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High Court of KeralaDivision BenchWrit petition disposed of with directions; Ext....

Sree Vairamcode Bhagavathy Devaswom, Thirunavaya Village, Tirur Taluk, Malappuram District v. District Collector, Malappuram & Others

Case / Petition Number:WP(C).NO.5246 OF 2010

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. R. Ramachandra Menon
  • A. M. Babu
Judgment Date
2017-03-06
Court Decision / Holding
The writ petition is disposed of. The court directs the second respondent to consider Ext.P2 and pass appropriate orders in accordance with law, giving an opportunity to all concerned to adduce further materials/evidence. The proceedings should be finalized within three months from the date of receipt of a copy of the judgment. All issues including whether the Land Conservancy Act would be applicable are left open to be adjudicated by the concerned authority.
Final Disposition
Writ petition disposed of with directions; Ext.P2 to be considered and final orders within three months; issues including applicability of Land Conservancy Act to be decided by the competent authority.

Parties to the Case

Appellants / Petitioners

  • Sree Vairamcode Bhagavathy Devaswom, Thirunavaya Village, Tirur Taluk, Malappuram District, represented by its Trustee Board Chairman

Respondents

  • The District Collector, Malappuram
  • The Tahsildar, Tirur Taluk, Malappuram District
  • The Kerala Kshethra Samrakshana Samathy, Tirut Taluk, Malappuram District represented by its President Sri Unnikrishnan
  • Kunnath Parvathy Kutty Amma, Kunath House, Vairamcode P.O, Thirunavaya, Malappuram District
  • Kunnath Ananda Kumar, Kunath House, Vairamcode P.O, Thirunavaya, Malappuram District
  • Kunnath Unnikrishnan Nair, Kunath House, Vairamcode P.O, Thirunavaya, Malappuram District
  • Kunnath Sobhana, Vetakkathil Veedu, Naduvattom P.O, Kuttippuram
  • Kunnath Premalath, Vetakkathil Veedu, Naduvattom P.O, Kuttippuram
  • Kunnath Geetha, Vetakkathil Veedu, Naduvattom P.O, Kuttippuram
  • Kunnath Chitra, Chemmalamchathu Veedu, Thirunavaya, Malappuram District
  • Balakrishnan Nair, Kunath Madathil House, Vairamcode P.O, Thirunavaya
  • Sausalya Amma, Kunath Madathil House, Vairamcode P.O, Thirunavaya
  • Koyakutty s/o Alavikutty Hajee, Mozhiyottil, Vairamcode P.O, Malappuram District
  • Mohammad s/o Alavikutty Hajee, Mozhiyottil, Vairamcode P.O, Malappuram District
  • Alavikutty s/o Moideen Haji, Mozhiyottil, Vairamcode P.O, Malappuram District
  • Ibrahim s/o Moideen Haji, Mozhiyottil, Vairamcode P.O, Malappuram District
  • Hamsa s/o Moideen Haji, Mozhiyottil, Vairamcode P.O, Malappuram District
  • Aneesha d/o Moideen Haji, Mozhiyottil, Vairamcode P.O, Malappuram District
  • Razhiya d/o Moideen Haji, Mozhiyottil, Vairamcode P.O, Malappuram District
  • Jamshed s/o Moideen Haji, Mozhiyottil, Vairamcode P.O, Malappuram District
  • Mohamad Haji s/o Saidalikutty, Kanjiramparambe Mozhiyottil, Vairamcode P.O, Malappuram District
  • Kadeesakutty W/o Mohamad Haji, Mozhiyottil, Vairamcode P.O, Malappuram District
  • Malabar Devaswom Board represented by Secretary/Commissioner, Housefed Complex Eranhilpalam, Kozhikode

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri.Mohan C. Menon
  • • Sri.T.M.Kochunni

Counsels for Respondents

  • • Sri.T.K.AnandaKrishnan, Senior Government Pleader
  • • Sri.C.Dilip
  • • Sri.K.C.Kiran
  • • Sri.R.Lakshmi Narayanan, SC, Malabar Devaswom
  • • Sri.Mahesh V.Ramakrishnan, SC, Malabar Devaswom Board
  • • Sri.T.Krishnanunni (Sr.), Addl. for R23
  • • Sri.Parthasarathy.B, SC, Malabar Devaswom Board

Case Synopsis & Summary

The petitioner Devaswom moves the High Court seeking protection of its property, invoking parens patriae and public trust principles to safeguard assets belonging to a public trust. The writ petition follows earlier attempts (including Ext.P1 and Ext.P2) to challenge actions affecting the Devaswom’s land, with claims that substantial property has been encroached by vested interests. The argument centers on the applicability of the Hindu Religious and Charitable Endowments Act, particularly Sec. 94A, and whether the Land Conservancy provisions can be invoked to recover possession from unauthorized occupiers, contrasting with the respondents’ assertion of exclusive ownership and possession by them. The court is informed that a new Tribunal is being established to adjudicate Devaswom matters, which could facilitate a final resolution. The respondents counter that Sec.94A is not applicable to the present case since the properties are enjoyed with marketable title and exclusive possession. After hearing, the Court directs the second respondent to consider Ext.P2 and pass appropriate orders in accordance with law, providing an opportunity to all concerned to adduce evidence, and to finalize the proceedings within three months. All issues, including whether Land Conservancy proceedings apply, are left to the competent authority for future adjudication. The writ petition is disposed of with these directions.

Provisions of Law Cited

Section 87 of the Hindu Religious and Charitable Endowments ActSection 94A of the Hindu Religious and Charitable Endowments ActLand Conservancy Act

Legal Doctrines & Maxims

  • parens patriae jurisdiction
  • public trust doctrine

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner's counsel contends that the Devaswom is the owner of extensive properties and seeks to prevent loss of property through encroachment and misappropriation. It relies on Sec.94A HRCE to extend Land Conservancy provisions to protect assets of the Devaswom, arguing that a Tribunal is imminent and can adjudicate such disputes. The writ petition authorities should be directed to consider Ext.P2 and finalize the matter; the Court’s intervention is sought to safeguard public trust and ensure a prompt resolution.

Contentions of Respondents

The respondents counter that Sec.94A is not applicable to this case because the properties are in possession of respondents with absolute ownership and marketable title. They contend that the Land Conservancy process is limited and not appropriate here, and that a new Tribunal will eventually resolve disputes. They maintain that Ext.P2 should be considered by the second respondent in accordance with law and evidence, and that no extraordinary interference is required at this stage.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
A. A. Gopalakrishnan vs Cochin Devaswom Board & OrsILR 2007(4) Ker 181PositiveCited to support the parens patriae/public trust rationale for protecting Devaswom property and invoking HRCE/land-conservancy authorities.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **& THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938** **WP(C).No. 5246 of 2010 (E) ---------------------------** ## **PETITIONER(S): -------------** ## **SREE VAIRAMCODE BHAGAVATHY DEVASWOM THIRUNAVAYA VILLAGE,TIRUR TALUK,MALAPPURAM DIST,, RERPRESENTELD BY ITS TRUSTEE BOARD CHAIRMAN.** **BY ADVS.SRI.MOHAN C.MENON SRI.T.M.KOCHUNNI** **RESPONDENT(S):** - **--------------** ## **1. THE DISTRICT COLLECTOR,MALAPPURAM** **2. THE TAHSILDAR,TIRUR TALUK, MALAPPURAM DISTRICT.** **3. THE KERALA KSHETHRA SAMRAKSHANA SAMATHY,** - **TIRUT TALUK,MALAPPURAM DISTRICT,REPRESENTED BY ITS PRESIDENT SRI.UNNIKRISHNAN.** **4. KUNNATH PARVATHY KUTTY AMMA, KUNNATH HOUSE,VAIRAMCODE.P.O,THIRUNAVAYA,, MALAPPURAM DISTRICT.** **5. KUNNATH ANANDA KUMAR,KUNNATH HOUSE, VAIRAMCODE.PO,THIRUNAVAYA,MALAPPURAM DISTRICT.** **6. KUNNATH UNNIKRISHNAN NAIR,KUNNATH HOUSE, VAIRAMCODE.P.O,THIRUNAVAYA,MALAPPURAM DISTRICT.** **7. KUNNATH SOBHANA,VETTAKATHIL VEEDU, NADUVATTOM.P.O,KUTTIPPURAM.** **8. KUNNATH PREMALATH,VETTAKATHIL VEEDU, NADUVATTOM.P.O,KUTTIPPURAM.** **9. KUNNATH GEETHA,VETTAKATHIL VEEDU, NADUVATTOM.P.O,KUTTIPPURAM.** **10. KUNNATH CHITRA,CHEMMALAMCHATHU VEEDU,** ## **THIRURANGADI.PO,KAKKADU,MALAPPURAM DISTRICT.** **11. BALAKRISHNAN NAIR,KUNNATH MADATHIL HOUSE VAIRAMCODE.PO,THIRUNAVAYA.** **12. SAUSALYA AMMA,KUNNATH MADATHIL HOUSE, VAIRAMCODE.P.O,THIRUNAVAYA.** **13. KOYAKUTTY,S/O.ALAVIKUTTY HAJEE, MOZHIYOTTIL,VAIRAMCODE.P.O,MALAPPURAM DISTRICT.** **14. MOHAMMAD,S/O.ALAVIKUTTY HAJEE, KOZHIYOTTIL,VAIRAMCODE.P.O,MALAPPURAM DISTRICT.** **15. ALAVIKUTTY,S/O.MOIDEEN HAJI,MOZHIYOTTIL, VAIRAMCODE.P.O,MALAPPURAM DISTRICT.** **16. IBRAHIM,S/O.MOIDEEN HAJI,MOZHIYOOTIL, VAIRAMCODE.P.O,MALAPPURAM DISTRICT.** **17. HAMSA,S/O.MOIDEEN HAJI,MOZHIYOTTIL, VAIRAMCODE.P.O,MALAPPURAM DISTRICT.** **18. ANEESHA,D/O.MOIDEEN HAJI,MOZHIYOTTIL, VAIRAMCODE.P.O,MALAPPURAM DISTRICT.** **19. RAZHIYA,D/O.MOIDEEN HAJI,MOZHIYOTTIL, VAIRAMCODE.P.O,MALAPPURAM DISTRICT.** **20. JAMSHAD,S/O.MOIDEEN HAJI,MOZHIYOTTIL, VAIRAMCODE.P.O,MALAPPURAM DISTRICT.** **21. MOHAMAD HAJI,S/O.SAIDALIKUTTY, KANJIRAMPARAMBIL,MOZHIYOTTIL,VAIRAMCODE.P.O,, MALAPPURAM DISTRICT.** **22. KADEESAKUTTY,W/O.MOHAMAD HAJI, MOZHIYOTTIL,VAIRAMCODE.PO,MALAPPURAM DISTRICT.** **23. THE MALABAR DEVASWOM BOARD REPRESENTED BY ITS SECRETARY/COMMISSIONER, HOUSEFED COMPLEX ERANHIPALAM, KOZHIKODE (IS IMPLEADED AS PER ORDER DT** **13.10.10 IN I.A.10598/10)** **R4-11&21 BY ADV. SRI.C.DILIP R1,2 BY ADV.T.K.ANANDAKRISHNAN,SENIOR GOVERNMENT PLEADER R4 TO 11 & 21 BY ADV. SRI.K.C.KIRAN R 23 BY ADV. SRI.R.LAKSHMI NARAYANAN,SC,MALABAR DEVASWOM R23 BY ADV. SRI.MAHESH V.RAMAKRISHNAN, SC, MALABAR DEVASWOM BOARD R4-R8 BY ADV. SRI.T.KRISHNANUNNI (SR.) R,ADDL.R23 BY ADV. SRI.K.MOHANAKANNAN,SC,MALABAR DEVASWOM RADDL 2,R3 BY ADV. SRI.PARTHASARATHY.B, SC, MALABAR DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) 5246/2010** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **P1-TRUE COPY OF PHOTOGRAPHS** **P2-TRUE COPY OF THE PETITION DATED 6.11.2008 SUBMITTED BY THE PETITIONER DEVASWOM BEFORE THE 2ND RESPONDENT.** ## **RESPONDENTS EXHIBITS** ## **NIL** **TRUE COPY** **SKS** **P.A TO JUDGE** ## **P.R.RAMACHANDRA MENON & A.M.BABU, JJ.** - - - - - - - - - - - - - - - - - - - - W.P(C).NO.5246 OF 2010 - - - - - - - - - - - - - - - - Dated 6[th] March, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## **P.R.RAMACHANDRA MENON, J.** The petitioner Devaswom is before this Court, virtually with intent to safeguard the property belonging to Devaswom and also alerting the duty of this Court to invoke the 'parens-patriae jurisdiction', it being a matter of 'public trust'. The contention appears to be more with reference to the law declared by the Supreme Court as per the decision reported in **ILR 2007(4) Ker** **181 (A.A.Gopalakrishnan vs. Cochin Devaswom Board & Ors)** . 2. Heard Sri.Mohan C. Menon, the learned counsel appearing on behalf of the petitioner, Sri.Krishnanunni, the learned senior counsel appearing on behalf of the party respondents, Sri.R.Lakshmi Narayanan, the learned senior counsel appearing on behalf of the Malabar Devaswom and also the learned Government Pleader appearing on behalf of the State/Department. 2 W.P(C).NO.5246 OF 2010 3. The sum and substance of the case projected before this Court, as put forward by the learned counsel for the petitioner is that, the Devaswom is having large extent of property, portion of which unfortunately was grabbed by persons of vested interest. The petitioner has moved the authorities concerned which however did not turn to be fruitful. It is also pointed out that the petitioner has occasion to approach this Court earlier by filing a writ petition as WP(C) No.2314/2004 challenging the order passed by the Commissioner, declining interference in a petition filed under Sec.87 of the Hindu Religious and Charitable Endowments Act. The said matter was disposed of with some observations, also with reference to the newly amended provision Sec.94A of the Hindu Religious and Charitable Endowments Act, which virtually makes the Land Conservancy Act applicable to the property belonging to the Devaswom. It was accordingly, that Ext.P1 petition was filed by the petitioner before the Tahsildar, which however is still kept in cold storage and hence the writ petition. 4. The second respondent has filed a counter affidavit pointing out that sufficient materials/documents have not been produced by the petitioner in support of the case before the said authority. It is also added in paragraph 5 of the said affidavit that in the event of production of sufficient materials to substantiate 3 W.P(C).NO.5246 OF 2010 the allegations in Ext.P2, the said authority would consider all the relevant matters and finalize it accordingly. 5. The learned senior counsel appearing on behalf of the party respondents submits that the idea and understanding of the petitioner is thoroughly wrong and misconceived. It is stated that the newly amended provision (Sec.94 A) is not applicable to the case in hand, as the Land Conservancy proceedings could be invoked only in respect of recovery of possession of property from unauthorized occupation; where as in the instant case, the properties are being enjoyed by the party respondents with absolute ownership, exclusive possession and marketable title. The learned counsel for the petitioner points out that the property was originally transferred to the wife of the 'Ooralan' and subsequently, it came to be transferred to the others. As such, interference is necessary to protect and preserve the properties belonging to the Devaswom. 6. During the course of hearing, it is brought to the notice of this Court by the learned Government Pleader that a new Tribunal is being set up for dealing with matters involving the properties of Devaswom and that it is almost in the final stage. Once the Tribunal is constituted, the disputes, if any, could be caused to be considered by the Tribunal, which can settle the issue once and for all. 4 W.P(C).NO.5246 OF 2010 7. After hearing both the sides, this Court finds that the matter need not be kept pending before this Court, in so far as Ext.P2 petition is pending before the second respondent (stated as preferred under Sec.94A of the Hindu Religious and Charitable Endowments Act). The second respondent is directed to consider and pass appropriate orders in Ext.P2, in accordance with law, giving an opportunity to all concerned to adduce further materials/evidence in support of the rival contentions. The proceedings as above shall be finalized at the earliest, at any rate, within 'three months' from the date of receipt of a copy of this judgment. All issues including whether the proceedings of the Land Conservancy Act would be applicable to the case in hand, are left open, to be considered and adjudicated by the authority concerned. With the above observation, the writ petition stands disposed of. ## **P.R.RAMACHANDRA MENON Judge** **A.M.BABU Judge** sks/7.3.2017 5 W.P(C).NO.5246 OF 2010