Thirumullappulli Devaswom Karalmanna 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** **WEDNESDAY, THE 19[TH] DAY OF JULY 2023 / 28TH ASHADHA, 1945 W.P.(C) NO. 8112 OF 2020** ## **PETITIONER:** **THIRUMULLAPPULLI DEVASWAM KARALMANNA, OTTAPALAM, PALAKKAD - 679 506, REPRESENTED BY ITS MANAGER P. SIVASANKARAN. BY ADV JAYASREE K.P.** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 DISTRICT COLLECTOR, DISTRICT COLLECTORATE, CIVIL STATION, PALAKKAD - 678 001.** - **3 ASSISTANT COMMISSIONER, ASSISTANT COMMISSIONERS OFFICE, MALABAR DEVASWOM BOARD, PALAKKAD - 678 013.** - **4* THE TAHSILDAR, TALUK OFFICE COMPLEX, OTTAPALAM, PALAKKAD DISTRICT, PIN-679101.** - ***IS SUO MOTU IMPLEADED AS ADDITIONAL R4 AS PER ORDER DATED 10-10-2022 IN WP(C)** 2 W.P.(C) No.8112 of 2020 **R1, R2 AND ADDL.R4 BY SRI S.RAJMOHAN - SR GOVERNMENT PLEADER** **R3 BY SRI R.LAKSHMI NARAYAN- STANDING COUNSEL** **-MALABAR DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 06.07.2023, THE COURT ON 19.07.2023 DELIVERED THE FOLLOWING:** 3 W.P.(C) No.8112 of 2020 ## **JUDGMENT** ## P.G. Ajithkumar, J. Sree Ilamthuruthi Mahavishnu Temple is a sub-Temple under the petitioner-Devaswom. The petitioner is a religious institution under the control of the Malabar Devaswom Board. 1.25 acres of property comprised in survey No.65/2 of Cherupullassery Village and 2.1 acres of property comprised in Sy.No.65/1 of the same Village (totalling 3.35 Acres) belong to Ilamthuruthi Mahavishnu Temple. This property was entered in the register maintained by the Devaswom under Section 25 of the Madras Hindu Religious Charitable Endowments Act, 1951 (for short “HR&CE Act”). When the Malabar area was under the Madras Government, the said property was taken over for implementing an irrigation project, but the said project did not get through and the said property is lying vacant. In the revenue records, the property was denoted as _puramboke_ land. This property is required for conducting rituals and other activities of the Temple. The Temple Pond and _Althara_ are located in the said property. In 4 W.P.(C) No.8112 of 2020 such circumstances, the petitioner submitted a request for releasing the said property in favour of the Temple. The representation submitted in that regard is Ext.P3. Although several representations were submitted, the authorities did not take action to transfer of the property. 2. On 15.06.2001, the petitioner submitted an application before the 2[nd] respondent seeking assignment of the said property, which is Ext.P10. That also did not yield any positive result. In such circumstances, the petitioner has filed this Writ Petition under Article 226 of the Constitution of India seeking to issue a writ of mandamus directing the 2[nd] respondent to release the said 3.35 acres of land comprising of 1.25 acres in survey No.65/2 of Cherupullassery Village consisting of the temple pond and 2.1 acres in survey No.65/1 in Cherupullassery Village in favour of Sree Ilamthuruthi Mahavishnu Temple. 3. A statement was filed by the Tahsildar, Ottappalam, on behalf of the 2[nd] respondent, wherein it was contended that the property in question is Government _puramboke_ land as 5 W.P.(C) No.8112 of 2020 ## per the revenue records. Therefore, the said property cannot be handed over or assigned to the petitioner. Paragraph Nos.2 ## to 5 of the statement read,- “2. In this regard it is submitted that the petitioner is a Devaswom functioning under the Malabar Devaswom Board. Sri.Illamthuruthi Mahavishnu Temple is a sub temple operating under the petitioner. The petition is filed for release of 3.35 acres of land comprising 1.25 acres in Sy.No.65/2 in Cherpulassery village consisting the temple pond and 2.1 acres in Sy.No.65/1 in Cherpulassery village in favour of Sri.Illamthuruthi Mahavishnu temple. 3. But in the BTR of Cherpulassery village Sy.No.65/2 is recorded as puramboke kulam and 65/1 block No.42 is recorded as puramboke thodu. To the eastern side of this property lies an extent of 0.3060 hectares of land (Sy.No.65/3) in which Sri.Illamthuruthi Mahavishnu temple which is managed to the petitioner Devaswom is located. This property has compound wall in all four sides. As per village resurvey records only this property belongs to the temple. In the land Sy.No.65/2 in Cherpulassery village includes pond, pond ridge and vacant land. The petitioner claims that at the time when Malabar Devaswom was part of the Madras Government the properties in Sy.No.65/1 and 65/2 had been given for irrigation project by the petitioner which was later 6 W.P.(C) No.8112 of 2020 abandoned and the above mentioned property has not been transferred back to the petitioner. But in village records there is no evidence pertaining to this land transfer. As per the 'Adankal' register of Cherpulassery village the old Sy.No. 65/2 is Sy.No.38/6A and is recorded as Karalmanna Thirumullappally Kshetram Uralar Vaka' and old survey no. of sy.Nos.65/1 is 36/1, 3,7,7B and is also recorded as Karalmanna Thirumullappally Kshetram Vaka'. The old Sy.No.of 65/3 in which Sri.Ilamthuruthi Mahavishnu temple is located in 37/8 and it is recorded as nee.ke.kulam (unassessed tank) temple in adangal register. Though as per old village records the disputed properties belonged to the petitioner Devaswom as per re-survey records, Cherpulassery village, Sy.No. 65/1 is 'puramboke thodu' and 65/2 is puramboke kulam. Since these properties are recorded as puramboke and are vested in Government. Hence these properties in claim cannot be assigned to the petitioner as per the existing laws. 4. The petitioner submitted an application to the 2nd respondent and they transferred the application to the Tahsildar, Ottappalam. In the enquiry report of the Village Officer, Cherpulassery, Tahsildar Ottappalam submitted the report to the 2nd respondent. In this enquiry report the petitioner has not produced any valid document to prove their right in the property since the disputed property in Sy.No.65/1 and 65/2 is recorded as 7 W.P.(C) No.8112 of 2020 puramboke thodu and puramboke kulam in BTR of Cherpulassery village. These cannot be assigned as per existing laws. 5. It is submitted that the land in question is recorded as puramboke land in village records and as per the existing laws (G.O.(MS) No. 40/2020/Rev. dated 29.01.2020) it cannot be transferred to the petitioner. The petitioner did not produce any valid document to prove their claim. There is no deliberate and unreasonable inaction, from the part of the 2[nd] respondent which leads the infraction of fundamental rights of the petitioner under Article 14 of the Constitution of India.” 4. When this matter came up for consideration on 10.10.2002, additional 4[th] respondent was impleaded. The learned Senior Government Pleader sought time to place on record a copy of G.O.(Ms) No.40/2020/Rev. dated 29.01.2020, which was issued in relation to assignment of Government land, which are in possession of the Temple and other religious institutions. 5. Along with the counter-affidavit dated 13.02.2023, the 2[nd] respondent placed on record a copy of the Government Order dated 29.01.2020. In the counter affidavit the 2[nd] 8 W.P.(C) No.8112 of 2020 respondent reiterated the facts averred in the statement filed by the Tahsildar, Ottappalam. 6. Heard the learned counsel appearing for the petitioner, the learned Senior Government Pleader, and the learned Standing Counsel for the Malabar Devaswom Board. 7. The fact that the register maintained under Section 25 of the HR&CE Act contains entry to the effect that 3.35 acres of land, regarding which the petitioner now stakes claim belongs to the petitioner-Devaswom is not disputed. A copy of the relevant page of the said register is Ext.P1 and the entry in it carries the said fact. All the same, the petitioner would admit that the said property was surrendered to the Madras Government for implementation of an irrigation project. In the light of the said admission by the petitioner, the stand taken by the 2[nd] respondent can only be said to be correct. The said property has been now denoted as _puramboke_ . Once the property is vested with the Government by surrender of acquisition, it cannot be said that its title continued with the Temple or Devaswom, 9 W.P.(C) No.8112 of 2020 even if once upon a time it was in the ownership and possession of the Devaswom. 8. Ext.P10 is the request of the petitioner to the Government addressed to the Tahsildar, Ottappalam for getting the said property assigned in favour of the Devaswom. The case of the petitioner in that regard is that the said property is required for the purposes of the Temple rituals. Although it is claimed that Temple rites and other ceremonies were used to be conducted in the property in dispute, there is nothing on record to substantiate that claim. A tank is there in the property, but there is no material or evidence to substantiate that the said tank is the Temple Pond. Merely because the property was included in the _Thanathu_ Register, it cannot be said that the same is a Temple Pond used for the rituals in the Temple. Similarly, existence of any structure of the Temple or _Althara_ in the said property is also not substantiated. In such circumstances, the claim of the petitioner that the property is inevitable for the performance of Temple rituals and ceremonies, is unsupported by any material. 10 W.P.(C) No.8112 of 2020 9. As submitted by the learned Senior Government Pleader, Ext.R1(a) G.O. does not entitle the petitioner to get the said property assigned in favour of the Temple. The area of the said property is more than what is permissible under Ext.R1(a) order. For that and other reasons mentioned therein, the assignment of the property in dispute in favour of the petitioner is not a matter of course. Unless the petitioner is able to establish its right to get the said property transferred in its favour or assigned in terms of Ext.R1(a) or otherwise, a writ of mandamus as claimed by the petitioner is not able to be granted. 10. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC** **145]** , a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to 11 W.P.(C) No.8112 of 2020 keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. 11. In **Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280]** the Apex Court held that in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. 12. **In State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that under the Constitution a 12 W.P.(C) No.8112 of 2020 mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. 13. In view of the law laid down in the aforesaid decisions, the conclusion is irresistible that the petitioner is not entitled to get the relief as prayed in the Writ Petition. Hence, the Writ Petition is dismissed. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 13 W.P.(C) No.8112 of 2020 ## **APPENDIX OF WP(C) 8112/2020** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE SECTION 25 REGISTRERE MAINTAINED BY THE ILLAMTHURUTHI MAHAVISHNU TEMPLE AUTHORITIES.** - **EXHIBIT P2 TRUE COPY OF THE BASIC TAX REGISTER RECORDING THE PROPERTIES AS PURAMBOKE.** - **EXHIBIT P3 TRUE COPY OF THE LETTER SENT BY THE WORSHIPPERS OF THE ILAMTHURUTHI MAHAVISHNU TEMPLE TO THE 2ND RESPONDENT DATED 12-08-1999** - **EXHIBIT P4 TRUE COPY OF THE LETTER SENT BY THE SECRETARY OF THE ILAMTHURUTHI MAHAVISHNU TEMPLE MANAGEMENT COMMITTEE DATED 07-05-2002** - **EXHIBIT P5 TRUE COPY OF THE LETTER SENT BY THE ILAMTHURUTHY TEMPLE LAND PROTECTION SAMITHI TO THE 2ND RESPONDENT DATED 27-02-2013.** - **EXHIBIT P6 TRUE COPY OF THE LETTER SENT BY THE MALABAR TEMPLE EMPLOYEES UNION TO THE REVENUE MINISTER DATED 17-03-2018** - **EXHIBIT P7 TRUE COPY OF THE LETTER SENT BY THE 3RD RESPONDENT ASSISTANT COMMISSIONER TO THE 2ND RESPONDENT DISTRICT COLLECTOR DATED 17-05-2017** - **EXHIBIT P8 TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE 3RD RESPONDENT ASSISTANT COMMISSIONER DATED 13-082017** **EXHIBIT P9 TRUE COPY OF THE G.O M.S** 14 ## W.P.(C) No.8112 of 2020 **363/2013/REVENUE DATED 02-09-2013 ISSUED BY THE 1ST RESPONDENT ASSIGINING THE LAND TO ETUKUDUKA MAHAVISHNU TEMPLE SAMITHI** **EXHIBIT P10 TRUE COPY OF THE ASSIGNMENT APPLICATION SUBMITTED BY THE PETITIONER DATED 15-06-2001** **RESPONDENT ANNEXURES** **ANNEXURE R2 (a) TRUE COPY OF GOVERNMENT ORDER (MS)40/2020/REVENUE DATED 29/01/2020**