M. Danesh v. District Collector, Malabar Devaswom Board, Chirakkal Kovilakam Devaswom, Geologist, Pazhayangadi Police Station, 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** **TUESDAY, THE 7[TH] DAY OF DECEMBER 2021 / 16TH AGRAHAYANA,** ## **1943** ## **WP(C) NO. 12539 OF 2021** **PETITIONER:** **M.DHANESH, AGED 41 YEARS S/O.DAMODHARAN, MOTHENGA HOUSE, CHENGAL, POST PAYANGADI, KANNUR DISTRICT, PIN-670 303. BY ADVS.** **K.M.SATHYANATHA MENON KAVERY S THAMPI** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR COLLECTORATE ROAD, THAVAKKARA, KANNUR DISTRICT, PIN-670 002.** - **2 THE COMMISSIONER, MALABAR DEVASWAM BOARD, HOUSE FED COMPLEX, ERANHIPALAM, KOZHIKODE-675 051.** - **3 THE EXECUTIVE OFFICER, CHIRAKKAL KOVILAKAM DEVASWAM, POST CHIRAKKAL, KANNUR-670 011.** - **4 THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE MINING AND GEOLOGY, KANNUR, PIN-670 001.** - **5 THE STATION HOUSE OFFICER, PAZHAYANGADI POLICE STATION, KANNUR DISTRICT-670 001.** - **6 C.P.VASANTHA, AGED 70 YEARS, D/O.GOPALAN, CHERUKKARA PUTHIYA PURAYAIL, BAKKALAM, KANOOL P.O., KANNUR DISTRICT, PIN-670 567.** - **7 C.P.SEENA, AGED 48 YEARS, D/O.VASANTHA, CHERUKKARA PUTHIYA PURAYIL, BAKKALAM, KANOOL P.O., KANNUR DISTRICT, PIN-670 567.** W.P.(C)No.12539 of 2021 2 - **8 C.P.RAJESH, AGED 43 YEARS, D/O.VASANTHA, CHERUKKARA PUTHIYA PURAYIL, BAKKALAM, KANOOL P.O., KANNUR DISTRICT, PIN-670 567.** - **9 C.SAROJINI, AGED 72 YEARS, W/O.NARAYANAN.T., SREE NARAYANAN NAGAR, TRICHAMBARAM, P.O.TALIPARAMBA, KANNUR DISTRICT, PIN-670 141.** - **10 C.NISHAD, AGED 50 YEARS, S/O.NARAYANAN.T., SREE NARAYANAN NAGAR, TRICHAMBARAM, P.O.TALIPARAMBA, KANNUR DISTRICT, PIN-670 141.** - **11 C.NEENA, AGED 47 YEARS, D/O.NARAYANAN.T., SREE NARAYANAN NAGAR, TRICHAMBARAM, P.O.TALIPARAMBA, KANNUR DISTRICT, PIN-670 141.** **12 C.SEEMA, AGED 44 YEARS, D/O.NARAYANAN.T., SREE NARAYANAN NAGAR, TRICHAMBARAM, P.O.TALIPARAMBA, KANNUR DISTRICT, PIN-670 141.** **BY ADVS. MAHESH V RAMAKRISHNAN SHINU J.PILLAI S.SUJA MARIYA RAJAN AISWARYA JAMES** ## **SRI T.K.VIPINDAS - SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.12539 of 2021 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is a devotee of Madayi Sree Thiruvarkattukavu Temple, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 2 to take immediate and efficacious proceedings against the 3[rd] respondent Executive Officer, Chirakkal Kovilakam Devawom, including disciplinary proceedings for not pressing the suit including I.A.No.3 of 2021 on the file of the District Court (Vacation Court), Thalassery, filed by the 3[rd] respondent against respondents 6 to 12; and a writ of mandamus commanding respondents 1 to 5 to take immediate steps to protect the property of Madayi Sree Thiruvarkattukavu Temple situated in Re.Sy.No.54/1B of Eripuram-Chengal Desom from respondents 6 to 12 and their men and to stop all illegal activities including excavation or removal and transportation of soil and not to make any alteration to the properties of Madayi Sree Thiruvarkattukavu Temple situated in Re.Sy.No.54/1B of Eripurm–Chengal Desom by respondents 6 to 12. The W.P.(C)No.12539 of 2021 4 petitioner has also sought for a direction to respondents 6 to 12 and their men not to create any nuisance or alteration in the property of Madayi Sree Thiruvarkattukavu Temple sitauted in Re.Sy.No.54/1B of Eripuram–Chengal Desom or to excavate or remove or make any construction in the said properties; and a writ of mandamus commanding the 4[th] respondent Geologist to withdraw the orders issued in favour of respondents 6 to 12 including the transit pass issued in favour of respondents 6 to 12 for transporting the soil from the property of Madayi Sree Thiruvarkattukavu Temple situated in Re.Sy.No.54/1B of Eripuram – Chengal Desom. 2. In the writ petition, it is alleged that respondents 6 to 12 had attempted to trespass into the property of the temple and started excavating the earth. With respect to the said illegal action, the 3[rd] respondent Executive Officer of Chirakkal Kovilakam Devaswom had moved a suit and an interlocutory application, i.e., I.A.No.3 of 2021, in that suit before the District Court (Vacation Court), Thalassery, against respondents 6 to 12 to protect the property of the temple as evident from Ext.P2. However, the 3[rd] respondent due to W.P.(C)No.12539 of 2021 5 political interference and the pressure exerted by respondents 6 to 12, instructed the counsel for the 3[rd] respondent to 'not press' the suit and the interlocutory application thus paving way for trespass and illegal removal of soil from temple property. 3. On 22.06.2021, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for respondents 1, 4 and 5. The learned Standing Counsel for Malabar Devaswom Board took notice for the 2[nd] respondent. This Court issued notice on respondents 3 and 6 to 12 and directed the petitioner to file memo regarding service of notice. 4. On 11.08.2021, this Court passed an interim order, which reads thus; “The learned counsel for the petitioner submits that a reply affidavit has been filed to the counter affidavit by respondents 6 to 12. The learned counsel for respondents 6 to 12 submits that he did not receive the copy of the reply affidavit. Be that as may, as relates the case, the grievance of the petitioner is with respect to excavation activities being carried in the property which he claims to be the property of Madayi Sree Thiruvarkattukavu Temple. Obviously, the stand of W.P.(C)No.12539 of 2021 6 respondents 6 to 12 is that the properties do not belong to the temple and they got title over the respective properties. Further more, it is submitted by the learned counsel for respondents 6 to 12 that the excavation activities in which the petitioner raised grievances in the writ petition has already been over and that the excavation was made with a view to effect construction in the properties in question. 2. The learned counsel for the petitioner submits that the excavation is not actually completed as claimed by respondents 6 to 12 and if no interim order is passed prohibiting them from effecting further excavation, respondents 6 to 12 may continue with such excavation activities. 3. Taking note of the rival submissions made at the bar and on going through the pleadings, we are of the view that it is only just and proper to pass an order prohibiting excavation and construction activities in the properties involved in this writ petition allegedly belonging to Madayi Sree Thiruvarkattukavu Temple, till 26.08.2021. Ordered accordingly.” The said interim order, which was extended from time to time, is still in force. 5. The 3[rd] respondent has filed a counter affidavit, wherein it is pointed out that the said respondent had already filed an application dated 17.05.2021 before the 1[st] respondent District Collector, seeking appropriate action under Section W.P.(C)No.12539 of 2021 7 94A of the Madras Hindu Religious and Charitable Endowments Act, 1951. The 3[rd] respondent has also filed a suit for recovery of possession as O.S.No.52 of 2021 before the Sub Court, Payyannur, on the strength of title, which is pending consideration. 6. Respondents 6 to 12 have filed a counter affidavit, opposing the reliefs sought for in this writ petition. In the counter affidavit, relying on Ext.R10-A to Ext.R10-F documents, they would contend, _inter alia_ , that they are the rightful title holder of the property and carrying out construction activities after procuring all sort of regulatory permissions known to law. 7. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1, 4 and 5, the learned Standing Counsel for Malabar Devaswom Board for the 2[nd] respondent, the learned counsel for the 3[rd] respondent and also the learned counsel for respondents 6 to 12. The learned counsel for respondents 6 to 12 would submit that excavation work is already over. 8. 'Deva' means God and 'swom' means ownership in Sanskrit and the term 'Devaswom' denotes the property of God W.P.(C)No.12539 of 2021 8 in common parlance. [see: **Prayar Gopalakrishnan and another v. State of Kerala and others** - **2018 (1) KHC 536]** 9. 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 ‘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. W.P.(C)No.12539 of 2021 9 10. 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. Therefore, when a complaint has been raised by the Temple 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 these proceedings. 11. In **Mrinalini Padhi v. Union of India [2018 SCC OnLine SC 667]** - order dated 05.07.2018 in W.P.(C)No.649 W.P.(C)No.12539 of 2021 10 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 the India, irrespective of religion practiced 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 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 direction 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 the 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 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 W.P.(C)No.12539 of 2021 11 directions as becomes necessary having regard to individual fact situation. 12. 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 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. 13. In **A.A. Gopalakrishnan v. Secretary, Cochin** W.P.(C)No.12539 of 2021 12 **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 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. 14. During the course of arguments, the learned counsel for respondents 6 to 12 would submit that, since the petition dated 17.05.2021 filed by the 3[rd] respondent before the 1[st] respondent District Collector, under Section 94A of the Act and O.S.No.52 of 2021 filed by the 3[rd] respondent before the Sub Court, Payyannur, are pending consideration, leaving W.P.(C)No.12539 of 2021 13 open the legal and factual contentions raised by both sides, parties may be relegated to the statutory authority and the competent civil court, to decide the legal and factual issues. 15. The document placed on record as Ext.P4 is a representation made by the petitioner before the Commissioner, Malabar Devaswom Board and also the Executive Officer, Chirakkal Kovilakam Devaswom. Now, at the instance of the 3[rd] respondent, proceedings under Section 94 of the Act are pending consideration before the 1[st] respondent District Collector. 16. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the 1[st] respondent to take an appropriate decision on the application made by the 3[rd] respondent dated 17.05.2021, under Section 94A of the Act, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment, after affording an opportunity of being heard to the 3[rd] respondent, respondents 6 to 12, the writ petitioner and other affected parties, if any. Any contention raised by respondents 6 to 12 W.P.(C)No.12539 of 2021 14 as to the maintainability of the application dated 17.05.2021 shall be dealt with appropriately by the 1[st] respondent. It is brought to the notice of this Court by the learned counsel on both sides that, I.A.No.3 of 2021 filed by the 3[rd] respondent herein in O.S.No.52 of 2021, seeking injunction, is pending consideration before the Sub Court, Payyannur. Pending consideration of that interlocutory application, respondents 6 to 12 shall not make any constructions in the property in question. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd** W.P.(C)No.12539 of 2021 15 ## **APPENDIX** ## **PETITIONER EXHIBITS** - **Exhibit P1 TRUE COPY OF THE RELEVANT PORTION OF MALAYALA MANORAMA DAILY DATED 29.04.2021.** - **Exhibit P2 TRUE COPY OF THE IA 3/2021 IN THE SUIT FILED BEFORE THE DISTRICT COURT (VACATION COURT), THALASSERRY.** - **Exhibit P3 TRUE COPY OF THE JUDGMENT IN WPC NO.38100/2017 DATED 14.06.2018 OF THIS HON'BLE COURT.,** - **Exhibit P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE RESPONDENTS 2 AND 3 REGISTERED POST DATED 08.06.2021.** - **Exhibit P5 TRUE COPY OF THE RECEIPT ISSUED BY THE POSTAL AUTHORITIES FOR EXT.P4.** - **Exhibit P6 TRUE COPY OF THE CONSIGNMENT STATUS OF EXT.P4 AS DOWNLOADED FROM THE WEBPAGE OF THE POSTAL AUTHORITY.** - **Exhibit P7 PHOTOGRAPHS SHOWING DIGGING AND EXCAVATING OF SOIL FROM THE PROPERTY BY USING JCB.** - **Exhibit P8 A TRUE COPY OF THE ADANGAL EXTRACT ISSUED BY VILLAGE OFFICER, EZHOME, DATED NIL.** **RESPONDENTS 6 TO 12 EXBHITS** **Exhibit P10-A TRUE COPY OF THE MARUPATTOM DEED NO.1501 OF 1924 ALONG WITH ITS TYPED SET. Exhibit P10-B TRUE COPY OF THE GIFT DEED NO.2531 OF 1928 ALONG WITH ITS TYPED SET. Exhibit P10-C TRUE COPY OF THE MARUPATTOM DEED NO.1162 OF 1958 ALONG WITH ITS TYPED SET. Exhibit P10-D TRUE COPY OF THE ORDER DATED 28.01.1976 IN O.A.NO.9691 OF 1975.** W.P.(C)No.12539 of 2021 16 **Exhibit P10-E TRUE COPY OF THE NOTICES ISSUED BY THE TRIBUNAL IN FORM D AND FORM E. Exhibit P10-F TRUE COPY OF THE PATTA CERTIFICATE NO.4310 OF 1976 DATED 13.06.1976 Exhibit P10-G TRUE COPY OF THE PANCHAYAT TAX RECEIPTS WITH RESPECT TO THE SAID BUILDINGS. Exhibit P10-H THE FINAL DECREE NO.359 OF 2001 DATED 31.03.2012. Exhibit P10-I TRUE COPY OF THE REGISTERED RELEASE DEED DATED 19.08.2005 EXECUTED IN FAVOUR OF DIVISIONAL EXECUTIVE ENGINEER. Exhibit P10-J TRUE COPIES OF TAX RECIEPTS FOR THE YEAR 2021-22. Exhibit P10-K TRUE COPY OF THE DEVELOPMENT PERMIT DATED 05.04.2019 IN THE NAME OF RESPONDENTS 6 TO 8. Exhibit P10-L TRUE COPY OF THE BUILDING PERMIT DATED 24.02.2021 IN THE NAME OF RESPONDENTS 6 TO 8. Exhibit P10-M TRUE COPY OF THE DEVELOPMENT PERMIT DATED 12.04.2021. Exhibit P10-N TRUE COPY OF THE BUILDING PERMIT DATED 08.04.2021. Exhibit P10-O TRUE COPY OF THE ORDER NO.36/202122/DOC/OE/M-856/2021 ISSUED WITH RESPECT TO THE LAND OWNED BY RESPONDENTS 6 TO 8. Exhibit P10-P TRUE COPY OF THE ORDER NO.05/202122/DOC/OE/M-940/2021 ISSUED WITH RESPECT TO LAND OWNED BY RESPONDENTS 9 TO 12.** - **Exhibit P10-Q TRUE COPIES OF THE POSSESSION CERTIFICATES ISSUED BY THE EZHOME VILLAGE OFFICE.** - **Exhibit P10-R TRUE COPIES OF THE LAND TAX RECIETPS RANGING FROM THE YEAR 1970.** - **Exhibit P10-S TRUE COPY OF THE THANDAPER ACCOUNT NO.1770.** W.P.(C)No.12539 of 2021 17 **Exhibit P10-T** **TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 23.04.2021 REFLECTING THE ENCUMBRACNES FROM 01.01.1924 TO 16.04.2021.**