TRAVANCORE DEVASWOM BOARD – SRI PARTHASARATHY TEMPLE, MUNDAKKAYAM – MATTER PERTAINING TO ALLEGED ENCROACHMENT – TDB PROCEEDINGS INITIATED

## **`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 12[TH] DAY OF JANUARY 2023 / 22ND POUSHA, 1944 DBP NO. 13 OF 2022 ``` ``` IN THE MATTER OF TRAVANCORE DEVASWOM BOARD – SRI PARTHASARATHY TEMPLE, MUNDAKKAYAM- MATTER PERTAINING TO ALLEGED ENCROACHMENT - TDB PROCEEINGS INITIATED - REG. ``` ``` ------------ ``` ## **`PETITIONER/S:`** - **`1 RAMACHANDRAN NAIR AMBADIPURAYIDOM, PUNCHAVAYAL P.O., PUNCHAVAYAL-686 513`** - **`2 C.K.ANIL KUMAR`** ``` CHARIVU PURAYIDOM, MUNDAKKAYAM P.O., MUNDAKKAYAM ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.`** - **`2 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.`** - **`3 SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT INSTITUTIONS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.`** DBP No.13 of 2022 2 - **`4 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM - 695003.`** - **`5 ASSISTANT DEVASWOM COMMISSIONER MUNDAKKAYAM GROUP, MUNDAKKAYAM, KOTTAYAM - 686513.`** - **`6 DISTRICT COLLECTOR COLLECTORATE, KOTTAYAM, PIN - 686002.`** - **`7 MUNDAKKAYAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, MUNDAKKAYAM - 686513.`** - **`8 VILLAGE OFFICER MUNDAKKAYAM VILLAGE - 686513.`** - **`9 ADDL R9- THE STATION HOUSE OFFICER MUNDAKKAYAM POLICE STATION, MUNDAKKAYAM - 686 513`** - **`10 ADDL R10- THE SUB-GROUP OFFICER SREE PARTHASARATHY TEMPLE, MUNDAKKAYAM, PIN - 686 513`** - **`*ARE SUO MOTU IMPLEADED AS ADDITIONAL R9 & R10 VIDE ORDER DATED 29/07/2022 IN DBP 13/2022`** ``` BY ADVS. ``` ``` SC, TRAVANCORE DEVASWOM BOARD - TDB G.SANTHOSH KUMAR (P). ``` ``` CHITHRA CHANDRASEKHARAN ``` ## **`OTHER PRESENT:`** ## **`SR GOVERNMENT PLEADER - SRI S .RAJMOHAN`** ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMIS- ``` ``` SION ON 12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` DBP No.13 of 2022 3 ## **O R D E R** ## Anil K.Narendran, J. This DBP is registered _suo motu_ based on a petition received from one Ramachandran Nair and another of Mundakkayam, who are arrayed as the petitioners, alleging encroachment in the land of Sree Parthasarathy Temple, which is under the management of the 4[th] respondent Travancore Devaswom Board, by the 7[th] respondent Mundakkayam Grama Panchayat, for the purpose of constructing a road through that property. In the complaint, it is alleged that the officials of Mundakkayam Grama Panchayat are threating the devotees, the members of the Temple Advisory Committee of Sree Parthasarathy Temple and also the Devaswom Officials. 2. On 24.5.2022, when this DBP came up for consideration, the 7[th] respondent Mundakkayam Grama Panchayat entered appearance through the learned Standing Counsel and sought time to file counter affidavit. The learned Standing Counsel for Travancore Devaswom Board pointed out the pendency of W.P.(C)Nos.26269 and 18812 of 2019 and 9881 of 2022 and accordingly, this DBP was ordered to be listed along with those writ DBP No.13 of 2022 4 ## petitions. 3. On 31.05.2022, when this DBP came up for consideration, along with the connected matters, this Court passed the following order; “Today, when these matters are taken up for consideration, the learned Standing Counsel for Travancore Devaswom Board would point out Ext.P7 prohibitory order dated 08.10.2014 in W.P.(C)No.26269 of 2019. The learned Standing Counsel for the 7[th] respondent Mundakkayam Grama Panchayat in DBP No.13 of 2022 would submit that, on two occasions, tipper lorries were taken through the compound in question, in connection with transportation of materials for constructing a motorable road in Chelikkuzhi Parelambalam Colony in Ward No.II of Mundakkayam Grama Panchayat. Since the said construction is already over, the 7[th] respondent has no intention to take any more vehicles through the compound in question. The learned Standing Counsel seeks two weeks' time to place on record the affidavit of the 7[th] respondent explaining the facts and circumstances. The learned Senior Government seeks time to file statement on behalf of the 8[th] respondent in DBP No.13 of 2022.” 4. The learned Standing Counsel for Mundakkayam Grama Panchayath filed a counter affidavit dated 14.06.2022 on behalf of the 7[th] respondent Grama Panchayat. The learned Senior Government Pleader has filed a statement dated 29.06.2022 on DBP No.13 of 2022 5 behalf of the 8[th] respondent Village Officer. 5. On 12.07.2022, when this DBP came up for consideration, along with connected matters, the learned Standing Counsel for Travancore Devaswom Board submitted that the averments in the counter affidavit filed by the 7[th] respondent are factually incorrect. Crime No.326 of 2022 of Mundakkayam Police Station has already been registered regarding the encroachment of Devaswom land, in which a Member of the Grama Panchayat, by name, Anilkumar is the 1[st] accused and the Secretary of the Grama Panchayat is the 2[nd] accused. The learned Standing Counsel for Travancore Devaswom Board sought time to file counter affidavit. 6. The learned Standing Counsel for Travancore Devaswom Board has filed a counter affidavit dated 12.07.2022 on behalf of respondents 4 and 5, producing therewith Annexures R4(a) to R4(d). The document marked as Annexure R4(a) is four photographs of the encroachments made by the 7[th] respondent Grama Panchayat in the Devaswom property for the purpose of constructing a road. The document marked as Annexure R4(b) is a copy of the receipt dated 17.02.2022 issued by the Station House DBP No.13 of 2022 6 Officer, Mundakkayam Police Station, for a complaint received from the 5[th] respondent Assistant Devaswom Commissioner regarding an incident that occurred on 16.02.2022. The document marked as Annexure R4(d) is the First Information Report in Crime No.326 of 2022 registered based on the complaint of the Sub Group Officer. As per Annexure R4(d), the information was received in the police station only on 11.03.2022 at 10.01 hrs. 7. On 29.07.2022, when this DBP came up for consideration, the Secretary of Mundakkayam Grama Panchayat has filed an additional counter affidavit, along with I.A.No.1 of 2022. Having considered the submissions made at the Bar, by the order dated 29.07.2022, the Station House Officer, Mundakkayam Police Station and the Sub Group Officer, Sree Parthasarathy Temple were _suo motu_ impleaded as the additional 9[th] and 10[th] respondents. The learned Senior Government Pleader entered appearance for the additional 9[th] respondent and sought time to get instructions. The learned Standing Counsel for Travancore Devaswom Board entered appearance for the additional 10[th] respondent. 8. The learned Senior Government Pleader has placed on DBP No.13 of 2022 7 record a report dated 17.08.2022 of the additional 9[th] respondent Station House Officer, pointing out the registration of Crime No.326 of 2022 of Mundakkayam Police Station, under Sections 447, 427 read with Section 34 of the India Penal Code on the complaint made by the Devaswom officials regarding trespass into the property of Sree Parthasarathy Temple and committing waste to the tune of Rs.5,00,000/-. After detailed investigation, charge sheet is filed before the Judicial First Class Magistrate Court, Kanjirappally and the Magistrate Court had accepted the charge sheet and registered C.C.No.515 of 2022, which is now pending consideration. In the report, the additional 9[th] respondent Station House Officer has stated that the police is duty bound to protect the life and property of public and will do the needful to prevent any encroachment on the properties of Travancore Devaswom Board, whenever there is an attempt to commit trespass into that property. 9. Heard the learned Senior Government Pleader for the State and official respondents, the learned Standing Counsel for Travancore Devaswom Board and also the learned Standing Counsel for Mundakkayam Grama Panchayat. DBP No.13 of 2022 8 10. The learned Standing Counsel for Travancore Devaswom Board would submit that the property of Sree Parthasarathy Devaswom has already been protected by putting up a temporary ‘kayyala’. The learned Senior Government Pleader would submit that, as stated in the report of the additional 9[th] respondent Station House Officer, the police shall do the needful to prevent any encroachment on the properties of Sree Parthasarathy Devaswom, whenever there is an attempt to commit trespass into that property, which shall be brought to the notice of the police by the 5[th] respondent Assistant Devaswom Commissioner or the additional 10[th] respondent Sub Group Officer. The learned Standing Counsel for Mundakkayam Grama Panchayat would submit that the Grama Panchayat has no intention to encroach into the property of Sree Parthasarathy Devaswom. 11. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per sub-section (3) of Section 1 of the Act, substituted by the Kerala Adaptation of Laws Order, 1956, Part DBP No.13 of 2022 9 I of the Act shall extend to Travancore, Part II of the Act shall extend to Cochin and Part III of the Act shall extend to the whole of the State of Kerala, excluding the Malabar District. 12. Clause (a) of Section 2 of the Act defines the term ‘Board’ to mean the Travancore Devaswom Board constituted under Chapter II of the Act in accordance with the covenant. Clause (c) of Section 2 defines the term ‘incorporated Devaswoms’ to mean the Devaswoms mentioned in Schedule I, and ‘unincorporated Devaswoms’ to mean those Devaswoms including Hindu Religious Endowments whether in or outside Travancore which were under the management of the Ruler of Travancore and which have separate accounts of income and expenditure and are separately dealt with. Sabarimala Devaswom is an incorporated Devaswom mentioned in Schedule I of the Act, under Chengannur Group, Pathanamthitta Taluk. 13. Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with vesting of administration in Board. As per Section 3, the administration of incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds as well as DBP No.13 of 2022 10 the fund constituted under the Devaswom Proclamation, 1097 M.E. and the surplus fund constituted under the Devaswom (Amendment) Proclamation, 1122 M.E. which were under the management of the Ruler of Travancore prior to the first day of July, 1949, except the Sree Padmanabhaswamy Temple, Sree Pandaravaka properties and all other properties and funds of the said temple, and the management of all institutions which were under the Devaswom Department shall vest in the Travancore Devaswom Board. 14. Section 4 of the Act deals with constitution of the Travancore Devaswom Board. As per sub-section (2) of Section 4, the Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board. 15. Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub-section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore DBP No.13 of 2022 11 prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per subsection (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their jurisdiction. 16. Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with duties of the Board. As per Section 15A, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions; (iv) to establish and maintain proper facilities in the temples for the devotees. Section 16 of the Act deals with supervision and control by the Board. As per Section 16, the Board shall, subject to the provisions of Part I of the Act, exercise DBP No.13 of 2022 12 supervision and control over the acts and proceedings of all officers and servants of the Board and of the Devaswom Department. 17. Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. As per Section 24, the Board shall, out of the Devaswom Fund constituted under Section 25, maintain the Devaswoms mentioned in Schedule I [i.e. incorporated Devaswoms], keep in a state of good repair the temples, buildings, and other appurtenances thereto, administer the said Devaswoms in accordance with recognised usages, make contributions to other Devaswoms in or outside the State and meet the expenditure for the customary religious ceremonies and may provide for the educational uplift, social and cultural advancement and economic betterment of the Hindu community. 18. Section 27 of the Act deals with Devaswom properties. As per Section 27, immovable properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30[th] Meenam, 1097 corresponding to 12[th] April, 1922, shall be dealt with as Devaswom properties. The provisions of the Land DBP No.13 of 2022 13 Conservancy Act of 1091 (IV of 1091) shall be applicable to Devaswom lands as in the case of Government lands. 19. Section 31 of the Act deals with management of Devaswoms. As per Section 31, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated, and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. 20. In view of the provisions under the Travancore-Cochin Hindu Religious Institutions Act referred to hereinbefore, conclusion is irresistible that, the administration of Sree Parthasarathy Devaswom, which is an incorporated Devaswom mentioned in Schedule I of the Act, and all its properties and funds shall vest in the Travancore Devaswom Board. The Board shall hold and acquire properties for and on behalf of Sree Parthasarathy Devaswom, under the management of the Board. Subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Sree Parthasarathy DBP No.13 of 2022 14 Devaswom shall vest in and be exercised by the Board in accordance with the provisions of this Act and the Board shall exercise all powers of direction, control and supervision over the Devaswom. 21. Under the provisions of the Act, the Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in Sree Parthasarathy Temple are performed promptly; to monitor whether the administrative officials and the employees, and also the employees connected with religious rites are functioning properly; and to establish and maintain proper facilities in Sree Parthasarathy Temple for the devotees. The Board shall, out of the Devaswom Fund, maintain and administer Sree Parthasarathy Devaswom in accordance with recognised usages and meet the expenditure for the customary religious ceremonies. Subject to the provisions of Part I of the Act and the Rules made thereunder, the Board shall manage the properties and affairs of Sree Parthasarathy Devaswom and arrange for the conduct of the daily worship and ceremonies and of the festivals in Sree Parthasarathy Temple, according to the usage. DBP No.13 of 2022 **==> picture [14 x 8] intentionally omitted <==** ## 22. 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 also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. ## 23. 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 DBP No.13 of 2022 ## 16 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 parents 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. 24. 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 DBP No.13 of 2022 17 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 direction 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 the 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 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 becomes necessary having regard to individual fact situation. 25. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the Travancore Devaswom Board and its officials have got a statutory duty to protect the property of Sree Parthasarathy Devaswom, without any encroachment, whatsoever. In case, there is any attempt for DBP No.13 of 2022 18 encroachment of Devaswom property by the 7[th] respondent Grama Panchayat or any third party it has to be prevented by the Travancore Devaswom Board and its officials, in accordance with law. Any complaint made in this regard by the 5[th] respondent Assistant Devaswom Commissioner or the additional 10[th] respondent Sub Group Officer, has to be dealt with appropriately by the additional 9[th] respondent Station House Officer, Mundakkayam Police Station, by taking prompt action. With the above directions, this DBP is disposed of. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** ``` jg ```