W.P.(C) Nos. 38540 of 2016; 2913 of 2017; and 23171 of 2018 — Chirackal Kovilakam Devaswoms and KR Aravindakshan v Kuttiattoor Grama Panchayath 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** **MONDAY, THE 7[TH] DAY OF AUGUST 2023 / 16TH SRAVANA, 1945 W.P.(C) NO. 38540 OF 2016** ## **PETITIONER:** **CHITRACKAL KOVILAKAM DEVASWAMS REPRESENTED BY ITS EXECUTIVE OFFICER, P.O CHIRACKAL, KANNUR - 670 011.** **BY ADVS. SRI.MAHESH V RAMAKRISHNAN SRI.S.UNNIKRISHNAN VARKALA** ## **RESPONDENTS:** - **1 THE KUTTIATTOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, CHATTUKAPPARA P.O, KANNUR - 670 592.** - **2 T.MANIKANDAN, S/O.K.NARAYANAN NAMBIAR, AGED 45 YEARS, ENGINEER, THUTUTHERY LAKSHMI NILAYAM, KUTTIATTOOR P.O, MAYYIL, KANNUR - 670 602.** - **3 DEPUTY DIRECTOR OF PANCHAYATH, KANNUR - 670 001.** - **4 DISTRICT POLICE CHIEF, KANNUR - 670 001.** - **5 SUB INSPECTOR OF POLICE, MAYYIL, KANNUR - 670 602.** 2 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 - **6 SUB INSPECTOR OF POLICE MAYYIL POLICE STATION, P.O MAYYIL, KANNUR - 670 602.** - **7 STATE OF KERALA** - **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** - **BY ADVS.** - **R1 BY SRI.K.R.AVINASH (KUNNATH)** - **R1 BY SRI.PRENJITH KUMAR** - **R1 BY SRI.ABDUL RAOOF PALLIPATH** - **R1 BY SRI.DEEPU LAL MOHAN** - **R1 BY SMT.S.LEENA** - **R1 BY SRI.MURALI PURUSHOTHAMAN** - **R1 BY SRI.P.VISWANATHAN** - **R2 BY SRI.AJITH VISWANATHAN** **R3 TO R7 BY SRI.S.RAJMOHAN, SR.GOVERNMENT PLEADER** ## **OTHER PRESENT:** ## **SRI R.LAKSHMI NARAYAN, STANDING COUNSEL, MALABAR DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 07.08.2023, ALONG WITH WP(C).2913/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 7[TH] DAY OF AUGUST 2023 / 16TH SRAVANA, 1945 W.P.(C) NO. 2913 OF 2017** ## **PETITIONER:** ## **K R ARAVINDAKSHAN** **AGED 60 YEARS, S/O.GOPINATH, AGED 60 YEARS, CHAPPARATH HOUSE, KUYATTOOR AMSOM AND DESOM, KANNUR-670602.** **BY ADVS.** **SRI.G.SREEKUMAR (CHELUR) SRI.K.R.ARUN KRISHNAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO REVENUE (DEVASWOMS) DEPARTMENT, SECRETARIAT, THIRUVANANTHPAPURAM.** - **2 THE COMMISSIONER MALABAR DEVASWAM BOARD, HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE-675051.** - **3 ASSISTANT COMMISSIONER, MALABAR DEVASWAM BOARD, THALASSERY DIVISION, THIRUVANGAD P.O., KANNUR.** - **4 CHIRAKKAL KOVILAKAM DEVASWOMS, REPRESENTED BY EXECUTIVE OFFICER, CHIRAKKAL KOVILAKAM DEVASWAMS, KANNUR-670011.** 4 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 - **5 THE KUTTYATTOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, CHATTUPARA.P.O., KANNUR-670592.** - **6 T MANIKANDAN,** - **S/O.NARAYANAN NAMBIAR, AGED 45 YEARS, ENGINEER, THURUTHERY LAKSHMI NILAYAM, KUTTIATTOOR P.O., MAYYIL- KANNUR-670602.** - **7 THE DISTRICT POLICE CHIEF, KANNUR-670001.** **BY ADVS.** - **R1 & R7 BY SRI S.RAJMOHAN- SR GOVERNMENT PLEADER** - **R2 & R3 BY SRI R.LAKSHMI NARAYAN- STANDING** **COUNSEL- MALABAR DEVASWOM BOARD** **R5 BY SRI.P.VISWANATHAN** **R6 BY SRI.DEEPU LAL MOHAN** - **R6 BY SRI.AJITH VISWANATHAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 07.08.2023, ALONG WITH WP(C).23171/2018, 38540/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 7[TH] DAY OF AUGUST 2023 / 16TH SRAVANA, 1945 W.P.(C) NO. 23171 OF 2018** ## **PETITIONER:** **THE CHIRAKKAL KOVILAKAM DEVASWOMS CHIRAKKAL CHIRAKKAL.P.O., KANNUR DISTRICT-670001, REPRESENTED BY ITS EXECUTIVE OFFICER.** **BY ADVS. SRI.MAHESH V RAMAKRISHNAN SRI.G.GIREESH** ## **RESPONDENTS:** - **1 THE SECRETARY KUTTIATTOOR GRAMA PANCHAYATH, CHATTUKAPARA.P.O., KANNUR DISTRICT - 670592.** **2 T.MANIKANDAN S/O.K.NARAYANAN NAMBIAR, 47 YEARS, ENGINEER, THURUTHERY, LAKSHMI NILAYAM, KUTTIYATTOOR,P.O.MAYYIL, TALIPARAMBA TALUK, KANNUR DISTRICT-670602.** **BY ADVS. R1 BY P. VISWANATHAN R1 BY SUNIL.N.SHENOI** 6 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 ## **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 FINAL HEARING ON 07.08.2023, ALONG WITH WP(C).2913/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 7 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 ## **JUDGMENT** P.G. Ajithkumar, J. The disputes involved in these Writ Petitions are the same and hence these Writ Petitions are disposed of by this common judgment. 2. Chirackal Kovilakam Devaswom owns 38 Temples. Sree Kuttiattoor Shiva Temple is one among the said 38 Temples and it is a controlled institution under the Malabar Devaswom Board. Details of the properties of the Temple are stated in the Adangal Register maintained by the Revenue Department. The grievance of the petitioner is that Sri.T.Manikandan who is the 2[nd] respondent in W.P.(C) No. 38540 of 2016 as well as 23171 of 2018 and the 6[th] respondent in W.P.(C) No. 2913 of 2017 has started construction of a multistoried building in the property on the eastern side of the Temple, encroaching upon the Temple property. He obtained a building permit from the 1[st] respondent-Kuttiattoor Grama Panchayat on 23.03.2016. Noticing that Sri.Manikandan obtained such a permit and started construction of the building 8 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 illegally, complaints were submitted resulting in the Kuttiattoor Grama Panchayat cancelling the building permit temporarily and issuing a stop memo. The petitioner alleges that on account of the undue influence wielded by Sri.Manikandan, the stop memo was revoked. He resumed construction and is attempting to complete the construction on a war-footing. The petitionerDevaswom, therefore, approached the Tribunal for Local Self Government Institutions, Thiruvananthapuram (for short “the LSGI Tribunal”) by filing Appeal No.576 of 2016. In I.A.No.1082 of 2016 filed by the petitioner-Chirackal Kovilakam Devaswom in that appeal an interim order staying the building permit issued to Sri.Manikandan was granted. The petitioner has filed W.P.(C) No.38540 of 2016 alleging that despite such an order of stay, Sri.Manikandan has been proceeding with the construction. 3. A person claiming to be a worshiper of Kuttiattoor Shiva Temple filed W.P.(C) No.2913 of 2017 setting forth similar contentions as raised by the petitioner in W.P.(C) No.38540 of 2016. On the basis of the allegation that despite 9 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 filing of the appeal before the LSGI Tribunal, Sri.Manikandan has been proceeding with the construction in question and the order of stay granted by the LSGI Tribunal restraining such construction was happened to be recalled only on technical grounds, the petitioner claims a relief of restraining construction of the building in question. 4. Appeal No.576 of 2016 was filed by Chirackal Kovilakam Devaswom before the LSGI Tribunal challenging the order granting building permit to Sri.Manikandan for constructing a multi-storied building in the property in question. That appeal was dismissed as per the order dated 14.03.2018. Chirackal Kovilakam Devaswom has filed W.P.(C) No.23171 of 2018 challenging legality of the said order-Ext. P6 produced therein. 5. In order for an easy understanding the reliefs claimed in the respective Writ Petitions are extracted below: ## W.P.(C) No.38540 of 2016 - i) To issue a writ of mandamus or any other appropriate writ, order or direction, commanding the Respondent Nos.1 & 3 to 6 to take appropriate measures to implement Ext.P4 stop- 10 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 memo and Ext.P6 stay order and to stop the further illegal construction by the 2[nd] respondent; ii) To issue a writ of mandamus or any other appropriate writ, order or direction, restraining the Respondent Nos.1 and 3 to 7 from issuing any temporary license or permit to conduct any programmes in the disputed building under construction to the 2[nd] respondent. ## W.P.(C) No.2913 of 2017 To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 1 to 4, 5 and 7 to stop further construction by the 6[th] Respondent in the light of Exts.P1, P2 and P5 orders. ## W.P.(C) No.23171 of 2018 To issue a writ of certiorari or any other appropriate writ, order or direction to call for the entire records culminated in Ext.P6 order and to quash the same. 6. The 2[nd] respondent filed a counter-affidavit in W.P. (C) No.38540 of 2016. In W.P(C) No.23171 of 2018 also the 2[nd] respondent Sri.Manikandan filed a counter affidavit raising similar contentions. In the counter affidavit he refuted the contentions and allegations raised by the petitioner. He claims absolute right over the property in which he has been constructing a multi-storied building. He maintains that the 11 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 building permit was issued in strict compliance with the Kerala Panchayat Building Rules, 2011 and he has every right to carry out the construction. He further contended that in the light of the dispute that arose with respect to his right over the property which is more regarding separating boundary, he filed O.S.No.229 2016 before the Munsiff’s Court, Kannur for getting a prohibitory injunction and putting up boundary. Paragraphs Nos.5 to 8 of the counter affidavit filed by him in W.P.(C) No.23171 of 2018 read,- “5. It is respectfully submitted that I am the owner in possession and title of 17.000 cents of property comprised in survey No.36/1 of Kuttiattoor Village, as per Sale deed Nos.838 of 2003, 1231 of 2015 and 1456 of 2015 of Irikkur Sub Registry. Properties covered by the said sale deeds are lying contiguous as a single plot. The true photocopy of the Sale deed Nos.838 of 2003, 1231 of 2015 and 1456 of 2015 of Irikkur Sub Registry are produced herewith and marked as **Exhibits R2(a), R2(b) and R2(c)** respectively. 6. Further, I am the owner in possession and title of another parcel of property in the same survey number having an extent of 25.000 cents by virtue of 12 ## W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 Sale deed No.2095 of 2004 and Rectification deed No.963 of 2015 of Irikkur Sub Registry. The true photocopies of the Sale deed No.2095 of 2004 and Rectification deed No.963 of 2015 are produced and marked as **Exhibits R2(d) and R2(e)** respectively. The said 25.000 cents of property is lying on the western side of the 17.000 cents of property, referred to above and there is a public pathway lies in between the two properties. In this regard, for a better description and clarity, a true photocopy of the site plan, issued by the Village Officer, Kuttiattoor is produced herewith and marked as **Exhibit R2(f)** . 7. While so, I wanted to construct a lodging building in the aforesaid 17.000 cents of property, and therefore, approached the 1[st] respondent panchayath with all the necessary documents and meeting all other legal requirements for the issuance of permit for the said proposed construction. Accordingly, being fully satisfied with the application made by me and the due compliance of all the legal formalities on my part, the 1[st] respondent issued Exhibit P2 building permit dated 23.03.2016 to me, and pursuant to the same, the construction of the building commenced in the aforesaid 17.000 cents of property owned by me. Scenario being so, later on, I was served with an order by the 1[st] respondent panchayath purporting to be issued under Rule 18 of the Kerala Panchayat 13 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 Building Rules, 2011, to stop the construction of the building in my property on the allegation that it has received a complaint from the President/Secretary of so-called "Kuttiattoor Sivakshethra Samrakshana Samithi" alleging that I am constructing the building encroaching upon the property of the said temple and that the construction is in violation of the Kerala Panchayath Building Rules. So forth, after the issuance of the aforesaid stop memo, the construction of the building got stopped. At this point, it is submitted that the Kuttiattoor Siva Temple, which is coming under the petitioner Devaswom, lies on the southern side of my aforesaid properties, and there is a conspicuous well-built retaining wall on that side separating my properties and that of the temple. It is further submitted that the property on which the temple is situated is at a much higher level than that of my properties. 8. Pursuant to the above allegation from the side of the petitioner and the consequential turnaround of events, many communications had transpired among the relevant parties pertaining to the alleged encroachment by me over the property of the Devaswom. Clarifications were sought for from the relevant higher officials; all relevant documents were sought for and perused; the parties involved were personally heard; necessary visits and inspections of 14 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 the construction site were made; and pursuant to all these, after being convinced that there is no truth in the allegation raised by the petitioner, and that I hold valid title, possession and ownership over the property in which the construction is made, and that there is no violation of the Rules under the Kerala Panchayath Building Rules, 2011, the 1[st] respondent panchayath issued an order dated 10.06.2016 reinstating Exhibit P2 permit issued earlier to me. A true photocopy of the said order dated 10.06.2016 is produced herewith and marked as **Exhibit R2(g)** . As per the said conditional order, the panchayath had found that there is violation of the Building Rules so far as the sunshade on the western side of the building was concerned, and therefore, I was required to demolish and remove the same beyond 80 cms, and to report back to the panchayath of such demolition within 7 days of receipt of the order. Accordingly, I complied with the said condition. In this regard, a true photocopy of the demolition report dated nil, submitted by me before the 1[st] respondent panchayath is produced herewith and marked as **Exhibit R2(h)** . A true photocopy of the receipt dated 20.06.2016 for the same is also produced and marked as **Exhibit R2(i)** .” 15 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 7. The 1[st] respondent-Panchayat in W.P.(C) No.38540 of 2016 filed a counter affidavit producing therewith Exts.R1(a) to R1(g). The 1[st] respondent explained in the counter affidavit, the facts and circumstances which lead to issuance of the building permit. The Panchayat also explained the reasons for issuing a stop memo asking the 2[nd] respondent not to proceed with the construction. 8. A reply affidavit was filed by the petitioner in W.P. (C) No.38540 of 2016 producing therewith additional documents, Exts.P11 to P18. Paragraph Nos.4 to 10 in the reply affidavit read as follows:- “4. The contentions raised by the 2[nd] Respondent in their counter affidavit are incorrect and hence denied. The contention that 17 Cents in RS 36/1/1 in which the 2[nd] respondent made construction of a multistoried building belongs to him is absolutely incorrect and hence denied. The property where the multistoried building (which is partially made) is constructed, belongs to the petitioner temple. The property of the petitioner temple has been encroached upon by the 2[nd] respondent for constructing the building. Therefore Ext.R2(a) building permit cannot legally sustain. 16 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 5. The contentions raised by the 2[nd] respondent in para-5 of their counter affidavit are incorrect and hence denied. The attempt of the 2[nd] respondent is to mislead the Hon'ble Court by distorting facts. Ext.P2 was issued taking the temple compound where Thanthri Mattam and an old Vishnu Temple (which was then in a very dilapidated condition, but now relocated to a new sanctum sanctorium), situated. The building permit was obtained by showing the above property as a 'car parking area' for the proposed multistoried building. Ext.P2 was issued on that basis hence not sustainable. Further the petitioner had obtained a Possession Certificate in respect of that property by influencing revenue officials, which was later found to be fraudulent and cancelled. The said fraudulent Possession Certificate was produced by the petitioner for the purpose of obtaining building permit for the multi-storied building, construction of which is under dispute in this writ petition. Against the cancellation of the Possession Certificate, the 2[nd] respondent filed Writ Petition before this Honourable Court as W.P.(C) No.13126/2018 and the same is pending. This petitioner has filed a detailed counter affidavit in that Writ Petition. The further contention of the 2[nd] respondent in Para-5 of their counter affidavit that the only violation in construction of the building was extension of a small portion of the sunshade is 17 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 absolutely incorrect and hence specifically denied by this petitioner. The entire building which is partly constructed is in total violation of Building Rules and also without having any manner of right over any inch of land over which it is constructed. The entire property on which the building is partly constructed is a temple property and the 2[nd] respondent cannot get any manner of right over the same. 6. I respectfully further submit that the grant of Building Permit and the construction of the building was completely in violation of the Building Rules. Moreover, the 2[nd] Respondent is not having title over the very property upon which the construction of a multistoried building is partially made by him. This petitioner has already challenged the Certificate of Purchase clandestinely and fraudulently obtained by the 2[nd] respondent herein without serving notice upon the petitioner temple herein, which was shown as jenmi of the property and the Appeal is pending as AA No.80/2016. 7. I respectfully submit that the fraud played by the 2[nd] Respondent herein to create false title over the temple properties is apparent on the face of his documents of title relied on by him, which are produced by him in the connected writ petition W.P.(c) No.13126/2018. The 2[nd] Respondent is claiming right over the 12 Cents of property upon which the 18 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 construction in question is partially made by him. The 2[nd] Respondent relies on Regd.Sale deed No.838/2003, S.R., Irikkur to claim title over the property. The said document shows that the only prior title deed referred to therein is a Certificate of Purchase which is now under challenge at the instance of this Petitioner before the Appellate Authority (Land Reforms), Kannur. The property being claimed by the 2[nd] Respondent on the basis of Regd. Sale deed No.838/2003 situates very adjacent to the sanctum sanctorum of the temple and in between the temple compound and the temple pond as evident from the boundary descriptions therein. In fact, this property was never leased out from the Petitioner Devaswam and no assignment of jenam right could be granted in respect of such a property. The 2[nd] Respondent or his so called predecessor was never a 'cultivating tenant' of the property. The title and possession being claimed by the 2[nd] Respondent on the basis of Regd.Sale deed No.838/2003 is seriously under challenge. Moreover, the land in question is a part of the temple compound and hence squarely comes under the exemption clause under Section 3(1)(x) of the Kerala Land Reforms Act, 1963. Therefore no certificate of purchase could be issued in respect of such a land. If at all any such certificate of purchase is obtained, the same can only be void ab initio. On that score also the 2[nd] 19 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 Respondent cannot raise any claim of title over the property in question. 8. Further the 2[nd] Respondent claims right over the area shown as parking area for his proposed building as per Regd.Sale deed No.2095 of 2004, S.R.O., Irikkur. This is the document based on which the petitioner claims right over the 25 Cents, which is the property allegedly shown in the site plan and possession certificate which are freezed by the revenue authorities. True copy of the order dated 06.02.2017 issued by the Addl. Tahsidar, Taliparamba is produced herewith and marked as **Exhibit P11** . A just look at Regd. Sale deed No.2095 of 2004 would reveal that there was absolutely no basis for executing such a document. That document was fraudulently created to encroach upon the property of this respondent temple without having any manner of right over it. Regd.Sale deed No.2095 of 2004 shows that it was executed based on a basic tax receipt and a possession certificate which were obtained for the sole purpose of executing the document. Basic Tax was paid on 06.07.2004. After some weeks, on 01.09.2004, a Possession Certificate was obtained showing the Basic Tax Receipt. Then Regd. Sale deed No.2095 of 2004 was executed on 29.09.2004. True copy of the Regd.Sale deed No.2095 of 2004, S.R.O., Irikkur is produced herewith and marked as **Exhibit** 20 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 **P12** . Accordingly a false document was created fraudulently to encroach upon the property of the Petitioner temple. Further the boundary descriptions of Item No.1 shown in Ext.P12 shows that the property shown therein would never come on the northern side of the temple compound. Later, with the specific intention to make it appear that the property covered by Ext.P12 is lying adjacent to the property where the construction was started, a Correction Deed was later executed which is Regd. Correction deed No.963/2015, S.R.O., Irikkur, a true copy of which is produced herewith and marked as **Exhibit P13** . The fraud played by the 2[nd] Respondent is substantiated by the recitals in Ext.P13. As per the recitals made in the Correction Deed, Doc No.142/1917 is shown as the prior title deed and it is further stated that the Item No.1 in Ext.P12 is Item No.8 of the prior title deed. Description of item No.8 in Doc No.142/1917 shows that it can never be the property as shown in Exts.P12 or P13. True copy of Doc.No.142/1917, S.R.O., Irikkoor executed by Vadakke Veettil Devaki to the Jenmi of the property is produced herewith and marked as **Exhibit P14** . The northern and western boundary of Item No.8 of the above document is shown as the 'temple pond', whereas no 'temple pond' is shown as boundary in Exts.P12 or P13. Further the total extent of Item No.8 property is 14 Cents, 21 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 whereas the extent seen in Exts.P12 and P13 is 25 Cents. 9. I respectfully further submit that the 2[nd] Respondent herein has also instituted a civil suit as O.S. No.229 of 2016 on the file of the Principal Munsiff Court, Kannur for fixation of boundary based on the above said documents. The Advocate Commissioner appointed for the purpose of identification of the properties has inspected the properties with the assistance of Taluk Surveyor and filed a detailed plan and report in the suit. True copy of the report and plan dated 01.05.2018 in O.S. No.229 of 2016 on the file of the Principal Munsiff Court, Kannur is produced herewith and marked as **Exhibit P15** . Since the said Report was completely against the Plaintiff (2[nd] Respondent herein), he filed IA No.803/2019 under Order XXIII, Rule 1(3) CPC seeking permission to withdraw the suit with the liberty to file another suit afresh with the same subject matter. The said IA was allowed as per order dated 20.03.2019. True copy of the order dated 20.03.2019 in I.A. No.803/2019 in O.S. No.229/2016 is produced herewith and marked as **Exhibit P16** . Earlier, the 2[nd] respondent had filed IA No. 506/2019 in the same suit seeking reference of the matter to the Land Tribunal under Sec. 125(3) of the KLR ACT, which was dismissed by the Munsiff Court as per order dated 21.02.2019, a true copy of 22 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 which is produced herewith and marked as **Exhibit P17** . After the withdrawal of the above, with a clear intention to effect the correction in the title deeds in accordance with the report of the commissioner, the 2[nd] respondent herein again executed a Correction Deed as Regd. Correction deed No.1963 of 2019, S.R.O., Irikkur. After executing the Correction deed, the 2[nd] Respondent herein has filed the suit as O.S. No.13/2018 before the Principal Munsiff Court, Kannur for recovery of possession and is now pending. 10. The averments made in para-6 and 7 of the counter affidavit filed by the 2[nd] respondent is also incorrect and hence denied. The averments in para-8 that the 2[nd] respondent has not carried out any construction after the stay order of the LSGD Tribunal is absolutely a false averment. The complaints and petitions filed repeatedly by this petitioner show that the entire construction was carried out when the stay was in force. Since the construction was being continued on day-night basis, the petitioner herein was constrained to approach this Honourable Court by filing the above writ petition seeking appropriate direction to the concerned authorities to effectively stop the illegal construction which was being continued by the 2[nd] Respondent herein. The construction was stopped only pursuant to the interim injunction granted by this Honourable Court on 23 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 30.01.2017, by which time major portion of construction was completed by him in order to raise false claim of title later. The contentions to the contrary are absolutely incorrect and hence denied.” 9. Heard the learned counsel appearing for the respective petitioners, the learned Senior Government Pleader, learned Standing Counsel for the Malabar Devaswom Board, learned Counsel for Kuttiattoor Grama Panchayat and the learned Counsel for the party respondent. 10. 17 cents of property comprised in Re-survey No.36/1/1 of Kuttiattoor Village is situated on the eastern side of the Kuttiattoor Shiva Temple. Sri.Manikandan obtained a building permit from Kuttiattoor Grama Panchayat and started construction of a multi-storied building on that property. Sri.Manikandan states that he obtained the said property by virtue of sale deed No.838 of 2003 of S.R.O. Irikkoor. The title derived in the said sale deed is a purchase certificate obtained from Land Tribunal under the provisions of the Kerala Land Reforms Act, 1963. The learned Counsel for Chirackal Kovilakam Devaswom would submit that the said property is 24 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 situated adjacent to the sanctum sanctorum of Kuttiattoor Sree Shiva Temple and the said property belongs to the Temple. It is contended that the vendor mentioned in sale deed No.838 of 2003 was never a cultivating tenant of that property. Thereby it is contended that the purchase certificate was obtained illegally and without giving notice to the Devaswom. Further, it is contended that the said property is an exempted land under Section 3(1)(x) of the Kerala Land Reforms Act. Therefore, the Chirackal Kovilakam Devaswom has filed an appeal before the Appellate Authority for Land Reforms challenging the purchase certificate in respect of the property in question and the appeal is pending consideration of the Appellant Authority as A.A.No.80 of 2016. 11. Apart from claiming that the property where Sri.Manikandan is constructing a multi-storied building in the property is the property belonging to Kuttiattoor Shiva Temple the petitioners would contend that the parking area shown in the building permit issued to him is part of the Temple property. An area of 25 cents of land is described as the 25 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 property available for parking of the building being constructed by Sri.Manikandan. The petitioner-Devaswom claims that the said 25 cents of property is a part of the Temple premises, where Thanthri Madom and the old Vishnu Temple are situated. Thus, it is alleged that Sri.Manikandan misled the authorities of the Panchayat and by submitting false details, he had obtained the building permit. 12. Sri.Manikandan claimed right over the property shown as the parking area of the building as per sale deed No.2095 of 2004. Ext.P12 produced in W.P.(C) No.38540 of 2016 is a copy of the said document. The learned counsel appearing for the petitioner-Devaswom would submit that a mere perusal of the sale deed is enough to show that Sri.Manikandan did not obtain any valid title to the said property; since the vendor's title is traced to a basic tax receipt. It is therefore contended that when there is no claim by the vendor that he had obtained title to such a property by means of a process known to law, Sri.Manikandan cannot have a legal claim over such a 26 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 property. It is further pointed out that a correction deed was later executed with respect to the property involved in Ext.P12, which is Ext. P13. 13. It is seen that Sri.Manikandan filed O.S.No.229 of 2016 before the Munsiff’s Court, Kannur for fixation of boundary of the property he claimed to have obtained as per Ext.P12 and P13. Subsequently, he had filed I.A.No.803 of 2019 in that suit for withdrawing the same with liberty to file a fresh suit. That petition was allowed and Smt.Manikandan had filed a fresh suit claiming a decree of declaration of his title, which is now pending as O.S.No.13 of 2018. 14. Ext.P6 in W.P.(C) No.23171 of 2018 is the order of the LSGI Tribunal in Appeal No.576 of 2016. The said appeal was disposed of on 14.03.2018 observing as follows:- “Both, appellant and the 2[nd] respondent are claiming title over the dispute property which is shown as the parking space while obtaining Ext.B3 permit. Therefore the dispute can be resolved only after the decision in O.S.No.229/16 before the Munsiff Court, Kannur.” 27 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 15. After withdrawing O.S.No.229 of 2016, a new suit was filed by Sri.Manikandan for establishing his title to the disputed property and recovery of possession as O.S No. 13 of 2018. It is to be noted that the possession certificate obtained by Sri.Manikandan with respect to the disputed property was seen cancelled by the revenue authorities. As the matters stand, the building permit obtained by Sri.Manikandan is no longer valid. His right and title to the properties where the building in question is being constructed and also the property which is shown as the parking area of the said building, are in dispute. O.S.No.13 of 2018 before the Munsiff’s Court, Kannur and A.A.No.80 of 2016 before the Land Reforms Appellate Authority are pending in regard to those disputes. 16. 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 28 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 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. 17. 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. That was a case wherein the alleged encroachment of Temple property was raised in a complaint filed by a devotee. The 29 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 Division Bench 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 Court is the guardian of the deity and apart from the revisional jurisdiction under Section 103 of the Kerala Land Reforms Act, 1963, the Court is having inherent jurisdiction and the doctrine of _parens patriae_ will also apply in exercising the jurisdiction. 18. In view of the aforesaid principles of law, the trustee of Chirackal Kovilakam Devaswom has every obligation to ensure that the properties of Sree Kuttiattoor Shiva Temple are protected. This Court as per order dated 30.01.2017 in W.P.(C) No.38540 of 2016 restrained further construction in the property in dispute regarding which Exts.P1, P2 and P3 produced in that Writ Petition were issued. In such circumstances, Sri.Manikandan cannot resume construction of the building and the interim dated 30.01.2017 has to be in force till he establishes his title to the properties in dispute and obtains a valid permit for the construction. 30 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 19. Accordingly, these Writ Petitions are disposed of directing that the interim order dated 30.01.2017 in W.P.(C) No.38540 of 2016 will be in force till Sri.Manikandan establishes his title to the properties in dispute and obtains a valid building permit for the construction. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 31 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 ## **APPENDIX OF WP(C) 38540/2016** ## **PETITIONER EXHIBITS** **EXHIBIT P1 COPY OF THE NOTICE DATED 26.5.16 ISSUED BY THE 3RD RESPONDENT TO THE IST RESPONDENT.** **EXHIBIT P2 COPY OF THE ORDER DATED 2016 ISSUED BY THE IST RESPONDENT.** **EXHIBIT P3 COPY OF THE ORDER NO.C.1023/16 DATED 1.7.16 ISSUED BY THE TOWN PLANNER.** - **EXHIBIT P4 COPY OF THE STOP MEMO DATED 1.7.16 ISSUED BY THE IST RESPONDENT.** **EXHIBIT P5 COPY OF THE MEMORANDUM OF APPEAL DATED 27.6.16.** **EXHIBIT P6 COPY OF THE ORDER DATED 28.7.16 IN IA 1082/16.** - **EXHIBIT P7 COPY OF THE COMPLAINT DATED 8.9.16 LODGED BY THE IST RESPONDENT BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P8 COPY OF THE APPLICATION DATED 8.7.16 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P9 COPY OF THE APPLICATION DATED 8.7.16 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P10 COPY OF THE APPLICATION DATED 17.11.16 SUBMITTED BY THE PETITIONER BEFORE THE LSGD TRIBUNAL.** - **Exhibit P11 TRUE COPY OF THE ORDER DATED 6/2/2017 ISSUED BY THE ADDL. TAHSILDAR, TALIPARAMBA** 32 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 - **Exhibit P12 TRUE COPY OF THE REGD SALE DEED NO.2095/2004, SRO, IRIKKUR** - **Exhibit P13 TRUE COPY OF REGD CORRECTION DEED NO.963/2015, S.R.O., IRIKKUR** - **Exhibit P14 TRUE COPY OF DOC NO.142/1917, S.R.O., IRIKKOOR EXECUTED BY VADAKKE VEETTIL DEVAKI TO THE JENMI OF THE PROPERTY DATED 18/01/1917** - **Exhibit P15 TRUE COPY OF THE REPORT AND PLAN DATED 01/05/2018 IN O.S NO.229/2016 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, KANNUR** - **Exhibit P16 TRUE COPY OF THE ORDER DATED 20/03/2019 IN IA. NO.803/2019 IN O.S NO.229/2016** - **Exhibit P17 TRUE COPY OF THE ORDER DATED 21/02/2019 IN IA NO.506/2019 IN OS.NO.229/2016** - **Exhibit P18 TRUE COPY OF THE PHOTOGRAPHS OF THE TEMPLE AND DISPUTED CONSTRUCTIONS.** - **RESPONDENT EXHIBITS** - **EXHIBIT R2(A) PHOTOCOPY OF THE BUUILDING PERMIT NO.314/2015-16 DATED 23.03.2016 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT R2(B) PHOTOCOPY OF THE PLAINT DATED 11.04.2016 IN O.S.NO.229/2016 FILED BY ME BEFORE THE MUNSIFF COURT, KANNUR** - **EXHIBIT R2(C) PHOTOCOPY OF THE OFFICE COPY OF THE COUNTER STATEMENT DATED 28.09.2016 FILED BY ME IN I.A.NO.1490/2016 IN APPEAL NO.576/2016.** 33 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 **EXHIBIT R2(D) PHOTOCOPY OF THE STATEMENT DATED 27.09.2016 FILED BY THE 1ST RESPONDENT IN APPEAL NO.576/2016 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTTITUTION. EXHIBIT R2(E) PHOTOCOPY OF THE ORDER DATED 20.01.2017 IN I.A.NO.1082/2016 IN APPEAL NO.576/2016. EXHIBIT R1(A) TRUE COPY OF THE RELEVANT PAGES OF MINUTES BOOK DATED 28.05.2016. EXHIBIT R1(B) TRUE COPY OF THE REPORT OF THE ASSISTANT ENGINEER DATED 08.06.2016. EXHIBIT R1(C) TRUE COPY OF THE LETTER ISSUED BY THE DISTRICT COLLECTOR DATED 05.08.2016. EXHIBIT R1(D) TRUE COPY OF THE REPORT OF THE DISTRICT TOWN PLANNER DATED 11.07.2016. EXHIBIT R1(E) TRUE COPY OF THE LETTER ISSUED TO THE EXECUTIVE OFFICER, CHIRACKKAL KOVILAKAM DATED 12.07.2016. EXHIBIT R1(F) TRUE COPY OF THE REPORT FILED BY PERFORMANCE AUDIT SUPERVISOR DATED 08.09.2016. EXHIBIT R1(G) TRUE COPY OF THE COUNTER FILED BY THIS RESPONDENT BEFORE THE TRIBUNAL FOR LOCAL SELF GOVT.DEPARTMENT.** 34 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 ## **APPENDIX OF WP(C) 2913/2017** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE ORDER NO.C-1023/16 DATED 1.7.2016 ISSUED BY THE TOWN PLANNER ISSUED BY THE 5TH RESPONDENT.** **EXHIBIT P2** **TRUE COPY OF THE STOP MEMO DATED 1.7.2016 ISSUED BY THE 5TH RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 27.6.2016 FILED BY THE 4TH RESPONDENT BEFOE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTRUCTIONS, THIRUVANANTHAPURAM.** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 22.7.2016 IN IA NO.1082/2016** **EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED 02.12.2016 IN WP(C) NO 38540/2016** **EXHIBIT P6** **TRUE COPY OF THE ORDER DATED 20.1.2017 IN IA NO 1082/2016 IN O.A NO.576/2016 PASSED BY THE 5TH RESPONDENT TRIBUNAL.** 35 W.P.(C) Nos.38540 of 2016, 2913 of 2017 and 23171 of 2018 ## **APPENDIX OF WP(C) 23171/2018** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE ADANGAL EXTRACT ISSUED BY THE VILLAGE OFFICER KUTTIATTOOR. EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT NO.314/2015-16 DATED 23/03/2016, ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 27/06/2016. EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT DATED 27/09/2016 FILED BY THE FIRST RESPONDENT HEREIN IN AP.NO.576/2016. EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED 30/01/2017 IN WPC NO.38540/2016. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 14/03/2018 IN APPEAL NO.576/2016 OF THE TRIBUNAL FOR LOCAL SELFGOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 06.02.2017 ISSUED BY THE ADDITIONAL TAHSILDAR, TALIPARAMBA**