Rangorath Gokul Prasad 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** **WEDNESDAY, THE 19[TH] DAY OF JULY 2023 / 28TH ASHADHA, 1945 W.P.(C) NO. 23626 OF 2015** ## **PETITIONER:** **RANGORATH GOKUL PRASAD AGED 48 YEARS S/O.LATE GOPINATHAN, 13/393-D, A BLOCK, CHEMMARIKKAT APARTMENTS, KALLIPADAM P.O., SHORANUR - 679 122.** **BY ADV RANGORATH GOKUL PRASAD(Party-In-Person)** ## **RESPONDENTS:** - **1 THE MALABAR DEVASWOM BOARD REPRESENTED BY ITS COMMISSIONER, HOUSE FED COMPLEX, ERANHIPALAM P.O., KOZHIKODE - 673 006.** - **2 THE ASSISTANT COMMISSIONER MALABAR DEVASWOM BOARD, CIVIL STATION, PALAKKAD - 678 001.** - **3 THE EXECUTIVE OFFICER SREE RAMANATHAPURAM GRAMA DEVASWOM, RAMANATHAPURAM, PALAKKAD - 678 001.** - **4 THE TAHSILDAR TALUK OFFICE, PALAKKAD - 678 001.** - **5 THE VILLAGE OFFICER PALAKKAD 2 VILLAGE, PALAKKAD - 678 001.** - **6 THE PALAKKAD MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD - 678 001.** **2** W.P.(C) No.23626 of 2015 - **7 U.M.N.NAMBOOTHIRI** **C/O.T.S.K.NAMBOOTHIRI (DISTRICT JUDGE RTD.), PAZHAYIDATH MANA, RAMANATHAPURAM P.O., PALAKKAD DISTRICT, PIN - 678 001.** - **8* ADDL R8, THE TRUSTEE SREE RAMANATHAPURAM GRAMA DEVASWOM RAMANATHAPURAM P.O, PALAKKAD 678105.** ***ADDL R8 IS IMPLEADED AS PER ORDER DATED 18.10.2016 IN IA 11364/2016** **BY ADVS.** **R1 & R2 BY SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD R6 BY SRI.P.S.APPU** **R7 BY SRI.V.B.RAMANUNNI** **R8 P.B.SUBRAMANYAN P B** **SRI.V.B.RAMANUNNI** **SRI.T.C.SURESH MENON** **P.B.KRISHNAN SABU GEORGE B.ANUSREE MANU VYASAN PETER MEERA P.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 19.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **3** W.P.(C) No.23626 of 2015 ## **JUDGMENT** ## P.G.Ajithkumar, J. The petitioner herein is a devotee of the Temple under Sree Ramanathapuram Grama Devaswom in Palakkad District. He filed this Writ Petition feeling aggrieved by the inaction on the part of respondents No.1 to 3 in not taking any action to protect the properties of the Temple. An extent of 99 cents of land in survey No.961 in block No.24 of Palakkad-2 Village belongs to Sree Ramanathapuram Grama Devaswom as per Ext.P1 revenue settlement register of the year 1904. Ext.P1 would go to show that the property stands in the name of Ramanathapuram Viswanathaswami Lakshmi Narayana Perumal Devaswom. Hence there cannot be any dispute regarding the title to the property. However the property is now under the possession of the 7[th] respondent. More importantly the said 99 cents is a pond attached to the temple. The authorities under the Malabar Devaswom Board are duty bound to protect the temple pond. However, due to the inaction on the part of the respondents the property could not be protected. Hence, the petitioner filed this Writ Petition **4** W.P.(C) No.23626 of 2015 seeking to issue:- - i) a writ of mandamus commanding the respondents 1 and 2 to initiate appropriate further action in accordance with the provisions of the Kerala Land Conservancy Act with respect to the properties in Sy.No.960, 961 and 962 of Palakkad-2 Village and to repossess the land to Sree Ramanathapuram Grama Devaswom; and - ii) a writ of mandamus commanding the respondents 1 to 3 to see that the temple pond is maintained and properly protected in the interest of justice. 2. The Writ Petition was admitted on 7.08.2015. The learned Standing Counsel for the Malabar Devaswom Board took notice for respondents 1 and 3. The learned Standing Counsel for Palakkad Municipality took notice for respondent No.6. The learned Senior Government Pleader took notice for respondent Nos.4 and 5. Additional respondent No.8 was later impleaded as per the order dated 18.10.2016 in I.A.No.11364 of 2016. 3. Pursuant to notice, the 7[th] respondent had entered appearance and filed a counter affidavit. The essential contentions of the 7[th] respondent are contained in paragraph Nos.2 to 4 of the counter affidavit, which are as follows,- **5** W.P.(C) No.23626 of 2015 “2) The Respondent submits that he is not the owner of the property and all proceedings taken against him is devoid of any merit. The property involved in the petition is in the name of this respondent's wife and two children. This Respondent has nothing to do with the property. 3) The petitioner is misusing the writ proceedings for his personal gains and ends. The averment that he is an ardent devotee of Sree Ramanathapuram Grama Devaswom temple is per-se false. The petitioner resides at Shornur, 42 kilometres away from the temple. The so called Temple and the property involved in the petition are located at different sites. In between the temple and the petition schedule property there are nearly 30 houses and different people live in it. More than ½ kilo metres is the difference between the temple and the property. 4) The property in question was not a temple pond as alleged in the petition. There is another temple tank in the temple. This property was originally demised in Jenman to the Devaswom. But as per assignment deed Nos.3445 of 1913 of SRO, Palakkad and Doc.No.2084/ 1960 of SRSO Palakkad and No.745/61 of SRO Palakkad the kanam rights were in favour of different persons and the uncle of this respondent's wife who was a retired District Judge obtained jenmam rights also from the Land Tribunal No.11, Palakkad as No.9823 of 1976. The property is in the uninterrupted possession and **6** W.P.(C) No.23626 of 2015 enjoyment of the wife and children of this Respondent and their predecessors. The Devaswom has no right in the property. The exhibits produced and marked will not show it is a temple pond essential for the temple.” 4. The learned counsel for the petitioner relinquished his Vakalath. Therefore, a notice was sent to the petitioner intimating the date of posting of the case and the necessity to engage a counsel. Despite receipt of notice, the petitioner did not choose to appear before this Court or to engage a lawyer. 5. Heard the learned Senior Government Pleader, the learned Standing Counsel for the Malabar Devaswom Board and the learned counsel appearing for the 7[th] respondent and the additional 8[th] respondent. 6. The grievance of the petitioner is that respondent Nos.1 to 3 did not take any action for resumption of possession of 99 cents of land comprised in survey No.961/24 of Palakkad Village, which belongs to Sree Ramanathapuram Grama Devaswom. A copy of the revenue settlement register of the year 1904 is produced, which is Ext.P1. 99 cents of property comprised in survey No.961/24 is classified as pond belonging to Ramanathapuram Vishwanatha Lakshminarayana **7** ## W.P.(C) No.23626 of 2015 Perumal Devaswom. On the strength of Ext.P1, the petitioner would contend that the said property belongs to the Devaswom and respondents 1 to 3 being the Trustees of the Temple are bound to repossess the same by invoking the provisions of the Kerala Land Conservancy Act. The petitioner would contend that despite several representations, the said authorities did not take any action for repossessing the property of the Temple and therefore a mandatory direction in that regard is absolutely necessary. 7. In the counter-affidavit filed by the 7[th] respondent it is contended that the aforesaid property is owned by his wife and two children. It is further contended that the said property covered by assignment deed Nos.3445/1913, 2084/1960 and 745/1961 of the Sub Registry Office, Palakkad. It is also contended that uncle of the wife of respondent No.7 obtained purchase certificate in respect of the said property from the Land Tribunal-II, Palakkad in proceedings No.9823 of 1976. Thus, the 7[th] respondent set forth a case that his wife and children are the absolute owners in possession of the said property. **8** W.P.(C) No.23626 of 2015 8. 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. 9. 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 **9** W.P.(C) No.23626 of 2015 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 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 **10** W.P.(C) No.23626 of 2015 provisions 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 Sy.No.1042/2, without the permission of the court which passed such order. The Apex **11** ## W.P.(C) No.23626 of 2015 Court concluded that, viewed from any angle, the compromise decree cannot be sustained and is liable to be set aside. 10. In **Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]** a Division Bench of this Court noticed that in **A.A. Gopalakrishnan** (supra) 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. **12** W.P.(C) No.23626 of 2015 11. 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 **13** W.P.(C) No.23626 of 2015 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 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 **14** W.P.(C) No.23626 of 2015 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. 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** (supra). The said decision was referred to and relied on by a Division Bench of this Court in **Mohanan Nair** (supra). 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 **15** W.P.(C) No.23626 of 2015 resorting to the course stipulated in the Kerala Land Conservancy Act, 1957. 13. From the rival contentions of the parties in this case, it is not able to ascertain whether the purchase certificate claimed to have been obtained from the Land Tribunal in respect of the property in question was with notice to the 3[rd] respondent-Devaswom or the additional 8[th] respondent-Trustee of the Temple. But as a matter of fact, a purchase certificate was issued as per the provisions of the Kerala Land Reforms Act, 1971 in respect of that property. In the absence of any materials, it cannot be said that the purchase certificate so issued is shrouded by fraud, if materials to show, at least prima facie, that the purchase certificate suffers from legal infractions, this Court would be obliged to consider whether the purchase certificate is liable to be invalidated. If the purchase certificate was issued by the Land Tribunal after hearing the trustee of the temple, validity of the said purchase certificate can be assailed only by the procedure established by the law. If the property in question is one exempted under Section 3(i)(x) of the Kerala Land **16** W.P.(C) No.23626 of 2015 Reforms Act also, it would have been possible to examine validity of the purchase certificate in exercise of the powers under Article 226 of the Constitution of India. The petitioners or respondents 1 to 3 or the additional 8[th] respondent did not place any material on record to probablise such a fact also. 14. In such circumstances, we are of the view that respondent No.3 and additional 8[th] respondent, who are administering Sree Ramanathapuram Grama Devaswom can be directed to take appropriate action in the matter. Indisputably, the said temple is a religious institution under the control of Malabar Devaswom Board. As per the provisions of Section 20 of the Madras Hindu Religious and Charitable Endowments Act, 1951, the Malabar Devaswom Board has obligation to see that administration of every religious institution and endowment under its control is duly done. Therefore the Malabar Devaswom Board and its officials have to take appropriate supervisory steps in order to ensure that the 3[rd] respondent and the additional 8[th] respondent take all legally possible steps to reclaim 99 cents of land described herein before to the possession of the temple. No further **17** W.P.(C) No.23626 of 2015 relief as prayed in the writ petition is liable to be granted. 16. Accordingly, this writ petition is disposed of with the following directions: - i) The 3[rd] respondent and the additional 8[th] respondent, who are administering Sree Ramanathapuram Grama Devaswom are directed to take appropriate action to retrieve possession of 99 cents of land comprised in survey No.961 in Block No.24 of Palakkad-2 Village belonging to the Devaswom; and - ii) The 1[st] respondent Malabar Devaswom Board is directed to take appropriate supervisory steps in order to ensure that the 3[rd] respondent and the additional 8[th] respondent take all legally possible steps to reclaim the said 99 cents of land to the possession of the Sree Ramanathapuram Grama Devaswom. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/P.G. AJITHKUMAR, JUDGE** dkr **18** W.P.(C) No.23626 of 2015 ## **APPENDIX OF WP(C) 23626/2015** ## **PETITIONER EXHIBITS** **EXHIBIT P1. TRUE COPY OF THE REVENUE SETTLEMENT REGISTER OF THE YEAR 1904 OBTAINED BY THE PETITIONER.** **EXHIBIT P2. TRUE COPY OF THE D.O. LETTER NO.48834/2014/DEV 2/REVENUE DATED 12.09.2014. EXHIBIT P3. TRUE COPY OF THE REGISTERED NOTICE SENT BY THE PETITIONER TO THE 7TH RESPONDENT.** **EXHIBIT P4. TRUE COPY OF THEDETAILS REGARDING SERVICE OF EXHIBIT P3 NOTICE.** - **EXHIBIT P5. TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIOENR BEFORE THE COMMISSIONER MALABAR DEVASWOM BOARD.** **EXHIBIT P6. TRUE COPY OF THE DETAILS REGARDING SERVICE OF EXHIBIT P5 NOTICE.** **EXHIBIT P7. TRUE COPY OF THE REQUEST SUBMITTED UNDER THE RIGHT TO INFORMATION ACT, 2005.** **EXHIBIT P8. TRUE COPY OF THE REPLY RECEIVED TO EXHIBIT P7.** - **EXHIBIT P9. TRUE COPY OF THE INFORMATION SOUGHT REGARDING THE BTR UNDER THE RIGHT TO INFORMATION ACT.** **EXHIBIT P10. TRUE COPY OF THE APPEAL PREFERRED UNDER RIGHT TO INFORMATION ACT.** - **EXHIBIT P11. TRUE COPY OF THE NEWS ITEM APPEARED IN MATHRUBHUMI DAILY DATED 28.04.2015.** **19** ## W.P.(C) No.23626 of 2015 **EXHIBIT P12.** **TRUE COPY OF THE REQUEST SUBMIT BEFORE THE PALAKKAD MUNICIPALITY.** **EXHIBIT P13. TRUE COPY OF THE REPLY RECEIVED FROM THE MUNICIPALITY.** **EXHIBIT P14. TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO.4787/01.** **EXHIBIT P15. TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO.1132/2011.**