Kshethra Upadeshaka Samithi v. Cochin 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 ``` ``` FRIDAY, THE 16[TH] DAY OF DECEMBER 2022/25TH AGRAHAYANA, 1944 WP(C) NO. 3692 OF 2019 ``` ``` PETITIONER: ``` ``` KSHETHRA UPADESHAKA SAMITHY PERUMPILLY SHREE NARASIMHASWAMY TEMPLE, (APPROVED BY COCHIN DEVASWOM BOARD), PERUMPILLY.P.O, MULANTHURUTHY,REP.BY ITS SECRETARY K.B.VIJAYAN, AGED 49 YEARS, S/O.BHASKARAN. ``` ``` BY ADVS.V.R.KESAVA KAIMAL SMT.C.DEVIKA RANI KAIMAL ``` ``` RESPONDENTS: ``` - **`1 THE COCHIN DEVASWAM BOARD, REP.BY ITS SECRETARY, DEVASWOM BOARD BUILDING, THRISSUR-680001.`** - **`2 THE SUB INSPECTOR OF POLICE, STATION HOUSE OFFICER, MULANTHURUTHY POLICE STATION, MULANTHURUTHY-682314.`** - **`*3 THE JUNIOR DEVASWOM OFFICER, KUREEKKAD DEVASWOM, KUREEKKAD.P.O, ERNAKULAM DISTRICT-682305. *THE DESCRIPTION OF THE 3RD RESPONDENT IS SUO MOTU CORRECTED AS “DEVASWOM OFFICER” INSTEAD OF “JUNIOR DEVASWOM OFFICER”`** - **`*ADDL.R4 C.G.INDUCHOODAN, S/O.GOPALAKRISHNA KURUP, CHIRAKKAPARAMBIL, PERUMPILLY, MULANTHURUTHY - 682314. (ADDL.R4 IS IMPLEADED AS PER ORDER DATED 11.02.2019 IN IA 1/19.)`** ``` *ADDL.R5 SURESH KUMAR.P.N., S/O. NARAYANA PISHARADI, AGED 54 YEARS, THAZHATHE MARATH HOUSE, POST PERUMPILLY, MULANTHURUTHY, ERNAKULAM - 682314. ``` -2- W.P.(C). No.3692 of 2019 ``` *ADDL.R6 VINITHA ANIL, W/O. ANIL, AGED 43 YEARS, NOW RESIDING AT 1-5-821/1, CHINNANATHOTA, NEAR INDIRA GANDHI STATUE, SECUNDARABAD OLD ALWAL, HYDERABAD, ANDHRA PRADESH-500010 ``` ``` ADDL. R5 AND ADDL. R6 IMPLEADED AS PER ORDER DATED 11.09.2020 IN I.A. 3/2019 IN WP(C) 3692/2019. ``` ``` *ADDL.R7 DISTRICT SURVEY SUPERINTENDENT, KUNNUMPURAM - CIVIL STATION ROAD, ECHAMUKKU, THRIKKAKKARA, ERNAKULAM – 682 030 ``` ``` *ADDL.R8 THE SPECIAL TAHSILDAR, LAND CONSERVANCY UNIT, COCHIN DEVASWOM BOARD, THRISSUR – 680 001 ``` ``` ADDL.R7 & R8 ARE SUO MOTU IMPLEADED VIDE ORDER DATED 16.12.2022 IN WPC. ``` ``` BY SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ``` ``` BY ADVS.SRI.K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD ``` ``` SRI.A.T.ANILKUMAR SRI.P.VISHNU PRASAD SMT.V.SHYLAJA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- W.P.(C). No.3692 of 2019 ## **JUDGMENT** Anil K. Narendran, J. The petitioner Kshethra Upadeshaka Samithi of Perumpilly Shree Narasimhaswamy Temple at Mulanthuruthy, which is under the management of the 1[st] respondent Cochin Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding 2[nd] respondent Sub Inspector of Police, Mulanthuruthy Police Station, to afford sufficient police protection to the properties of Perumpilly Shree Narasimhaswamy Temple. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent to look into Ext.P1 complaint dated 04.02.2019 filed by the concerned Devaswom Officer and initiate action against the trespasser, who alleged to have trespassed into the temple properties. The further relief sought for is a writ of mandamus commanding respondents 1 and 3 to measure out the temple properties belonging to Perumpilly Shree Narasimhaswamy Temple and take steps to protect the same. -4- W.P.(C). No.3692 of 2019 2. 07.02.2019, when this writ petition came up for admission, the learned counsel for the petitioner sought time to implead the alleged encroacher, referred to in Ext.P1 complaint, as additional respondent. 3. By the order of this Court dated 11.02.2019, I.A.No.1 of 2019 filed by the petitioner for impleadment was allowed and urgent notice was issued to the additional 4[th] respondent through special messenger. The 1[st] respondent Cochin Devaswom Board was directed to file counter affidavit and the learned Government Pleader was directed to get instructions. By the order dated 11.09.2020 in I.A.No.3 of 2019, two residents in the locality were impleaded as additional respondents 5 and 6. 4. The additional 4[th] respondent, the alleged encroacher, entered appearance through counsel and filed a detailed counter affidavit dated 27.02.2019, producing therewith Exts.R4(a) to R4(g) documents, raising various legal and factual contentions. 5. The petitioner has filed reply affidavit dated -5- W.P.(C). No.3692 of 2019 14.02.2019 producing therewith Ext.P2 photographs showing the blockage of ingress and egress to the temple pond. 6. The 1[st] respondent has filed counter affidavit dated 29.10.2019 producing therewith Exts.R1(a) to R1(c) documents. The document placed on record as Ext.R1(a) is the relevant pages of the thanathu register maintained by Cochin Devaswom Board, as per which, the temple property is having 19.837 Acres in Survey Nos.489/2 and 489/1 of Mulanthuruthy Village. The document marked as Ext.R1(b) is a copy of the judgment dated 22.08.2007 in DBA No.91 of 2002, O.P.No.9958 of 2003 and W.P.(C)No.2007 of 2004, whereby the Cochin Devaswom Board was directed to take appropriate action with the assistance of the Secretary of the Temple Advisory Committee, the Devaswom Officer and also with notice Sri.V.B.Gopi, Vadakke Kannothu House, Perumpilly, who was the petitioner in O.P.No.9958 of 2003, to measure out the property. In the said judgment, this Court noticed the contention of the Cochin Devaswom Board that by proceedings dated 16.11.1922 of Diwan of Cochin, the -6- W.P.(C). No.3692 of 2019 Government of Cochin has ordered that the registered wells, tanks, Ulsavam grounds, roads and lines attached to Devaswom should be altered from ‘Sarkar puramboke’ to ‘temple puramboke’ as in British India. The said judgment reads thus; “Applications have been preferred by the Secretary of Perumpilly Sree Narasimha Swamy Kshetra Kshema Samithi seeking a direction to the first respondent to initiate action for measuring the properties belonging to the Temple on the basis of Ext.P1 register. Petitioner has also sought a prayer that till the process is over respondents 2 and 3 may be directed not to exercise any act of possession in the properties detrimental to the interest, possession and ownership of the temple. Detailed statement has been filed on behalf of the Cochin Devaswom Board wherein it has been stated that by the proceedings dated 16[th] November 1922 of the Diwan of Cochin, the Government of Cochin has ordered that the registered Wells, tanks, Ulsavam grounds, road and lines attached to Devaswom should be altered from “Sarkar puramboke” to “temple purmboke” as in British India. It is also stated that in most cases, village records have not been corrected in accordance with this proceedings -7- W.P.(C). No.3692 of 2019 though the land, road, etc., are in the actual possession and enjoyment of the Devaswom. All these aspects have to be considered by the Devaswom. Application is therefore, disposed of directing the first respondent to take appropriate action with the assistance of respondents 2 and 3 with notice to the petitioner in O.P.9958 of 2003 also, within three months from the date of receipt of a copy of this judgment. In view of the above mentioned orders, W.P.(C).2007 of 2004 is also allowed. So also D.B.A.91 of 2002.” 7. Heard the learned counsel for the petitioner, the learned Standing Counsel for Cochin Devaswom Board, the learned Senior Government Pleader and also the respective counsel for additional respondents. 8. The Travancore-Cochin Hindu Religious Institutions Act, 1950, was made for making provisions for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. Chapter VIII of the Act deals with Cochin Devaswom Board. Section 62 of the Act deals with vesting of administration in the Board. As per sub-section (1) -8- W.P.(C). No.3692 of 2019 of Section 62, the administration of incorporated and unincorporated Devaswoms and Hindu Religious Institutions which were under the management of the Ruler of Cochin immediately prior to the first day of July, 1949 either under Section 50G of the Government of Cochin Act, XX of 1113, or under the provisions of the Cochin Hindu Religious Institutions Act, 1 of 1081, and all their properties and funds and of the estates and all institutions under the management of the Devaswom Department of Cochin, shall vest in the Cochin Devaswom Board. As per sub-section (2) of Section 62, notwithstanding the provisions contained in subsection (1), the regulation and control of all rituals and ceremonies in the temple of Sree Poornathrayeesa at Trippunittura and in the Pazhayannur Bhagavathy temple at Pazhayannur shall continue to be exercised as hitherto by the Ruler of Cochin. 9. Section 68 of the Act provides for administration by the Board as a trustee. As per sub-section (1) of Section 68, subject to the provisions of the Act and of any other law for the time being in force, the Board shall be bound to -9- W.P.(C). No.3692 of 2019 administer the affairs of incorporated and unincorporated Devaswoms and institutions under its management in accordance with the objects of the trust, the established usage and customs of the institutions and to apply their funds and property for such purposes. As per sub-section (2) of Section 68, notwithstanding anything contained in sub-section (1), the Board may, out of the funds under their control, set apart such sum as they deem fit for the educational uplift, cultural advancement and economic betterment of the Hindu community, after providing adequately for the purposes of the institutions which have to be met from the said fund. 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, require 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 -10- W.P.(C). No.3692 of 2019 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. 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]** a Three-Judge Bench of 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. That was a case wherein the alleged encroachment of Temple property was raised in a complaint filed by a devotee. The Division Bench noticed that the relevant principles under the Hindu law will show that the deity is always treated similar to -11- W.P.(C). No.3692 of 2019 that of a minor and there are some points of similarity between a minor and a Hindu idol. The Court is the guardian of the deity and apart from the revisional jurisdiction under Section 103 of the Kerala Land Reforms Act, 1963, the 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 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 the proceedings in DBP No.21 of 2009 and the CRPs filed under Section 103 of the Kerala Land Reforms Act. 12. During the course of arguments, it is pointed out by the learned Standing Counsel for Cochin Devaswom Board that the reason for the delay in conducting survey in terms of the directions contained in Ext.R1(b) judgment of this Court dated 22.08.2007 in O.P.No.9958 of 2003 and connected cases, to demarcate the Devaswom property having an extent of 19.837 Acres, was the non-availability of previous survey -12- W.P.(C). No.3692 of 2019 records. Now it has been traced out. The learned Standing has made available for the perusal of this Court a communication dated 19.12.2019 of the additional 8[th] respondent Special Tahsildar, which is one addressed to the Secretary of the 1[st] respondent Cochin Devaswom Board, wherein it is stated that the previous survey records have already been traced out and as such, survey and demarcation of boundaries of the Devaswom property, in terms of the directions contained in Ext.R1(b) judgment of this Court can be undertaken without any further delay. In such circumstances, this writ petition is disposed of by directing the additional 8[th] respondent Special Tahsildar, Land Conservancy Unit, Cochin Devaswom Board to take necessary steps to conduct survey and demarcation of the Devaswom property in Sy.Nos.489/2 and 489/1 of Mulanthuruthy Village, covered by Ext.R1(a) thanathu register maintained by Cochin Devaswom Board, with notice to the petitioner, additional respondents 4 to 6, Sri.V.B.Gopi, the petitioner in O.P.No.9958 of 2003 and the other affected parties, taking note of the -13- W.P.(C). No.3692 of 2019 observations and directions contained in Ext.R1(b) judgment dated 22.08.2007 in DBA No.91 of 2002 and connected cases, which shall be completed within a period of four months from the date of receipt of a certified copy of this judgment. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV/21/12 -14- W.P.(C). No.3692 of 2019 ## **`APPENDIX OF WP(C) 3692/2019`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1 ``` ``` TRUE COPY OF THE COMPLAINT DATED 04.02.2019 SUBMITTED BY THE THIRD RESPONDENT BEFORE THE SECOND RESPONDENT. ``` ``` EXHIBIT P2 PHOTOGRAPHS SHOWING THE BLOCKAGE OF INGRESS AND EGRESS TO THE TEMPLE POND ``` ``` RESPONDENT EXHIBITS ``` ``` EXHIBIT R4(a) TRUE COPY OF THE REQUEST MADE BY THE PETITIONER TO THE RESPONDENT NO.4 EXHIBIT R4(b) TRUE COPY OF THE SKETCH ``` ``` EXHIBIT R4(c) TRUE COPY OF THE JUDGMENT IN OS.NO.50/18 IN MUNSIFF COURT, ERNAKULAM EXHIBIT R4(d) TRUE COPY OF THE COMPLAINT BY THE 4TH RESPONDENT IN POLICE STATION EXHIBIT R4(e) TRUE COPY OF THE G.D.ENTRY IN POLICE STATION EXHIBIT R4(f) TRUE COPY OF THE COMPLAINT FILED BEFORE THE SHO, MULANTHURUTHY EXHIBIT R4(g) TRUE COPY OF THE FIR IN RESPECT OF CRIME 1217/18 OF MULANTHURUTHY POLICE STATION ``` -15- W.P.(C). No.3692 of 2019 ``` EXHIBIT R1 A ``` ``` TRUE COPY OF RELEVANT PAGES OF THE THANATHU REGISTER MAINTAINED BY COCHIN DEVASWOM BOARD. ``` ``` EXHIBIT R1 B TRUE COPY OF THE JUDGMENT DATED 22-8- 2007 IN DBA NO-91/2002 PASSED BY THIS HON'BLE COURT. ``` ``` EXHIBIT R1 C TRUE COPY OF COMMUNICATION NO- R.6741/02 DATED 28-9-2019 ISSUED BY THE 1ST RESPONDENT TO THE SPECIAL TAHSILDAR (LC)UNIT ```