Travancore Devaswom Board 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 FRIDAY, THE 9[TH] DAY OF JUNE 2023 / 19TH JYAISHTA, 1945 ``` ``` O.P.NO.13335OF 2003 ``` ## **`PETITIONER:`** ``` TRAVANCORE DEVASWOM BOARD NANTHANCODE, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY DEVASWOM BUILDINGS, NANTHANCODE, THIRUVANANTHAPURAM ``` ``` BY ADVS. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL SRI.D.SREEKUMAR, SC, TDB SRI.SANTHOSH KUMAR, SC, TDB ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM`** - **`2 THE DISTRICT COLLECTOR, COLLECTORATE, KOTTAYAM`** - **`3 THE SPECIAL TAHSILDAR, LAND ACQUISITION, (GENERAL) OFFICE OF THE SPECIAL TAHSILDAR KOTTAYAM`** - **`4 SUPERINTENDENT OF SURVEY AND LAND RECORDS (RE-SURVEY), VAIKOM`** - **`BY SRI.RAJMOHAN, SENIOR GOVERNMENT PLEADER`** O.P. No.13335 of 2003 2 ``` BY SRI.C.VIJAYAN, SC, TDB ``` ``` THIS ORIGINAL PETITION HAVING COME UP FOR ADMISSION ON 09.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P. No.13335 of 2003 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The Travancore Devaswom Board has filed this Original Petition, under Article 226 of the Constitution of India, seeking a writ of certiorari to quash the action taken by the respondents for widening the road, taking lands comprised in Survey Nos. 475/1 and 474/1 of Aymanam Village in Kottayam Taluk or any portion thereof. The petitioner has also sought for an order directing the respondents to forbear from taking possession of the lands comprised in Survey Nos.475/1 and 474/1 of the Aymanam Village, Kottayam Taluk or any portion thereof for the purpose of widening the road from Chungam to Kottayam Medical College or for any other purpose. 2. Going by the averments in the original petition, Vasudevapuram Devaswom and Kudamaloor Sarpakavu Devaswom are two incorporated Devaswoms included in the schedule of the Devaswom Proclamation 1097, which became vested in the Travancore Devaswom Board under Section 3 of the Travancore-Cochin Hindu Religious Institutions Act, 1950. The said Devaswoms are under Ettumanoor Group and Vasudevapuram Sub group, for the purpose of administration. O.P. No.13335 of 2003 4 The said Devaswoms were assumed by the State of Travancore while Col. Munro was the Dewan-Resident. 3. In the original petition, it is stated that the Government of Kerala decided to widen the road from Chungam to Kottayam Medical College. The Assistant Devaswom Commissioner, Ettumanoor was issued with Ext.P1 communication dated 10.10.1992 of the 2[nd] respondent District Collector, Kottayam, whereby it was informed that the land comprised in S.Nos.474/1 and 475/1 of Aymanam Village having an extent of 20.60 Ares belongs to Vasudevapuram Devaswom, in which there is an idol. In the said land, the Public Works Department has laid stones demarcating the area of 0.09 Ares required for the purpose of widening the road. The idol is in the remaining area. In a joint inspection conducted by the Deputy Collector (Land Acquisition) and an officer from the office of the Assistant Devaswom Commissioner, it was found that the acquisition of the said extent of 0.09 Ares of land will not in any manner affect the performance of religious rites. Therefore, the 2[nd] respondent District Collector suggested that the land having an extent of 0.09 Ares required for widening of the road may be surrendered. O.P. No.13335 of 2003 5 4. According to the petitioner, the extent of land in Survey No.475/1 of Aymanam Village is 20.60 Ares and that in Survey No.474/1 is 8.20 Ares, as per Re-survey records. The ownership of the Devaswom over the lands comprised in both survey numbers is admitted by the Revenue authorities. The old survey numbers before re-survey were 27/5H and 31/1, respectively. The document marked as Exts.P2 and P2(a) are relevant extracts of the Basic Tax Register, in which the ownership of the land in Survey Nos.475/1 and 474/1 of Aymanam Village is shown as 'Sirkar Poramboke' and in the remarks column, it is shown as 'Kshethram'. The document marked as Ext.P3, is the relevant extract of the Land Register kept in Vasudevapuram Devaswom, as per which old Survey No.27/5H is shown as 'Sarpakavu'. On receipt of Ext.P1 notice, the Assistant Devaswom Commissioner, Ettumannoor Group addressed Ext.P4 representation dated 20.11.2002 to the 3[rd] respondent Special Tahsildar, Land Acquisition (General), wherein it was pointed out that no steps are taken under the Land Acquisition Act for acquiring the land comprised in Survey Nos.474/1 and 475/1 of Aymanam Village, no notification under Section 4(1) of the Act no declaration under Section 6 of the Act O.P. No.13335 of 2003 6 was published. No notice under Section 9 of the Act is served on the person interested in the land. Therefore, in Ext.P4 representation it was requested that the proposal to acquire any portion of land in Survey Nos.474/1 and 475/1 of Aymanam Village may be withdrawn. After submission of Ext.P4 representation, the Travancore Devaswom Board has filed this original petition before this Court, seeking the aforesaid reliefs. 5. On 11.04.2003, when this original petition came up for admission, this Court granted an interim stay in C.M.P.No.22535 of 2003, of all action for taking possession of the land comprised in Survey Nos.475/1 and 475/1 of the Aymanam Village, Kottayam Taluk. The said interim order was extended until further orders on 10.07.2003. 6. A counter affidavit has been filed by the 2[nd] respondent District Collector, wherein it is stated that as per proceeding No. G2-50744/91 dated 08.06.1994, the Special Tahsildar (LA), General, Kottayam was appointed as Land Acquisition Officer for the acquisition of the land for the formation of a parallel road to M.C. Road from Kottayam to Gandhinagar, Medical College, vide the requisition received from the Executive Engineer, PWD Roads Division, Kottayam. O.P. No.13335 of 2003 7 Accordingly, the Land Acquisition Officer proceeded with the preliminary steps and notification under section 4(1) of the Land Acquisition Act was published in Kerala Gazette dated 21.03.1995 and also in Deepika and Mangalam dailies dated 24.05.1995 and 23.05.1995, respectively. The survey of the land was carried out as per rules and the survey records were approved by the Superintendent of Survey and Land Records, Kottayam, on 04.07.1996. On verification of the said records, it was seen that the land in Survey Nos. 474/1-2 and 475/1-2 of Block No.7 of Aymanam Village were marked and approved as LT (Poramboke) in the approved sub-division records. Therefore, the said land was excluded from the declaration under Section 6 of the Land Acquisition Act and no compensation was awarded for the said land. Vide letter No.7479 dated 05.10.1999 of the Assistant Devaswom Commissioner, Ettumanoor a request was made for awarding compensation to the concerned Devaswom. Accordingly, an enquiry was conducted through the Revenue Inspector in the L.A. Office, who submitted a report, wherein it is stated that the lands in Survey Nos.474/1-2 and 475/1-2 of Block No.7 of Aymanam Village are shown as Poramboke, Sirkar Poramboke, Kshethram, Kavu Poramboke, Sirkar Kshethram, O.P. No.13335 of 2003 8 respectively. Based on the said report, a reply was given to the Assistant Devaswom Commissioner to take necessary steps to rectify the revenue records and also to prove the absolute right of the Devaswom over the land. But the Assistant Devaswom Commissioner failed to do so, after repeated reminders. 7. In the counter affidavit, it is stated that as per revenue records, the land in dispute is a poramboke land, which was transferred to the Travancore Devaswom Board for beneficial enjoyment. Therefore, the consent of the Board was sought. The Assistant Devaswom Commissioner sent a communication No.7479 dated 05.10.1999 claiming compensation for the acquired portion in Survey Nos.474/1 and 475/1 of Aymanam Village. A detailed enquiry on the matter was conducted through the Revenue Inspector, who submitted a report on 16.08.2000. On enquiry, it is found that in the BTR of Aymanam Village, the land is shown as poramboke. The land in Survey No.474/1 is shown as 'Poramboke Sirkar – Poramboke Kshethram' and the land in Survey No.475/1 is shown as 'Kavu Poramboke - Sirkar Kshethram'. By communication No.B1.847/99 dated 25.08.2000 of the Special Tahsildar, the Assistant Devaswom Commissioner, Ettumanoor was required to prove the absolute right of the O.P. No.13335 of 2003 9 Devaswom over the said land, which was followed by several reminders. But the Assistant Devaswom Commissioner neither produced the relevant documents nor proved the absolute right over the said land. 8. In the counter affidavit, it is stated that though notice under Section 4(1) of the Land Acquisition Act was duly published, a declaration under Section 6 of the Land Acquisition Act was not published regarding the said land, because the land is registered as 'Sirkar/Poramboke' in the BTR. The construction of the road is for a bona fide public purpose and forbearance of the construction will affect the entire project. This said land cannot be considered as land other than Government land as per BTR. The Assistant Devaswom Commissioner had not proved absolute right of the Devaswom over the said land. The acquired portion of the property did not contain any idol (prathishta), which was found to be bushy with 'incha plants'. The Sanctum Sanctorum (Sreekovil) is situated away from the acquired portion of the land. Since the Travancore Devaswom Board could not prove its absolute right and title over the land in Survey No.474/1 and Survey No.475/1 of Aymanam Village, the said land, which is registered as Sirkar Poramboke, Kavu Poramboke - O.P. No.13335 of 2003 10 Sirkar Kshethram in the BTR, cannot be considered as the land belonging to Vasudevapuram Devaswom. The Land Acquisition process was completed. The planting of alignment stones was done by the PWD Authorities. In the counter affidavit, it is stated that the Devaswom Board may be directed to furnish relevant records relating to the land in question and co-operate with the proceedings for the completion of the road work in the public interest. 9. The petitioner Board filed a reply affidavit dated 07.01.2004, producing therewith Ext.P5 rough sketch of the existing road as well as the proposed road in the area on the eastern side of the Vasudevapuram Temple. Later, the Board filed I.A.No.2859 of 2013 to withdraw the said reply affidavit and to accept the reply affidavit dated 15.02.2013 on the file. The said interlocutory application was allowed by the order dated 25.02.2013. 10. In the reply affidavit dated 15.02.2013, the petitioner Board has stated that the attempt of the respondents is to acquire an extent of 0.1230 Hectares of land from Survey No.475/1 (old Survey No.27/5H) and another extent of 0.0030 Hectares from Survey No.474/1 (old Survey No.31/1) of the O.P. No.13335 of 2003 11 Aymanam Village. Survey No.475/1 is the site of the Kudamaloor Surpakavu Devaswom, which is an incorporated Devaswom included in the Schedule appended to the Travancore Devaswom Proclamation of 1097ME and the Schedule to the TravancoreCochin Hindu Religious Institutions Act, 1950. Survey No.474/1 is the site of the Manavalathu Ganapathy Temple in Vasudevapuram Group. From the averments in the counter affidavit, the land comprised in Survey No.475/1 is not included in the notification issued under Section 4(1) of the Land Acquisition Act under the wrong impression that the said land is Government land. As per the land records, including BTR, it is Devaswom land and the site of the temple. The respondents themselves proceeded on the basis that the lands comprised in Survey Nos.475/1 and 474/1 belong to the Devaswom and that the Devaswom is in possession of the land comprised in Survey Nos.475/1 and 474/1, as evidenced by Ext.P1. There is no mistake in the revenue records, as contended in the counter affidavit. BTR of the Aymanam Village shows that Survey No.475/1 (old Survey No.27/5H) is shown as Kavu Poramboke and the site of the temple belongs to the State, which would show it is a temple site, which was under the administration of O.P. No.13335 of 2003 12 the erstwhile State of Travancore. Similarly, the land comprised in Survey No.474/1 (old Survey No.31/1) is also shown as Kavu Poramboke and the site of Sirkar Kshethram. The land comprised in Survey Nos.475/1 and 474/1 are thus temple sites under the administration of the erstwhile State of Travancore. On the formation of the Travancore Devaswom Board in the year 1949, it came under the administration of the Board. Sirkar Kshetram only means Kshethram under the management of the erstwhile State of Travancore. As submitted in the Original Petition, the Devaswoms and its properties were being managed by the State through its Revenue Department and on the formation of a separate Devaswom Department, in the year 1097ME, through the Devaswom Department. On the formation of the Devaswom Department for the management of Devaswoms and its properties, the Revenue Department handed over all Devaswom properties to the respective Devaswoms. The lands under the management of Vasudevapuram Devaswom sub-group comprised in Survey No.475/1 (old Survey No.27/5H) and Survey No.474/1 (old Survey No.31/1) were handed over on 01.01.1098ME. The land comprised in old Survey No.28/7 of former Kudamaloor Village, which is the road from the northern O.P. No.13335 of 2003 13 gopuram of Vasudevapuram Temple upto ozhuku nada on the northern side, having an extent of 60 cents, was handed over on 25.02.1112. Such surrender of lands is evident from Ext.P2(a) land register maintained by Vasudevapuram Devaswom, which is an ancient record maintained in the Devaswom. 11. In the reply affidavit, the petitioner Board has stated that the contentions in the counter affidavit that the acquired portion of the property did not contain any idol and that no Sreekovil is situated therein are neither correct nor relevant. The land having an extent of 20.60Ma comprised in Survey No.475/1 is the site of the Kudamaloor Sarpakavu. The records would show a separate Devaswom known as Kudamaloor Sarpakavu Devaswom was in existence from time immemorial, even at the time when the Devaswoms in the erstwhile State of Travancore were assumed by Col. Munro, the Resident Dewan of the State in the year 987ME. The Devaswoms mentioned in the Schedule to the Travancore Devaswom Proclamation of 1097ME are the Devaswoms assumed by the State at that time. The entire place including the plant growth is considered to be sacred and cannot be destroyed. The averment in the counter affidavit that the land comprised in Survey No.475/1 is found to be bushy with 'incha' O.P. No.13335 of 2003 14 plants, etc. discloses the lack of knowledge about 'sarpakavu', its importance, ecological and religious significance. The averment that there is no sanctum sanctorum is also not relevant, since there would be no Sreekovil in Sarpakavu. It will have only Chithrakoodam and stone idols in the open air, surrounded by a thick growth of trees, bushes, shrubs, creepers, etc. If the proposal for the acquisition of land is implemented, Sarpakavu would be destroyed, which will hurt the religious sentiments of the Hindus in the locality. The extent of land sought to be acquired now is 0.0030 Hectares from Survey No.474/1 and 0.1230 Hectares from Survey No.475/1. The difference is sought to be explained in the counter affidavit by stating that the original notification gave only an approximate estimation of the extent of the land. Later, when the property was measured the extent was found to be 0.1230 hectares. The petitioner Board would contend that the respondents have no jurisdiction to acquire any land without issuing a notification under Section 4(1) of the Land Acquisition Act and the declaration under Section 6 thereof. The contention in the counter affidavit that the land comprised in Survey No.475/1 is not included in the declaration under Section 6 since the land belonged to the Sirkar. As per the O.P. No.13335 of 2003 15 land records, the said land is Devaswom land. The land comprised in Survey No.475/1 is the site of the Kudamaloor Sarpakavu Devaswom, which is an incorporated Devaswom included in the Schedule to the Travancore Devaswom Proclamation. Similarly, the land comprised in Survey No.474/1 is the site of Manavalath Ganapathy Temple of Vasudevapuram Devaswom. The said fact is evident from ancient records, including the BTR of the Revenue Department, the Land Register of the Devaswom, the Travancore Devaswom Proclamation of 1097ME. The land comprised in Survey Nos.475/1 and 474/1 are sites of Kudamaloor Sarpakavu Devaswom and of Manavalathu Ganapathy Temple as shown in the settlement register and other ancient records. Apart from the entries in these records, there will be no document of title like sale deeds for ancient temple sites. 12. In the reply affidavit, the petitioner Board has stated that for the construction of a road from Chungam to Medical College, Kottayam the respondents have acquired land on the western and southern sides of the temple, far away from the temple. The Devaswom owns a road, which starts from the northern gopuram of Vasudevapuram Temple and goes O.P. No.13335 of 2003 16 northwards upto the ozhuku nada on the northern side of the Sarpakavu and then joins the public road. The proposal is to connect the proposed road to the said temple road at a point about 56.40 metres north of the northern gopuram and thereafter, to use the road owned by the Devaswom, as evident from Ext.P5 rough sketch of the existing road as well as the proposed road. The said road is essential for temple purposes. The Government cannot convert the temple road into a PWD road. In Ext.P5 rough sketch the newly proposed road is shown in dotted lines. The proposed road meets the Devaswom road at points A and B indicated in the sketch. Till points P and C in the sketch, the existing temple road has sufficient width. The existing temple road on the western side of the Manavalathu Ganapathy Temple and the Kudamaloor Sarpakavu Devaswom is on the western side of points C, D, E, F and G. shown in the sketch. The width of the existing road on the western side of the said points is lesser. The width in that area is only about 9 metres, as against 15 for the southern portion of the temple road. The proposed alignment is to cut across the site of the Manavalathu Ganapathy Temple and the Kudamaloor Sarpakavu Devaswom. The proposed alignment is along lines C, C1 and H O.P. No.13335 of 2003 17 and lines P and C as indicated by dotted lines in the sketch. The said alignment would completely destroy the Sarpakavu and the portion of the site of the Manavalathu Ganapathy Temple. The purpose can be achieved by allowing the road to proceed towards the north from points P and C indicated in the sketch. If so, only a very small portion of the site of Manavalathu Ganapathy Temple and Kudamaloor Sarpakavu Devaswom would be required for the purpose of widening the road. The road leading towards the northern gopuram of the temple is through Devaswom land. The said road belongs to the Devaswom. This is the road through which the devotees enter the temple. The road is also being used for temple purposes like arattu procession. According to the petitioner Board, there is no justification for insisting that the road should be constructed through Sarpakavu and the site of the Manavalathu Ganapathy Temple. The respondents have to change the alignment of the road and save the Sarpakavu and the site of the Kudamaloor Devaswom. 13. Heard the learned Standing Counsel for Travancore Devaswom Board for the petitioner and the learned Senior Government Pleader for the respondents. 14. Travancore-Cochin Hindu Religious Institutions Act O.P. No.13335 of 2003 18 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 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. 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. 15. 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 the fund constituted under the Devaswom Proclamation, 1097 O.P. No.13335 of 2003 19 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. 16. 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 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 sub-section (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. 17. 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 O.P. No.13335 of 2003 20 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. 18. 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. O.P. No.13335 of 2003 21 19. 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 Conservancy Act of 1091 (IV of 1091) shall be applicable to Devaswom lands as in the case of Government lands. 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, the administration of a 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 O.P. No.13335 of 2003 22 Board. The Board shall hold and acquire properties for and on behalf of the Devaswoms 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 the Sabarimala 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. The Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in the temple are performed promptly; and to establish and maintain proper facilities in the temple for the devotees. The Board shall, out of the Devaswom Fund, maintain and administer the 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 the Devaswom and arrange for the conduct of the daily worship and ceremonies and of the festivals in the temple, according to the usage. ## 21. In **A.A. Gopalakrishnan v. Cochin Devaswom** O.P. No.13335 of 2003 23 **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. 22. 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 O.P. No.13335 of 2003 24 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. 23. 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 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]** . 24. In **Travancore Devaswom Board v. Union of India** O.P. No.13335 of 2003 25 **and others [2023 (1) KHC 557]** a Division Bench of this Court, in both of us were parties, was dealing with a batch of writ petitions in which the challenge was against a notification dated 28.01.2020 issued by the Central Government, Ministry of Road Transport and Highways (MoRTH) under Section 3A of the National Highways Act, 1956, insofar as it relates to the acquisition of property of Thiruvarattukavu Devi Temple in Survey No.642 of Attingal Village, which is a temple under the management of the Travancore Devaswom Board, and an order dated 15.05.2021 of the Special Deputy Collector and Competent Authority, Land Acquisition (National Highway). A writ of mandamus was also sought for commanding the respondents therein to slightly shift the alignment of the proposed Attingal Bypass in National Highway-66 (NH-66) in such a way that the ancient temple structures of Thiruvarattukavu Devi Temple with known history dating back to 1307 AD are not affected 25. In **Travancore Devaswom Board [2023 (1) KHC** **557]** this Court noticed that the construction and maintenance of national highways have to be undertaken strictly in conformity with the specifications and standards prescribed in the relevant Manual published by the Indian Roads Congress. The O.P. No.13335 of 2003 26 specifications and standards for four-lane highways are prescribed in IRC:SP:84-2009, as revised IRC:SP:84-2019. The project highway and the project facilities shall conform to the requirements of design and specifications set out in the Manual, which are the minimum prescribed. The Manual deals with every - minute detail of the construction and maintenance of four lane national highways. The provisions under the Manual demonstrate the extent of minuteness in the prescription of specifications and standards and efforts to ensure not only the appropriate manner - of construction and maintenance of a four lane national highway but also the safety of road users. Moreover, in view of the provisions under Section 198A of the Motor Vehicles Act, 1988 which came into force with effect from 01.09.2019, any designated authority, contractor, consultant or concessionaire responsible for design or construction or maintenance of safety standards of four-lane national highway shall follow the design, the construction and maintenance standards in the Manual - - [IRC:SP:84 2009 as revised by IRC:SP:84 2019], which are the minimum prescribed, failing which the penal provisions under sub-section (2) of Section 198A of the said Act will be attracted in case the failure to comply with the aforesaid standards has O.P. No.13335 of 2003 27 resulted in death or disability. The provisions under the Travancore-Cochin Hindu Religious Institutions Act would show that the Travancore Devaswom Board has a statutory duty under Section 15A of the Act to see that the regular rites and ceremonies according to the practice prevalent Thiruvarattukavu Devi Temple are performed promptly. The Board shall arrange for the conduct of daily worship and ceremonies and of the festivals in Thiruvarattukavu Devi Temple according to its usage. In view of the law laid down by the Apex Court in **A.A.Gopalakrishnan [(2007) 7 SCC 482]** and followed in the decisions referred to hereinabove, it is the duty of the Board to protect and safeguard the properties of Thiruvarattukavu Devi Temple from any wrongful claims, misappropriation, etc. It is the duty of the courts in the exercise of its inherent jurisdiction and the doctrine of _parens patriae_ to protect and safeguard the interest and properties of Thiruvarattukavu Devi Temple, which is a religious institution from any wrongful claims, misappropriation, etc. 26. In **Travancore Devaswom Board [2023 (1) KHC 557]** this Court held that the provisions under the TravancoreCochin Hindu Religious Institutions Act or the law laid down in the decisions referred to supra, would not entitle the Travancore O.P. No.13335 of 2003 28 Devaswom Board or a devotee of the deity in an incorporated or unincorporated Devaswom under the administration of the Travancore Devaswom Board to challenge the proceedings initiated under the provisions of the National Highways Act, 1956 for excluding the temple premises or the temple structures from the acquisition proceedings. However, in view of the provisions under the Manual of Guidelines on Land Acquisition for National Highways published by the Government of India, MoRTH, the Travancore Devaswom Board or a devotee of the deity can raise a contention that while proposing the alignment of the national highway or bypass the DPR Consultant and the competent authorities in NHAI have not taken steps to avoid to the extent feasible the temple structures in the Right of Way (RoW) of the road project. However, while considering the said aspect, as per the provisions under the Manual of Guidelines, the DPR consultant and the competent authorities in NHAI have to strictly follow the design, construction and maintenance standards in the Manual [IRC:SP:84-2009 as revised by IRC:SP:84-2019], which are the minimum prescribed, in order to ensure the appropriate manner of construction and maintenance of a four-lane national highway and also the safety of road users. O.P. No.13335 of 2003 29 27. In the instant case, the acquisition of land is for the formation of a parallel road to M.C. Road from Kottayam to Gandhinagar, Medical College, vide the requisition received from the Executive Engineer, PWD Roads Division, Kottayam. The Land Acquisition Officer proceeded with the preliminary steps and notification under section 4(1) of the Land Acquisition Act was published in Kerala Gazette dated 21.03.1995 and also in two dailies on 24.05.1995 and 23.05.1995. The survey of the land was carried out and the survey records were approved by the Superintendent of Survey and Land Records, Kottayam, on 04.07.1996. According to the respondents, on verification of the records it was found that the land in Survey Nos.474/1-2 and 475/1-2 of Block No.7 of Aymanam Village are marked and approved as LT (Poramboke) in the approved sub-division records. Therefore, the said land was excluded from the declaration under Section 6 of the Land Acquisition Act and no compensation was awarded for the said land. 28. The stand taken in the counter affidavit is that, vide letter No.7479 dated 05.10.1999 of the Assistant Devaswom Commissioner, Ettumanoor a request was made for awarding compensation to the concerned Devaswom. Accordingly, an O.P. No.13335 of 2003 30 enquiry was conducted through the Revenue Inspector in the L.A. Office, who submitted a report, wherein it is stated that the lands in Survey Nos.474/1-2 and 475/1-2 of Block No.7 of Aymanam Village are shown as Poramboke, Sirkar Poramboke, Kshethram, Kavu Poramboke, Sirkar Kshethram, respectively. Based on the said report, a reply was given to the Assistant Devaswom Commissioner to take necessary steps to rectify the revenue records and also to prove the absolute right of the Devaswom over the land. But the Assistant Devaswom Commissioner failed to do so, after repeated reminders. 29. The specific stand taken in the writ petition and the reply affidavit dated 15.02.2013 filed by the petitioner Board is that the attempt of the respondents is to acquire an extent of 0.1230 Hectares of land from Survey No.475/1 (old Survey No.27/5H) and another extent of 0.0030 Hectares from Survey No.474/1 (old Survey No.31/1) of Aymanam Village. The land in Survey No.475/1 is that of Kudamaloor Sarpakavu Devaswom, which is an incorporated Devaswom included in the Schedule attached to the Travancore Devaswom Proclamation of 1097ME and the Schedule to the Travancore-Cochin Hindu Religious Institutions Act, 1950. The land in Survey No.474/1 attempted to O.P. No.13335 of 2003 31 be acquired is that of Manavalathu Ganapathi Temple in Vasudevapuram Group. The BTR of Aymanam Village shows that Survey No.475/1 (old Survey No.27/5H) is Kavu poramboke and Survey No.474/1 (old Survey No.31/1) is also Kavu poramboke and the Sirkar Kshethram. Therefore, the land comprised in Survey Nos.475/1 and 474/1 of Aymanam Village were temple sites under the administration of the erstwhile State of Travancore. On the formation of the Travancore Devaswom Board in the year 1949, the temples came under the administration of the Board. The Devaswoms and its properties were being managed by the State through its Revenue Department and on the formation of a separate Devaswom Department, in the year 1097ME through the Devaswom Department. On the formation of Devaswom Department for the management of Devaswoms and its properties, the Revenue Department handed over all Devaswom properties to the respective Devaswoms. The lands under the management of Vasudevapuram Devaswom Sub Group comprised in Survey No.475/1 (old Survey No.27/5H) and Survey No.474/1 (old Survey No.31/1) were handed over on 1098ME. The land comprised in old Survey No.28/7 of former Kudamaloor Village, which is a road from the northern Gopuram O.P. No.13335 of 2003 32 of Vasudevapuram Temple upto ozhuku nada on the northern side, having an extent of 60 cents, was handed over on 25.02.1112 ME, as evident from Ext.P2(a) land register maintained by Vasudevapuram Devaswom. 30. The stand taken in the counter affidavit filed by the 2[nd] respondent is that the lands in Survey Nos.474/1-2 and 475/1-2 of Block No.7 of Aymanam Village were marked and approved as LT (poramboke) in the approved sub division records. Therefore, the said land was excluded from the declaration under Section 6 of the Land Acquisition Act and no compensation was awarded for the said land. The averments in the counter affidavit would show that after conducting an enquiry, the Revenue Inspector in the Land Acquisition Office submitted a report wherein it was stated the lands in Survey No.474/1-2 and 475/1-2 of Block No.7 of Aymanam Village are shown as poramboke, Sirkar poramboke, kshethram, kavu poramboke, Sirkar kshethram respectively. Based on that report the 2[nd] respondent District Collector gave a reply to the Assistant Devaswom Commissioner, who was directed to take necessary steps to rectify the revenue records and to prove absolute right of the Devaswom over the said land. O.P. No.13335 of 2003 33 31. Having considered the pleadings and materials on record and also the submissions made at the Bar, we find that the question as to whether the land sought to be acquired from Survey Nos.474/1 and 475/1 of Aymanam Village for the purpose of widening the road from Chungam to Kottayam Medical College is a Devaswom land or not requires reconsideration at the hands of the 2[nd] respondent District Collector, with specific reference to the contentions raised by the petitioner Board in the writ petition and the reply affidavit dated 15.02.2013, after affording an opportunity to the Board to substantiate its claim with supporting materials. In case the said land is that of Vasudevapuram Devaswom and Kudamaloor Sarpakavu Devaswom, which are two incorporated Devaswoms included in the Schedule of Devaswom Proclamation of 1097, the respondents cannot contend that it is not a Devaswom land, for the reason that it is shown as poramboke, Sirkar poramboke, kavu poramboke or Sirkar kshethram in the revenue records. 32. Another issue that requires consideration is whether the petitioner Board can seek an order directing the respondents to forbear from taking possession of the lands comprised in Survey Nos.475/1 and 474/1 of Aymanam Village or any portion O.P. No.13335 of 2003 34 thereof for the purpose of widening the road from Chungam to Kottayam Medical College or for any other purpose. ## 33. In **Travancore Devaswom Board [2023 (1) KHC** **557]** this Court was dealing with the acquisition of land under the National Highways Act, 1956 for the purpose of constructing a bypass at Attingal, acquiring the property of Thiruvarattukavu Devi Temple, with known history dating back to 1307AD. In the writ petition filed by the Travancore Devaswom Board, it was contended that a slight shift in the alignment of the proposed bypass would save the ancient temple structures. In the said decision, this Court held that while constructing the bypass the competent authorities have to strictly follow the design, construction and maintenance standards in order to ensure the appropriate manner of construction and maintenance of the National Highway and also the safety of road users. The provisions under the Travancore-Cochin Hindu Religious Institutions Act or the law laid down in the decision of the Apex Court in **A.A.Gopalakrishnan [(2007) 7 SCC 482]** and other decisions referred to hereinbefore at paragraphs 22 and 23 would not entitle the Board or a devotee of the Deity in an incorporated or unincorporated Devaswom under the O.P. No.13335 of 2003 35 administration of the Board to challenge the proceedings initiated under the provisions of the National Highways Act, 1956 for excluding the temple premises of the temple structures from the acquisition proceedings. In the said decision this Court noticed the provisions under the Manual of Guidelines on Land Acquisition for National Highways published by the Government of India, Ministry of Road Transport and Highways. 34. In the reply affidavit, the petitioner Board has raised certain contentions regarding the alignment of the proposed acquisition, placing reliance on Ext.P5 rough sketch of the existing road as well as the proposed road produced along with that reply affidavit. The petitioner Board would contend that the proposed alignment would completely destroy the sarpakavu and the portion of the site of Manavalathu Ganapathi Temple. The purpose of acquisition can be achieved by allowing the road to proceed towards north from points P and C indicated in the sketch. If so, only a very small portion of the site of Manavalathu Ganapathi Temple and Kudamaloor Sarpakavu Devaswom would be required for the purpose of widening the road. Though such contentions are raised, the petitioner Board has not chosen to implead the concerned Engineer of the Public Works Department O.P. No.13335 of 2003 36 (Roads) as a respondent in this original petition. In such circumstances, such contentions cannot be considered in this original petition. In view of the law laid down by this Court in **Travancore Devaswom Board [2023 (1) KHC 557]** , the petitioner Board cannot raise a contention that Devaswom land has to be excluded from acquisition proceedings for the widening of a public road. 35. In the result, this original petition is disposed of by directing the 2[nd] respondent District Collector to consider the question as to whether the land sought to be acquired from Survey Nos.474/1 and 475/1 of Aymanam Village for the purpose of widening the road from Chungam to Kottayam Medical College is the land of Vasudevapuram Devaswom and Kudamaloor Sarpakavu Devaswom, before proceeding with the matter further. A decision on that aspect shall be taken, with specific reference to the contentions raised by the petitioner Board in the original petition and the reply affidavit dated 15.02.2013, after affording an opportunity to the Board to substantiate its claim with supporting materials, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. O.P. No.13335 of 2003 37 36. In case the said land sought to be acquired from Survey Nos.474/1 and 475/1 of Aymanam Village is that of Vasudevapuram Devaswom and Kudamaloor Sarpakavu Devaswom, which are two incorporated Devaswoms included in the Schedule of Devaswom Proclamation of 1097, the entitlement of the petitioner Board for payment of compensation on acquisition of the land cannot be denied on the ground that the said land is shown as poramboke, Sirkar poramboke, kavu poramboke or Sirkar kshethram in the revenue records. That entry in revenue records shall be corrected, in accordance with law, by the competent authority on the petitioner Board making proper application before the said authority after complying with the statutory requirements. Sd/- ## **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** DCS O.P. No.13335 of 2003 38 ## **`APPENDIX`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1 TRUE COPY OF THE LETTER FROM COLLECTORTE KOTTAYAM TO THE ASSISTANT DEVASWOM COMMISSIONER DATED 10.10.1992 ``` ``` EXHIBIT P2 TRUE COPY OF THE BASIC TAX RECEIPT OF SURVEY NO. 475/1 ``` - **`EXHIBIT P2(A) TRUE COPY OF THE BASIC TAX RECEIPT OF SURVEY NO. 474/1`** - **`EXHIBIT P3 TRUE COPY OF THE LAND REGISTER OF VASUDEVPURAM DEVASWOM`** - **`EXHIBIT P3(A) TRUE COPY OF THE LAND REGISTER KEPT IN THE VASUDEVAPURAM DEVASWOM`** - **`EXHIBIT P4 TRUE COPY OF THE REPRESENTAION BY THE ASSISTANT DEVASWOM COMMISSIONER, ETTUMANOOR, TO THE SPECIAL TAHSILDAR(LA)GENERAL DATED 20.11.92`** - **`EXHIBIT P5 TRUE COPY OF THE ROUGH SKETCH OF THE EXISTING ROAD AS WELL AS THE PROPOSED ROAD IN THE AREA`** - **`EXHIBIT P6 TRUE COPY OF THE ORDER DATED 04.05.2010 OF THE GOVERNMENT OF KERALA AND LIST OF SACRED GROVES INITIALLY SELECTED`** - **`EXHIBIT P6(A) TRUE COPY OF THE AGREEMENT PRESCRIBED BY THE STATE OF KERALA IN CONNECTION WITH THE SCHEME`** - **`EXHIBIT P6(B) TRUE COPY OF THE GUIDELINES FOR THE IMPLEMENTATION OF THE PROJECT FOR PROTECTION AND CONSERVATION OF SACRED GROVES`**