Vineeshkumar Chambalon v. State of Kerala and others

1 W.P.(C)No.33947 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G.GIRISH ``` ``` FRIDAY, THE 5[TH] DAY OF JANUARY 2024 / 15TH POUSHA, 1945 ``` ``` W.P.(C)NO.33947 OF 2023 ``` ## **`PETITIONER:`** ``` VINEESHKUMAR CHAMBALON AGED 40 YEARS ``` ``` S/O BHASKARAN P. VAZHAYIL THAZHE, KOTTAYAM MALABAR, PIN - 670643 ``` ``` BY ADV CHITRA JOHNSON ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE MALABAR DEVASWAM BOARD REPRESENTED BY ITS SECRETARY, HOUSEFED COMPLEX, P.O.ERANHIPALAM, KOZHIKODE, PIN - 673006`** - **`3 THE COMMISSIONER MALABAR DEVASWAM BOARD, HOUSEFED COMPLEX, P.O. ERANHIPALAM, KOZHIKODE, PIN - 673006`** - **`4 THE ASSISTANT COMMISSIONER MALABAR DEVASWAM BOARD, KASARAGOD DIVISION, NILESWARAM, P.O. NILESWARAM, KASARAGOD, PIN - 673003`** - **`5 KOTTAYAM SREE THRIKAIKUNNU MAHADEVA TEMPLE P.O KOTTAYAM MALABAR, KUTHUPARAMBA, REPRESENTED BY ITS EXECUTIVE OFFICER, PIN – 670643`** 2 W.P.(C)No.33947 of 2023 ``` 6 SAJITH K. KATTIL HOUSE,15/449, KEEZHATHUR, PATHIRIYAD P.O., THALASSERRY TALUK, KANNUR, PIN - 670741 ``` ``` BY ADVS. ``` ``` SRI.MAHESH V RAMAKRISHNAN for R5 SRI.K.MOHANAKANNAN for R6 A.R.PRAVITHA(K/168/2003) ``` ``` OTHER PRESENT: ``` ## **`SRI S.RAJMOHAN - SR GOVERNMENT PLEADER`** ``` SRI R.LAKSHMI NARAYAN - STANDING COUNSEL- MALABAR DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.33947 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is a devotee of Kottayam Sree Thrikaikunnu Mahadeva Temple, which is a controlled institution under the 2[nd] respondent Malabar Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking an order directing the 3[rd] respondent Commissioner, Malabar Devaswom Board to restore/repair the ancient wooden sculptures of the Kottayam Sree Thrikaikunnu Mahadeva Temple, seen in the photograph which forms part of Ext.P3(a) press report, to its original condition. The petitioner has also sought for a writ of mandamus commanding the 3[rd] respondent Commissioner to initiate appropriate disciplinary action against the 6[th] respondent, based on Ext.P2 report dated 05.04.2023 of the 4[th] respondent Assistant Commissioner; and a writ of certiorari to quash Ext.P5 order dated 25.09.2023 to the extent to which the 6[th] respondent is reinstated in Kottayam Sree Thrikaikunnu Mahadeva Temple. 2. On 13.10.2023, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for the 1[st] respondent and the learned Standing Counsel 4 ## W.P.(C)No.33947 of 2023 for Malabar Devaswom Board for respondents 2 to 4. Urgent notice on admission by special messenger was ordered to respondents 5 and 6, returnable by 18.10.2023. The learned counsel for the petitioner was directed to file an application to implead the Ooralan/Trustee Board of Kottayam Sree Thrikaikunnu Mahadeva Temple. The learned Standing Counsel for Malabar Devaswom Board was directed to get instructions as to whether any disciplinary proceedings have been initiated against the 6[th] respondent in connection with the incident referred to in Ext.P2 report dated 05.04.2023 of the 4[th] respondent Assistant Commissioner. 3. On 18.10.2023, when this writ petition came up for consideration, I.A.No.1 of 2023 filed by the petitioner seeking an order to accept Exts.P6 and P7 photographs as additional documents was allowed. Respondents 5 and 6 entered appearance through respective counsel and sought time to file counter affidavits. The learned Standing Counsel for Malabar Devaswom Board submitted that the details of the hereditary trustees of the temple can be furnished to the learned counsel for the petitioner within a week. This Court granted an interim stay of all further proceedings pursuant to Ext.P5 order dated 25.09.2023, for a 5 ## W.P.(C)No.33947 of 2023 period of three weeks, insofar as it relates to the posting of the 6[th] respondent as the Executive Officer in Kottayam Sree Thrikaikunnu Mahadeva Temple. 4. The petitioner has filed I.A.No.2 of 2023, seeking an order to implead the hereditary trustees of Kottayam Sree Thrikaikunnu Mahadeva Temple, as the additional respondents 7 to 9. In that application, this Court issued notice by speed post, on 06.12.2023. Notice issued to the additional respondents sought to be impleaded is not returned after service. 5. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for the 1[st] respondent, the learned Standing Counsel for Malabar Devaswom Board for respondents 2 to 4, the learned counsel for the 5[th] respondent Executive Officer and the learned counsel for the 6[th] respondent. Considering the nature of relief proposed to be granted, we deem it appropriate to dispense with the completion of service of notice on the hereditary trustees I.A.No.2 of 2023, who were sought to be impleaded as additional respondents 7 to 9, and accordingly I.A.No.2 of 2023 is closed. 6. 'Deva' means God and 'swom' means ownership in Sanskrit and the term 'Devaswom' denotes the property of God in 6 ## W.P.(C)No.33947 of 2023 common parlance. [see: **Prayar Gopalakrishnan and another** ## **v. State of Kerala and others** - **2018 (1) KHC 536]** 7. In **M.V. Ramasubbiar v. Manicka Narasimachara** **[(1979) 2 SCC 65]** , in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court explained the nature of the fiduciary position of the trustee and his duties and obligations. It is the duty of the trustees of the property to be faithful to the Trust and execute any document with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. A trustee could not, therefore, occasion any loss to the Trust and it is his duty to sell the property if at all that was necessary, to the best advantage. 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, require 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 7 W.P.(C)No.33947 of 2023 possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fence 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 **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]** a Three-Judge Bench of 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 Division Bench further noticed that 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 is the guardian of the deity and apart from the revisional jurisdiction under Section 103 of the Kerala Land Reforms Act, 1963, the High Court has inherent jurisdiction and the doctrine of _parens patriae_ will also apply in exercising the jurisdiction. 8 ## W.P.(C)No.33947 of 2023 10. Kottayam Sree Thrikaikunnu Mahadeva Temple is a controlled institution under the Malabar Devaswom Board. As held in the decisions referred to supra, it is the duty of the trustees to be faithful to the Devaswom and manage, protect and safeguard the interest and properties of the Devaswom, with reasonable diligence. The Malabar Devaswom Board and its officials are dutybound to exercise their supervisory control in order to ensure that the interests and properties of the Devaswom are protected and safeguarded by its trustees and the employees of the Devaswom. Any act of ‘fence eating the crops’ should be dealt with sternly. 11. The challenge made in this writ petition against Ext.P5 order dated 25.09.2023, insofar as it relates to the posting of the 6[th] respondent as the Executive Officer in Kottayam Sree Thrikaikunnu Mahadeva Temple is concerned, the 6[th] respondent is presently working in another temple, i.e., Thrikaikunnu Kathiroor Suryanarayana Temple, in view of the interim order of stay granted in this writ petition on 18.10.2023, which shall continue for the time being. 12. The main reliefs sought for in this writ petition is an order directing the 3[rd] respondent Commissioner to restore/repair the ancient wooden sculptures in Kottayam Sree Thrikaikunnu 9 W.P.(C)No.33947 of 2023 Mahadeva Temple to its original position and to initiate appropriate disciplinary proceedings against the 6[th] respondent based on Ext.P2 report dated 05.04.2023 of the 4[th] respondent Assistant Commissioner. 13. Having considered the submissions made at the Bar, we deem it appropriate to dispose of this writ petition, by directing the 3[rd] respondent Commissioner, Malabar Devaswom Board to take an appropriate decision on the restoration/repair of the ancient wooden sculptures of Kottayam Sree Thrikaikunnu Mahadeva Temple, seen in Ext.P6 photographs, with notice to the petitioner, the 5[th] respondent Executive Officer, the 6[th] respondent and also the hereditary trustees of that temple. A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. After obtaining an explanation from the 6[th] respondent, the 3[rd] respondent Commissioner shall take a decision on the action that has to be taken against the 6[th] respondent, taking note of Ext.P2 report dated 05.04.2023 of the 4[th] respondent Assistant Commissioner, with notice to the petitioner, the 5[th] respondent Executive Officer, the 6[th] respondent and also the hereditary trustees of that temple, as expeditiously as possible, 10 ## W.P.(C)No.33947 of 2023 at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. The legal and factual contentions raised by both sides are left open to be raised before the 3[rd] respondent Commissioner, at the appropriate stage. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** MIN 11 W.P.(C)No.33947 of 2023 ``` APPENDIX OF WP(C)33947/2023 ``` ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1 TRUE COPY OF THE COMMUNICATION NO A1/1232/2023/MDB DATED 29.03.2023 OBTAINED UNDER RTI ACT ``` - **`EXHIBIT P2 TRUE COPY OF THE COMMUNICATION NO A1/1232/2023/MDB DATED 05.04.2023 OBTAINED UNDER RTI ACT`** - **`EXHIBIT P3 TRUE COPY OF THE NEWS REPORT DATED 29.03.2023 PUBLISHED IN MALAYALA MANORAMA`** ``` EXHIBIT P3(A) TRUE COPY OF THE NEWS REPORT PUBLISHED IN MATHRUBHUMI DAILY DATED 30.03.2023 ``` - **`EXHIBIT P4 TRUE COPY OF THE ORDER NO. H 7- 1/2020/MDB DATED 25.08.2023 ISSUED BY THE 3RD RESPONDENT`** - **`EXHIBIT P5 TRUE COPY OF THE ORDER NO: H7/1/2020/MDB DATED 25.09.2023 ISSUED BY 3RD RESPONDENT`** ``` EXHIBIT P6 PHOTOGRAPHS OF WOODEN SCULPTURES COVERED WITH WHITE CLOTHES ``` ``` EXHIBIT P7 PHOTOGRAPHS OF THE SREE THRIKAIKUNNU MAHADEVA TEMPLE ```