K.P. Aravindakshan v. The Secretary, Travancore Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.** ## **MONDAY, THE 13TH DAY OF NOVEMBER 2017/22ND KARTHIKA, 1939** ## **DBP.No. 59 of 2016 ()** **----------------------** ## **COMPLAINANT -------------** **K.P.ARAVINDAKSHAN EXECUTIVE COMMITTEE MEMBER ALUVA SREE MAHADEVAR TEMPLE 'SREE KYLASH'. THOTTAKKATTUKARA P.O, ALUVA -683108** ## **BY ADV. SUO MOTU** ## **RESPONDENTS** - **--------------** **1. THE SECRETARY, TDB, TRIVANDRUM** **2. THE LAND SPECIAL OFFICER, TDB, TRIVANDRUM** **3. THE SPECIAL TAHSILDAR, TDB, TRIVANDRUM** **4. THE ASSISTANT DEVASWOM COMMISSIONER, TDB, N.PARAVOOR** **5. THE ADMINISTRATIVE OFFICER, ALUVA SREE MAHADEVAR TEMPLE, TDB, ALUVA.** **R1 BY ADV. SRI.R.S.KALKURA R1 BY ADV. SRI.M.S.KALESH R1 BY ADV. SRI.HARISH GOPINATH R1 BY ADV. SMT.R.BINDU R1 BY ADV. SMT.P.ANJANA R BY SRI.M.V.S.NAMBOOTHIRI, SC, TRAVANCORE DEVASWOM BOARD** **THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 13-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.** ## **------------------------------------------------------** ## **D.B.P.No.59 of 2016** ## **------------------------------------------------------** ## **Dated this the 13[th] day of November, 2017** ## **ORDER** ## **P.R. Ramachandra Menon, J.** The issue involved in this case relates to eviction of trespassers from the property belonging to the Devaswom, land attached to the Aluva MahaDevar Temple premises. 2. Earlier, based on TDB Report No.59/2016 referring to Complaint No.282/2015 filed by Executive Committee Member of the Aluva MahaDevar Temple before the Ombudsman as to the various proceedings/litigations and outcome, also pointing out the necessity to transfer the file bearing No.C-2857/2001 by the Additional Tahsildar to the Special Tahsildar, Travancore Devaswom Board, in turn directing the Special Tahsildar, Travancore Devaswom Board for taking further steps to protect the land of the Devaswom; this Court had passed an order on 29.6.2016, the operative portion of D.B.P.No.59 of 2016 2 ## which as contained in paragraph 3 reads as follows. “Taking into consideration the materials available along with the T.D.B report No.59 of 2016, it is ordered that the Additional Tahsildar will transfer file No.C12857/2001 to the Special Tahsildar, T.D.B and that file shall reach the office of the Special Tahsildar within a period of two weeks from today and thereupon, the Special Tahsildar, T.D.B will take immediate further steps for protection of the land of the Devaswom after ascertaining it appropriately. The report of the action taken in this regard shall be placed by the Special Tahsildar before the learned Ombudsman before 30.7.2016.” 3. Subsequently, taking note of further grievance as to the non-compliance with the directions pointed out by the complainant, the Ombudsman filed TDB report No.95/2016 dated 22.9.2016 before this Court pointing out that the property belonging to the Devaswom is still to be recovered and hence appropriate orders might be passed. This was taken note of by this Court on 21.8.2017 and the Devaswom was required to file an affidavit in this regard. Since no proper attention was paid by the D.B.P.No.59 of 2016 3 ## Devaswom to the said direction, another order came to be passed on 3.10.2017 in the following terms: “Despite the specific order dated 21.8.2017 whereby time was granted to file an affidavit by the Devaswom, no affidavit has been filed. It is submitted by the learned Standing Counsel for the Devaswom Board that the direction was already conveyed to the Secretary over telephone. In the said circumstances, the laxity on the part of the Officer concerned will have to be taken note of seriously. The Registry shall issue notice to the Secretary of the Board by registered post to appear in person with all the relevant records on 23.10.2017.” 3. The submission made by the then Standing Counsel for the Devaswom as to the direction given to the Secretary over telephone was also recorded and hence she was directed to be present in person with all the relevant records on 23.10.2017. Pursuant to the above direction, instead of filing an affidavit by the Secretary, an evasive affidavit came to be filed by the Secretary-incharge, stating that the Secretary had gone on leave. This Court, for the reason stated in the order dated 4 D.B.P.No.59 of 2016 30.10.2017 rejected the said affidavit filed by the Assistant Secretary and directed the Secretary herself to file an affidavit, simultaneously directing her to be present in person on 6.11.2017 after expiry of leave which was to be over by 31.10.2017. Pursuant to the said order, the Secretary was present in person on 6.11.2017. It was pointed out by another learned Counsel who entered appearance on behalf of the Board that an affidavit has been filed by the Secretary herself. On going through the said affidavit dated 5.11.2017, it is seen that the Secretary has conceded that she was informed of the direction of the former counsel over telephone and due to an inadvertent omission it could not be properly attended to (paragraph 8). The 'unconditional apology' in the affidavit with respect to the non-revealing of the correct factual position earlier was found as not 'unconditional' but 'conditional' and hence, the Secretary was permitted to file an additional affidavit in this regard. D.B.P.No.59 of 2016 5 4. Today, the learned Counsel representing the Devaswom submits that an additional affidavit has been filed and that the Secretary is present before this Court. On going through the said affidavit, this Court finds that the lapse on the part of the Secretary has been virtually conceded by her expressing regrets/apology in unconditional terms. We directed the Secretary to be present before this Court only to make her aware that 'Rule of Law shall prevail' and as to the manner in which an order passed by the Court has to be given effect to, as a dutiful officer of the Board. The circumstance under which the telephonic instruction given by the Counsel who appeared for the Board earlier came to be omitted to be pursued further has been explained, also with reference to the hospitalization of the daughter of the Secretary. We find it appropriate to accept her version as it is and no further steps are necessary to be proceeded against. 5. Coming to the actual issue involved, ie; with D.B.P.No.59 of 2016 6 regard to the eviction to be pursued, the learned Counsel for the Devaswom submits that, pursuant to the orders passed by this Court, the files have been transferred to the Special Tahsildar of the Devaswom and that eviction would be possible, only if sufficient police protection is provided. It is also stated that, as on date, no case or any order preventing eviction of the trespassers is in existence. 6. In the circumstance, we direct the Special Tahsildar, Travancore Devaswom Board to take all necessary steps to cause the encroachers to be evicted from the property belonging to the Devaswom, which is extremely essential in view of the law declared by the Apex Court in **A.A.Gopalakrishnan vs. Cochin Devaswom Board and Ors.** [ **2007(7) SCC 482]** . The Special Tahsildar, Travancore Devaswom Board is set at liberty to make necessary application for police protection before the Superintendent of police, Ernakulam Rural, D.B.P.No.59 of 2016 7 upon which, all necessary steps shall be taken by the Officer and others acting under him to arrange sufficient protection to cause eviction of the encroachers from the property of the Devaswom as aforesaid. The DBP stands closed. **P.R. RAMACHANDRA MENON JUDGE** smm **SHIRCY.V JUDGE**