Pramesh V. v. State of Kerala and others

1 W.P.(C)No.7033 of 2022 ## **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 23[RD] DAY OF MAY 2023 / 2ND JYAISHTA, 1945 W.P.(C)NO.7033 OF 2022** **PETITIONER:** **PRAMESH V., AGED 40 YEARS, VENGARATHODI HOUSE, THENGARA P.O., MANNARKKAD, PALAKKAD-678582.** **BY ADVS. R.KRISHNA RAJ E.S.SONI KUMARI SANGEETHA S. NAIR RESMI A.** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DISTRICT COLLECTOR, COLLECTORATE, PALAKKAD-678013.** - **3 THE DISTRICT JUDGE, DISTRICT AND SESSIONS COURT, CIVIL STATION COMPLEX, PALAKKAD-678001.** - **4 ARCHAEOLOGICAL SURVEY OF INDIA, MATTANCHERY PALACE MUSEUM, MATTANJERI, JEW TOWN, ERNAKULAM-682002.** - **5 T.V. UNNIKRISHNAN, AGED 50 YEARS S/O. RAMANUNNI NAIR, PULLAYILKALATHIL HOUSE, VETTATHOOR POST, MALAPPURAM-679326.** - **6 MUAHMMED MUSTHAFA, AGED 51 YEARS S/O. ABDUL RASAQ, PUTHENKOTT HOUSE, KARKKIDAMKUNNU POST, MANNARKKAD TALUK, MALAPPURAM-679326. BY ADVS. SHRI.DINESH R.SHENOY,SC, ARCHAEOLOGICAL SURVEY OF** 2 W.P.(C)No.7033 of 2022 **INDIA K.M.ANEESH K.SANTHOSHKUMAR ADARSH KUMAR DILEEP CHANDRAN SHASHANK DEVAN** **SRI S.RAJMOHAN- SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 W.P.(C)No.7033 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The grievance of the petitioner is that respondents 5 and 6 and several others have encroached upon the property of Kottayil Bhagavathy Temple having an extent of 2.35 Acres in Sy.No. 163/11 of Alanellur-2 Village and demolished the temple situated therein, in spite of the complaint filed by the petitioner in terms of the directions contained in the order of the Apex Court in **Mrinalini Padhi v. Union of India [2018 SCC OnLine SC 667]** . The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent State of Kerala and the 2[nd] respondent District Collector, Palakkad to protect the land of the minor deity of Bhagavathy Temple having an extent of 2.35 Acres in Sy.No.163/11 of Alanellur-2 Village and maintain the same by evicting all the encroachers, including respondents 5 and 6, and take appropriate steps to secure the said property by protecting it from encroachers and to take adequate steps to ensure that the said property is exclusively used for temple purposes alone, in the light of the order of the Apex Court in **Mrinalini Padhi [2018 SCC OnLine SC 667]** . The petitioner has also sought for an order directing the 3[rd] respondent District 4 W.P.(C)No.7033 of 2022 Judge, Palakkad to consider Ext.P9 petition dated 24.02.2022, in terms of the directions contained in the said order of the Apex Court. 2. On 03.03.2022, when this writ petition came up for admission before the learned Single Judge, notice before admission by speed post was ordered to respondents 5 and 6, returnable by seven days. The learned Government Pleader took notice for respondents 1 and 2 and the learned Standing Counsel for Archaeological Survey of India took notice for the 4[th] respondent. By the order dated 03.03.2022, Registry was directed to obtain a report from the 3[rd] respondent District Judge on the issues relating to the temple involved in this case. Thereafter, by the order dated 19.05.2022, this writ petition was ordered to be listed before the Division Bench dealing with Devaswom matters. 3. Pursuant to the order of this Court dated 03.03.2022, a report dated 02.04.2022 of the District Judge, Palakkad is placed on record. The 5[th] respondent has filed a counter affidavit dated 14.01.2023, opposing the reliefs sought for in this writ petition. 4. Heard the learned counsel for the petitioner, the 5 W.P.(C)No.7033 of 2022 learned Senior Government Pleader for respondents 1 and 2, the learned Standing Counsel for the 4[th] respondent and also the learned counsel for the 5[th] respondent. Despite service of notice, none appears for the 6[th] respondent. 5. In the writ petition, it is stated that the property of Kottayil Bhagavathy Temple having an extent of 2.35 Acres in Sy.No.163/11 of Alanellur-2 Village, covered by Ext.P1 settlement register, is encroached by respondents 5 and 6 and others. On account of that encroachment, daily poojas have been stopped and ultimately, the temple was destructed by the said respondents. Still, poojas were conducted till recently. When the devotees decided to renovate the temple and started preliminary works, respondents 5 and 6 made a complaint before the concerned Revenue Divisional Officer, complaining that devotees, namely, Krishnan, Parameswaran and Narayan Kutty have encroached into their property and started the construction of the temple without getting necessary permission from the Grama Panchayat and the 2[nd] respondent District Collector. Based on that complaint, proceedings were initiated by the Sub Collector, Ottapalam and an order has been passed and a stop memo has been issued taking note of the fact that necessary permissions 6 W.P.(C)No.7033 of 2022 were not taken by the Temple Renovation Committee before proceeding with the renovation of the temple. 6. The 6[th] respondent herein-Muhammed Mustafa filed W.P.(C)No.34719 of 2014 against Parameswaran, Narayanankutty @ Appu, Ratheesh, Krishnakumar and Madhavan, respondents 5 to 9 therein, aggrieved by their attempt along with the residents in the locality to start a temple in the property of the 4[th] respondent therein-Ramanunni Nair. The said Ramanunni Nair is the father of the 5[th] respondent herein-T.V. Unnikrishnan. On 19.12.2014, when W.P.(C)No.34719 of 2014 came up for consideration, this Court passed the following order; “If any place of worship is being constructed by respondents 4 to 9 without obtaining permission from the District Collector, District Collector shall ensure that no place of worship is established by respondents 4 to 9." Pursuant to that order, the Revenue Divisional Officer, Ottapalam issued a stop memo, which was challenged by Parameswaran by filing W.P.(C)No.4695 of 2015. By Ext.P2 judgment dated 09.03.2015, a learned Single Judge disposed of both the writ petitions, i.e., W.P.(C)Nos.34719 of 2014 and 4695 of 2015, by directing the District Collector to consider the representation 7 W.P.(C)No.7033 of 2022 made by Muhammed Mustafa and pass appropriate orders thereon, after taking note of the objections made by the residents in the locality to the stop memo issued pursuant to the order of this Court dated 19.12.2014, within the time limit prescribed in that judgment, after hearing the petitioner and the party respondents in W.P.(C)No.34719 of 2014 and also any other affected parties. The ' _status quo_ ' was ordered to be maintained till a decision is taken by the District Collector. 7. Pursuant to the directions contained in Ext.P2 judgment dated 09.03.2015 in W.P.(C)Nos.34719 of 2014 and 4695 of 2015, the Sub Collector, Ottapalam passed Ext.P3 order dated 11.05.2017, whereby the Revenue Officials were restrained from accepting land tax or effecting mutation of the property in the name of the 5[th] respondent herein. Since there is a dispute in respect of the property in Sy.No.163/11 of Alanellur2 Village, the Sub Inspector of Police, Nattukal Police Station was directed to ensure strict compliance of the stop memo No.M168/2015 dated 13.01.2015 by all concerned. Narayanankutty, the 6[th] respondent in W.P.(C)No.34719 of 2014 challenged Ext.P3 order dated 11.05.2017 of the Sub Collector before this Court in O.P.(Crl.)No.532 of 2018, which is pending consideration. In 8 W.P.(C)No.7033 of 2022 Ext.P4 order dated 16.05.2017, the 2[nd] respondent District Collector reiterated the directions contained in Ext.P3 order dated 11.05.2017 of the Sub Collector. 8. According to the petitioner, though as per Ext.P1 settlement register, the property of Kottayil Bhagavathy Temple in Sy.No.163/11 of Alanellur-2 Village is having an extent of 2.35 Acres, in Ext.P5 BTR the extent of temple property is shown as 1.34 Acres in Sy.No.261/6. In the order passed by the District Collector, it is pointed out that, as per the report of the Village Officer there is no temple in existence. The said report of the Village Officer is factually incorrect. In fact, the remains of the temple are still on that property, as also the deity. In O.S.No.94 of 2017 pending before the Munsiff Court, Mannarkkad, which was filed by Krishnan against Parameswaran, Narayanankutty @ Appu (respondents 5 and 6 in W.P.(C)No.34719 of 2014), T.V. Unnikrishnan and Muhammed Mustafa (respondents 5 and 6 herein) the Advocate Commissioner submitted Ext.P6 report dated 25.08.2017, in which the existence of the remains of two temples and the presence of the deities were noted. In order to substantiate the said fact, the petitioner has placed on record, Ext.P7 photographs. Going by the averments in the writ petition, 9 ## W.P.(C)No.7033 of 2022 O.S.No.94 of 2017 pending before the Munsiff Court, Mannarkkad is one filed by one of the members of the temple renovation committee against respondents 5 and 6 herein seeking a decree of injunction restraining them from causing hindrance to the renovation of Kottayil Bhagavathy Temple and also for conducting pooja in the property having an extent of 1.34 Acres in Sy.No.261/6 of Alanellur-2 Village. In Ext.P6 report, the Advocate Commissioner, who inspected the property on 29.06.2017, has reported that the temporary structure (seen in Ext.P7 photographs) is about two months old and that no remains of the temple structure could be found in that property. 9. Much after the filing of Ext.P6 report dated 25.08.2017 of the Advocate Commissioner in O.S.No.94 of 2017 pending before the Munsiff Court, Mannarkkad, the petitioner submitted Ext.P9 petition dated 24.02.2022 before the 3[rd] respondent District Judge, Palakkad, relying on Ext.P8 order of the Apex Court dated 05.07.2018 in W.P.(C)No.649 of 2018 - ## **Mrinalini Padhi v. Union of India [2018 SCC OnLine SC** **667]** , to conduct an enquiry into the encroachment of the property of the minor deity of Kottayil Bhagavathy Temple having an extent of 2.35 Acres in Sy.No.163/11 of Alanellur-2 Village 10 W.P.(C)No.7033 of 2022 and maintain the same by evicting all encroachers including respondents 5 and 6 herein, and file a report before this Court. 10. '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]** 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 ‘fence 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 11 W.P.(C)No.7033 of 2022 religious and charitable institutions from wrongful claims or misappropriation. 12. 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 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 12 W.P.(C)No.7033 of 2022 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 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 13 W.P.(C)No.7033 of 2022 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. 13. 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. 14 W.P.(C)No.7033 of 2022 14. 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 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 15 W.P.(C)No.7033 of 2022 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 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 16 W.P.(C)No.7033 of 2022 suffer by the misfeasance or non-feasance of a trustee. 15. 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. 16. 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 to 17 W.P.(C)No.7033 of 2022 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. 17. 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 offerings and protection of assets may require consideration with regard to all Shrines throughout 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 18 W.P.(C)No.7033 of 2022 Constitution of India and there is a 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 directions 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 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 become necessary having regard to the individual fact situation. 18. As already noticed, the petitioner submitted Ext.P9 petition dated 24.02.2022 before the 3[rd] respondent District Judge, Palakkad, relying on the order of the Apex Court in **Mrinalini Padhi [2018 SCC OnLine SC 667]** , to conduct an enquiry into the encroachment of the property of the minor deity of Kottayil Bhagavathy Temple having an extent of 2.35 Acres in Sy.No.163/11 of Alanellur-2 Village and maintain the same by 19 W.P.(C)No.7033 of 2022 evicting all encroachers including respondents 5 and 6 herein, and file a report before this Court. On 03.03.2023, when this writ petition came up for admission before the learned Single Judge, Registry was directed to obtain a report from the 3[rd] respondent District Judge on the issues relating to the temple involved in this case. The District Judge, Palakkad has submitted a report dated 02.04.2022, after obtaining a report from the MunsiffMagistrate, Mannarkkad before whom O.S.No.94 of 2017 filed by one Krishnan, a devotee of Kottayil Bhagavathi Temple, is pending consideration. The said report of the District Judge contains only a brief narration of the pleadings in the plaint, written statement and the report of the Advocate Commissioner. 19. When the dispute relating to the property in question is pending before the competent civil court, i.e., the Munsiff Court, Mannarkkad, in O.S.No.94 of 2017 filed by Krishnan, a devotee of Kottayil Bhagavathi Temple, in which the alleged encroachers are arrayed as the defendants, the petitioner, who is another devotee of the said temple, cannot submit a petition like Ext.P9 before the 3[rd] respondent District Judge, Palakkad, relying on the order of the Apex Court in **Mrinalini Padhi [2018 SCC OnLine SC 667]** , to conduct an enquiry into the alleged 20 W.P.(C)No.7033 of 2022 encroachment of the property of the minor deity by the defendants in the said suit (respondents 5 and 6 herein) and file a report before this Court, during the pendency of that suit. For the aforesaid reason, this writ petition filed on 02.03.2022 is dismissed as not maintainable, without expressing anything on the rival contentions of the petitioner and respondents 5 and 6 herein. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** **yd** 21 W.P.(C)No.7033 of 2022 ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE SETTLEMENT REGISTER DATED 09.01.2015** **Exhibit P2 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) 4695/15 DATED 09.03.2015** **Exhibit P3 TRUE COPY OFTHE ORDER OF THE SUBCOLLECTOR DATED 11.05.2017.** **Exhibit P4 TRUE COPY OF THE ORDER OF THE DISTRICT COLLECTOR DATED 16.05.2017** **Exhibit P5 TRUE COPY OF THE BTR DATED NIL Exhibit P6 TRUE COPY OF THE COMMISSIONER REPORT IN O.S.94/2017 BEFORE THE MUNSIFF COURT MANNARCADU DATED 25.08.2017** **Exhibit P7 TRUE COPY OF THE PHOTOGRAPHS DATED NIL. Exhibit P8 TRUE COPY OF THE ORDER OF THE APEX COURT IN W.P.(C).NO. 649/2018 DATED 05.07.2018 Exhibit P9 TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE DISTRICT JUDGE PALAKKAD DATED 24.02.2022.**