VASUDEVAN KIDAVU and GANGADHARAN NAIR 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`** ``` TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944 ``` ## **`W.P.(C)NO.15190 OF 2022`** |**`PETITIONERS:`**|**`PETITIONERS:`**| |---|---| |**`1`**|**`VASUDEVAN KIDAVU,`**| ||**`AGED 70 YEARS,`**| ||**`S/O. APPUNNI KIDAVU, KODOLI, AARAMAM, NADUVATHUR P.O.,`**| ||**`KOZHIODE, PIN - 673307`**| |**`2`**|**`GANGADHARAN NAIR,`**| ||**`AGED 76 YEARS,`**| ||**`S/O APPUKKUTTY NAIR, MAMMILI MEETHAL, NADUVATHUR`**| ||**`P.O,KOZHIODE, PIN - 673307`**| ||**`BY ADVS.`**| ||**`T.D.SUSMITH KUMAR`**| ||**`C.SIVADAS`**| ||**`T.O.DEEPA`**| |**`RESPONDENTS:`**|**`RESPONDENTS:`**| |---|---| |**`1`**|**`STATE OF KERALA,`**| ||**`REPRESENTED BY ITS PRINCIPAL SECRETARY REVENUE(DEVASWOM)`**| ||**`ROOM NO.394,1ST FLOOR MAIN BLOCK,GOVERNMENT SECRETARIAT,`**| ||**`THIRUVANANTHAPURAM, PIN - 695001`**| |**`2`**|**`THE DISTRICT COLLECTOR,`**| ||**`OFFICE OF THE DISTRICT COLLECTOR, KOZHIKODE COLLECTORATE,`**| ||**`CIVIL STATION P.O., KOZHIKODE, PIN - 673020`**| |**`3`**|**`THE DISTRICT JUDGE,`**| ||**`COURT COMPLEX, CHEROOTY ROAD,`**| ||**`BEACH P.O., KOZHIKODE, PIN - 673032`**| |**`4`**|**`MALABAR DEVASWOM BOARD,`**| ||**`REPRESENTED BY ITS COMMISSIONER,`**| ||**`HOUSEFED COMPLEX, NEAR PASSPORT OFFICE,`**| ||**`MINI BY-PASS CROSS ROAD, ERANJIPPALAM, KOZHIKODE., PIN -`**| ||**`673006`**| -:2:- W.P.(C)No.15190 of 2022 - **`5 KEEZHARIYOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KEEZHARIYOOR P.O.,KOZHIKODE., PIN - 673307`** - **`6 VILLAGE OFFICER, NADUVATHUR VILLAGE OFFICE, NADUVATHUR P.O., KOZHIKODE, PIN - 673307`** - **`7 NARAYANAN EMBRANDHIRI, AGED 71 YEARS, S/O GOVINDAN EMBRANDHIRI, THADATHIL MADATHIL, CHALAPARAMBU, NADUVATHUR P.O, KOZHIKODE, PIN - 673307`** - **`8* ADDITIONAL 8[TH] RESPONDENT`** ``` EXECUTIVE OFFICER, NADUVATHUR SHIVA KSHETHRA DEVASWOM, NADUVATHUR P.O., KOZHIKODE, PIN – 673 307 ``` - **`9* ADDITIONAL 9[TH] RESPONDENT`** ``` SHIVA KSHETHRA SAMRAKSHANA SAMITHI, NADUVATHUR P.O., KOZHIKODE, PIN – 673 307, REPRESENTED BY ITS SECRETARY ``` ``` *I.A.NO.1 OF 2022 IS ALLOWED BY THE JUDGMENT DATED 22.11.2022 ``` ``` BY ADVS. ``` ``` SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD T.SETHUMADHAVAN (SR.) MANSOOR.B.H. M.PROMODH KUMAR SUSMITH KUMAR SAKEENA BEEGUM PREETHI. P.V. M.V.BALAGOPAL MAYA CHANDRAN ``` ``` OTHER PRESENT: ``` ``` SRI S.RAJMOHAN- SR. GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -:3:- W.P.(C)No.15190 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioners, who are the devotees of Lord Shiva of Naduvathur Shiva Temple in Keezhariyoor Village in Kozhikode District, which is a controlled institution under the 4[th] respondent Malabar Devaswom Board, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent District Judge, Kozhikode to consider Ext.P3 petition dated 10.03.2022 and submit a report before this Court, after conducting an enquiry, in terms of the directions contained in the judgment of the Apex Court in **Mrinalini Padhi v. Union of India [2018 SCC OnLine** **SC 667]** . Going by the averments in the writ petition, the Devaswom property is having an extend of 2.57 acres, comprised in Resurvey Nos.26/2B, 26/2 and 10/8 of Keezhariyoor Village. Certain extend of Devaswom property is encroached by the 7[th] respondent and others by creating bogus and sham documents. 2. On 04.05.2022, when this writ petition came up for admission, notice was ordered to respondents 5 to 7, through speed post. The learned Senior Government Pleader took notice for respondents 1 and 2. -:4:- W.P.(C)No.15190 of 2022 3. The 7[th] respondent has filed a counter affidavit dated 01.07.2022, producing therewith various documents including Ext.R7(A) purchase certificate 10.02.1976 issued by the Land Tribunal, Meladi. The document marked as Ext.R7(D) is a copy of the plaint in O.S.No.25 of 2022 on the file of the Munsiff Court, Koyilandy, which is one filed by Naduvathur Shiva Temple and others, against the 7[th] respondent herein and also the Executive Officer of Naduvathur Shiva Temple for recovery of possession of plaint B and C scheduled Devaswom properties. 4. The 4[th] respondent Malabar Devaswom Board has also filed a counter affidavit dated 11.10.2022, wherein, it is sated that all efforts have been taken to protect the Devaswom properties. 5. The petitioners have filed reply affidavits to the counter affidavit filed by the 4[th] respondent and also that filed by the 7[th] respondent. 6. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 and 2 and also the 6[th] respondent and also the learned counsel for the 8[th] respondent. Though the petitioners have filed I.A.No.1 of 2022, seeking an order to implead the Executive Officer of Naduvathur -:5:- W.P.(C)No.15190 of 2022 Shiva Temple and also Naduvathur Shiva Kshethra Samrakshana Samithi as additional respondents 8 and 9, service of notice is not complete on the additional 9[th] respondent sought to be impleaded. Considering the nature of relief proposed to be granted, completion of service of notice on the additional 9[th] respondent is dispensed with and I.A.No.1 of 2022 is allowed as prayed for. Registry to carry out necessary correction in the cause title. 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 **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 -:6:- W.P.(C)No.15190 of 2022 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. 9. In **A.A. Gopalakrishnan** , on the facts of the case on hand, the Apex Court noticed that, when Respondents 3 to 5 claimed ownership of Survey No.1043, which was the front portion of the temple premises in the possession of the temple (in the proposal for settlement dated 06.07.2000), the Devaswom Board, instead of investigating and verifying as to how they could claim ownership over temple property, strangely agreed for a settlement under which the temple was to get Sy.No.1043 (which was a temple land already in its possession), in exchange for giving away another temple land (Sy.No.1042/2) to Respondents 3 to 5. The Board Resolution dated 29.08.2000 agreeing for the settlement proposal clearly records that Sy.No.1043 is already in the possession of the temple. Before -:7:- W.P.(C)No.15190 of 2022 the Apex Court, respondents 3 and 4 contended that the settlement in the suit (O.S.No.399 of 1998) was validly arrived at between them (the plaintiffs) and the Devaswom Board (the defendant), that the Devaswom Board had considered the proposal after taking legal advice and had duly passed a resolution to settle the suit. It was further contended that a decree having been made in terms of the compromise and such decree having attained finality, it cannot be questioned, interfered or set aside at the instance of a third party in a writ proceeding. They relied on the provisons of Order XXIII, Rule 3A of the Code of Civil Procedure, 1908, which provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The Apex Court held that, the bar contained in Order XXIII, Rule 3A will not come in the way of the High Court examining the validity of a compromise decree, when allegations of fraud/collusion are made against a statutory authority which entered into such compromise. While it is true that decrees of civil courts which have attained finality should not be interfered with lightly, challenge to such compromise decrees by an aggrieved devotee, who was not a party to the suit, cannot be rejected, where -:8:- W.P.(C)No.15190 of 2022 fraud/collusion on the part of officers of a statutory board is made out. Further, when the High Court by the order dated 09.09.1998 had directed the Board to take possession of Sy.No.1042/2 immediately from Respondents 3 and 4 in CDB No.3 of 1996, in a complaint by another devotee, it was improper for the Board to enter into a settlement with Respondents 2 and 3, giving up the right, title and interest in Sy.No.1042/2, without the permission of the court which passed such order. The Apex Court concluded that, viewed from any angle, the compromise decree cannot be sustained and is liable to be set aside. 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 -:9:- W.P.(C)No.15190 of 2022 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. 11. In **Mohanan Nair** the Division Bench relied on the decision in **Achuthan Pillai v. State of Kerala [1970 KLT 838]** , wherein a Full Bench of this Court considered the validity of an order passed by the Government under Section 99 of the Madras Hindu Religious and Charitable Endowments Act, 1951. By the said order the Government cancelled the sanction given for transfer of immovable property of a Devaswom. The initial order, i.e., Ext.P1 order was passed by the Commissioner for sanction to lease 600 acres of forest land belonging to Emoor Bhagavathy Devaswom. The said order was passed in the year 1960 and the Government cancelled the same by Ext.P5 order dated 23.02.1967. The Full Bench traced the principles regarding the rights of an authority to protect the institution like Devaswom in order to prevent fraud. The Full Bench held that the power to cancel a sanction and thereby to make null and -:10:- W.P.(C)No.15190 of 2022 void an improvident transfer or alienation of immovable property of a Devaswom, though exercised under the guise of revision, is visitorial in character. It is a matter of common knowledge that even from very early times religious and charitable institutions in India came under the special protection of the ruling authority. The rulers of the country always asserted their right to visit these institutions in order to prevent fraud and redress the abuses in their management. In the celebrated **Rameswar Pagoda case [(1874) 1 Ind App 209]** it was pointed out by the Judicial Committee that the former rulers of this country always asserted the right to visit endowments of this kind to prevent and redress the abuses in their management. The authorities, therefore, support the conclusion that supervision and control of Hindu Religious and Charitable Institutions is a function of government and that Government at all times asserted and exercised the power. The fact that Government did not exercise the power immediately when it became aware of the circumstances vitiating Ext.P1 order cannot prejudice the interest of the Devaswom. If the contention of the petitioner were to prevail, it would mean that because the Government was not very vigilant in exercising the power the interest of the Devaswom should -:11:- W.P.(C)No.15190 of 2022 suffer. Section 10 of the Limitation Act, 1963, provides no period of limitation for a suit against a person in whom the trust property has become vested for any specific purpose or against his legal representatives or assigns for the purpose of following in his or their hands such property. The reason behind the section is that an express trust ought not suffer by the misfeasance or non-feasance of a trustee. ## 12. 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 the India, irrespective of religion practiced 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. 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. -:12:- W.P.(C)No.15190 of 2022 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. 13. 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]** . In the said circumstances, the properties of the Devaswom, if at all encroached by anybody and if any assignment/conveyance has been effected without involvement of the Devaswom, securing ‘pattayam’ or such other deeds, the same cannot confer any -:13:- W.P.(C)No.15190 of 2022 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. 14. 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 this Court and also by the Apex Court [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 and there is a duty cast upon the Court to take every step to ensure that the property of the deity is protected. 15. In the instant case, the petitioners have moved -:14:- W.P.(C)No.15190 of 2022 Ext.P3 petition before the jurisdictional District Judge, i.e., the 3[rd] respondent herein, by submitting Ext.P3 petition, which is one filed in terms of the directions contained in the judgment of the Apex Court in **Mrinalini Padhi v. Union of India [2018 SCC OnLine SC 667]** . Therefore, the 3[rd] respondent District Judge has to conduct an enquiry, in terms of the directions contained in that judgment, with notice to the petitioners, the hereditary trustee(s), the Executive Officer of the temple and also the alleged encroachers and submit a report before this Court, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a certified copy of this judgment. The alleged encroachers shall be given a reasonable opportunity to produce documents in support of their claim of title over the disputed land. With the above directions, this writ petition is disposed of, leaving open the legal and factual contentions raised by the petitioners and also the 7[th] respondent. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** MIN -:15:- W.P.(C)No.15190 of 2022 ## **`APPENDIX OF WP(C) 15190/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P-1 A TRUE COPY OF THE DEED NO.1886 OF 1976, DATED 23-11-1976 OF MEPPAYUR SUB REGISTRAR OFFICE. ``` ``` Exhibit P-2 A TRUE COPY THE JUDGEMENT IN MRINALINI PADHI VS. UNION OF INDIA AND OTHERS [MANU/SC/0741/2018=2018 7 SCC 785]. Exhibit P-3 A TRUE COPY OF UNNUMBERED OP DATED 10- 03-2022 ON THE FILE OF HONORABLE DISTRICT COURT, KOZHIKODE. ``` ## **`RESPONDENT EXHIBITS`** ``` Exhibit R7(A) TRUE COPY OF THE PURCHASE CERTIFICATE BEARING NO. 2966/1973 ISSUED BY THE LAND TRIBUNAL, MELADI Exhibit R7(B) TRUE COPY OF THE PARTITION DEED NO.1296/1976 OF SRO Exhibit R7(C) TRUE COPY OF THE POSSESSION CERTIFICATE BEARING NO.64426413 ISSUED BY THE 6TH RESPONDENT Exhibit R7(D) TRUE COPY OF THE PLAINT IN O.S 25/2022 OF MUNSIFF COURT, QUILANDY ```