K.P. Sureshaged v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** # **`THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` FRIDAY, THE 18[TH] DAY OF AUGUST 2023 / 27TH SRAVANA, 1945 WP(C) NO.26830OF 2023 ``` ## **`PETITIONER:`** ``` K.P.SURESHAGED, 53 YEARSS/O.LATE RAMANKUTTY, KULUKKAMPARAMBIL HOUSE, KARALMANNA POST, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN - 679506 ``` ``` BY ADVS.R.SREEHARIHAMZA A.V.VIGNESH S. ``` ## **`RESPONDENTS:`** |**`1`**|**`STATE OF KERALAREPRESENTED BY PRINCIPAL`**| |---|---| ||**`SECRETARY, REVENUE (DEVASWOMS) DEPARTMENT,`**| ||**`GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,`**| ||**`THIRUVANANTHAPURAM, PIN - 695001`**| |**`2`**|**`MALABAR DEVASWOM BOARDHOUSEFED COMPLEX,`**| ||**`ERANHIPPALAM POST, KOZHIKODE DISTRICT,`**| ||**`REPRESENTED BY ITS COMMISSIONER., PIN - 673006`**| |**`3`**|**`COMMISSIONER, MALABAR DEVASWOM BOARDHOUSEFED`**| ||**`COMPLEX, ERANHIPPALAM POST, KOZHIKODE DISTRICT,`**| ||**`PIN - 673006`**| |**`4`**|**`ASSISTANT COMMISSIONER (PALAKKAD), MALABAR`**| ||**`DEVASWOM BOARDOFFICE OF THE ASSISTANT`**| ||**`COMMISSIONER (PALAKKAD), KENATHUPARAMBU,`**| ||**`KUNNATHURMEDU POST, PALAKKAD DISTRICT, PIN -`**| ||**`678013`**| |**`5`**|**`THE EXECUTIVE OFFICER AND MANAGERSREE`**| ||**`THIRUMULLAPPALLY DEVASWOM, KARALMANNA POST,`**| ||**`OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN -`**| ||**`679506`**| |**`6`**|**`DISTRICT COLLECTORPALAKKAD DISTRICT, CIVIL`**| ||**`STATION, PALAKKAD POST, PALAKKAD DISTRICT, PIN`**| ||**`- 678001`**| |**`7`**|**`TAHSILDAR (LAND RECORDS)OTTAPALAM TALUK, TALUK`**| ||**`OFFICE, OTTAPALAM POST, PALAKKAD DISTRICT, PIN`**| 2 W.P.(C)No.26830 of 2023 - **`679101`** - **`8 VILLAGE OFFICERCHERPULASSERY VILLAGE OFFICE, CHERPULASSERY POST, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN - 679503`** ``` BY ADV ANOOP.V. NAIR ``` ``` SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ; SRI R.LAKSHMI NARAYAN- STANDING COUNSEL- MALABAR DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.26830 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is a devotee of Sree Thirumullappally Mahadeva Temple, which is a controlled institution under the 2[nd] respondent Malabar Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 5 to take appropriate steps with respect to the grievance of the petitioner as highlighted in Ext.P4 complaint dated 11.10.2021 by taking appropriate remedial action, in accordance with law, within a reasonable time frame as this Court may deem fit and proper. Sree Thirumullappally Mahadeva Temple is under Thirumullappally Devaswom having four temples. Sree Thirumullappally Mahadeva Temple is the major temple under that Devaswom with Elamthuruthi Maha Vishnu Temple, Moorkhathu Vishnu Temple and Peruvakkurussi Shiva Vishnu Temple has Keezhedams (allied temples). 2. The land of Sree Thirumullappally Mahadeva Temple is comprised in Re-Sy.No.55/16 (Old Sy.No.60/1) of Cherpulassery Village, Ottapalam Taluk, Palakkad District, as 4 ## W.P.(C)No.26830 of 2023 evident from Ext.P3 field measurement plan issued by the 8[th] respondent Village Officer, Cherpulassery Village. The grievance of the petitioner in Ext.P4 complaint dated 11.10.2021 is that, on the immediate eastern side of Sree Thirumullappally Mahadeva Temple, there is an agricultural land used for paddy cultivation, commonly known as 'Kathakali Kandam', which exclusively belonged to the said temple, which is now under illegal possession and enjoyment by private individuals. Respondents 2 to 5 have not taken any steps to recover the said land from the encroachers. Therefore, the petitioner submitted Ext.P4 complaint dated 11.10.2021 before the 1[st] respondent State, with copy to respondents 2 to 5 and also the 6[th] respondent District Collector. On receipt of Ext.P4 complaint, the 4[th] respondent Assistant Commissioner, Malabar Devaswom Board issued Ext.P5 letter dated 29.10.2021 to the 5[th] respondent Executive Officer and Manager of the temple, directing the said respondent to take lawful steps to recover the temple land, if it is found encroached, and to report the same to the 4[th] respondent. Thereafter, the 6[th] respondent District Collector forwarded 5 ## W.P.(C)No.26830 of 2023 Ext.P4 complaint to the 7[th] respondent Thasildar (Land Records), Ottapalam vide Ext.P6 communication dated 01.11.2021. 3. On 14.08.2023, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 and 6 to 8. The learned Standing Counsel for Malabar Devaswom Board took notice on admission for respondents 2 to 4. Urgent notice on admission was ordered to the 5[th] respondent by special messenger, returnable by 18.08.2023. The learned Senior Government Pleader and also the learned Standing Counsel for Malabar Devaswom Board were directed to get instructions. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 and 6 to 8, the learned Standing Counsel for Malabar Devaswom Board respondents 2 to 4 and also the learned counsel for the 5[th] respondent. 5. '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** 6 W.P.(C)No.26830 of 2023 ## **another v. State of Kerala and others** - **2018 (1) KHC 536]** 6. 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 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. 7. In **Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]** a Division Bench of this Court 7 W.P.(C)No.26830 of 2023 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 parents patriae will also apply in exercising the jurisdiction. 8. 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** 8 W.P.(C)No.26830 of 2023 **(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 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. 9. 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 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 [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 9 W.P.(C)No.26830 of 2023 more so since in view of the ‘parens patriae’ jurisdiction being entrusted with the Court in this regard and there is a duty cast upon the Court to take every step to ensure that the property of the deity is protected. 10. The document marked as Ext.P2 is a photograph showing the arial view of Sree Thirumullappally Mahadeva Temple. As evident from Ext.P2 photograph, the disputed land is on the immediate eastern side of the said temple, which is an agricultural land used for paddy cultivation. The 5[th] respondent Executive Officer and Manager of Sree Thirumullappally Devaswom has submitted Ext.P13 request dated 05.07.2022 before the 8[th] respondent Village Officer, Cherpulassery Village with a request to furnish FMB sketch of the disputed land lying on the immediate eastern side of the temple and comprised in old Sy.No.63/7 and documents regarding transfer of registry. The learned counsel for the 5[th] respondent would submit that Ext.P13 request is still pending consideration before the 8[th] respondent. 11. The learned Senior Government Pleader would submit that, if a proper application is made by the 5[th] 10 ## W.P.(C)No.26830 of 2023 respondent Manager for furnishing the survey number and extend of the disputed land, FMB sketch and Tandaper account, the 8[th] respondent Village Officer shall do the needful, without any delay. 12. The learned counsel for the 5[th] respondent would submit that the said respondent shall make an application before the 8[th] respondent Village Officer for obtaining the survey number and extend of the disputed land, FMB sketch and Tandaper account, after remitting the requisite fee. Having considered the submissions made at the Bar, this writ petition is disposed of by directing the 8[th] respondent 5[th] respondent Executive Officer and Manager of Sree Thirumullappally Devaswom for obtaining the survey number and extend of the disputed land, FMB sketch and Tandaper account, after remitting the requisite fee, in case the said application of the 5[th] respondent is in accordance with law. The said application shall be disposed of by the 8[th] respondent Village Officer, within a period of one month from the date of receipt of the same. After obtaining the details of the disputed 11 ## W.P.(C)No.26830 of 2023 land, FMB sketch, Tandaper account, etc., the 5[th] respondent shall make a proper application before the 6[th] respondent District Collector seeking interference in view of the provisions under Section 94A of the Madras Hindu Religious and Charitable Endowments Act, 1951, in case the Devaswom land of Thirumullappally Devaswom is under encroachment of third parties. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE yd** 12 W.P.(C)No.26830 of 2023 ## **`APPENDIX OF WP(C) 26830/2023`** |**`PETITIONER EXHIBITS`**|**`PETITIONER EXHIBITS`**| |---|---| |**`Exhibit P1`**|**`TRUE COPY OF THE JUDGMENT PASSED IN`**| ||**`APPEALS NOS. 374 OF 1930 AND 577 OF`**| ||**`1930 DATED 08/01/1935 BY THE HON'BLE`**| ||**`HIGH COURT OF JUDICATURE AT MADRAS`**| |**`Exhibit P2`**|**`TRUE COPY OF THE PHOTOGRAPH SHOWING`**| ||**`THE AERIAL VIEW OF SREE`**| ||**`THIRUMULLAPPALLY MAHADEVA KSHETHRAM,`**| ||**`KARALMANNA`**| |**`Exhibit P3`**|**`TRUE COPY OF THE FIELD MEASUREMENT`**| ||**`PLAN WITH RESPECT TO FIELD NO.55 OF`**| ||**`CHERPULASSERY VILLAGE, OTTAPALAM`**| ||**`TALUK , PALAKKAD DISTRICT , ISSUED BY`**| ||**`THE VILLAGE OFFICER, CHERPULASSERY`**| |**`Exhibit P4`**|**`TRUE COPY OF THE COMPLAINT SUBMITTED`**| ||**`BY THE PETITIONER BEFORE THE 1ST`**| ||**`RESPONDENT DATED 11/10/2021`**| |**`Exhibit P5`**|**`TRUE COPY OF THE LETTER DATED`**| ||**`29/10/2021 WITH NO.A5/3358/2021/M.D.B,`**| ||**`ISSUED BY THE 4TH RESPONDENT TO THE`**| ||**`5TH RESPONDENT`**| |**`Exhibit P6`**|**`TRUE COPY OF THE LETTER DATED`**| ||**`01/11/2021 WITH NO.DCPKD/8907/2021-`**| ||**`LRG4 ISSUED BY THE 6TH RESPONDENT TO`**| ||**`THE 7TH RESPONDENT`**| |**`Exhibit P7`**|**`TRUE COPY OF THE LETTER DATED`**| ||**`29/12/2021 WITH NO.A5/3358/2021/M.D.B`**| ||**`ISSUED BY THE 4TH RESPONDENT TO THE`**| ||**`5TH RESPONDENT`**| |**`Exhibit P8`**|**`TRUE COPY OF THE LETTER DATED`**| ||**`20/07/2022 WITH NO.A5/3358/2021/M.D.B`**| ||**`(2) ISSUED BY THE 4TH RESPONDENT TO`**| ||**`THE 5TH RESPONDENT`**| |**`Exhibit P9`**|**`TRUE COPY OF THE LETTER DATED`**| ||**`24/08/2022 WITH NO.J5-4832/2022/M.D.B`**| ||**`ISSUED BY THE 3RD RESPONDENT TO THE`**| ||**`5TH RESPONDENT`**| |**`Exhibit P10`**|**`TRUE COPY OF THE LETTER DATED`**| ||**`16/03/2023 WITH NO.A5/3358/2021/M.D.B`**| ||**`ISSUED BY THE 4TH RESPONDENT TO THE`**| 13 W.P.(C)No.26830 of 2023 ## **`5TH RESPONDENT`** ``` Exhibit P11 TRUE COPY OF THE LETTER DATED 20/03/2023 WITH NO.H6-130/2022/MDB ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT ``` ``` Exhibit P12 TRUE COPY OF THE LETTER DATED 25/05/2023 WITH NO.A5/3358/2021/M.D.B ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT ``` ``` Exhibit P13 TRUE COPY OF THE LETTER DATED 05/7/2022, ISSUED BY THE 5TH RESPONDENT TO THE 8TH RESPONDENT ``` ``` Exhibit P14 TRUE COPY OF THE CIRCULAR NO.H.R 5/397/97 DATED 04/02/1997 ISSUED BY THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS (ADMINISTRATION) DEPARTMENT, KOZHIKODE ```