in the prescribed form in such manner as may be prescribed, calling upon the landowner, the intermediaries, if any and cultivating tenant; and all other persons interested in the land, the right, 25 W.P.(C)No.20498 of 2023 title and interest in respect of which have vested in the Government, to prefer claims and objections, if any, within such time as may be specified in the notice and to appear before it on the date specified in the notice with all relevant records to prove their respective claims or in support of their objections. As per the mandate of sub-section (5) of Section 72F, the land Tribunal shall, after considering the claims and objections received in - - pursuance of the notice issued under sub section (1) or sub section (2) and the advice received from the village committee or village committees before the date specified therefor and hearing any person appearing in pursuance of the notice issued under sub-section (1) or sub-section (2) and after making due enquiries, pass an order specifying the matters enumerated in clauses (a) to (i) of sub-section (5). As per sub-section (1) of Section 72K, as soon as may be after the determination of the purchase price under Section 72F or the passing of an order under sub-section (3) of Section 72MM the Land Tribunal shall issue a certificate of purchase to the cultivating tenant, and thereupon the right, title and interest of the landowner and the intermediaries, if any, in respect of the holding or part thereof to which the certificate relates, shall vest in the cultivating tenant free from all encumbrances created by the landowner or the 26 W.P.(C)No.20498 of 2023 intermediaries if any. 22. In **Jayaprakashan K. [2023 (3) KHC SN 14]** the Division Bench, on an analysis of the aforesaid provisions under the Kerala Land Reforms Act, found that the said Act is a complete code by itself as far as the right of cultivating tenant to fixity of tenure in respect of his holding, the right of the cultivating tenant to get assignment of the right, title and interest in respect of his holdings, the determination by the Land Tribunal the compensation and purchase price and the issuance of purchase certificate to the cultivating tenant. The provisions under the said Act deal with the application for the purchase of the landlord's right by the cultivating tenant and the procedure for consideration of the application by the Land Tribunal, with notice to the landowner, the intermediaries, if any, the cultivating tenant and all persons interested in the land, calling upon them to prefer claims and objections, if any, and after making due enquiries. Thereafter, the Land Tribunal shall issue a certificate of purchase to the cultivating tenant. In view of the provisions under the Kerala Land Reforms (Tenancy) Rules, where the Land Tribunal is of the opinion that an application for purchase certificate has to be allowed, it shall, before it passes an order under Section 57, prepare preliminary findings on the 27 W.P.(C)No.20498 of 2023 matters enumerated in clauses (a) to (m) of sub-rule (1) of Rule 55. The Land Tribunal shall issue a notice of its findings to the landowner, every intermediary, etc., calling upon them to prefer in writings claims for the purchase price or part thereof. On receipt of the objections or claims, if any, the Land Tribunal shall consider the same and decide the claims after giving reasonable opportunity to the parties to produce such evidence as may be necessary and then proceed to pass an order under Section 57 of the Act. In such an order passed by the Land Tribunal on an application filed under Section 54 of the Act by the cultivating tenant for purchase of landlord's right, the Land Tribunal has to record its finding that the applicant is a cultivating tenant, as defined under clause (8) of Section 2 of the Act, who is entitled to fixity of tenure under Section 13 of the Act, in respect of his holding. The tenancy is not in respect of land falling under clauses (i) to (xii) of Section 3 of the Act, which deals with exemptions. The tenancy is not one created in contravention of the provisions of sub-section (1) of Section 74 of the Act, i.e., it is not a tenancy created after the commencement of the Act. It is well settled that, when the statute requires to do certain thing in a certain way, the thing must be done in that way or not at all. Other methods or modes of performance are impliedly and 28 W.P.(C)No.20498 of 2023 necessarily forbidden. The said proposition of law is based on a legal maxim _'expressio unius est exclusio alterius'_ meaning thereby that, if the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner, and following other course is not permissible. The said proposition of law about limitation of the exercise of statutory power has first been identified by Jassel M.R. in the case of **Taylor v. Taylor [(1876) 1 Ch.D. 426]** , wherein it was laid down that, where a power is given to do a certain thing in a certain way, that thing must be done in that way, or not at all, and that other methods of performance are necessarily forbidden. The Privy Council applied the said principle in the case of **Nazir Ahmed v. King Emperor [AIR 1936 PC 253]** . In **Breen v. Amalgamated Engineering Union (1971 (1) All ER** **1148)** Lord Denning, M.R. observed that the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120)** it was observed that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision- taker to the controversy in question and the decision or conclusion arrived at. By the order dated 15.12.2021 in W.P.(C)No.8851 of 2020, this Court restrained all Land Tribunals 29 W.P.(C)No.20498 of 2023 in the State from proceedings with any Original Application filed before the appointed date or S.M.Proceedings for purchase certificate in respect of Devaswom lands of Temples under the control/ management of Malabar Devaswom Board, Travancore Devaswom Board and also the Cochin Devaswom Board, without the respective Devaswom Board, represented by its Secretary, in the party array. In the said order, it was made clear that a copy of the Original Application or the report and other materials based on which S.M.Proceedings are initiated shall be enclosed along with the notice issued to the concerned Devaswom Board, through the concerned Village Officer. The Land Tribunals were directed to afford a reasonable opportunity to the concerned Devaswom Board to raise its contentions, both legal and factual. It was made clear that the decision taken by the Land Tribunals shall be one reflecting the legal and factual contentions raised by both sides. ## 23. In **Jayaprakashan K. [2023 (3) KHC SN 14]** , in continuation of the order dated 15.12.2021 in W.P.(C)No.8851 of 2020, it was ordered that, in the orders passed by the Land Tribunals in the State in Original Applications/S.M.Proceedings for purchase certificate, the Land Tribunal has to record its findings that the applicant is a cultivating tenant, as defined 30 W.P.(C)No.20498 of 2023 under clause (8) of Section 2 of the Act, who is entitled to fixity of tenure under Section 13 of the Act, in respect of his holding; that the tenancy is not in respect of land falling under clauses (i) to (xii) of Section 3 of the Act, which deals with exemptions; and that the tenancy is not one created in contravention of the provisions of sub-section (1) of Section 74 of the Act, i.e., it is not a tenancy created after the commencement of the Act. In respect of temples which are controlled institutions under Malabar Devaswom Board, the Land Tribunals shall take note of the provisions under Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951, as per which any exchange, sale or mortgage and any lease of any immovable property belonging to, or given or endowed for the purpose of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. 24. As pointed out by the learned Standing Counsel for Travancore Devaswom Board, Chakkuvalli Sree Parabrahma Temple is a temple which is included in the Devaswom Proclamation of 1097 ME. ## 25. In **Payappar Sree Dharmasastha Temple A. Com.** **v. A.K. Joseph [(2009) 14 SCC 628]** it was contended before 31 W.P.(C)No.20498 of 2023 the Apex Court that the Travancore Devaswom Board is a statutory body which came into being only by the TravancoreCochin Hindu Religious Institutions Act, 1950 and before that, the Government and Devaswom were one and the same and there was no separate existence, and therefore, whatever order was passed by the Government prior to 1950 regarding the land in question, it was also binding upon the Board. It was also contended that Section 27 of the Act does not nullify any assignment by the Government before the Travancore Devaswom Board came into existence. As per Section 27, which deals with Devaswom properties, 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 12.04.1922 shall be dealt with as Devaswom properties. The provisions of the Land Conservancy Act of 1091 shall be applicable to Devaswom lands as in the case of Government lands. After perusing the provisions under Section 27, which deals with Devaswom properties, the Apex Court noticed that after coming into force of the Act of 1950 the administration of temples and all their properties and funds, except Sree 32 W.P.(C)No.20498 of 2023 Padmanabhaswami Temple got vested in the Travancore Devaswom Board. It is clearly mentioned in Section 27 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 12.04.1922 shall be dealt with as Devaswom properties. The Apex Court held that the interpretation given by the High Court, so far as Section 27 of the Act is concerned, was incorrect as the High Court totally overlooked the fact that Section 27 of the Act stipulates that immovable properties entered or classed in the revenue records as ‘Devaswom Vaga’ or ‘Devaswom Poramboke’ after 12.04.1922 would be dealt with as Devaswom properties, whether or not the same Devaswom properties was the issue which was sought to be resolved and adjudicated by the High Court by looking into various documents which were placed on record. 26. Having considered the pleadings and materials on record and also the submissions made at the Bar, we deem it appropriate to dispose of this writ petition by directing the additional 12[th] respondent District Survey Superintendent, Kollam to conduct a proper survey of the Devaswom land of Chakkuvalli Devaswom, with reference to Ext.P1 settlement register as well as old survey records, if found necessary, by 33 W.P.(C)No.20498 of 2023 obtaining the same from the State Archives, and fix the boundaries of the Devaswom land, taking note of the law laid down in the decisions referred to supra, in order to find out whether there is any encroachment of the Devaswom land, either by the 3[rd] respondent Poruvazhy Grama Panchayat by establishing a public market or by the 1[st] respondent State by establishing Government Higher Secondary School, Poruvazhy. The survey shall be with notice to the petitioners, the 2[nd] respondent Travancore Devaswom Board, the 3[rd] respondent Grama Panchayat and other affected parties, if any. The entire exercise in this regard shall be completed, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a certified copy of this judgment and the encroachments, if any found, shall be removed, in accordance with law, with notice to the encroachers. It would be open to the petitioners, the Travancore Devaswom Board and also the Poruvazhy Grama Panchayat to submit documents before the additional 12[th] respondent District Survey Superintendent, Kollam, within a period of three weeks from the date of receipt of a copy of this judgment, along with their written submissions. It is made clear that any auction conducted by the 3[rd] respondent Grama Panchayat for conducting shops in the public 34 W.P.(C)No.20498 of 2023 market in question, during the pendency of the survey, shall be subject to the outcome of that survey, which shall be made clear in the tender notification issued by the Grama Panchayat. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** ded 35 W.P.(C)No.20498 of 2023 ## **`APPENDIX OF WP(C) 20498/2023`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF THE SETTLEMENT REGISTER DATED 19.06.2019 EXHIBIT P2TRUE COPY OF THE BTR DATED 02.07.2019 EXHIBIT P3COPY OF THE ASSET REGISTER REPORT DATED NIL EXHIBIT P4TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER PORUVAZHY DATED 12.10.2017 ``` ``` EXHIBIT P5TRUE COPY OF THE APPLICATION SUBMITTED BY BIJU KUMAR UNDER THE RIGHT TO INFORMATION ACT DATED 03.05.2023 ``` - **`EXHIBIT P6 TRUE COPY OF THE REPLY GIVEN BY THE 3RD RESPONDENT UNDER THE RIGHT TO INFORMATION ACT DATED 17.05.2023`** ``` EXHIBIT P7TRUE COPY REPLY GIVEN BY THE ASSISTANT ENGINEER PORUVAZHY PANCHAYAT UNDER THE RIGHT TO INFORMATION ACT DATED 15.05.2023 EXHIBIT P8TRUE COPY OF THE APPLICATION SUBMITTED BY BIJU KUMAR UNDER THE RIGHT TO INFORMATION ACT DATED 03.05.2023 EXHIBIT P9TRUE COPY OF THE REPLY GIVEN BY THE VILLAGE OFFICE PORUVAZHY UNDER THE RIGHT TO INFORMATION ACT DATED 19.05.2023 ``` - **`EXHIBIT P10 TRUE COPY OF THE REPLY GIVEN BY THE 3RD RESPONDENT UNDER THE RIGHT TO INFORMATION ACT DATED 24.05.2023`** - **`EXHIBIT P11 TRUE COPY OF THE APPLICATION SUBMITTED BY BIJU KUMAR UNDER THE RIGHT TO INFORMATION ACT DATED 03.05.2023`** - **`EXHIBIT P12 TRUE COPY OF THE REPLY GIVEN BY THE 3RD RESPONDENT UNDER THE RIGHT TO INFORMATION ACT DATED 19.05.2023`** - **`EXHIBIT P13 TRUE COPY OF THE PHOTOGRAPH SHOWING THE TEMPLE DATED NIL`** - **`EXHIBIT P14 TRUE COPY OF THE ORDER OF THE APEX COURT IN W.P.(C). NO.649/2018 DATED 05.07.2018`** - **`EXHIBIT P15 TRUE COPY OF THE NOTICE OF NAVA KERALA SADSSU DATED NIL`** - **`EXHIBIT P16 TRUE COPY OF THE COMPLAINT FILED BY THE TEMPLE ADVISORY COMMITTEE TO THE ASSISTANT COMMISSIONER,`** 36 W.P.(C)No.20498 of 2023 ``` TRAVANCORE DEVASWOM BOARD, KARUNAGAPPALLY DATED 28.11.2023 ``` ``` EXHIBIT P17TRUE COPY OF THE COMPLAINT FILED BY THE TEMPLE ADVISORY COMMITTEE TO THE COMMISSIONER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM DATED 28.11.2023 ``` ``` EXHIBIT P18TRUE COPY OF THE COMPLAINT FILED BY THE TEMPLE ADVISORY COMMITTEE TO THE SUB GROUP OFFICER, CHAKKUVALLY DEVASWOM, DATED 03.12.2023 ``` ``` EXHIBIT P19TRUE COPY OF THE LETTER OF THE SUB GROUP OFFICER DATED 03.12.2023 ``` ``` EXHIBIT P20TRUE COPY OF THE PHOTOGRAPH SHOWING THE PROPERTY WHERE NAVA KERALA SADASSU IS SCHEDULED TO BE HELD ON 18.12.2023 ``` ``` EXHIBIT P21TRUE COPY OF THE PHOTOGRAPH SHOWING THE PROPERTY WHERE NAVA KERALA SADASSU IS SCHEDULED TO BE HELD ON 18.12.2023 ``` - **`EXHIBIT P22 TRUE COPY OF THE PHOTOGRAPH SHOWING THE LAKSHADEEPAM DATED NIL`** ``` RESPONDENT EXHIBITS ``` ``` EXHIBIT R3(A)TRUE COPY OF THE ASSET REGISTER OF THE PROPERTY IN WHICH THE MARKET IS SITUATED. ``` ``` EXHIBIT R3(B)TRUE COPY OF THE NOTICE DATED 3/8/2023 ISSUED BY THE TAHSILDAR EXHIBIT R3(C)TRUE COPY OF THE COMMON JUDGEMENT OF WPC NO.5025/2010 AND WPC NO.7899/2010 DATED 11/11/2016 EXHIBIT R3(D)TRUE COPY OF THE NOTICE ISSUED BY THE OMBUDSMAN IN C. NO. 311/2017 DATED 27/10/2017 ``` ``` EXHIBIT R3(E)TRUE COPY OF THE STATEMENT SUBMITTED BEFORE THE OMBUDSMAN IN C. NO. 311/2017 DATED 8/11/2017 ``` ``` EXHIBIT R3(F)TRUE COPY OF THE BASIS TAX REGISTER OF THE PROPERTY COMPRISED IN RESURVEY NO.93( 478/7-1) ``` ``` EXHIBIT R3(G)TRUE COPY OF THE GENERAL BUILDING PERMIT ISSUED BY THE 3[RD] RESPONDENT DATED 8/3/2018 ``` ``` EXHIBIT R3(H)TRUE COPY OF THE APPEAL FILED BY THE 3RD RESPONDENT BEFORE THE REVENUE DIVISIONAL OFFICER, KOLLAM ALONG WITH THE ACKNOWLEDGMENT OF RECEIPT ``` ``` EXHIBIT R3(I)THE MINUTES OF THE PANCHAYAT COMMITTEE WITH RESPECT ``` 37 W.P.(C)No.20498 of 2023 ``` TO AUCTION OF THE MARKET FOR THE PERIOD 1982- 1983 ``` ``` EXHIBIT R3(J)AUDIT CONDUCTED BY THE AUTHORITIES WITH RESPECT TO THE PUBLIC MARKET ```