M.P. Manikantan and Bhaskaran Nair v. Malabar 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** **TUESDAY, THE 14[TH] DAY OF DECEMBER 2021/23RD AGRAHAYANA, 1943 WP(C) NO. 12535 OF 2021** ## **PETITIONERS:** - **1 M.P.MANIKANTAN,AGED 49 YEARS S/O.RAGHAVA PISHARADI, REGHU NIVAS, THALAYANNAKKAD, KADAMBOOR P.O., OTTAPALAM, PALAKKAD DISTRICT.** - **2 BHASKARAN NAIR, AGED 71 YEARS S/O.LATE SANKARA PANICKER, PULATHARAKALAM P.O., THALAYANNAKKAD, KADAMBOOR P.O., OTTAPALAM, PALAKKAD DISTRICT.** ## **BY ADV K.MOHANAKANNAN** ## **RESPONDENTS:** - **1 THE MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, MINI BYPASS ROAD, ERANHIPPALAM, KOZHIKODE, KERALA-673 006, REPRESENTED BY ITS SECRETARY.** - **2 THE COMMISSIONER, MALABAR DEVASWOM BOARD ERANJIPALAM, HOUSEFED COMPLEX, MINI BYPASS ROAD, ERANHIPPALAM, KOZHIKODE, KERALA-673 006.** - **3 THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, PALAKKAD-678 013.** - **4 THE EXECUTIVE OFFICER, THALAYANAKKAD SIVA TEMPLE, THALAYANAKKAD, KADAMBOOR P.O., OTTAPALAM, PALAKKAD DISTRICT-678 714.** - **R BY BY SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD** -2- WP(C) NO. 12535 OF 2021 **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- WP(C) NO. 12535 OF 2021 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioners, who are devotees of Sree Thalayanakkad Siva Temple of Ottapalam Taluk in Palakkad District, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 2 to 4 to ensure that Ext.P5 order dated 16.01.2021 issued by the 2[nd] respondent Commissioner is implemented in its letter and spirit and to ensure its compliance. The petitioners have also sought for a writ of mandamus directing to take action against the 4[th] respondent Executive Officer of the Thalayanakkad Siva Temple for violating the lawful orders issued by the Commissioner, evident from Ext.P5 order, under the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 within a time frame to be fixed by this Court. 2. Going by the averments in the writ petition, the temple is having 32.80 Ares of land in Re-survey No.8/3 & 7, which is covered by Ext.P1 basic tax register. In addition to the said property, there is also a temple pond. When the -4- WP(C) NO. 12535 OF 2021 western side of the temple property was attempted to be used for taking heavy lorries and other vehicles by private persons, through the temple gate, the 1[st] petitioner approached respondents 2 and 3 by submitting Ext.P2 representation dated 07.09.2020. On receipt of the said representation, the 3[rd] respondent Assistant Commissioner, vide Ext.P3 communication dated 22.09.2020, directed the 4[th] respondent Executive Officer to take appropriate action against the encroachment in the temple property and to conduct an inspection and file report within two weeks. Thereafter, the 3[rd] respondent Devaswom Commissioner forwarded Ext.P4 report dated 03.12.2020 to the 2[nd] respondent Commissioner. 3. On 22.06.2021, when this writ petition came up for admission, the learned Standing Counsel for Malabar Devaswom Board was directed to get instructions as to the steps taken pursuant to Ext.P8 representation and also the action, if any, taken against the Executive Officer, in case he has failed to comply with the direction in Ext.P5, and to file a statement. 4. On 19.07.2021, when the matter came up for -5- WP(C) NO. 12535 OF 2021 consideration, this Court issued notice by speed post to the 4[th] respondent. 5. On 28.10.2021, the learned Standing Counsel for Malabar Devaswom Board has filed a statement on behalf of respondents 1 and 2. Paragraphs 3 and 4 of that statement read thus; “3. As per Ext.P5, the Commissioner directed the 3[rd] respondent who in turn directed the fourth respondent to take expeditious steps to prevent the unauthorised user of the temple property for thoroughfare and report the action taken to that effect to the office of the second respondent. It is submitted that Ext.P5 has been issued, acting on Ext.P2 dated 07.09.2020 submitted by the petitioner as well as taking into consideration Ext.P4 report submitted by the third respondent herein. As the contents of the report discloses the state of affairs discernible from the inspection conducted at the site those are not reiterated herein, for the sake of brevity. 4. It is submitted that Ext.P8 was submitted before the second respondent, requesting implementation of Ext.P5 and the judgment of this Hon'ble Court upholding Ext.P5. Thereafter, as per DO letter dated 14.07.2021 the third respondent, informed the second respondent about the steps taken by him to implement the judgment dated 16.01.2021 in W.P.(C)No.1311 of 2021. The photocopy of the said letter dated -6- WP(C) NO. 12535 OF 2021 14.07.2021, issued by the third respondent to the second respondent is produced herewith and marked as **- Annexure R1(a** ). As per letter dated 08.09.2021, the third respondent again wrote to the second respondent, in this matter, enclosing therewith the letter dated 02.09.2021 issued by the fourth respondent to him. In the said letter the steps taken in compliance of the directions in Ext.P5 has been detailed. The photocopy of the said letter dated 08.09.2021 issued by the third respondent to the second respondent is produced **-** herewith and marked as **Annexure R1(b)** . The photocopy of the letter dated 02.09.2021 issued by the fourth respondent to the third respondent, is produced **-** ” herewith and marked as **Annexure R1(c)** . 6. On 08.11.2021, after arguing for sometime, the learned counsel for the petitioners sought time to place on record few photographs of the disputed property. The petitioners were directed to file an application to implead the persons referred to in Ext.P4 report dated 03.12.2020 of the 3[rd] respondent Assistant Commissioner. 7. Heard the learned counsel for the petitioners and also the learned Standing Counsel for Malabar Devaswom Board representing respondents 1 to 3. 8. The learned counsel for the petitioners would -7- WP(C) NO. 12535 OF 2021 submit that in view of the specific stand taken in the statement filed on behalf of respondents 1 and 2 that steps have already been taken to implement Ext.P5 order dated 16.01.2021 of the 2[nd] respondent Commissioner, in the light of the direction contained in Ext.P6 judgment of this Court dated 18.01.2021 in W.P.(C)No.1311 of 2021, the grievance of the petitioners stands redressed. 9. The learned Standing Counsel for Malabar Devaswom Board would submit that, as stated in the statement filed on behalf of respondents 1 and 2, necessary steps have already been taken to implement the direction contained in Ext.P6 judgment of this Court. The Executive Officer has installed an iron gate on 07.08.2021, in order to prevent unauthorised entry of vehicles to the Devaswom property. The 4[th] respondent Executive Officer reported the said fact to the 3[rd] respondent Assistant Commissioner. On receipt of such report, the Assistant Commissioner reported the said fact to the 2[nd] respondent Devaswom Commissioner, vide Annexure R1(b) letter dated 08.09.2021. 10. 'Deva' means God and 'swom' means ownership in -8- WP(C) NO. 12535 OF 2021 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]** 11. 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 -9- WP(C) NO. 12535 OF 2021 institutions from wrongful claims or misappropriation. 12. 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. 13. In **Nandakumar v. District Collector and others** -10- WP(C) NO. 12535 OF 2021 **[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. 14. 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 -11- WP(C) NO. 12535 OF 2021 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. 15. In the instant case, the 4[th] respondent Executive Officer has already installed an iron gate in order to prevent unauthorised entry of vehicles into the Devaswom property. The 3[rd] respondent Assistant Commissioner has already reported the said fact to the 2[nd] respondent Devaswom Commissioner, vide Annexure R1(b) letter dated 08.09.2021. Since the respondents have already taken necessary steps in terms of the direction contained in Ext.P6 judgment dated -12- WP(C) NO. 12535 OF 2021 18.01.2021 in W.P.(C)No.1311 of 2021, this writ petition is disposed of recording the said fact and by directing the 4[th] respondent Executive Officer to take necessary steps to protect the Devaswom property from any sort of encroachments, in the light of the law laid down in the decisions referred to supra. **Sd/-** **ANIL K.NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV/15/12 -13- WP(C) NO. 12535 OF 2021 ## **APPENDIX OF WP(C) 12535/2021** **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE RELEVANT PAGE OF THE BASIC TAX REGISTER.** - **Exhibit P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT 07.09.2020.** - **Exhibit P3 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT DATED 22.09.2020.** - **Exhibit P4 TRUE COPT OF THE REPORT DATED 03.12.2020 FORWARDED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.** - **Exhibit P5 TRUE COPY OF THE ORDER OF THE COMMISSIONER NO.J5/3653/2020/MDB DATED 16.01.2021.** - **Exhibit P6 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.1311/2011 DATED 18.01.2021.** - **Exhibit P7 TRUE COPY OF THE COMMUNICATION SENT BY THE COUNSEL FOR THE PETITIONER TO THE 4TH RESPONDENT WITH POSTAL ACKNOWLEDGMENT.** **Exhibit P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED 31.05.2021.** -14- WP(C) NO. 12535 OF 2021 ## **RESPONDENTS ANNEXURES :** **ANNEXURE R1(a) THE PHOTOCOPY OF LETTER DATED 14.7.2021, ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT** **ANNEXURE R1(b) THE PHOTOCOPY OF LETTER DATED 8.9.2021 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT ANNEXURE R1(c) THE PHOTOCOPY OF LETTER DATED 2.9.2021 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT**