Narayana Bhakthajana Samithi 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** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021/30TH AGRAHAYANA, 1943 WP(C) NO. 27991 OF 2021** ## **PETITIONER:** **NARAYANA BHAKTHAJANA SAMITHI, EDAKKARA P.O., THRISSUR DISTRICT-680513, REPRESENTED BY ITS SECRETARY ARJUNAN E.B., S/O. BALAN, AGED 53, RESIDING AT EDAKKAT HOUSE, EDAKKARA P.O., THRISSUR DISTRICT-680518.** ## **BY ADV K.NANDINI** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, REVENUE (DEVASWOM), ROOM NO. 394, 1ST FLOOR, MAIN BLOCK, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, MINI BYEPASS ROAD, ERANHIPALAM, KOZHIKODE DISTRICT-673006, REPRESENTED BY DEVASWOM COMMISSIONER.** - **4 THE DISTRICT COLLECTOR, COLLECTORATE, AYYANTHOLE, THRISSUR-680003.** - **5 PUNNAYUR GRAMA PANCHAYAT, EDAKKARA P.O., THRISSUR DISTRICT-680518, REPRESENTED BY ITS SECRETARY.** -2- W.P.(C). No.27991 of 2021 - **6 THE VILLAGE OFFICER, PUNNAYOOR VILLAGE, EDAKKARA P.O., THRISSUR680518.** - **7 RASHEED, AGED 53 YEARS S/O. BEERAVUNNI HAJI, KOTTILINGAL HOUSE, EDAKKARA P.O., PUNNAYOOR, THRISSUR DISTRICT680518.** - **8 SUBRAMANIAN MOOSATH, AGED 78 YEARS S/O. RAMAN MOOSATH (LATE), KUNNATH HOUSE, PUNNAYOOR P.O., VADAKKEKKAD (VIA), THRISSUR DISTRICT-679562.** - ***ADDL.R9 THE DISTRICT JUDGE** **COURT COMPLEX, AYYANTHOLE, THRISSUR - 680 003. [ADDL.R9 IS IMPLEADED AS PER ORDER DATED 14.12.2021 IN I.A.1/2021 IN WP(C)27991/2021.]** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- W.P.(C). No.27991 of 2021 ## **JUDGMENT** Anil K. Narendran, J. The petitioner, which is an organization of devotees namely, Narayana Bhakthajana Samithi functioning in Edakkara, Thrissur District, has filed this writ petition under Article 226 of the Constitution of India, seeking an order to injunct the 7[th] respondent from entering into the temple property of an ancient Vishnu Temple, namely, Ambala Perayi, Edakkara situated in Survey Nos.314/12A and 314/12B in Ward No.2 of the 5[th] respondent Punnayur Grama Panchayath, which is covered by Ext.P1 survey settlement register, and cutting and removing the trees and construct walls or buildings in the said property, which comes under the jurisdiction of the 3[rd] respondent Malabar Devaswom Board. The petitioner has also sought for a writ of mandamus commanding respondents 1 to 6 jointly to see that the 7[th] respondent is not encroaching into the aforesaid temple property and also to take appropriate penal measures against the 7[th] respondent for cutting and removing royal trees such as Teak from the said property; a writ of mandamus commanding respondents 1 to 6 to take appropriate action -4- W.P.(C). No.27991 of 2021 under the Kerala Land Conservancy Act, 1957 and to recover the property from the 7[th] respondent, if he has obtained title deed/pattayam over the said property; and a writ of mandamus commanding respondents 1 to 6 to act upon Exts.P2 to P4 representations submitted by the petitioner. 2. Going by the averments in the writ petition, the temple property having an extent of 36 cents in Survey Nos.314/12A and 314/12B of Punnayur Grama Panchayath is shown in Ext.P1 Survey Settlement Register as one owned by Kumaramkod Devaswom Ooralan, namely, Kunnath Damodaran Moosath (Late), who is a relative of the 8[th] respondent. It is alleged in the writ petition that without any right over the property in question, the 7[th] respondent encroahced upon the property and cut and removed the trees and constructed buildings and walls therein. The document placed on record as Ext.P10 is a petition dated 20.12.2021 submitted by the petitioner before the District Judge, Thrissur in terms of the direction contained in the order of the Apex Court dated 05.07.2018 in W.P.(C)No.649 of 2018. 3. Heard the learned counsel for the petitioner, the -5- ## W.P.(C). No.27991 of 2021 learned Senior Government Pleader for respondents 1, 2, 4 and 6 and also the learned Standing Counsel for Malabar Devaswom Board representing the 3[rd] respondent. Considering the nature of relief proposed to be granted, service of notice on respondents 5 and 7 to 9 is dispensed with. 4. '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]** 5. 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 -6- W.P.(C). No.27991 of 2021 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. 6. In **A.A. Gopalakrishnan** , on the facts of the case on hand, the Apex Court noticed that, when Respondents 3 to 5 claimed ownership of Survey No.1043, which was the front portion of the temple premises in the possession of the temple (in the proposal for settlement dated 06.07.2000), the Devaswom Board, instead of investigating and verifying as to how they could claim ownership over temple property, strangely agreed for a settlement under which the temple was to get Sy.No.1043 (which was a temple land already in its possession), in exchange for giving away another temple land (Sy.No.1042/2) to Respondents 3 to 5. The Board Resolution dated 29.08.2000 agreeing for the settlement proposal clearly records that Sy.No.1043 is already in the possession of the -7- W.P.(C). No.27991 of 2021 temple. Before the Apex Court, respondents 3 and 4 contended that the settlement in the suit (O.S.No.399 of 1998) was validly arrived at between them (the plaintiffs) and the Devaswom Board (the defendant), that the Devaswom Board had considered the proposal after taking legal advice and had duly passed a resolution to settle the suit. It was further contended that a decree having been made in terms of the compromise and such decree having attained finality, it cannot be questioned, interfered or set aside at the instance of a third party in a writ proceeding. They relied on the provisons of Order XXIII, Rule 3A of the Code of Civil Procedure, 1908, which provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The Apex Court held that, the bar contained in Order XXIII, Rule 3A will not come in the way of the High Court examining the validity of a compromise decree, when allegations of fraud/collusion are made against a statutory authority which entered into such compromise. While it is true that decrees of civil courts which have attained finality should not be interfered with lightly, challenge to such -8- W.P.(C). No.27991 of 2021 compromise decrees by an aggrieved devotee, who was not a party to the suit, cannot be rejected, where fraud/collusion on the part of officers of a statutory board is made out. Further, when the High Court by the order dated 09.09.1998 had directed the Board to take possession of Sy.No.1042/2 immediately from Respondents 3 and 4 in CDB No.3 of 1996, in a complaint by another devotee, it was improper for the Board to enter into a settlement with Respondents 2 and 3, giving up the right, title and interest in Sy.No.1042/2, without the permission of the court which passed such order. The Apex Court concluded that, viewed from any angle, the compromise decree cannot be sustained and is liable to be set aside. 7. 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 -9- W.P.(C). No.27991 of 2021 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. 8. In **Mohanan Nair** the Division Bench relied on the decision in **Achuthan Pillai v. State of Kerala [1970 KLT 838]** , wherein a Full Bench of this Court considered the validity of an order passed by the Government under Section 99 of the Madras Hindu Religious and Charitable Endowments Act, 1951. By the said order the Government cancelled the sanction given for transfer of immovable property of a Devaswom. The initial order, i.e., Ext.P1 order was passed by the Commissioner for sanction to lease 600 acres of forest land belonging to Emoor Bhagavathy Devaswom. The said -10- W.P.(C). No.27991 of 2021 order was passed in the year 1960 and the Government cancelled the same by Ext.P5 order dated 23.02.1967. The Full Bench traced the principles regarding the rights of an authority to protect the institution like Devaswom in order to prevent fraud. The Full Bench held that the power to cancel a sanction and thereby to make null and void an improvident transfer or alienation of immovable property of a Devaswom, though exercised under the guise of revision, is visitorial in character. It is a matter of common knowledge that even from very early times religious and charitable institutions in India came under the special protection of the ruling authority. The rulers of the country always asserted their right to visit these institutions in order to prevent fraud and redress the abuses in their management. In the celebrated **Rameswar Pagoda** **case [(1874) 1 Ind App 209]** it was pointed out by the Judicial Committee that the former rulers of this country always asserted the right to visit endowments of this kind to prevent and redress the abuses in their management. The authorities, therefore, support the conclusion that supervision and control of Hindu Religious and Charitable Institutions is a -11- W.P.(C). No.27991 of 2021 function of government and that Government at all times asserted and exercised the power. The fact that Government did not exercise the power immediately when it became aware of the circumstances vitiating Ext.P1 order cannot prejudice the interest of the Devaswom. If the contention of the petitioner were to prevail, it would mean that because the Government was not very vigilant in exercising the power the interest of the Devaswom should suffer. Section 10 of the Limitation Act, 1963, provides no period of limitation for a suit against a person in whom the trust property has become vested for any specific purpose or against his legal representatives or assigns for the purpose of following in his or their hands such property. The reason behind the section is that an express trust ought not suffer by the misfeasance or non-feasance of a trustee. 9. In **Mrinalini Padhi v. Union of India [2018 SCC OnLine SC 667]** - order dated 05.07.2018 in W.P.(C)No.649 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 -12- W.P.(C). No.27991 of 2021 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 directions as becomes necessary having regard to individual fact situation. ## 10. In **Nandakumar v. District Collector and others** -13- W.P.(C). No.27991 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. 11. 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 -14- W.P.(C). No.27991 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. 12. As already noticed hereinbefore, in terms of the direction contained in the order of the Apex Court in W.P. (C)No.649 of 2018, the petitioner has already moved Ext.P10 petition before the additional 9[th] respondent District Judge. 13. In such circumstances, this writ petition is disposed of by directing the additional 9[th] respondent District Judge to consider Ext.P10 petition submitted by the petitioner, in terms of the directions contained in the order of the Apex Court in -15- W.P.(C). No.27991 of 2021 W.P.(C)No.649 of 2018 and also the law laid down in the decisions referred to supra, with notice to the petitioners, the 4[th] respondent District Collector, respondents 7 and 8 and other affected parties, if any, and forward a report to this Court, as expeditiously as possible, at any rate, within a period of four months from the date of production of a certified copy of this judgment. It is made clear that this Court has not expressed anything on the merits of the claim made by the petitioner in Ext.P10 petition and it would be open to the party respondents and other affected parties, if any, to raise appropriate legal and factual contentions before District Judge. **Sd/ANIL K.NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** AV/28/12 -16- W.P.(C). No.27991 of 2021 ## **APPENDIX OF WP(C) 27991/2021** ## **PETITIONER EXHIBITS** - **Exhibit P1** - **TRUE COPY OF THE RELEVANT PAGE OF THE SURVEY SETTLEMENT REGISTER DATED 12/06/2017 ISSUED BY THE ASSISTANT SETTLEMENT OFFICER, MALABAR FOR THE SUPERINTENDENT, REGIONAL ARCHIVES, KOZHIKODE.** - **Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED 24/11/2021 SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT.** - **Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 23/11/2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED 24/11/2021 SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT.** - **Exhibit P5 TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT DATED 12/09/2014.** - **Exhibit P6 TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT DATED 23/05/2015 TO THE 2ND RESPONDENT.** - **Exhibit P7 TRUE COPY OF THE SKETCH ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER ON 7/12/2021** - **Exhibit P8 TRUE COPY OF THE DETAILED VERSION OF THE SURVEY SETTLEMENT REGISTER ON 29/11/2021, ISSUED BY THE ASSISTANT SETTLEMENT OFFICER, MALABAR, REGIONAL ARCHIVES, KOZHIKODE** - **Exhibit P9** - **TRUE COPY OF THE STOP MEMO DATED 25/11/2021 FROM 5TH RESPONDENT TO THE BROTHER OF 7TH RESPONDENT** -17- W.P.(C). No.27991 of 2021 **Exhibit P10** **TRUE COPY OF THE PETITION DATED 20-122021 BEING FILED BEFORE THE DISTRICT COURT, THRISSUR.**