Sree Kapliyangad Bhagavathi Devaswom 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 G. GIRISH ``` ``` TUESDAY, THE 9[TH] DAY OF JANUARY 2024/19TH POUSHA, 1945 ``` ## **`WP(C) NO.32770 OF 2023`** ## **`PETITIONER:`** ``` SREE KAPLIYANGATT BHAGAVATHI DEVASWOM REPRESENTED BY ITS EXECUTIVE OFFICER KAKKANAPPETTY, VADAKKEKKAD P.O., THRISSUR, PIN – 679562 ``` ``` BY ADVS. ``` ``` MAHESH V RAMAKRISHNAN PRAVEEN K.S. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT SECRETARIAT, P.O.THIRUVANANTHAPURAM, PIN – 695001`** - **`2 SECRETARY TO GOVERNMENT, REVENUE (DEVASWOMS) DEPARTMENT SECRETARIAT, P.O.THIRUVANANTHAPURAM, PIN – 695001`** - **`3 SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, P.O.THIRUVANANTHAPURAM, PIN – 695001`** - **`4 MALABAR DEVASWOM BOARD REP. BY ITS SECRETARY HOUSEFED COMPLEX, P.O. ERAHNIPALAM, KOZHIKODE, PIN – 673006`** - **`5 THE COMMISSIONER, MALABAR DEVASWOM BOARD HOUSEFED COMPLEX, ERANHIPALAM P.O., KOZHIKODE, PIN – 675051`** 2 W.P(C)No.32770 of 2023 - **`6 ASSISTANT COMMISSIONER MALABAR DEVASWOM BOARD, MALAPPURAM DIVISION, TIRUR P.O., MALAPPURAM, PIN – 676104`** ``` 7*[DISTRICT COLLECTOR, MALAPPURAM DISTRICT, CIVIL STATION, COLLECTORATE ROAD, UPHILL, MALAPPURAM-676505.] ``` ``` *[THE DESCRIPTION OF 7[TH] RESPONDENT IS CORRECTED AS : "DISTRICT COLLECTOR, THRISSUR DISTRICT, CIVIL STATION, AYYANTHOLE, THRISSUR-680003", AS PER ORDER DATED 03.11.2011 IN I.A NO.1 OF 2023 IN WP(C) 32770 OF 2023] ``` - **`8 THE DISTRICT POLICE CHIEF (RURAL) THRISSUR, PIN – 680631`** - **`9 THE ASSISTANT COMMISSIONER OF POLICE GURUVAYUR SOUTH INNER RING ROAD, EAST NADA, GURUVAYUR, THRISSUR, PIN – 680101`** - **`10 THE STATION HOUSE OFFICER VADAKKEKKAD POLICE STATION, PUNNAYUR PANCHAYATH ROAD, KADIKKAD, THRISSUR, PIN – 679561`** ``` 11PRAMOD ALIAS PREMKUMAR K.S S/O K.T.VELAYUDHAN, PRESIDENT, KAPLIYANGAT SREE BHAGAVATHY KSHETHRA BHARANA SAMITHI, RESIDING AT KILIYAMPARAMBIL HOUSE, VADAKKEKKADU P.O. THRISSUR, PIN – 679562 ``` ``` 12PRADEEP SECRETARY, KAPLIYANGAT SREE BHAGAVATHY KSHETHRA BHARANA SAMITHI PATTIKKARA HOUSE, CHAMMANNUR P.O., THRISSUR, PIN – 679561 ``` ``` 13M.DIVAKARAN RAJA AGED 85 YEARS, S/O NARAYANAN NAMBOODIRIPPAD, MANAKULATHIL PALACE, INDRANEELAM, AYYANTHOLE, THRISSUR, PIN – 680003 ``` ``` BY ADVS. K.S.SAJEEV KUMAR M P ASHOK KUMAR BINDU SREEDHAR(K/000317/2002) ASIF N(K/001564/2018) BISMI T.A.(K/145/2019) MOHANDAS K.CHACKO(K/399/2010) DEVIPRIYA SATHYASEELAN(K/002841/2022) ``` 3 W.P(C)No.32770 of 2023 ``` SUKESAN P.S.(K/1942/2021) RAMESH.P.N.(K/000096/2019) ``` ``` SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ; SRI R.LAKSHMI NARAYAN- STANDING COUNSEL- MALABAR DEVASWOM BOARD ``` ``` HEARING ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 W.P(C)No.32770 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, namely, Kapliyangad Sree Bhagavathi Devaswom, represented by its Executive Officer, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus, commanding respondents 8 to 10, namely, the District Police Chief (Rural), Thrissur, the Assistant Commissioner of Police, Guruvayur and the Station House Officer, Vadakkekad Police Station to afford adequate protection, as assured by the 8[th] respondent in Ext.P5 communication dated 10.01.2023 addressed to the 6[th] respondent-Assistant Commissioner, Malabar Devaswom Board, Malappuram to the Executive Officer appointed as per Ext.P1 order dated 13.12.2022 of the 5[th] respondent-Commissioner, Malabar Devaswom Board to take charge of administration of the petitioner-Devaswom, to the officers of the Malabar Devaswom Board, the deity of Sree Kapliyangad Bhagavathi Devaswom, its officers and employees and worshippers visiting the temple for offering prayers, from respondents 11 and 12 and the members of the Committee/Samithi led by them and their supporters. 2. On 06.12.2023, when this Writ Petition came up for admission, this Court admitted the matter on file. The learned Senior Government Pleader took notice for respondents 1 to 3 and 7 to 10. 5 ## W.P(C)No.32770 of 2023 The learned Standing Counsel for Malabar Devaswom Board took notice for respondents 4 to 6. Urgent notice by special messenger was ordered to respondents 11 to 13, returnable by 11.12.2023. The learned Senior Government Pleader and also the learned Standing Counsel were directed to get instructions. 3. The 13[th] respondent has filed a counter affidavit dated 31.10.2023, opposing the relief sought for in this writ petition, producing therewith Ext.R13(a) order dated 17.10.2023 in CMA No.93 of 2023, which is one filed invoking the provisions under Order XLIII Rule 1 of the Code of Civil Procedure, 1908, before the District Court, Thrissur, challenging the order dated 25.09.2023 of the Sub Court, Chavakkad in I.A No.2 of 2023 in O.S No.74 of 2023. 4. Respondents 11 and 12 have also filed a counter affidavit dated 11.11.2023, opposing the relief sought for. The petitioner has filed a reply affidavit dated 28.11.2023 to the counter affidavit filed by respondents 11 and 12 and also that filed by the 13[th] respondent. 5. On 03.01.2024, when this matter came up for consideration, heard detailed arguments of the learned counsel for the petitioner, the learned Senior Government Pleader for the State and official respondents, the learned Standing Counsel for Malabar Devaswom Board for the Board and its officials, the learned counsel for respondents 11 and 12, who are the President and Secretary of 6 W.P(C)No.32770 of 2023 Kapliyangad Sree Bhagavathi Kshethra Bharana Samithi and also the learned counsel for the 13[th] respondent, who claims to be the Hereditary Trustee of the temple in question. 6. The issue that requires consideration is as to whether the petitioner Devaswom is entitled for a writ of mandamus commanding respondents 8 to 10 to afford adequate police protection for as sought for in this writ petition. 7. As already noticed hereinbefore, Ext.P1 order of the 5[th] respondent-Commissioner, Malabar Devaswom Board, appointing an Executive Officer in Sree Kapliyangad Bhagavathi Devaswom is under challenge in O.S.No.74 of 2023 filed by the 13[th] respondent before the Sub Court, Chavakkad. In that suit, the plaintiff filed I.A.No.2 of 2023, invoking the provisions under Order XXXIX Rule 1 of the Code of Civil Procedure, 1908, to restrain the respondentsdefendants therein, namely, the Malabar Devaswom Board and its officials, from trespassing into the petition scheduled property, namely, Sree Kapliyangad Bhagavathi Devaswom and taking forcible possession of it and from interfering with the peaceful possession and enjoyment of the petition scheduled property. In that interlocutory application, the Sub Court passed an interim order dated 13.12.2022, at the time of issuance of notice. Thereafter, the Sub Court considered the rival contentions and passed Ext.P6 order 7 W.P(C)No.32770 of 2023 ## dated 25.09.2023, whereby that interlocutory application stands ## rejected. Paragraphs 10 to 14 of Ext.P6 order read thus; “10. The learned counsel for the petitioner vehemently argued that from the basic tax register which is marked as Ext. B2 it can be seen that Mukundaraja of Mankulam is the pattaadhar and the owner of the petition schedule property. Ext. A3 is the survey plan of the petition schedule property. Ext. A4 is the settlement register which shows that as per revenue settlement register of 1905 Manakkulathil Kunhunni Raja is the owner of the petition schedule property. The petitioner is the present senior most member of the above property. Hence he is managing the affairs of the temple. The 1[st] respondent without impleading him and without hearing him has directed the 5[th] respondent. Executive Officer to take over the management of the temple. The above order is not binding on the petitioner. The petition schedule temple is a private temple and hence it is not within the administrative control of the Malabar Devaswom Board. Hence the board has got no right to take over the management of the temple. 11. The learned counsel relied on the dictum of the Hon'ble High Court in **Valiyakunnil Janaki Amma and others v.** ## **Sree Amrutha Mangalam Kshethra Moorthi Kozhikode** **and another [2014 (1) KLJ 367]** and argued that though patta or settlement register are not documents of title, in the absence of any other document showing title entries in the settlement register can be relied on to uphold the title. He also relied on the dictum of the Hon'ble High Court in **Raman** ## **Namboodiri v. Chief Commissioner HR&CE [AIR 2004** **Kerala 319]** and argued that appointment of a non 8 W.P(C)No.32770 of 2023 hereditary trustee can be made only after recording reasons and after due notice to the hereditary trustee. The learned counsel further relied on the dictum of Hon’ble High Court in **Thiruvachira SKP Committee v. Commissioner HR&CE** **[1999 (2) KLT 590]** and argued that the Deputy Commissioner has no power to declare that a temple is a public temple. He also relied on the dictum of **Kesava Menon v. Damodara Menon [1961 KLJ 274], Ramani Messaiar and another v. Commissioner HR&CE [ILR 2008 (2) Kerala 267]** and **Manavikraman Zamorin Raja of Kozhikode v. Commissioner HR&CE [1960 KLT 107]** to buttress his contention. 12. On the other hand, the learned counsel for the respondents submitted that there is absolutely no evidence before this court to show that the petitioner is managing the affairs of the temple and he is the hereditary trustee of the temple. The temple is a public temple and the same is notified in the gazette HR3/5691/93. There is not even a scrap of paper available to show that the petitioner is the hereditary trustee of the temple or to show that he is managing the affairs of the temple. Hence the petitioner is not entitled for an injunction as prayed for. 13. I have carefully gone through the documents produced and marked by both sides and the arguments raised at the bar. Exts.A2 to A4 at the most prima facie shows that the land in which the temple is situated belongs to the family of the petitioner. However, there is not even an iota of evidence before this court to prima facie show that the petitioner or his ancestors were managing the affairs of the temple as claimed by him. To have the ownership of the land where the temple situated is one thing and to manage the temple 9 ## W.P(C)No.32770 of 2023 is another. If the petitioner is managing the temple there will be some documents to show the same like the minutes book, registers and the receipt books. No such documents are forthcoming. It is only because of the fact that the petitioner has got no connection with the management of the temple. 14. The claim of the petitioner that the temple is a private temple has fallen to ground for the reason that already the temple has been notified is a public temple by the HR & CE in 1993 as per gazatte number HR3/5691/93. Hence, it cannot be contended that HR & CE has got no right to control the affairs of the temple. Since the petitioner by no stretch of imagination can be termed as the hereditary trustee prima facie there is nothing to suggest that he has got right to challenge the action of the 1[st] respondent. Hence the points are answered against the petitioner.” 8. Challenging Ext.P6 order 25.09.2023 of the Sub Court, the 13[th] respondent filed C.M.A.No.93 of 2023 before the District Court, Thrissur, which is now pending consideration. In the interlocutory application filed in that C.M.A, no orders have been passed by the District Court. 9. Since the disputes raised by the 13[th] respondent is pending consideration before the Sub Court, Chavakkad in O.S.No.74 of 2023 and before the District Court, Thrissur in C.M.A.No.93 of 2023, we do not propose to consider the rival contentions by the petitioner and the 13[th] respondent on such disputes pending adjudication before the competent civil court. All 10 W.P(C)No.32770 of 2023 those contentions are left open. Therefore, the only question that requires consideration in this writ petition is as to whether the petitioner Devaswom is entitled to seek an order for police protection, on the strength of Ext.P1 order dated 13.12.2022 of the 5[th] respondent-Commissioner, Malabar Devaswom Board, appointing an Executive Officer for the petitioner Devaswom. 10. In the counter affidavit dated 11.11.2023 filed by respondents 11 and 12, who are the President and Secretary of Kapliyangad Sree Bhagavathi Kshethra Bharana Samithi, various contentions have been raised, to oppose the relief sought for in this writ petition. The claim made by that Bharana Samithi to manage and administer Kapliyangad Sree Bhagavathi Devaswom has already been dealt with in the common judgment dated 21.09.2023 in W.P.(C)Nos.11120 of 2023, 12891 of 2023, 21724 of 2023 and 25242 of 2023. In that judgment, this Court held that Kapliyangad Sree Bhagavathi Kshethra Bharana Samithi cannot claim the right to manage and administer Kapliyangad Sree Bhagavathi Devaswom. Accordingly, it was held that the petitioners in W.P.(C)Nos.11120 of 2023, 12891 of 2023 and 25242 of 2023, namely, the Kshethra Bharana Samithi and its members, have no legal right to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking the reliefs sought for in those writ petitions, relating 11 W.P(C)No.32770 of 2023 to the administration and management of Kapliyangad Sree Bhagavathi Devaswom. Paragraphs 11 to 14 of that judgment read thus; ‘11. The learned Standing Counsel would point out the pleadings in paragraphs 2 to 4 of the statement of facts in W.P.(C)No.11120 of 2023, which is one filed by the Patron and President of Kapliyangad Sree Bhagavathi Kshethra Bharana Samithi that said Samithi is illegally managing the affairs of the said temple. The averments in paragraphs 2 to 4 of that writ petition read thus; “2. It is humbly submitted that the said temple is a family temple owned by a family named Kapliyangad. Originally, the temple was situated in a thatched shed. As the said family could not manage the temple, 60 years ago, the temple was handed over to the members of Hindu Community residing in the Konkkanappetty, Chavakkad Taluk. 3. The members of the Hindu Community has been conducting the administration and management of the said temple by forming a Samithi named ‘Kaplyangad Kshethra Bharana Samithy’. All members of the Hindu community in the said locality are members of the Samithi. Members of Executive Committee of the said samithi is elected from among the members of Hindu Community in the General Body Meeting convened for the said purpose. The Executive Committee of the Kshethra Baharana Samithy is consist of President, Secretary, Joint Secretary, working committee members, other members consist of 15 members and Patron from ‘Vettiyattil' Family. The aid Vettiyattil family having hereditary and customary right in the temple and is playing vital role in conduct of Aaratu 12 W.P(C)No.32770 of 2023 Festival and management of the temple. 4. It is humbly submitted that because of the relentless efforts of the said Samithy with the people's participation, the temple was reconstructed. The temple is managed by the Samithy in a befitting manner in accordance with the custom, tradition and rituals of the temple. Major part of the construction was done by Vettiyattil family' by their own money. The temple festival is being conducted in Bharani' day of Kumbam. The temple festival starts with Dwajarohanam' (hoisting the temple flag). In connection with the Aaratu Festival, Kalampattu. Thalam, Vela, Bharani are being conducted. The festival ends with Karthika Prasad Ootu (Feast).” 12. We also notice that the averments in W.P.(C)No.25242 of 2023 filed by Kapliyangad Sree Bhagavathi Kshethra Bharana Samithi and W.P.(C)No.12891 of 2023 filed by two members of that Bharana Samithi are to the effect that the administration and management of Kapliyangad Sree Bhagavathi Temple is done by the said Kshethra Bharana Samithi. 13. As rightly pointed out by the learned Standing Counsel for Malabar Devaswom Board, the formation of committees in temples, which are controlled institutions under the Malabar Devaswom Board, are governed by the provisions in Circular No.HRH5/8246/06 dated 15.06.2007 of the Commissioner of the erstwhile Hindu Religious and Charitable Endowment (Administration) Department, which makes it explicitly clear that the concept of formation of a permanent committee in such temples are legally impermissible. The formation of a committee in such temples is permitted for specified purposes like the conduct of temple festivals, 13 W.P(C)No.32770 of 2023 renovation, etc. The circular dated 15.06.2007 makes it explicitly clear that after the festival or the renovation work, etc. is over, the committee has to be dissolved and its accounts have to be audited. 14. As already noticed, Kapliyangad Sree Bhagavathi Temple in Chavakkad Taluk is a non-listed temple, which is Serial No.1190 in Appendix 1 B schedule (non-listed) temples in notification No.HR3/5691/93 dated 15.02.1994 issued by the Commissioner of the erstwhile Hindu Religious Charitable Endowment (Administration) Department. In view of the provisions in the circular dated 15.06.2007, there cannot be a permanent committee in the said temple for management and administration of that temple, which has to be done by the hereditary trustee approved by the Malabar Devaswom Board. Therefore, Kapliyangad Sree Bhagavathi Kshethra Bharana Samithi cannot claim the right to manage and administer Kapliyangad Sree Bhagavathi Temple. In that view of the matter, we find that the petitioners in W.P.(C)No.11120 of 2023, 12891 of 2023 and 25242 of 2023, who are the said Kshethra Bharana Samithi and its members, have no legal right to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking the reliefs sought for in those writ petitions.’ 11. In paragraph 10 of the judgment dated 21.09.2023 in W.P.(C)No.11120 of 2023, this Court noticed the submission made by the learned Standing Counsel for Malabar Devaswom Board that the name of the additional 8[th] respondent therein (13[th] respondent herein), finds no place in the register maintained by the Malabar Devaswom Board of hereditary trustees of temples which are 14 W.P(C)No.32770 of 2023 ## controlled institutions under the Board. Paragraphs 9 and 10 of the judgment dated 21.09.2023 read thus; “9. On the other hand, the stand taken by the additional 8[th] respondent in W.P.(C)No.11120 of 2023 [additional 13[th] respondent in W.P.(C)No.21724 of 2023], who claims to be the hereditary trustee of Kapliyangad Sree Bhagavathi Temple, is that the temple will not fall under the purview of the Madras Hindu Religious and Charitable Endowments Act, 1951. The said respondent, being the Karanavar of Manakulathil Swaroopam, is administering and managing the affairs of Kapliyangad Sree Bhagavathi Temple. Sree Kapliyangad Bhagavathi Kshetra Bharana Samithi is only assisting the hereditary trustee in the management of the temple. 10. Regarding the aforesaid submission, the specific stand taken by the learned Standing Counsel for Malabar Devaswom Board is that the name of the additional 8[th] respondent in W.P.(C)No.11120 of 2023 finds no place in the register maintained by the Board of hereditary trustees of temples, which are controlled institutions under the Board, and as such the claim of the said respondent that he is the hereditary trustee of that temple cannot be accepted.” 12. In paragraph 8 of the judgment dated 21.09.2023 in W.P.(C)No.11120 of 2023 and connected matters, this Court noticed that Kapliyangad Sree Bhagavathi Devaswom in Chavakkad Taluk is a non-listed temple, which is serial No.1190 in Appendix 1B schedule (non-listed) temples in notification No.HR3/5691/93 dated 15.02.1994 issued by the Commissioner of the erstwhile Hindu 15 W.P(C)No.32770 of 2023 Religious Charitable Endowment Department. Paragraph 8 of the judgment dated 21.09.2023 reads thus; “8. As already noticed hereinbefore, Kapliyangad Sree Bhagavathi Temple in Chavakkad Taluk is a non-listed temple, which is Serial No.1190 in Appendix 1 B schedule (non-listed) temples in notification No.HR3/5691/93 dated 15.02.1994 issued by the Commissioner of the erstwhile Hindu Religious Charitable Endowment (Administration) Department. The specific stand taken in the counter affidavit filed on behalf of the Malabar Devaswom Board in W.P.(C)No.11120 of 2023 is that the said temple is a controlled institution under the Board and as such it is well within the powers of the Commissioner in appointing an Executive Officer by the order dated 13.12.2022 [Annexure R4(a) in W.P.(C)No.11120 of 2023 and Ext.P1 in W.P.(C)No.21724 of 2023].” 13. Relying on the decision of a Division Bench of this Court in **Raman and others v. State of Kerala and others [2019 (1)** **KLJ 717]** , the learned counsel for the 13[th] respondent would contend that the question regarding the right of management of Sree Kapliyangad Bhagavathi Devaswom cannot be the subject matter for determination in a writ petition filed under Article 226 of the Constitution of India, under the guise of police protection, especially when such questions are pending consideration before the competent civil court. Paragraphs 7 and 10 of that decision read thus; ‘7. In this context, it would be useful to refer to the decision 16 ## W.P(C)No.32770 of 2023 of the Apex Court in **P. R. Muralidharan and others v. Swami Dharmananda Theertha Padar and others,** ## **[(2006) 4 SCC 501]** which reads as follows:- "12. It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact. The respondent 1 who sought to claim a status was required to establish the same in a court of law in an appropriate proceeding. He for one reason or the other, failed to do so. The provisions of O.9 R.9 of the Code of Civil Procedure stare on his face. He, therefore, could not have filed a writ petition for getting the self same issues determined in his favour which he could not do even by filing a suit. Indeed the jurisdiction of the writ court is wide while granting relief to a citizen of India so as to protect his life and liberty as adumbrated under Article 21 of the Constitution, but while doing so it could not collaterally go into that question, determination whereof would undoubtedly be beyond its domain. What was necessary for determination of the question arising in the writ petition was not the interpretation of the documents alone, but it required adduction of oral evidence as well..........." It was further held as follows: "13. Furthermore, the jurisdiction of the civil court is 17 W.P(C)No.32770 of 2023 wide and plenary. In case of this nature, the writ of proceedings cannot be a substitute for a civil suit. xx xx 10. In view of the legal principles cited supra, we have no doubt in our mind that disputed questions in regard to the title and possession of the properties cannot have been the subject matter for determination by a writ court under Article 226 of the Constitution of India under the guise of police protection, to the petitioners, particularly when such questions are pending consideration before the competent civil court. Even otherwise, the petitioners, who obtained a decree for permanent prohibitory injunction from a competent court against the respondents, are at liberty to approach the execution court for executing the decree as contemplated under Order XXI Rule 32 of the Code of Civil Procedure, 1908. Having resorted to the execution proceedings by virtue of Ext.P6 execution petition, the petitioners are not justified in insisting upon before this Court for issuance of a writ in the nature of mandamus directing the police authorities to protect their claimed possession of the properties without establishing their possession finally, in an appropriate civil court.’ 14. The learned counsel for the 13[th] respondent would also place reliance on the decision rendered by one among us [Anil K. Narendran, J] while sitting Single, in **Abhilash v. State of Kerala** **[2021(4) KLT 1168]** , wherein it was held that a writ petition filed under the guise of seeking a writ of mandamus commanding the police authorities to give protection to the petitioners, cannot be made a forum for adjudicating on civil rights. It would be an abuse 18 W.P(C)No.32770 of 2023 of the process for the petitioners to approach this Court under Article 226 of the Constitution of India seeking a writ of mandamus commanding the police authorities to protect their claimed possession in the property in question, without first establishing right of the 7[th] respondent therein for declaration of rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 in an appropriate forum. In that decision, the dispute between the petitioners, who sought police protection, and the 7[th] respondent therein centers around a property in and around Kadakuzhi Tribal Settlement, which was in possession of that respondent. This Court noticed that the stand taken in the reply affidavit filed by the petitioners makes it explicitly clear that they were aware of the fact that the land in question falls under the definition of ‘forest land’ in clause (b) of Section 2 of the Act in respect of which a forest dwelling Scheduled Tribe can seek recognition and vesting of forest right, only if he/she had occupied that land before 30.12.2005. The specific stand taken in the statement filed on behalf of the 4[th] respondent therein was that the property in question, which is currently located outside the boundary of Companykkudi Tribal Settlement, is having the status of reserve forest. 15. Relying on the decision of a learned Single Judge of this 19 W.P(C)No.32770 of 2023 Court in **George Mirante v. State of Kerala [1990 (2) KLT 89]** , and the decision of a Division Bench in **Kallai Abu v. Sub Inspector of Police, Malappuram and others [2013 (1) KHC 335]** , the learned counsel for the 13[th] respondent would contend that a writ petition for police protection cannot be entertained when there is a dispute regarding the title and possession over a property. There is no provision in the Kerala Police Act, 2011, which enables the Police to adjudicate a civil dispute. The resolution of such a dispute is a matter absolutely within the domain of the competent civil court. 16. Relying on the decision of the Apex Court in **Dr. Subramanian Swamy v. State of Tamil Nadu and others** **[(2014) 5 SCC 75]** , the learned counsel for the 13[th] respondent would challenge the legality of Ext.P1 order dated 13.12.2022 of the 5[th] respondent-Commissioner, Malabar Devaswom Board appointing Executive Officer for Kapliyangad Sree Bhagavathi Devaswom. 17. The legality or otherwise of Ext.P1 order dated 13.12.2022 of the 5[th] respondent-Commissioner, Malabar Devaswom Board, whereby an Executive Officer has been appointed in Kapliyangad Sree Bhagavathi Devaswom, is the subject matter in O.S.No.74 of 2023 pending before the Sub Court, Chavakkad. In I.A.No.2 of 2023, the Sub Court granted an interim order on 13.12.2022, at the time of issuance of notice, which was vacated 20 W.P(C)No.32770 of 2023 and that interlocutory application stands rejected by Ext.P6 order dated 25.09.2023, which is under challenge in C.M.A.No.93 of 2023 filed by the 13[th] respondent before the District Court, Thrissur. In the interlocutory application filed in that C.M.A, no orders have been passed by the District Court. 18. Ext.P1 order dated 13.12.2022 of the 5[th] respondentCommissioner, Malabar Devaswom Board is one issued in exercise of the powers under Section 20 of the Madras Hindu Religious and Charitable Endowments Act, 1951, appointing an Executive Officer for Kapliyangad Sree Bhagavathi Devaswom. The learned Standing Counsel for Malabar Devaswom Board would point out the decision dated 19.01.2023 in W.P.(C)No.6504 of 2021, in which this Court had an occasion to consider the appointment of an Executive Officer in another Devaswom, which is a controlled institution under Malabar Devaswom Board. We do not propose to consider the rival contentions on the above issue, in this writ petition, since that issue is the subject matter in O.S.No.74 of 2023 pending before the Sub Court, Chavakkad and C.M.A.No.93 of 2023 pending before the District Court, Thrissur. 19. '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.** 21 W.P(C)No.32770 of 2023 ## **State of Kerala and others** - **2018 (1) KHC 536].** 20. In **M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65]** , in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court explained the nature of the fiduciary position of the trustee and his duties and obligations. It is the duty of the trustees of the property to be faithful to the Trust and execute any document with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. A trustee could not, therefore, occasion any loss to the Trust and it is his duty to sell the property if at all that was necessary, to the best advantage. Paragraph 4 of that decision reads thus; “4. There is some controversy on the question whether defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs.21,500, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed Ext.B13 dated July 14, 1960. The fact, however, remains that Defendant 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the trust 22 W.P(C)No.32770 of 2023 and it was his duty to sell the property, if at all that was necessary, to best advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee's partner or son, for that would, in fact and substance, indirectly benefit the trustee. Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner. The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important 23 W.P(C)No.32770 of 2023 aspect of the law although it had a direct bearing on the controversy before it.” (underline supplied) ## 21. 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, require 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 religious and charitable institutions from wrongful claims or misappropriation. 22. 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]** a Three-Judge Bench of the Apex Court emphasised that it is the duty of the courts to 24 W.P(C)No.32770 of 2023 protect and safeguard the interest and properties of the religious and charitable institutions. The Division Bench further noticed that 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 is the guardian of the deity and apart from the revisional jurisdiction under Section 103 of the Kerala Land Reforms Act, 1963, the High Court has inherent jurisdiction and the doctrine of _parens patriae_ will also apply in exercising the jurisdiction. 23. Ext.P1 order dated 13.12.2022 is one issued by the 5[th] respondent-Commissioner, Malabar Devaswom Board to protect the interests of the Deity of Kapliyangad Sree Bhagavathi Devaswom. In case the Executive Officer appointed as per Ext.P1 order is not permitted to take charge, it would cause serious prejudice to the interests and properties of the Deity. When Ext.P1 order issued by the competent authority is in force, and there is obstruction from the side of respondents 11 and 12, who are the President and Secretary of Kapliyangad Sree Bhagavathi Kshethra Bharana Samithi and also from the side of 13[th] respondent, who claims to be the hereditary trustee of that Devaswom, the petitioner is entitled for police protection, as sought for in this writ petition. In the result, this writ petition is disposed of by directing 25 W.P(C)No.32770 of 2023 respondents 8 to 10 to afford adequate and necessary police protection for the Executive Officer of Kapliyangad Sree Bhagavathi Devaswom to take charge as per Ext.P1 order dated 13.12.2022 of the 5[th] respondent-Commissioner, Malabar Devaswom Board and for managing the affairs of the temple in an appropriate manner, without any obstruction being caused by respondents 11 and 12 or any members of Kapliyangad Sree Bhagavathi Kshethra Bharana Samithi or their supporters and also the 13[th] respondent and his supporters. This judgment will be subject to the outcome of C.M.A.No.93 of 2023 pending before the District Court, Thrissur and O.S.No.74 of 2023 pending before the Sub Court, Chavakkad. The Executive Officer shall not interfere with the right of the hereditary trustee of the Devaswom to manage the religious and customary practices in the temple. The respondents 8 to 10 shall take necessary steps to ensure that there is no law and order situation in the locality and that the devotees are exercising their right of worship, without any obstruction being caused by anyone. ## **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** vgd 26 W.P(C)No.32770 of 2023 ## **`APPENDIX OF WP(C) 32770/2023`** ## **`PETITIONER’S EXHIBITS`** ``` EXHIBIT P1 ``` ``` EXHIBIT P2 ``` ``` EXHIBIT P3 ``` ``` TRUE COPY OF THE ORDER NO.H8- 1216/2022/MDB(KDIS) DATED 13-12-2022 IS- SUED BY THE 5TH RESPONDENT ``` ``` TRUE COPY OF THE REPORT NO.M4- 4443/2022/MDB DATED 25-11-2022 SUBMITTED BY THE 6TH RESPONDENT TO THE 5TH RESPONDENT TRUE COPY OF THE LETTER NO.M4- 4443/2022/MDB DATED 24-12-2022 ISSUED BY THE 6TH RESPONDENT TO THE TAHSILDAR, CHAVAKKAD TALUK ``` - **`EXHIBIT P4 TRUE COPY OF THE LETTER DATED 24-12-2022 SENT BY THE 6TH RESPONDENT REQUESTING THE THE 8TH RESPONDENT TO PROVIDE ADEQUATE POLICE PROTECTION`** ``` EXHIBIT P5TRUE COPY OF THE LETTER NO.04/CAMP/2023/RC DATED 10-01-2023 ISSUED BY THE 8TH RESPOND- ENT TO THE 6TH RESPONDENT ``` ``` EXHIBIT P6TRUE COPY OF THE ORDER DATED 25-09-2023 IN I.A. NO.2/2023 IN O.S. NO.74/2023, SUB COURT, CHAVAKKAD ``` ## **`RESPONDENTS’ EXHIBITS`** ``` EXHIBIT R13(A)TRUE COPY OF CMA 93 OF 2023 DT 17/10/2023 PENDING BEFORE HON'BLE DISTRICT COURT THRISSUR ```