Travancore Devaswom Board v. Kerala State Housing Board & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN &** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932** **DBP.No. 32 of 2010()** **-------------------------------** **(IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - COMPLAINT REGARDING THE OCCUPATION OF PROPERTIES OF SREE BALASUBRAMANYA SWAMY TEMPLE, THAMPANOOR - TDB REPORT NO.73/2010 SUBMITTED BY THE OMBUDSMAN - SUO-MOTU PROCEEDINGS INITIATED-REG.)** **COMPLAINANT:** **-------------------------TRAVANCORE DEVASWOM BOARD, REPRESENTED BY THE SECRETARY, NANTHENCODE, THIRUVANANTHAPURAM.** **BY SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE, BY ADV. SRI.P.GOPAL.** **RESPONDENT(S):** **---------------------------** **1. THE KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM - 1, REPRESENTED BY IT'S SECRETARY.** **2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.** **3. SMT. M.JANAVI, W/O.LATE R.GOPALAKRISHNAN POTTY, T.C.NO.25/450, SANTHI NAGAR, NO.43,B,PRESS ROAD, T.C.NO.25/450, THIRUVANANTHAPURAM - 695 001.** **4. G.SREENIVASA RAO, S/O.LATE R.GOPALAKRISHNAN POTTY, T.C.NO.25/450, SANTHI NAGAR, NO.43, B,PRESS ROAD, THIRUVANANTHAPURAM - 695 001.** **..2/-** **Kss** **...2.....** ## **DBP.NO.32/2010** **5. J.SAVITHRI, D/O.LATE R.GOPALAKRISHNAN POTTY, T.C.NO.25/450, SANTHI NAGAR, NO.43,B, PRESS ROAD, THIRUVANANTHAPURAM - 695 001.** **6. J.SHYLAJA, D/O.LATE R.GOPALAKRISHNAN POTTY, T.C.NO.25/450, SANTHI NAGAR, NO.43,B,PRESS ROAD, THIRUVANANTHAPURAM - 695 001.** **7. SREENIVASAN POTTY, T.C.NO.25/202 (OLD), SANTHI NAGAR, PRESS ROAD, THIRUVANANTHAPURAM - 695 001.** **ADDL.8. R.GOPINATHAN NAIR, SECRETARY, SREE BALASUBRAMANYA TEMPLE ADVISORY COMMITTEE.** ## **R1 BY ADV. SRI. A.JAYASANKAR, SC** **R2 BY SR. GOVERNMENT PLEADER SRI. R. LAKSHMI NARAYANAN R4,R5 & R6 BY ADV. SRI.P.B.KRISHNAN R7 BY ADV. SRI.R.T.PRADEEP ADDL.R8 BY ADV. SRI.V.P.SUKUMAR BY ADV. SRI. KRISHNAKUMAR MANGOT (AMICUS CURIAE, OMBUDSMAN)** **THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 14/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ.** -----------------------------------------------------------------------DBP No.32 of 2010 -----------------------------------------------------------------------Dated 14th September 2010 ## Order ## Thottathil.B.Radhakrishnan, J. Sree Balasubramanya Swamy Temple, Puthen Chantha, Thampanoor, Thiruvananthapuram, is a temple, which is stated to have been transferred to the Travancore Devaswom Board from the administration of the competent authority, administering the Sree Padmanabha Swamy Temple. It appears that respondents 3 to 7 herein, represent the estate of late Subrayan Poti and Gopalakrishnan Poti. In 1980, the Board sued them for certain reliefs before the civil court in relation to an item of property, which according to the Board, belonged to the aforesaid temple. That suit OS No.108/80 of the Sub Court, Thiruvananthapuram, was dismissed. AS No.167/87 filed against that decree was dismissed by this Court on DBP 32/10 2 29.07.1997. Later, it appears that the additional 8th respondent herein filed a writ petition as a public interest litigation. This Court then noticed that there is an Ombudsman, appointed for the Travancore and Cochin Devaswom Boards to look into the complaints, including all mismanagement relating to possession of Devaswom properties with others. We may at once notice that the learned Ombudsman was appointed in terms of certain directions issued by this Court, following the recommendations of a review committee which included a former Judge of this Court. There is no statute in place, conferring the learned Ombudsman with any particular power to adjudicate the issue, as could be done in a civil court or other courts in terms of the Constitutional laws. Taking a queue from that Judgment in WP(C) No.34550/04, a complaint was placed before the learned Ombudsman. The learned Ombudsman treated it as one filed by the Travancore Devaswom Board. The person, who came to this Court by filing the public interest litigation, was DBP 32/10 3 arrayed as the additional 8th respondent. Apart from those, who represented the estate of Subrayan Poti and Gopalakrishnan Poti as noted above, the Kerala State Housing Board and the District Collector were also brought on the party array. The learned Ombudsman issued notice. It is stated that the parties were heard and thereafter, the proceedings were closed. Concluding that, there is no scope for any complaint. Later, the Ombudsman issued a fresh notice. It appears that the estates of Subrayan Poti and Gopalakrishnan Poti were not represented in that hearing. The learned Ombudsman has, thereupon, filed Report No.73/10. That has led to this DBP 32/10, being registered. 2. The heirs of Subrayan Poti and Gopalakrishnan Poti have placed detailed counter affidavits, raising different contentions, including res judicata with reference to the earlier suit. The learned Ombudsman has suggested that in terms of S.20A of the Kerala Land Conservancy Act, 1957, there is a bar of DBP 32/10 4 jurisdiction on civil courts to try a suit for eviction and in that context, it may be appropriate to look into the question as to whether notwithstanding the earlier civil court proceedings, the provisions of the Land Conservancy Act, which indisputably applies to Devaswom properties could be applied to the case in hand. It is also suggested by the learned Ombudsman that in relation to a particular property under the Cochin Devaswom Board, this Court had earlier taken the stand that it would not interfere with the compromise decree, which was challenged by a devotee, however, the apex court intervened and set aside this Court's decision and rendered _**Gopalakrishnan v. Cochin Devaswom Board**_ (ILR 2007(4) Kerala 181). 3. We have heard the learned senior Counsel Shri.P.G.Parameswara Panicker on behalf of the Travancore Devaswom Board, learned Amicus Curiae on behalf of the learned Ombudsman Shri.Krishnakumar Mangot, learned Counsel Shri.P.B.Krishnan on behalf of DBP 32/10 5 the persons representing the estates of Subrayan Poti and Gopalakrishnan Poti and the learned counsel Shri.V.P.Sukumar, on behalf of the additional 8th respondent. We have been taken through the different materials including a portion of the Commissioner's report, which was the subject matter of OS No.108/80 and AS No.167/87. Having regard to the nature of the orders that we propose to pass, we deem it inappropriate to make any specific statement referring to the facts of the case. All that we would note is that there is a decree by the civil Court in OS No.108/80 and it has been confirmed by this Court in AS No.167/87. Though it was suggested by the learned Counsel on behalf of the Travancore Devaswom Board that the said decree could only be the result of a fraud and collusion between the officers of the Board and Subrayan Poti and Gopalakrishnan Poti or their heirs, as of now, there is no proceeding pending, challenging the decree in OS No.108/80 or AS No.167/87 as fraudulent, either by way of a further appeal or by way of a properly constituted DBP 32/10 6 suit or other proceeding. On the face of the provisions of the Land Conservancy Act, which applies to the lands belonging to the Devaswom Boards, we are also not prepared to say either way, as to the entitlement of the Travancore Devaswom Board to invoke the provisions of that legislation for any relief in relation to the properties which are held by the heirs of Subrayan Poti and Gopalakrishnan Poti as also the Housing Board and any other person found in occupation of the land belonging to the temple in question. We caution ourselves from answering even on the maintainability of such proceedings, because, if we were to answer, it would only prejudice either among the parties in its contentions in support of, or in challenge, to such proceedings. 4. In the aforesaid circumstances, we record the report of the learned Ombudsman and close this DBP, leaving open the parties to work out all remedies as may be available to them in accordance with law before the competent authorities including courts. We clarify that we DBP 32/10 7 have not expressed any opinion on the merits of any such proceedings in law, including the Land Conservancy Act, to the extent it applies, or on facts. ## **THOTTATHIL.B.RADHAKRISHNAN, JUDGE** ## **P.BHAVADASAN, JUDGE** sta DBP 32/10 8