Sree Prayangott Shiva Temple 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`** ``` THURSDAY, THE 16[TH] DAY OF MARCH 2023 / 25TH PHALGUNA, 1944 W.P.(C)NO.5676 OF 2023 ``` ``` PETITIONER: ``` ``` SREE PRAYANGOTT SHIVA TEMPLE AGED 47 YEARS ``` ``` - REPRESENTED BY ITS EXECUTIVE OFFICER, KANNAPURAM P.O., KANNUR -., PIN - 670301 BY ADV MAHESH V RAMAKRISHNAN ``` ## **`RESPONDENTS:`** |**`1`**|**`STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY`**| |---|---| ||**`TO GOVT., SECRETARIAT, P.O.THIRUVANANTHAPURAM.,`**| ||**`PIN - 695001`**| |**`2`**|**`SECRETARY TO GOVERNMENT,`**| ||**`REVENUE (DEVASWOMS) DEPARTMENT, SECRETARIAT`**| ||**`P.O.THIRUVANANTHAPURAM - ., PIN - 695001`**| |**`3`**|**`SECRETARY TO GOVERNMENT`**| ||**`LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT`**| ||**`P.O.THIRUVANANTHAPURAM -, PIN - 695001`**| |**`4`**|**`SECRETARY TO GOVERNMENT`**| ||**`HOME DEPARTMENT, SECRETARIAT`**| ||**`P.O.THIRUVANANTHAPURAM., PIN - 695001`**| |**`5`**|**`MALABAR DEVASWOM BOARD`**| ||**`REP. BY ITS SECRETARY, HOUSEFED COMPLEX,`**| ||**`ERANHIPALAM P.O., KOZHIKODE -, PIN - 673006`**| |**`6`**|**`THE COMMISSIONER, MALABAR DEVASWOM BOARD,`**| ||**`HOUSEFED COMPLEX, ERANHIPALAM P.O., KOZHIKODE -,`**| ||**`PIN - 673006`**| 2 W.P.(C)No.5676 of 2023 - **`7 ASSISTANT COMMISSIONER, MALABAR DEVASWAM BOARD, THALASSERY DIVISION, THIRUVANGAD P.O., KANNUR ., PIN - 670101`** - **`8 THE DISTRICT POLICE CHIEF, KANNUR RURAL, KANNUR P.O., KANNUR -, PIN - 670002`** - **`9 THE SUB INSPECTOR OF POLICE, KANNAPURAM POLICE STATION, P.O.KANNAPURAM, KANNUR., PIN - 670301`** - **`10 THE DISTRICT COLLECTOR KANNUR P.O., KANNUR -, PIN - 670001`** - **`11 THE KANNAPURAM GRAMA PANCHAYATH REP. BY ITS SECRETARY, OFFICE OF THE KANNAPURAM GRAMA PANCHAYATH, KANNAPURAM P.O., KANNUR, PIN - 670301`** ``` BY ADV Leena C ``` ``` SRI S.RAJMOHAN- SR GOVERNMENT PLEADER ; SRI R.LAKSHMI NARAYAN - STANDING COUNSEL- MALABAR DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 16.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.5676 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner namely, Sree Prayangott Shiva Temple, represented by its Executive Officer, which is a controlled institution under the 5[th] respondent Malabar Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus restraining the 11[th] respondent Kannapuram Grama Panchayat and its workers from continuing the illegal activities of trespass and encroachment to any portion of the land covered by Ext.P1 extract of the Adangal Register in Re.Sy.No.73/4 of Kannapuram Village, issued by the Village Officer, Kannapuram, which is in the direct possession of the petitioner temple, from constructing granite stone side walls to the road, from changing the lie and nature of the property, from making any constructions in the temple property, from adding any property of the temple covered by Ext.P1 for widening of the road, from in any manner preventing the elephant procession at the time of temple festival of Sree Annapoorneswari 4 ## W.P.(C)No.5676 of 2023 Temple, Cherukunnu to the petitioner temple, and from in any manner interfering with the basal possession and enjoyment of the property by the petitioner temple. The petitioner has also sought for a writ of mandamus commanding the 10[th] respondent District Collector to issue appropriate orders to the 11[th] respondent Kannapuram Grama Panchayat to stop forthwith construction/widening of the road and construction of side walls by encroaching upon the property of the petitioner temple in any manner, by invoking powers under Section 94A of the Madras Hindu Religious and Charitable Endowments Act, 1951 and by implementing the directions in Exts.P5 and P6 circulars; and a writ of mandamus commanding respondents 8 and 9 to accord adequate protection to the life and properties of Sree Prayankot Shiva Temple from the attack and illegal acts by the 11[th] respondent Kannapuram Grama Panchayat and to ensure that the ancient property of the petitioner temple covered by Ext.P1 is preserved and protected. 2. In the writ petition, it is alleged that the 11[th] 5 W.P.(C)No.5676 of 2023 respondent Kannapuram Grama Panchayat Grama Panchayat has trespassed and encroached over the temple property covered by Ext.P1 Adangal Register for widening and tarring an existing road. The petitioner submitted Ext.P2 representation dated 11.02.2023 before the Secretary of the 11[th] respondent Grama Panchayat, which was followed by Ext.P3 complaint dated 12.02.2023 before the 9[th] respondent Station House Officer, Kannapuram Police Station and Ext.P4 petition dated 13.02.2023 before the 10[th] respondent District Collector. The petitioner would place reliance on Ext.P5 circular dated 12.09.2014 issued by the Secretary to Government, Revenue (Devaswom) Department, whereby all the Sub Collectors, Tahsildars and Deputy Collectors concerned are directed to remove such encroachments as per the Kerala Land Conservancy Act and to impose fine, etc. The document marked as Ext.P6 is communication D.O.No.31698/Dev.2/2015/RD dated 23.05.2015, issued by the 2[nd] respondent. 3. On 17.02.2023, when this writ petition came up for admission, the learned Senior Government Pleader entered 6 W.P.(C)No.5676 of 2023 appearance for respondents 1 to 4 and 8 to 10. The learned Standing Counsel for Malabar Devaswom Board took notice for respondents 5 to 7. Urgent notice by speed post was ordered to the 11[th] respondent, returnable within three weeks. On 17.02.2023, this Court granted an interim order directing the 11[th] respondent Grama Panchayat to stop the construction of the road through the petitioner's property, including the construction of side walls to the road, changing the lie and nature of the property of the petitioner temple, covered by Ext.P1, for a period of one month. The learned Senior Government Pleader and also the learned Standing Counsel for Malabar Devaswom Board were directed to get instructions. 4. On 14.03.2023, when this writ petition came up for consideration, the 11[th] respondent entered appearance through counsel. The learned counsel submitted that a counter affidavit on behalf of the 11[th] respondent Grama Panchayat shall be placed on record by 15.03.2023. By the order dated 14.03.2023, the interim order was extended for a period of two weeks. 7 ## W.P.(C)No.5676 of 2023 5. Today, when the matter is taken up for consideration, a counter affidavit on behalf of the 11[th] respondent is placed on record. 6. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 to 4 and 8 to 10, the learned Standing Counsel for Malabar Devaswom Board for respondents 5 to 7 and also the learned counsel for the 11[th] respondent Grama Panchayat. 7. During the course of arguments, the learned counsel for the 11[th] respondent Grama Panchayat would submit that, as stated in the counter affidavit, the Panchayat does not have any intention to form any new road upon the temple property as alleged by the petitioner. No widening of the existing road is being planned or done by Panchayat. The allegation that the Panchayat is increasing the height of the road by constructing granite side walls in a way as to obstruct the customary procession of Annapoorneswari Devi on elephant back from Sri Annapoorneswari temple to petitioner temple is nothing but a 8 W.P.(C)No.5676 of 2023 baseless statement. The Panchayat has not done any encroachment into the property of the temple and also has no such intention. No damage is caused to temple property by the Panchayat and no trespass is made and no change or disturbance to possession and enjoyment of property of the temple is caused. 8. In the counter affidavit filed by the 11[th] respondent Grama Panchayat, it is stated that as per Project No.69/2023 of Kannapuram Grama Panchayath the existing road, i.e., Convent - Christhukkunnu Harijan Colony Road of 0.384 Kms starting from Cherukunnu Vellikkeel Road through Christhukkunnu Hairjan Colony and ending at Kayatteel Laksham Veedu Prayamkottam Sisumandiram Road is proposed to be maintained and improved by filling and levelling at very uneven points. For making a culvert to facilitate water flow during monsoon to the water channel or thodu, a very slight difference in height is expected for a short distance, which will in no way disturb the customary procession to be conducted from Sri Annapoorneswari Temple. No side wall at a higher level is proposed. Granite stones on both sides will be 9 ## W.P.(C)No.5676 of 2023 made to strengthen and demarcate the road, but at the level of the road. Since the annual festival of ‘Vishu Vilakk' of Cherukunnu Annapoorneswari Temple is fast approaching, the Panchayat has to complete the work of the road and culvert. 9. 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 10 W.P.(C)No.5676 of 2023 also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. 10. 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 parens 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, 11 W.P.(C)No.5676 of 2023 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. 11. 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 practised 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 Civil Procedure Code, 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 12 W.P.(C)No.5676 of 2023 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. 12. Section 94A of the Madras Hindu Religious and Charitable Endowments Act, 1951, all lands belonging to the Malabar Devaswom Board and religious institutions shall be deemed to be the property of the Government for the purpose of the Kerala Land Conservancy Act, 1957 and all the provisions of that Act shall, so far as they are applicable, apply to such lands. 13. Ext.P6 communication, i.e., D.O.No.31698/Dev.2/ 2015/RD dated 23.05.2015, issued by the 2[nd] respondent reads thus; “It has come to the notice of the Government that lands belonging to Devaswoms are being declared as ‘Puramboke’ by Resurvey and Revenue authorities and Land tribunals are 13 W.P.(C)No.5676 of 2023 issuing ‘Pattayam’ without the knowledge of Malabar Devaswom Board. Further massive encroachment of land belonging to temples had happened in places like Emoor Bhagavathi Temple, Purakkadi Temple, etc., and various other temples coming under Malabar Devaswom Board. The directions were earlier given to the District Collectors for invoking the provisions of KLC Act for restoring the property encroached by the private parties. Hence urgent necessary directions may kindly be given from the Revenue Department to the district Collectors and the staff of the Revenue Department: 1. To identify the temples land encroached by private parties; 2. Restore the land where there is no court stay; 3. Make corrections where mistakes of classification of land as ‘puramboke’ has happened; and 4. Direct the Land Tribunal not to issue ‘Pattayam’ of Temples land without NOC from the Malabar Devaswom Board.” 14. The learned counsel for the petitioner would submit that the existing boundary of the Panchayat Road is visible and as such, laying of granite stones on both sides to strengthen and demarcate the road, has to be made on the visible boundary of the existing road, without encroaching upon the property of Sree 14 W.P.(C)No.5676 of 2023 Prayangott Shiva Temple. 15. The learned counsel for the 11[th] respondent Grama Panchayat would submit that, as stated in the counter affidavit, the Panchayat does not have any intention to form any new road upon the temple property. No widening of the existing road is being planned or done by Panchayat. The Panchayat has no intention to encroach into the property of the temple or to cause any damage to the temple property. In the above circumstances, this writ petition is disposed of with a declaration that, in connection with the maintenance and improvement of Convent - Christhukkunnu Harijan Colony Road of 0.384 Kms starting from Cherukunnu Vellikkeel Road through Christhukkunnu Hairjan Colony and ending at Kayatteel Laksham Veedu Prayamkottam Sisumandiram Road [Project No.69/2023], the 11[th] respondent Grama Panchayat cannot encroach upon the property of Sree Prayangott Shiva Temple, covered by Ext.P1 extract of the Adangal Register in Re.Sy.No.73/4 of Kannapuram Village, which is a controlled institution under the 5[th] respondent 15 ## W.P.(C)No.5676 of 2023 Malabar Devaswom Board. Subject to the said declaration, the 11[th] respondent is permitted to proceed with the maintenance and improvement of Convent - Christhukkunnu Harijan Colony Road [Project No.69/2023]. In case there is any boundary dispute, it is for the petitioner or the 11[th] respondent Grama Panchayat to approach the statutory authority for fixation of the boundary. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE yd** 16 W.P.(C)No.5676 of 2023 ## **`APPENDIX`** ## **`PETITIONER EXHIBITS`** |**`Exhibit P1`**|**`TRUE COPY OF THE EXTRACT OF THE ADANGAL`**| |---|---| ||**`REGISTER OF R.S. NO.73/4 OF KANNAPURAM`**| ||**`VILLAGE ISSUED BY THE VILLAGE OFFICER,`**| ||**`KANNAPURAM VILLAGE.`**| |**`Exhibit P2`**|**`TRUE COPY OF THE NOTICE DATED 11-02-`**| ||**`2023 ISSUED BY THE PETITIONER TO THE`**| ||**`11TH RESPONDENT.`**| |**`Exhibit P3`**|**`TRUE COPY OF THE POLICE COMPLAINT DATED`**| ||**`12-02-2023 TO THE STATION HOUSE`**| ||**`OFFICER, KANNAPURAM POLICE STATION.`**| |**`Exhibit P4`**|**`TRUE COPY OF THE PETITION DATED 13-02-`**| ||**`2023 SUBMITTED BY THE PETITIONER BEFORE`**| ||**`THE 10TH RESPONDENT.`**| |**`Exhibit P5`**|**`TRUE COPY OF THE CIRCULAR DATED 12-09-`**| ||**`2014 ISSUED BY THE 2ND RESPONDENT.`**| |**`Exhibit P6`**|**`TRUE COPY OF THE CIRCULAR DATED 23-05-`**| ||**`2015 ISSUED BY THE 2ND RESPONDENT.`**| |**`Exhibit P7`**|**`TRUE COPY OF THE PHOTOGRAPHS OF THE`**| ||**`PROPERTY.`**| |**`11th RESPONDENT`**|**`EXHIBITS`**| |**`Exhibit R11(a)`**|<br>**`Communication dated 28.02.2023 sent to`**| ||**`petitioner`**|