Krishnakumar K.G alias Sanju Krishna Kumar 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`** ``` WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944 ``` ## **`WP(C) NO. 37898 OF 2022`** ## **`PETITIONER/S:`** ``` 1 KRISHNAKUMAR K.G ALIAS SANJU KRISHNA KUMAR AGED 38 YEARS, S/O GANESH, RESIDING AT KULANGARAYIDAM HOUSE, PAYYAVOOR P.O., PAYYAVOOR, KANNUR - 670633. 2 PHALGUNAN MELEDATH, S/O KUNHIRAMAN NAIR, AGED 52 YEARS, RESIDING AT MELEDATH HOUSE, PAYYAVOOR P.O., PAYYAVOOR, KANNUR - 670633. ``` ``` BY ADVS. MAHESH V RAMAKRISHNAN PRAVEEN K.S. ``` ## **`RESPONDENT/S:`** ``` 1 STATE OF KERALA REP. BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPT, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3 DIRECTOR, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT OF KERALA, PARKVIEW, THIRUVANANTHAPURAM-695 033. ``` WPC 37898 of 2022 2 - `4 DISTRICT COLLECTOR, KANNUR,CIVIL STATION, KANNUR - 670002.` - `5 THE DEPUTY DIRECTOR OF PANCHAYATH, CIVIL STATION, KANNUR - 670002.` - `6 THE REGIONAL TRANSPORT OFFICER, REGIONAL TRANSPORT OFFICE, CIVIL STATION, COLLECTORATE ROAD, TALAP, KANNUR - 670002.` - `7 MALABAR DEVAWOM BOARD REP. BY ITS SECRETARY, HOUSEFED COMPLEX, P.O. ERAHNIPALAM, KOZHIKODE - 673 006.` - `8 THE COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, P.O. ERAHNIPALAM, KOZHIKODE - 673 006.` - `9 ASSISTANT COMMISSIONER, MALABAR DEVAWOM BOARD, KASARAGOD DIVISION, P.O.NILESWARAM, KASARAGOD - 671314.` - `10 PAYYAVOOR DEVASWOM REPRESENTED BY ITS EXECUTIVE OFFICER, PAYYAVOOR P.O., KANNUR -670633.` - `11 CHAIRMAN,` - `BOARD OF TRUSTEES, PAYYAVOOR DEVASWOM, PAYYAVOOR P.O., KANNUR - 670633.` - `12 PAYYAVOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, PAYYAVOOR P.O., KANNUR – 670633.` - `13 PAYYAVOOR GRAMA PANCHAYATH COMMUNITY DEVELOPMENT SOCIETY (CDS)` - `REPRESENTED BY ITS MEMBER SECRETARY, PAYYAVOOR P.O., KANNUR - 670633.` - `14 PAYYAVOOR GRAMA PANCHAYATH COMMUNITY DEVELOPMENT SOCIETY (CDS)` - `KUDUMBASHREE PAY PARKING TEAM, REPRESENTED BY ITS` WPC 37898 of 2022 3 ``` AUTHORISED OFFICER, OFFICE OF KUDUMBASHREE NR PAYYAVOOR TEMPLE, PAYYAVOOR P.O., KANNUR - 670633. BY ADVS. P.U.SHAILAJAN P.C.SASIDHARAN NIDHEESH T.P ``` ## **`OTHER PRESENT:`** ``` SR GP SRI S RAJMOHAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC 37898 of 2022 4 ## **J U D G M E N T** ## Anil K.Narendran, J. The petitioners, who are worshippers of Lord Shiva of Payyavoor Shiva Temple, which is a controlled institution under the 7[th] respondent Malabar Devaswom Board, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 6, 12 and 13 to stop the ‘pay and park’ facility of the 14[th] respondent Payyavoor Grama Panchayat Community Development Society (CDS) Kudumbasree Pay Parking Team, as evidenced by Ext.P2 public notice dated 05.11.2022 issued by the 12[th] respondent Payyavoor Grama Panchayat and Ext.P5 parking receipt dated 12.11.2022 issued by the 14[th] respondent Kudumbasree Pay Parking Team, in the property of the 10[th] respondent Payyavoor Devaswom. The petitioners have also sought for other consequential reliefs. 2. On 24.11.2022, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 6. The learned Standing Counsel for Malabar Devaswom Board took notice on admission for respondents 7 to 9. Urgent notice by special messenger was WPC 37898 of 2022 5 ordered to respondents 10 to 14, returnable by 28.11.2022. The learned Senior Government Pleader and also the learned Standing Counsel for Malabar Devaswom Board were directed to get instructions. 3. On 28.11.2022, when this writ petition came up for consideration at 10.15 a.m., the learned counsel for the 10[th] respondent Payyavoor Devaswom submitted that, for the ‘pay and park’ facility, the 9[th] respondent Assistant Commissioner has already granted permission. The learned Standing Counsel for Malabar Devaswom Board sought time to get instructions. Therefore, Registry was directed to list this matter at 2.00 p.m for further consideration. 4. When this matter was taken up for consideration at 2.30 p.m., the learned Standing Counsel for Malabar Devaswom Board made available for the perusal of this Court a copy of the order dated 07.11.2022 of the 9[th] respondent Assistant Commissioner. After detailed consideration of the rival contentions, this Court passed an interim order on 28.11.2022 restraining respondents 9 to 13 from using the Devaswom land in front of Payyavoor Shiva Temple for conducting 'pay and park' facility, by permitting the 14[th] WPC 37898 of 2022 6 respondent Kudumbasree Pay Parking Team to occupy the said Devaswom land, for a period of four weeks. 5. Heard the learned counsel for the petitioners, the learned Senior Government Pleader for respondents 1 to 6, the learned Standing Counsel for Malabar Devaswom Board for respondents 7 to 9, the learned counsel for Payyavoor Devaswom for respondents 10 and 11, and also the learned counsel for 12[th] respondent Payyavoor Grama Panchayat for respondents 12 and 13. 6. In the writ petition, it is alleged that the 14[th] respondent Kudumbasree Pay Parking Team has been permitted to occupy the Devaswom land in front of Payyavoor Shiva Temple for conducting ‘pay and park’. As against the monthly rent of Rs.6,000/- (Rs.200/per day) payable to Payyavoor Devaswom, 14[th] respondent Kudumbasree Pay Parking Team is receiving about Rs.20,000/- to Rs.25,000/- from ‘pay and park’ facility in the Devaswom land. 7. The learned counsel for Payyavoor Devaswom would submit that the above allegation made in the writ petition is absolutely baseless. The learned Standing Council for Payyavoor Grama Panchayat would point out that, the collection of fees for WPC 37898 of 2022 7 ‘pay and park’ facility in the Devaswom land can only be in accordance with the provisions under the Kerala Panchayat Raj (Landing Places, Halting Places, Cart Stands and other Vehicle Stands) Rules, 1995. 8. As noticed in the order dated 28.11.2022, as per the order dated 07.11.2022 of the 9[th] respondent Assistant Commissioner, on the request of the President of the 12[th] respondent Payyavoor Grama Panchayat and the local Police, the Executive Officer of the 10[th] respondent Payyavoor Devaswom submitted an application dated 10.09.2022 before the Assistant Commissioner for arranging parking facility in the land of Payyavoor Shiva Temple. The said application was made based on the decision taken by the Board of Trustees of Payyavoor Shiva Temple, in the meetings held on 15.08.2022 and 03.09.2022, to lease out the Devaswom land temporarily, subject to the terms and conditions, for the period from 01.10.2022 till 31.12.2022, on payment of a monthly rent of Rs.6,000/-. Considering the application dated 10.09.2022 of the Executive Officer, Payyavoor Devaswom to augment the income of Payyavoor Shiva Temple, and also decision No.25 taken on 28.10.2022 by the Area Committee, WPC 37898 of 2022 8 Malabar Devaswom Board, Kasargod Division, the Assistant Commissioner granted approval to the decision taken to lease out the Devaswom land temporarily to the 14[th] respondent Kudumbasree Pay Parking Team, on payment of a monthly rent of Rs.6,000/-, for the period from 01.10.2022 till 31.12.2022, subject to terms and conditions contained therein. 9. '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** ] 10. 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. WPC 37898 of 2022 9 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. 11. 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 parents patriae will also apply in exercising the jurisdiction. 12. In **T. Krishnakumar v. Cochin Devaswom Board** WPC 37898 of 2022 10 **[2022 (5) KHC SN 8 : 2022 (4) KLT 798]** , a Division Bench of this Court, in which both of us were parties, held that in view of the law laid down by this Court in **Abu K.S. v. Travancore Devaswom Board [2022 SCC OnLine Ker 1642]** , relying on the decision of the Apex Court in **M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65]** , while leasing out the buildings owned by the Devaswoms, the Cochin Devaswom Board and its officials have to ensure that proper income is generated from the said buildings. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. The action of the Board as a trustee cannot be equated to that of a mere landlord. The best interest of the Devaswoms under the control of the Board would be subserved only if income is generated. 13. As per sub-section (1) of Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951, any exchange, sale or mortgage and any lease of any immovable property belonging to, or given or endowed for the purposes of, any religious institution shall be null and void unless it is WPC 37898 of 2022 11 sanctioned by the Commissioner as being necessary or beneficial to the institution. 14. On 28.11.2022, when this matter came up for consideration, the learned Standing Counsel for Malabar Devaswom Board sought time to get instructions on the legal contentions raised by the petitioners with a specific reference to sub-section (1) of Section 29 of the Madras Hindu Religious and Charitable Endowments Act. 15. During the course of arguments, the learned Standing Counsel for the Malabar Devaswom Board would submit that no sanction under sub-section (1) of Section 29 of the Madras Hindu Religious and Charitable Endowments Act has been obtained by the 10[th] respondent Payyavoor Devaswom for leasing out the Devaswom land for the ‘pay and park’ facility in front of Payyavoor Shiva Temple by the 14[th] respondent Payyavoor Grama Panchayat Community Development Society (CDS) Kudumbasree Pay Parking Team. 16. In view of the law laid down by the Apex Court in **M.V. Ramasubbiar [(1979) 2 SCC 65]** and the law laid down by this Court in **T. Krishnakumar [2022 (5) KHC SN 8 : 2022 (4) KLT** WPC 37898 of 2022 12 **798]** and **Abu K.S. [2022 SCC OnLine Ker 1642]** , the Board of Trustees of Payyavoor Devaswom ought to have shown reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs, in order to ensure that proper income is generated from the transaction in question. The auctioning of the right to conduct ‘pay and park’ facility should have been conducted in a transparent manner, in order to ensure that proper income is generated from that transaction. Further, any such activity can be permitted in the Devaswom land unless it is necessary or beneficial for the Devaswom and sanctioned by the 8[th] respondent Commissioner, after recording his satisfaction as per the statutory mandate of Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951. In such circumstances, this writ petition is allowed by making the interim order dated 28.11.2022 absolute. Sd/- **ANIL K.NARENDRAN JUDGE** Sd/- **P.G.AJITHKUMAR JUDGE** ``` jg ``` WPC 37898 of 2022 13 ## **`APPENDIX OF WP(C) 37898/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` ``` TRUE COPY OF THE NOTICE DATED 06-04-2018 ISSUED BY THE 12TH RESPONDENT TO THE 10TH RESPONDENT. ``` ``` Exhibit P2 TRUE COPY OF THE PUBLIC NOTICE DATED 05- 11-2022 ISSUED BY THE 12TH RESPONDENT. ``` ``` Exhibit P3 TRUE COPY OF THE APPROVED MINUTES OF THE BOARD MEETING OF THE 12TH RESPONDENT PANCHAYATH HELD ON 29-10-2022. ``` ``` Exhibit P4 ``` ``` TRUE COPY OF THE DISSENTING NOTE DATED 31-10-2022 ISSUED BY SRI.ASHRAF T.P., THE WARD MEMBER OF THE WARD NO.X TO THE 12TH RESPONDENT. ``` ``` Exhibit P5 ``` ``` TRUE COPY OF THE PARKING RECEIPT DATED 12-11-2022 ISSUED BY THE 14TH RESPONDENT TO THE 2ND PETITIONER. ``` ``` Exhibit P6 ``` ``` TRUE COPY OF THE PETITION DATED 09-11- 2022 SUBMITTED BY WARD MEMBER (WARD-X), SRI ASHRAF T.P. AND 4 OTHERS ``` ``` Exhibit P7 ``` ``` TRUE COPY OF THE REPRESENTATION DATED 09-11-2022 SUBMITTED BY THE PETITIONERS TO RESPONDENT NO.9 BY REGD. POST. ```