SREEKUMAR. T.S S/O T.K.SASI v. COCHIN DEVASWOM BOARD, ASSISTANT COMMISSIONER CHOTTANIKKARA TEMPLE, SECRETARY CHOTTANIKKARA GRAMA PANCHAYATH, CHOTTANIKKARA KSHETRA UPADESAKA SAMITHY

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. TUESDAY, THE 28TH DAY OF NOVEMBER 2017/7TH AGRAHAYANA, 1939 WP(C).No. 18458 of 2017 (F) ------------------------ PETITIONER: ------------- SREEKUMAR. T.S S/O T.K.SASI, THAZHIMATTATHIL HOUSE, CHOTTANIKKARA, ERNAKULAM DISTRICT. BY ADVS.SRI.T.KRISHNANUNNI (SR.) SRI.B.S.SURESH (CHIRAKKARA) RESPONDENTS: - -------------- 1. COCHIN DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, OFFICE OF COCHIN DEVASOM BOARD, THRISSUR-680001 2. ASSISTANT COMMISSIONER CHOTTANIKKARA TEMPLE, CHOTTANIKKARA ERNAKULAM-682312 3. SECRETARY CHOTTANIKKARA GRAMA PANCHAYATH, CHOTTANIKKARA, ERNAKULAM-682312. Addl. 4. CHOTTANIKKARA KSHETRA UPADESAKA SAMITHY REPRESENTED BY SECRETARY, CHOTTANIKKARA. R1-R2 BY ADV. SRI.T.K.SAJEEV, SC, COCHIN DEVASWOM BOARD R ADDL 4 BY ADV. SRI.P.SREEKUMAR R3 BY ADV. SRI.S.SREEKUMAR (SR.) R3 BY ADV. SRI.P.MARTIN JOSE R3 BY ADV. SRI.P.PRIJITH R3 BY ADV. SRI.THOMAS P.KURUVILLA R BY SRI.K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.09.2017, THE COURT ON 28-11-2017 DELIVERED THE FOLLOWING: WP(C).No. 18458 of 2017 (F) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 THE COPY OF THE RECONSTITUTED DEED OF PARTNERSHIP DATED 9/3/2006 - EXHIBIT P2 THE COPY OF THE CERTIFICATE SERVED BY THE GRAMA PANCHAYATH DATED 22/12/2003 EXHIBIT P3 THE COPY OF THE REPRESENTATION DATED 30/5/2017 - EXHIBIT P4 THE COPY OF THE COMPLAINT GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT DATED 29/5/2017 - EXHIBIT P5 SERies : THE PHOTOCOPIES OF THE SOIL EXCAVATION IN FRONT OF THE ENTRANCE GATES OF THE AUDITORIUM OF THE PETITIONER - EXHIBIT P6 THE COPY OF THE BOOKING APPLICATION FORM DATED 26/4/2017 RESPONDENT(S)' EXHIBITS ----------------------EXT. R4A TRUE COPY OF THE PHOTOGRAPH SHOWING THE NORTHERN BOUNDARY OF THE PETITIONER'S PROPERTY MENTIONED IN THE WRIT PETITION. - R4B A ROUGH SKETCH SHOWING THE WHOLE AREAS. - R4C A PHOTOGRAPH SHOWING THE NORTHERN BOUNDARY FO THE PROPERTY OWNED BY THE MANAGING PARTNER OF THE MOOKAMBIKA AUDITORIUM - R4D A TRUE COPY OF THE SALE DEED NO 1896/2016. ks. TRUE COPY P.S. TO JUDGE ## **P. R. RAMACHANDRA MENON & SHIRCY V.,JJ.** ## **==============================** ## **W.P.(C) No.18458 of 2017** ## **==============================** ## **Dated this the 28[th] day of November, 2017** ## **JUDGMENT** ## **Shircy V., J.** The petitioner, who is the Managing Partner of an auditorium by name 'Mangalya Auditorium' constructed in a property having an extent of 19.13 Ares in Survey No. 266/20, 21 & 22 of Kureekkad Village, has approached this Court with this Writ Petition under Article 226 of the Constitution of India with the following prayers: i) Issue a writ of mandamus or other appropriate writ or order or direction directing the respondents Nos. 1 and 2 to allow the petitioner to construct and maintain a concrete slop-way in continuing of the Entrance and Exit Gates of the western compound wall of the auditorium of the petitioner. ii) such other and further reliefs as may be prayed for or as deem fit.” ## 2. It is stated in the petition that the auditorium was WPC 18458/2017 2 constructed in the year 2003 with permission of Chottanikkara Grama Panchayat and it is situated on the northern side of Chottanikkara Temple. The festival compound which is known as 'Pooraparambu' of the temple is situated on the western side of the auditorium. The said temple ground (Pooraparambu) is an open area used for Temple festivals and as an open parking area of the temple when there is no festival, having access to the public. A boundary wall was constructed by the petitioner for the auditorium with two access as 'Entrance' and 'Exit' on its western side. The auditorium has a seating capacity of 2000. So many buildings are situated on the eastern side of the temple ground and the open space is used for ingress and egress to the buildings on the eastern side without causing any disturbance or inconvenience to the temple. The enjoyment of the open space has not been challenged by the respondents for the last 16 years. The festival compound is actually slopping towards the western side and WPC 18458/2017 3 the Auditorium is located in an elevated position. While so, on 29.05.2017 the 2[nd] respondent started to excavate soil from the eastern boundary of the festival compound causing obstruction to the entrance of the auditorium, that too ignoring the easement right enjoyed by the petitioner. Though the petitioner approached the 3[rd] respondent, who is the legal authority to give permission for excavation of soil, it was not fruitful and later the 1[st] respondent gave assurance that they would not cause any disturbance in front of the entrance gate of the auditorium, but again soil at a depth of 6 feet was removed illegally. The excavation of soil was even without prior notice and because of the illegal act, the vehicles thus coming to the premises of the auditorium are blocked and the support of the western compound wall of the petitioner was also damaged. Hence, this petition. 3. The Respondent No.1, Cochin Devasom Board, filed counter affidavit denying the allegations in the petition and WPC 18458/2017 4 contended that Chottanikkara Bhagavathi Temple is having property in old Survey No. 39/1-2 of Kureekkad Village which is lying as festival ground (Pooraparambu) of the Temple. The petitioner has an auditorium on the eastern side of the temple ground with compound wall on its four sides especially on its northern side, separating it from 'Onakuttichira road' having about 12 feet width without providing any entrance to that road, though the entire northern side boundary of the property is abutting to the public road with a length of about 70 metre in a straight line. Apart from that the petitioner has obtained building permit from the Grama Panchayt, the 3[rd] respondent showing 'Onakuttichira road' as the public road access to the building in his property. But after construction of the Auditorium, the petitioner has constructed a compound wall of 7 feet height on the northern side with no entrance to the public road and erected two iron gates on the western boundary facing to the temple ground for which he has no WPC 18458/2017 5 manner of right. Moreover the eastern side property of the Auditorium belongs to the father of the petitioner and it is a vacant land and vehicular access is possible to the petitioner's auditorium through the said property also. The respondent is not carrying out any excavation work as alleged. But the temple ground is situated in different levels causing inconvenience and difficulties to the devotees coming to the temple to park their vehicles safely in the festival ground. As the festival ground was having an uneven surface, accidents occurred due to the slipping of vehicles and hence the temple officials after obtaining necessary permission from the authorities decided to lay cement tiles after levelling the ground. Three steps have been provided on the entire eastern side of the festival ground for free access to the buildings situated on the eastern side of the ground and the petitioner can have access to his property by walking through the steps. During 'Makam pooram' thousands of devotees gather in the temple WPC 18458/2017 6 for 'Makamthozhal' and facilities are made by erecting temporary panthal and barricade for providing queue system to the devotees making it convenient for them to offer prayers. Elephant procession also starts from the northern side of the festival ground to Keezhkavu (sub temple) through the extreme eastern side of the temple ground since the Keezhkavu is situated on the south eastern side of the entire temple property. If the petitioner is allowed to construct and maintain concrete slope ways as requested, it would definitely cause obstruction to the procession of elephants through the eastern side of the festival ground. Therefore, the extreme eastern side of the festival ground to a width of about 15 feet has to be kept free . 4. The 4[th] respondent also filed affidavit raising the very same contention and further contended that the attempt of petitioner is to get permission to use the temple property for his benefits. He has not mentioned anything WPC 18458/2017 7 about the parking facilities available for the auditorium . In fact the petitioner had purchased 4.05 Ares of land for being utilised as parking ground. The commissioner who inspected the property has also reported that the petitioner's property is abutting to a well maintained tar road on the northern side which could be used for ingress and egress to the petitioner's property. The kitchen attached to the auditorium is on the eastern side of the building having direct access to the northern side public road. Though vehicular access will be prevented by construction of three steps on the entire eastern side of the festival ground, access by walking to the buildings situated on the eastern side of the ground will not be blocked . So, the petitioner cannot be permitted to construct slope-ways for taking vehicles through the temple property and the construction effected by him has to be removed. 5. We have heard the learned counsel for the petitioner and the learned counsel for the respondents. WPC 18458/2017 8 6. Chottanikkara Bhagavathy Temple is one of the famous and ancient temples in Kerala which belongs to the Cochin Devaswom Board, the first respondent. Hundreds of devotees are offering prayers in the temple everyday and during the festival season (Makam Thozhal) and Sabrimala season, it will be lakhs and lakhs. The petitioner is the Managing Partner of Mangalya Auditorium situated near Chottanikkara Temple facing towards the west. The Devaswom is having an extent of 1½ acres of land on the western side of this auditorium. The records reveal that the land is lying as a vacant ground and is used to conduct the festival of the temple during festival season and as a parking ground of the vehicles of the devotees when there is no festival. Procession with elephants and poorams are being carried on in this vacant land. Concrete pillars are installed on the north western corner of the ground for making the elephants stand in a row during the pooram. The petitioner's auditorium is having compound wall on its four WPC 18458/2017 9 sides. Two gates are installed on the western side facing towards the pooram ground. Marriages and such other functions are being carried on in the auditorium of the petitioner. The petitioner has approached this Court for permission to construct and maintain concrete slope- ways (ramp) for the two gates on the entrance as well exist, situated on the western compound wall of the auditorium to make it suitable and convenient to take vehicles to the Auditorium. 7. The petitioner's further case is that the vehicles coming to the Auditorium can also be parked in the Poora parambu. But the respondents have denied the same and vehemently opposed the need projected by the petitioner as the Pooraparambu is the space used by the temple for conducting festivals. They are also intending to construct three steps on the eastern side of the ground all most on its entire length to make it convenient for the devotees to enjoy the pooram by sitting on the steps. The access to the WPC 18458/2017 10 shops and other buildings situated on the eastern side of the ground is also not blocked by construction of steps. The petitioner's request for construction of slope-ways (ramp) is opposed by all the respondents focusing the development programmes also . 8. It is pertinent to note that, though it is alleged that the petitioner has a right to keep his land in its natural condition having lateral support on the western side and easement right over the same, the pleadings projected in the petition in fact would show that the request is made to use the property of the Devaswom for the convenient use of his auditorium by constructing ramp on either sides in the property exclusively owned by the Devaswom. In a petition under Article 226 of the Constitution of India this Court is not expected to find out whether the submission made by the petitioner that his property would lose lateral support from the Devaswom property or excavation of soil would adversely affect the lateral support of his property. In this WPC 18458/2017 11 petition this Court is not supposed to go into such details. But the question to be considered is, can permission be granted as sought for by the petitioner?So also,if construction has already been effected in the Devaswom property illegally, whether it can be ordered to be removed? In this background it is necessary to appreciate the facts before us. 9. An Advocate Commissioner was appointed by this court to report about the lie and nature of the property in dispute. The Advocate Commissioner has inspected the site in the presence of both the parties and filed a detailed report attached with photographs. It is revealed from the report that the auditorium has two gates on the western side opening to the Pooraparambu and a slope -way / ramp having a width of 4.5 m and a length of 7 m is constructed on the north western side of the western wall exactly opening to the ground (Pooraparambu) at the entrance gate. Like that, another ramp with a width of 4.2m. and WPC 18458/2017 12 length of 6m. has been constructed on the south western side of the same boundary wall near the exit gate. It is clearly discernible from the report that the ramps are situated beyond the western boundary of the auditorium and are in the Devaswom property and the petitioner is admitting the same. The Commissioner has also reported that during festival, the procession of elephants is through the eastern boundary of the Pooraparambu and the same cannot be performed within the area covered by the newly constructed concerte ramps. It is also reported that, between the ramp and the gate of the auditorium a strip of land having almost 6 feet width is in existence and it could be used as an access for walking. So it could be gathered from the report that the construction of the two ramps on the western gates of the auditorium are entirely in the property of the Devaswom. 10. The report further reveals the presence of the public road by name 'Onakuttichira Road' with a width of 10 WPC 18458/2017 13 feet on the northern side of the auditorium and the existence of direct access to the auditorium from that road. When such a road is there, the demand of the petitioner to have vehicular access through the western side Pooraparambu of the Devaswom is not only unjust but also illegal. Therefore, the construction of ramps in the property of the Devaswom could only be treated as an encroachment, and hence the objection raised by the Devaswom is fully justified. Their case is that the ground is uneven and asymmetrical and so, it has to be levelled and tiles have to be laid for the convenient use by the Devaswom, especially during the festival seasons. Since it exclusively belongs to the Devaswom, the petitioner has no right to seek for ingress and egress of vehicles to the auditorium by constructing ramps on the western boundary of the auditorium. 11. It is also not in dispute that the father of the petitioner is having property on the immediate eastern side WPC 18458/2017 14 of the auditorium facing the northern side road and another plot on the northern side of the ground. The property of the father of the petitioner is marked as Plots B and C in R4(B) rough sketch produced along the counter affidavit of the 4[th] respondent. The definite contention raised by the respondents that plot B was purchased by the father of the petitioner to use it as the parking ground for the auditorium has not been denied by the petitioner. It could be presumed that the petitioner without using plot B as parking ground has approached this court pleading that no parking facility is available for the auditorium. He cannot simply effect constructions for his convenience encroaching into the temple ground. It is also not in dispute that the kitchen of the auditorium is situated on the eastern side of the auditorium building. Ext.R4(B)rough sketch produced by the 4[th] respondent and the photographs produced by the Advocate Commissioner will give a clear picture of the lie of the land and would fully support the commission report WPC 18458/2017 15 filed by the commissioner. Devaswom has a responsibility to protect and preserve its' property from being misused by private persons for their personal gains.Now a days such encroachments are quite common and the present case is indeed an illustration of such a situation. Devaswom cannot be a hapless spectator and so Devaswom has every right to resist it to protect the interests of the devotees. This is more so, in view of the law declared by the Apex Court reported in **A.A. Gopalakrishnan v. Cochin Devaswom Board and Others[ (2007) 7 SCC 482]** as to the duty to protect the properties belonging to Devaswoms. 12. We make it clear that the petitioner has absolutely no legal right to construct ramps or effect any kind of constructions by encroaching into the temple property owned by the Devaswom and the illegal construction is liable to be removed at the earliest, at any rate, within a week of the receipt of the copy of this judgment; failing which the respondents are entitled to remove it to carry out WPC 18458/2017 16 the ongoing work with the assistance of the Police, if there is any threat to the law and order situation. The Devaswom could construct the steps which had already started through the eastern side of the temple ground (western side of the Auditorium) to make it convenient to use the same as the Pooraparambu of the temple and manage and control the property in letter and spirit for future. 13. For the aforesaid reasons, we hold that the writ petitioner is not entitled to get the reliefs sought for and the writ petition deserves a dismissal and we do so. Dismissed. ## **Sd/-** **P. R. RAMACHANDRA MENON JUDGE** ## **Sd/-** **SHIRCY V. JUDGE** **ks. True copy** **P.S.To Judge** WPC 18458/2017 17