Madhu T.K. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942** ## **WP(C).No.3648 OF 2020(E)** ## **PETITIONER:** **MADHU T. K., AGED 48 YEARS, S/O. THANKAPPAN, RESIDING AT DEVI DARSHAN, NANGARATHALAMELE, ATHIYANNUR, NEYYATTINKARA.** **BY ADVS.** **SHRI.V.S.BABU GIREESAN SMT.K.PREETHA JOHN SHRI.R.SREEKANTAN NAIR** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM-695001.** - **3 THE SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM-695001.** - **4 K. SUSEELAN S/O. KUTTAN PANICKER, MANNAM VILAKATHU VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA-695014 (REMOVED)** - **5 M. KUNJIKRISHNAN, S/O. MADHAVAN, VADAKKE KUZHIVILA VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA-695014 (REMOVED).** - **6 S. BHASKARAN, S/O. SANKARAN,** **WP(C).No.3648/2020(E)** **2** ## **THAZHE MULLARATHANATHU VEEDU, ATHIYANNOOR VILLAGE, NEYYATTINKARA-695014 (REMOVED).** - **7 S. KRISHNANKUTTY, S/O. SANKARAN, THAZHE MULLARATHANATHU VEEDU, OF .DO. .DO. 695014.** - **8 N. REMESAN,** - **S/O. NARAYANAN, MARY VILASOM BUNGALOW, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA-695014.(REMOVED)** - **9 C. PADMANABHA PILLAI, S/O. CHELLAPPAN PILLAI, MANNANVILAKATHU VEEDU, OF .DO. .DO. 695014 (REMOVED).** - **10 K. KUTTAN PANICKER,** - **S/O. KUMARU PANICKER, ATHAZHAMANGALATHU SANTHA BHAVAN, OF .DO. .DO. 695014 (REMOVED).** - **11 A. MADHAVAN, S/O. ANTHONI, MELE VANIKUZHI VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA -695014.** - **12 S. SAHADEVAN, S/O. SANKARAN, VALIYAVEETTU VILAKETHU VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE-695014 (REMOVED).** - **13 T. K. VIJAYAN,** - **S/O. THANKAPPAN, MELE PONGUVILA VEEDU, NANGARATHALA, VENPAKAL DESOM, ATHIYANNOOR VILLAGE-695014.** - **14 THAMARAKSHY,** **D/O. GOURI, KODIVILAKATHU VEEDU, HAVING NEEROTTUKARA VEEDU, THIRUPURAM DESOM-695014.** **WP(C).No.3648/2020(E)** **3** > * **15 K.AMBUJAKSHY, D/O.KARTHIYAYANI, ERUVILAKATHU VEEDU, OF .DO. 695014. (REMOVED)** ***(RESPONDENTS R4,R5,R6,R8,R9,R10,R12 AND R15 ARE REMOVED FROM PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 07.10.2020 IN IA NO.6/2020 IN WP(C)3648/2020).** **16 R.CHANDRASEKHARAN, S/O.RAGHAVAN, OF .DO. DO. 695014** > ADDL. **17 SASIDHARAN, S/O OF MRUTHYUNJAYAN, AGED 72 YEARS, MEKKE KUZHIVALA VEEDU, THIRUPURAM DESOM, NEYYATTINKARA, NOW RESIDING AT FLAT NO.104, JOURNALIST ROAD, NCC NAGAR, PEROORKADA, THIRUVANANTHAPURAM.** > ADDL. **18 T.K.THANKAPPAN NAIR, S/O.TANU PILLAI, PULIMMODU VEEDU, THIRUPRAM DESAM, NEYYATTINKARA** **(ADDITIONAL R17 AND R18 ARE IMPLEADED AS PER ORDER DATED 11.02.2021 IN I.A.NO.2 OF 2020).** **R13 BY ADV. SRI.P.GOPAL R13 BY ADV. SRI.B.MURALEEDHARAN R16 BY ADV. SRI.G.S.REGHUNATH ADDL. R17 & 18 BY ADV. GOVIND PADMANABHAN R1-3 BY GOVERNMENT PLEADER SMT. DEEPA NARAYANAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.3648/2020(E)** **4** ## **JUDGMENT** ## **Dated this the 11[th] day of February, 2021** This writ petition has been filed seeking for a direction to allow Ext.P7, respecting Ext.P5 judgment. 2. Ext.P7 is a petition filed by the writ petitioner and others addressed to the Executive Magistrate, Thiruvananthapuram seeking to give direction to the respondents therein, to hand over the key of the Iruvaikkonam Bhagavathy Temple to the public immediately as per the decision in Second Appeal No.631 of 2001 of this Court. 3. There were some disputes relating to administration of Iruvaikkonam Bhagavathy Temple, at Thirupuram Village, Neyyattinkara. Members of Neerottukara veedu filed O.S.No.114 of 1983 for declaration of their rights over the Temple and its property. The suit was decreed in **WP(C).No.3648/2020(E)** **5** their favour. A few of the defendants in the suit filed A.S. No.186 of 1995, which was dismissed. However in the Second Appeal, this Court reversed the judgment of the Courts below. It is submitted that a Special Leave Petition SLP No.6815 of 2020 is pending before the Hon'ble Apex Court. 4. The learned counsel for the petitioner stated that this Court in Ext.P5 judgment held that the temple in question was managed by Kshethra Yogam, through its elected committee atleast from the year 1967 onwards. This Court in Ext.P5 judgment further held that the temple in question managed by a section of people represented the deity and thereby acquired the character of a public temple under the authority of the public. Accordingly, the suit filed by the plaintiffs were dismissed. 5. The learned counsel for the petitioner contended that since the suit has been dismissed and this Court categorically found that it is a temple belonging to public, **WP(C).No.3648/2020(E)** **6** necessarily the administration of the temple should be handed over to the public. The petitioner and about 200 others filed Ext.P7 representation before the Executive Magistrate, Thiruvananthapuram seeking to take necessary steps to hand over the keys to the public. 6. The 13[th] respondent opposed the writ petition. The learned counsel for the 13[th] respondent submitted that they represented 'Iruvaikkonam Bhagavathy Kshethra Yogam Trust' and petitioner is a person who does not have any role in the administration of the temple. On the other hand, the counsel for the petitioner would contend that the petitioner represent 'Iruvaikkonam Kshethra Yogam Committee', which alone is eligible and entitled to administer the temple. 7. The learned counsel representing R14 to R17 on the other hand would argue that they have already preferred a Special Leave Petition before the Hon'ble Apex Court against Ext.P5 judgment of this Court and the matter is pending. The learned counsel for R14 to R17 would further **WP(C).No.3648/2020(E)** **7** argue that this writ petition itself is not maintainable and if the petitioner wants administration of temple to be handed over to Iruvaikkonam Kshethra Yogam committee, then the petitioner should resort to appropriate civil proceedings. Jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked to decide the issue. 8. The learned counsel for the additional respondents 17 and 18 contended that they are the President and Assistant Secretary of the Committee now functioning. The relief sought in the writ petition is to give life to Ext.P5 judgment of this Court in S.A. No.631/2001 in the broad interest of the society. 9. I have heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents 1 to 3, the learned counsel appearing for the 13[th] respondent and the learned counsel appearing for the additional 17[th] and 18[th] respondents. 10. It is true that this Court has held in Ext.P5 **WP(C).No.3648/2020(E)** **8** judgment, that the temple in question has attained the character of a public trust and the plaintiffs in the O.S. cannot seek a claim for exclusive administration of the temple. Therefore there is no doubt that the plaintiffs in the suit cannot claim a right over the administration. But the issue involved in this writ petition is, which is the administrative body entitled to administrate the temple. The petitioner would submit that it is 'Iruvaikkonam Kshethra Yogam Committee' of which the petitioner is the Secretary since 2017, which is entitled to administer committee. On the other hand, the counsel for the 13[th] respondent would submit that 'Iruvaikkonam Bhagavathy Kshethra Yogam Trust' of which the 13[th] respondent is the Secretary, is entitled to administer the temple. 11. This is a disputed question of fact which this Court cannot go into and decide in exercise of the powers under Article 226 of the Constitution of India. If the petitioner and the 13[th] respondent have any dispute regarding the authority **WP(C).No.3648/2020(E)** **9** of a committee to administer the temple, it is open to them to resort to appropriate civil proceedings. 12. The learned counsel for the 13[th] respondent would submit that Ext.R13(a) is the trust deed, the validity of which has been upheld in Ext.P5 judgment. Therefore the selection of the committee should be governed by Ext.R13(b). This Court does not deem it appropriate to enter into any finding in that regard in this writ petition. 13. The contention of the learned counsel for the petitioner is that the Sub Divisional Magistrate has ample power under Section 145 of the Criminal Procedure Code to interfere in the matter and give appropriate directions to hand over the administration of the temple to the petitioner, especially when there is likelihood of law and order problem in the area relating to the administration of the temple and conduct of festivals. 14. However, I find that invoking the power under Article 226 of the Constitution of India, this Court cannot **WP(C).No.3648/2020(E)** **10** direct the Sub Divisional Magistrate to put any party to the dispute into possession of any property. This view is supported by the judgment of the Hon'ble Apex Court reported in _**Bhinka & Others v. Charan Singh** [AIR 1959 SC 960]_ . In the circumstances, this Court cannot direct the Sub Divisional Magistrate to consider Ext.P5 representation in which the prayer of the petitioner is to hand over the keys of the temple. 15. The learned Government Pleader on the basis of the report received from the Station House Officer and the Sub Divisional Magistrate would submit that there is likelihood of law and order issues relating to the temple activities and the State should be permitted to deal with such situation. The State Government can indeed exercise its executive powers in case there are law and order problems and State will be at liberty to take such action as is permissible under law. Parties to the writ petition will be at liberty to bring to the notice of the State if there is likelihood of such law and order **WP(C).No.3648/2020(E)** **11** problem. In the circumstances, no relief can be granted to the petitioner in this writ petition. The writ petition therefore stands disposed of with the above observations. **Sd/N. NAGARESH JUDGE** **SR** **WP(C).No.3648/2020(E)** **12** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 COPY OF THE SKETCH PREPARED BY THE SURVEY AUTHORITY SHOWING THE LOCATION OF THE TEMPLE PROPERTY. EXHIBIT P2 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P2(A) TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN I.A.NO.339/2008 DATED 11.04.2008. EXHIBIT P3(A) TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN I.A.NO.210/2008 DATED 19.02.2010. EXHIBIT P4 TRUE COPY OF THE REPORT OF THE LOCAL POLICE SUBMITTED BEFORE THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 12.11.2019. EXHIBIT P6 TRUE COPY OF THE MINUTES DATED 19.01.2020. EXHIBIT P7 TRUE COPY OF THE APPLICATION WITH THE ENDORSEMENT OF THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE CHART. EXHIBIT P9 COPY OF THE ORDER DATED 18.07.2019 IN I.A.No.10 AND 12 OF 2019 IN S.A.No.631 OF 2001 OF THE HON'BLE HIGH COURT OF KERALA EXHIBIT P10 COPY OF THE MINUTES DATED 21.09.2014 OF THE GENERAL BODY** **WP(C).No.3648/2020(E)** **13** **EXHIBIT P11 COPY OF THE PASSBOOK OF THE VENPAKAL SERVICE CO-OPERATIVE BANK** **EXHIBIT P12 COPY OF THE LIST OF VALUABLES OF THE TEMPLE PREPARED ON 21.09.2014** - **EXHIBIT P13 COPY OF THE REPORT OF DEPOSIT OF GOLD ORNAMENTS OF THE TEMPLE IN THE BANK** - **EXHIBIT P14 COPY OF RECEIPTS SHOWING PAYMENT DATED 31.08.2014, 13.09.2015, 23.10.2015** - **EXHIBIT P15 COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 28.03.2017 AND 15.05.2017** **EXHIBIT P16 COPY OF THE BASIC TAX RECEIPTS FROM 2014 TO 2020** - **EXHIBIT P17 COPY OF THE RECEIPTS OF PAYMENT OF ELECTRICITY BILLS** - **EXHIBIT P18 COPY OF THE ORDER IN S.A.NO.631 OF 2001 DATED 18.07.2019.** - **EXHIBIT P19 COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P20 COPY OF THE MINUTES OF THE MEETING OF A COMMITTEE DATED 28.02.2016.** - **EXHIBIT P20(A) COPY OF THE MINUTES OF THE MEETING OF A COMMITTEE DATED 20.03.2016.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R13(A) TRUE COPY OF THE TRUST DEED NO.110/1982 DATED 14.10.1982 OF THE BALARAMAPURAM SUB REGISTRY.** **EXHIBIT R13(B) TRUE COPY OF THE NIYAMAVALI OF ERUVAI BHAGAVATHI KSHETHRA YOGAM TRUST.** **WP(C).No.3648/2020(E)** **14** **EXHIBIT R17 COPY OF THE MINUTES OF THE COMMITTEE DATED 17.03.2020. EXHIBIT R17(A) COPY OF THE MINUTES OF THE COMMITTEE DATED 22.03.2020. EXHIBIT R17(B) COPY OF THE MINUTES OF THE COMMITTEE DATED 09.05.2020.** SR //TRUE COPY// PA TO JUDGE