SREENEESH T S v. STATE OF KERALA & ORS.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH MONDAY, THE 5[TH] DAY OF FEBRUARY 2024/16TH MAGHA, 1945 WP(C) NO. 28982 OF 2022 ``` ## **`PETITIONER:`** ``` SREENEESH T S AGED 27 YEARS, S/O. SREEDHARAN.T.M., NITHYANANDA NIVAS, CHIRAKKAL.P.O. KANNUR 670 005. BY ADVS. R.KRISHNA RAJ E.S.SONI KUMARI SANGEETHA S.NAIR RESMI A. ``` ``` RESPONDENTS: ``` |**`1`**|**`STATE OF KERALA`**| |---|---| ||**`REPRESENTED BY ITS SECRETARY TO GOVERNMENT,`**| ||**`DEPARTMENT OF REVENUE, KERALA GOVERNMENT`**| ||**`SECRETARIAT, THIRUVANANTHAPURAM - 695 001.`**| |**`2`**|**`MALABAR DEVASWOM BOARD`**| ||**`REPRESENTED BY ITS COMMISSIONER,`**| ||**`MALABAR DEVASWOM BOARD OFFICE, HOUSEFED`**| ||**`COMPLEX, ERANHIPPALAM, KOZHIKODE- 673 006.`**| |**`3`**|**`MALABAR DEVASWOM BOARD`**| ||**`REPRESENTED BY ITS SECRETARY,`**| ||**`MALABAR DEVASWOM BOARD OFFICE, HOUSEFED`**| ||**`COMPLEX, ERANHIPPALAM, KOZHIKODE- 673 006.`**| |**`4`**|<br>**`DISTRICT JUDGE,`**| ||**`KANNUR DISTRICT COURT, COURT ROAD,`**| ||**`THALIPARAMBA, KANNUR- 670 141.`**| |**`5`**|**`DISTRICT COLLECTOR`**| ||**`DISTRICT COLLECTOR OFFICE ,`**| ||**`COLLECTORATE ROAD, THAVAKKARA, KANNUR-670 002.`**| 2 W.P.(C)No.28982 of 2022 - **`6 M.P. PRASAD`** ``` AGED 46 YEARS FATHER'S NAME NOT KNOWN, SAMRUDDI STORE MANNA, P.O. VALAPATTANAM, KANNUR - 670 010. ``` - **`7 KOLANKADAVEETTIL RUGMINI AGED 60 YEARS, D/O.NARAYANI AMMA, PAYYANNUR AMSAM, KOKKANASSERI DESOM, PAYYANNUR.P.O., KANNUR - 670 307.`** - **`8 KOLANKADAVEETTIL JAYALAKSHMI, AGED 57 YEARS D/O.NARAYANI AMMA, PAYYANNUR AMSAM, KOKKANASSERI DESOM, PAYYANNUR.P.O., KANNUR - 670 307.`** - **`9 KOLANKADAVEETTIL SATHYANANTHAN, AGED 60 YEARS S/O. SAROJINI AMMA, PAYYANNUR AMSAM, KOKKANASSERI DESOM, PAYYANNUR.P.O., KANNUR - 670 307.`** - **`10 KOLANKADAVEETTIL LALITHAKUMARI, AGED 58 YEARS D/O.SAROJINI AMMA, PAYYANNUR AMSAM, KOKKANASSERI DESOM, PAYYANNUR.P.O., KANNUR - 670 307.`** - **`11 KOLANKADAVEETTIL JANARDHANAN, AGED 56 YEARS S/O.SAROJINI AMMA, PAYYANNUR AMSAM, KOKKANASSERI DESOM, PAYYANNUR.P.O., KANNUR - 670 307.`** - **`12 KOLANKADA VEETTIL SREELATHA, AGED 54 YEARS D/O.SAROJINI AMMA, PAYYANNUR AMSAM, KOKKANASSERI DESOM, PAYYANNUR.P.O., KANNUR - 670 307.`** - **`13 KOLANKADA VEETTIL BALASAGHI, AGED 51 YEARS D/O.SAROJINI AMMA, PAYYANNUR AMSAM, KOKKANASSERI DESOM, PAYYANNUR.P.O., KANNUR - 670 307.`** ``` 14KURIKALAKATH ASMA AGED 50 YEARS W/O. ABOOBCKER, VALAPATTANAM AMSOM, DESOM, P.O.VALAPATTANAM, KANNUR - 670 010. ``` - **`15 KEERANTAKATH PALLAKANTAVIDA ABOOBACKER(DIED) AGED 55 YEARS S/O. HASSAINAR HAJI, VALAPATTANAM AMSOM, DESOM, P.O.VALAPATTANAM, KANNUR - 670 010`** 3 W.P.(C)No.28982 of 2022 ``` 16THATTKUTTIAN PRADEEPAN AGED 48 YEARS S/O.NANU, RESIDING AT 'CHILANGA', ERANHOLI AMSOM, DESOM, P.O. ERANHOLI - 670 107. ``` ``` 17JALEEL, AGED 36 YEARS S/O.LATE ABOOBACKER, RESIDING NEAR TAJUL ULMA SCHOOL, VALAPATTANAM.P.O., KANNUR - 670 010. ``` ``` 18NIZAR, AGED 32 YEARS S/O.LATE ABOOBACKER, RESIDING NEAR TAJUL ULMA SCHOOL, VALAPATTANAM.P.O., KANNUR - 670 010. ``` ``` 19SAIBUNNISSA, AGED 34 YEARS D/O.LATE ABOOBACKER, RESIDING NEAR TAJUL ULMA SCHOOL, VALAPATTANAM.P.O., KANNUR - 670 010. ``` - **`ADDL.R20 CHIRAKKAL KOVILAKAM DEVASWOM KADALAYI SREEKRISHNA TEMPLE, CHIRAKKAL P.O., PIN 670 005, REPRESENTED BY ITS EXECUTIVE OFFICER.`** ``` [ADDL.R20 IS IMPLEADED AS PER ORDER DATED 14.09.2022 IN I.A.1/2022 IN WP(C)28982/2022]. BY ADV MAHESH V RAMAKRISHNAN ``` ``` BY ADV ``` ``` 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 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 W.P.(C)No.28982 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is a devotee and having interest in the Temples in Kerala, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 5 to take steps to evict respondents 6 to 19 from the property of Kalarivathikkal Devaswom, which is a controlled institution under the 2[nd] respondent Malabar Devaswom Board, comprised in Re-Survey No.57/3 of Chirakkal Village and to protect the assets of the minor deity namely Kalarivathikkal Bhagavathi, and to see that the property is being put to use only for temple rituals. The petitioner has also sought for an order directing the 4[th] respondent District Judge, Kannur, to consider Ext.P4 petition dated 02.08.2022 filed by the petitioner, in terms of the directions contained in Ext.P3 order of the Apex Court dated 05.07.2018 in W.P.(C)No.649 of 2018 - **Mrinalini Padhi v. Union** ## **of India [(2018) 7 SCC 789: 2018 SCC OnLine SC 667]** . 2. On 02.09.2022, when this writ petition came up for admission, the learned counsel for the petitioner sought time to file an application to correct the description of respondents 2 and 3 appropriately and to implead the hereditary trustee and the 5 W.P.(C)No.28982 of 2022 Executive Officer of the temple as additional respondents. By the order dated 14.09.2022 in I.A.No.1 of 2022, Chirakkal Kovilakam Devaswom represented by its Executive Officer was impleaded as the additional 20[th] respondent. By another order in I.A.No.2 of 2022, the description of the 2[nd] respondent was corrected, as stated in that application. 3. On 14.09.2022, the learned Senior Government Pleader took notice on admission for respondents 1 and 5 and the learned Standing Counsel for Malabar Devaswom Board for respondents 2 and 3. Notice to the 4[th] respondent District Judge was dispensed with, for the time being. Notice on admission by speed post was ordered to respondents 6 to 19 and also to the additional 20[th] respondent, returnable within four weeks. By the order dated 05.06.2023 in I.A.No.1 of 2023, the description of the 6[th] respondent was corrected, as stated in that application. 4. Going by the averments in the writ petition, the petitioner is feeling aggrieved by the inaction on the part of the additional 20[th] respondent Chirkkal Kovilakam Devaswom in protecting the property of Kalarivathikkal Devaswom, having an extent of 4.40 Acres in Re-Survey No.57/3 (old Survey No.54/1) of Chirakkal village. In the writ petition, it is alleged that the said property is encroached by respondents 6 to 19 by creating false 6 W.P.(C)No.28982 of 2022 documents. In respect of that property, Chirakkal Kovilakam Devaswom, represented by its Executive Officer, filed O.S.No.232 of 2011 before the Additional Munsiff Court, Kannur, which ended in dismissal by Ext.P2 judgment and decree dated 14.08.2019. Challenging that judgment and decree, Chirakkal Kovilakam Devaswom filed A.S.No.97 of 2017 before the Sub Court, Kannur, which is pending consideration. 5. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 and 5, the learned Standing Counsel for the Malabar Devaswom Board for respondents 2 and 3 and the learned counsel for the additional 20[th] respondent. Despite service of notice, none appears for respondents 6 to 19. 6. The issue that requires consideration in this writ petition is as to whether the petitioner can invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking eviction of respondents 6 to 19 from the property of Kalarivathikkal Devaswom comprised in Re-Survey No.57/3 of Chirakkal Village and for consideration of Ext.P4 petition dated 02.08.2022 filed before the 4[th] respondent District Judge, in terms of the directions contained in the order of the Apex court in **Mrinalini Padhi [(2018) 7 SCC 789]** . 7 W.P.(C)No.28982 of 2022 7. '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. State of Kerala and others [2018 (1) KHC 536]** . 8. 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 8 W.P.(C)No.28982 of 2022 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 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 9 W.P.(C)No.28982 of 2022 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 aspect of the law although it had a direct bearing on the controversy before it.” (underline supplied) 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 ‘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 10 W.P.(C)No.28982 of 2022 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, 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 **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 11 W.P.(C)No.28982 of 2022 the role to be played by the High Court in exercising the ‘ _parens patriae_ ’ jurisdiction in **Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]** . The said decision was referred to and relied on by a Division Bench of this Court in **Travancore** **Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]** . In the said circumstances, the properties of the Devaswom, if at all encroached by anybody and if any assignment/conveyance has been effected without the 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 resorting to the course stipulated in the Kerala Land Conservancy Act, 1957. 12. In **A.A. Gopalakrishnan v. Secretary, Cochin Devaswom Board [2018 (3) KHC 549]** a Division Bench of this Court found that the task undertaken by the complainant to ensure that the property of the Devaswom is protected and preserved has ultimately brought out the plain truth that the said property was sought to be appropriated by strangers and that the property in Sy.No.1042/2 has been successfully retrieved by the Devaswom, based on the intervention made by 12 W.P.(C)No.28982 of 2022 this Court and also by the Apex Court in **A.A. Gopalakrishnan** **[(2007) 7 SCC 482]** . Proceedings have to be taken to a logical conclusion in respect of the land in Sy.No. 1043 as well. This is more so since in view of the ‘ _parens patriae_ ’ jurisdiction being entrusted with the Court in this regard, there is a duty cast upon the Court to take every step to ensure that the property of the deity is protected. 13. Kalarivathikkal Devaswom is a controlled institution under the Malabar Devaswom Board. In view of the law laid down in the decisions referred to supra, it is the duty of the hereditary trustee of Kalarivathikkal Devaswom to be faithful to the Devaswom and manage, protect and safeguard the interest and properties of the Devaswom, with reasonable diligence. The Malabar Devaswom Board and its officials are duty-bound to exercise their supervisory control in order to ensure that the interests and properties of the Devaswom are protected and safeguarded by its trustees and the employees of the Devaswom. Any act of ‘fence eating the crops’ should be dealt with sternly by the Board and its officials. 14. In **Mrinalini Padhi v. Union of India [(2018) 7 SCC 789 : 2018 SCC OnLine SC 667]** - order dated 05.07.2018 in W.P.(C)No.649 of 2018 - the Apex Court noticed 13 W.P.(C)No.28982 of 2022 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 a need to look into this aspect by the Central Government, apart from State Governments. Section 92 of the Code of Civil Procedure, 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 grievance on the above aspect, the District Judge may either himself/herself or assign 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. Paragraphs 10, 11 and 20 of the order dated 14 W.P.(C)No.28982 of 2022 ## 05.07.2018 in W.P.(C)No.649 of 2018 [2018 SCC OnLine SC ## 667] read thus; “10. The issue of difficulties faced by the visitors, exploitative practices, deficiencies in the management, maintenance of hygiene, proper utilization 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. 11. Section 92 of the Code of Civil Procedure permits a Court also to issue directions for making a scheme or making an arrangement for any charitable or religious institution. Accordingly, we direct that if any devotee moves the jurisdictional District Judge throughout India with any 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 the above aspects and if necessary, send a report to the High Court. We have no doubt that 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. xxx xxx xxx xxx 15 W.P.(C)No.28982 of 2022 20. We may sum up our directions in today's orders, in addition to the orders dated 08.06.2018, as follows; i) Report of the District Judge dated 26.6.2018 is accepted in principle and action to be taken by the temple administration. ii) District Judge, Puri may send further report, if any by 31.8.2018, preferably by e-mail. iii) The State Government may submit report of the Committee constituted by it on or before 31.8.2018. iv) The Central Government may constitute its Committee, as already directed, within two weeks from today and place its interim report on record of this Court on or before 31.8.2018. v) Copy of the Report of the District Judge may be placed on the websites of the temple management, Ministry of Culture and website of the Supreme Court for two weeks. vi) The directions in the order dated 8.6.2018 may be complied with by all concerned and noncompliance thereof may be reported to this Court for appropriate action if necessary. vii) The temple management may consider, subject to regulatory measures, with regard to dress code, giving of an appropriate declaration or compliance with other directions, permitting every visitor irrespective of his faith, to offer respects and to make offerings to the deity. viii) We have noted that Hinduism does not eliminate any other belief and is eternal faith and wisdom and inspiration of centuries, as noted in earlier judgments of this Court. 16 W.P.(C)No.28982 of 2022 ix) Difficulties faced by the visitors, deficiencies in management, maintenance of hygiene, appropriate utilisation of offerings and protections of assets with regard to shrines, irrespective of religion is a matter for consideration not only for the State Government, Central Government but also for Courts. Every District Judge throughout India may examine such matters himself or through any court under his jurisdiction and send a report to the High Court concerned so that such report can be treated as PIL on the judicial side and such direction may be issued as may be considered necessary having regard to individual fact situation. x) Learned amicus is at liberty to engage with all stakeholders and to give suggestions for bringing about improvements and also to give a report to this Court. However, this will not stand in the way of the Committee of the State Government, Committee of the Central Government or any District Judge considering matters in terms of above directions.” (underline supplied) 15. In **Ganapathy Namboothiri v. State of Kerala [2024 (1) KLT 599 : 2024 (2) KHC 1]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party, held that the directions issued by the Apex Court in clauses (i) to (viii) and (x) of paragraph 20 of the order dated 05.07.2018 in W.P.(C)No.649 of 2018 - **Mrinalini Padhi [2018** 17 W.P.(C)No.28982 of 2022 **SCC OnLine SC 667]** are in respect of the issue of public importance highlighted in that writ petition relating to the difficulties faced by the visitors to Shri Jagannath Temple at Puri and their harassment or exploitation by the Sevaks of the temple. Before the Apex Court, it was pointed out that the environment of the surroundings is not hygienic, as it ought to be, and there are encroachments. There are deficiencies in the management of the shrine and the rituals are commercialised. See: Para 1 of the order dated 08.06.2018 in W.P.(C)No.649 of 2018 **[2018 SCC OnLine SC 602]** . It is in that context that the Apex Court issued a general direction in clause (ix) of para 20 of the order dated 05.07.2018 in W.P.(C)No.649 of 2018 - **Mrinalini Padhi [2018 SCC OnLine SC 667]** for redressal of the difficulties faced by the devotees of all shrines throughout India, irrespective of religion practised in such shrines, on account of harassment or exploitation by those in management, unhygienic surroundings, encroachments, deficiencies in management, etc. The general direction contained in clause (ix) of para 20 is to the effect that difficulties faced by the visitors, deficiencies in management, maintenance of hygiene, appropriate utilisation of offerings and protection of assets with regard to shrines, irrespective of religion is a matter for 18 W.P.(C)No.28982 of 2022 consideration not only for the State Government, Central Government but also for Courts. Every District Judge throughout India may examine such matters himself or through any court under his jurisdiction and send a report to the High Court concerned so that such report can be treated as PIL on the judicial side and such direction may be issued as may be considered necessary having regard to individual fact situation. ## 16. In **Ganapathy Namboothiri [2024 (2) KHC 1]** the Division Bench held that the petition that can be moved by a devotee in terms of the general direction contained in clause (ix) of paragraph 20 of the aforesaid order dated 05.07.2018 - ## **Mrinalini Padhi [2018 SCC OnLine SC 667]** of the Apex Court is not one invoking the provisions under Section 92 of the Code of Civil Procedure, since that provision of the Code, which deals with public charities, can be invoked only in the manner - provided in sub section (1) of Section 92, to obtain a decree of - any of the reliefs set out in clauses (a) to (h) of sub section (1) of Section 92, in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust. In terms of the general direction contained in clause (ix) of paragraph 20 of 19 W.P.(C)No.28982 of 2022 the order dated 05.07.2018 of the Apex Court, which is one issued for redressal of the difficulties faced by the devotees on account of deficiencies in management, maintenance of hygiene, appropriate utilisation of offerings or protection of assets of shrines, a devotee can approach the District Judge having jurisdiction, with a petition pointing out the difficulties faced by him on account of any such matters, in which event the District Judge may examine such matters by himself or through any court under his jurisdiction and send a report to the High Court concerned, for consideration of that report in the judicial side, for issuing any direction as may be considered necessary, having regard to individual fact situation. 17. In the instant case, pointing out the encroachment of the property of Kalarivathikkal Devaswom comprised in ReSurvey No.57/3 of Chirakkal Village and to protect the assets of the minor deity, the petitioner moved Ext.P4 petition dated 02.08.2022 before the 4[th] respondent District Judge, in terms of the directions contained in Ext.P3 order of the Apex Court dated 05.07.2018 in W.P.(C)No.649 of 2018 - **Mrinalini Padhi [2018 SCC OnLine SC 667]** . 18. In the writ petition, it is alleged that the property of Kalarivathikkal Devaswom, having an extent of 4.40 Acres in Re- 20 W.P.(C)No.28982 of 2022 Survey No.57/3 (old Survey No.54/1) of Chirakkal village is encroached by respondents 6 to 19 by creating false documents. In respect of that property, Chirakkal Kovilakam Devaswom, represented by its Executive Officer, filed O.S.No.232 of 2011 before the Additional Munsiff Court, Kannur, which ended in dismissal by Ext.P2 judgment and decree dated 14.08.2019. The defendants in O.S.No.232 of 2011 are arrayed as respondents 7 to 16 in this writ petition. The legal heirs of the deceased 15[th] respondent Aboobacker are arrayed as respondents 17 to 19. 19. In paragraph 19 of Ext.P2 judgment, the Additional Munsiff Court noticed that, from a perusal of the purchase certificate (Ext.B5), it can be seen that notice was not given to Chirakkal Kovilakam Devaswom and that the Land Tribunal has not complied with the formalities, before the issuance of such a purchase certificate. Though the plaintiff-Chirakkal Kovilakam Devaswom has raised a specific contention that no notice was given to the Devaswom before the issuance of the purchase certificate (Ext.B5), the defendants did not call for any documents to show that the Land Tribunal had issued notice to the intermediary before issuing purchase certificate to the predecessor-in-interest of the defendants, i.e., Narayani Amma. In paragraph 25 of the judgment the Additional Munsiff Court 21 W.P.(C)No.28982 of 2022 noticed that the report of the Advocate Commissioner would show that the plaint schedule property and the surrounding area is being used to perform religious rites and ceremonies in relation to the festival of Kalarivathikkal Bhagavathi Temple. In Ext.P2 judgment the Additional Munsiff Court found that as long as the purchase certificate (Ext.B5) is not set aside, the plaintiff- Chirakkal Kovilakam Devaswom cannot claim a better title over the plaint schedule property. Hence the plaintiff is not entitled to seek recovery of possession of the plaint schedule property, without getting its title to that property declared. In view of the above finding, the Additional Munsiff Court dismissed O.S.No.232 of 2011 by Ext.P2 judgment dated 11.08.2019. That judgment and decree was under challenge before the Sub Court, Kannur in A.S.No.97 of 2017 filed by Chirakkal Kovilakam Devaswom, which ended in dismissal, during the pendency of this writ petition by the judgment and decree dated 25.11.2023, declining interference in the findings of the trial court. 20. The learned counsel for the additional 20[th] respondent Chirakkal Kovilakam Devaswom would submit that the Devaswom is prosecuting the matter diligently. The judgment and decree of the First Appellate Court in A.S.No.97 of 2017 will be challenged before this Court by invoking the provisions under 22 W.P.(C)No.28982 of 2022 Section 100 of the Code of Civil Procedure, 1908. The learned counsel would also point out that in respect of 86 cents of Devaswom land, the Land Tribunal, Kannur issued purchase certificate in O.A.No.2208 of 1976. The appeal filed by the Devaswom as A.A.No.85 of 2011 is now pending consideration before the Appellate Authority, Kannur. 21. When the alleged encroachment of Devaswom land of Kalarivathikkal Devaswom comprised in Re-Survey No.57/3 (Old Survey No.54/1) of Chirakkal Village by the party respondents in this writ petition is the subject matter in A.S.No.97 of 2017 on the file of the Sub Court, Kannur, arising out of Ext.P2 judgment and decree of the Additional Munsiff Court, Kannur in O.S.No.232 of 2011, the petitioner, who is a devotee, cannot approach the 4[th] respondent District Judge, by submitting Ext.P4 petition dated 02.08.2022, for conducting an enquiry into the alleged encroachment of that property by the party respondents, some of whom are arrayed as defendants in that suit, and for evicting them from that property. In view of the judgment and decree of the Sub Court, Kannur in A.S.No.97 of 2017 and the pendency of A.A.No.85 of 2011 before the Appellate Authority, Kannur challenging the purchase certificate issued by the Land Tribunal, Kannur in O.A.No.2208 of 1976, the petitioner cannot 23 W.P.(C)No.28982 of 2022 invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking eviction of the party respondents from the Devaswom land of Kalarivathikkal Devaswom. In the result, this writ petition is disposed of leaving open the legal and factual contentions raised by the petitioner and by recording the submission made by the learned counsel for the additional 20[th] respondent Chirakkal Kovilakam Devaswom that the Devaswom will challenge the judgment and decree of the Sub Court, Kannur in A.S.No.97 of 2017 by invoking the provisions under Section 100 of the Code and that it shall diligently prosecute A.A.No.85 of 2011 pending before the Appellate Authority, Kannur against the purchase certificate issued by the Land Tribunal, Kannur in O.A.No.2208 of 1976. It is for the Devaswom to take necessary steps to ensure expeditious consideration of A.A.No.85 of 2011, if found necessary, by approaching the competent forum. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **G. GIRISH, JUDGE** ded 24 W.P.(C)No.28982 of 2022 ``` APPENDIX OF WP(C) 28982/2022 ``` ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE SETTLEMENT REGISTER DATED 23.11.2009 WITH LEGIBLE COPY. Exhibit P2TRUE COPY OF THE ORDER OF THE COURT OF MUNSIFF IN KANNUR IN O.S.232/2011 DATED 14.8.2019. Exhibit P3TRUE COPY OF THE ORDER OF THE APEX COURT IN WP(C) 649/2018 DATED 5.7.2018. Exhibit P4TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE DISTRICT JUDGE, KANNUR DATED 2.8.2022. ```