Kerala High Court
Sivakumar vs Cochin Devaswom Board on 12 April, 2023
Author: Anil K. Narendran
Bench: Anil K.Narendran
WP(C) No.12779/2023 1 / 15
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Wednesday, the 12th day of April 2023 / 22nd Chaithra, 1945
WP(C) NO. 12779 OF 2023 (V)
PETITIONERs:
1. SIVAKUMAR AGED 45 YEARS S/O.JAGANATHAN, THARAKAN, CHALLA KALAM,
VANNAMADA, CHITTUR TALUK, PALAKKAD DISTRICT - 678555
2. NITHYANANDAN, AGED 59 YEARS S/O.CHELLAMUTHU GOUNDER, K.K.PATHY,
CHITTUR TALUK, PALAKKAD DISTRICT - 678101
3. NARAYANANKUTTY AGED 70 YEARS S/O.VELU, KUNNAMKATTUPATHY, KOZHIPATHY,
PALAKKAD - 678101
4. KARTHIKEYAN AGED 44 YEARS S/O.RAMALINGAM, KUNNAMKATTUPATHY,
KOZHIPATHY, PALAKKAD - 678101
5. THANKAVEL, AGED 58 YEARS S/O.MAYILSWAMY, 12/502, NADUCHELLA,
K.K.PATHY, KOZHINJAMPARA, PALAKKAD DISTRICT - 678101
RESPONDENTS:
1. COCHIN DEVASWOM BOARD, OFFICE OF THE COCHIN DEVASWOM BOARD DEVASWOM
BOARD BUILDING ROUND NORTH , THRISSUR - 680001 REPRESENTED BY
SECRETARY
2. THE SPECIAL DEVASWOM COMMISSIONER, COCHIN DEVASWOM BOARD, OFFICE OF
THE COCHIN DEVASWOM BOARD, DEVASWOM BOARD BUILDING, ROUND NORTH,
THRISSUR - 680001
3. COMMISSIONER, COCHIN DEVASWOM BOARD, OFFICE OF THE COCHIN DEVASWOM
BOARD, DEVASWOM BOARD BUILDING, ROUND NORTH, THRISSUR - 680001
4. ASSISTANT COMMISSIONER, COCHIN DEVASWOM BOARD , THIRUVILWAMALA,
THRISSUR DISTRICT - 680001
5. THE CHIEF VIGILANCE OFFICER, COCHIN DEVASWOM BOARD SWARAJ ROUND
NORTH, THRISSUR, DISTRICT - 680001
6. THE GEOLOGIST , MINING AND GEOLOGY DEPARTMENT CIVIL STATION,
PALAKKAD DISTRICT - 678001
7. AGRICULTURAL OFFICER, KOZHINJAMPARA, KRISHI BHAVAN, KOZHINJAMPARA,
PALAKKAD - 678555
8. KOZHINJAMPRA GRAMA PANCHAYAT, PALAKKAD-POLLACHI ROAD, KOZHINJAMPARA
PALAKKAD - 678555 REPRESENTED BY ITS SECRETARY
9. THE PANCHAYAT COMMITTEE, KOZHINJAMPRA GRAMA PANCHAYAT PALAKKAD-
POLLACHI ROAD, KOZHINJAMPARA PALAKKAD - 678555 REPRESENTED BY ITS
PRESIDENT
10. RADHA, W/O.SURESHKUMAR, VELLANTHARA HOUSE, KOLLENGODE PO, CHITTUR
TALUK, PALAKKAD DISTRICT-- 678506
11. ADDL.R11. THE STATION HOUSE OFFICER, KOZHINJAMPARA POLICE STATION,
KOZHINJAMPARA, PALAKKAD, PIN 678 555 [IS SUO MOTU IMPLEADED AS PER
ORDER DATED 12.04.2023 IN WP(C)NO.12779/2023.]
Writ petition (civil) praying inter alia that in the circumstances
WP(C) No.12779/2023 2 / 15
stated in the affidavit filed along with the WP(C) the High Court be
pleased to stay the operation of Ext.P11 pending disposal of the above
Writ Petition.
This petition coming on for admission upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
M/S.K.MOHANAKANNAN & D.S.THUSHARA, Advocates for the petitioners, STANDING
COUNSEL for R1 to R5, SENIOR GOVERNMENT PLEADER for R6, R7 & Addl.R11,
STANDING COUNSEL FOR R8 & R9, the Court passed the following:
WP(C) No.12779/2023 3 / 15
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
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W.P.(C)No.12779 of 2023
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Dated this the 12th day of April, 2023
ORDER
Anil K. Narendran, J.
The Station House Officer, Kozhinjampara Police Station, Kozhinjampara, Palakkad, Pin - 678 555 is suo motu impleaded as the additional 11th respondent.
2. Admit.
3. The learned Standing Counsel for Cochin Devaswom Board takes notice on admission for respondents 1 to 5. The learned Senior Government Pleader takes notice on admission for respondents 6 and 7 and also for the additional 11th respondent Station House Officer. The learned Standing Counsel for Kozhinjampra Grama Panchayat takes notice on admission for respondents 8 and 9.
4. Issue notice by speed post to the 10th respondent, returnable within four weeks.
5. The petitioners who are having agricultural lands in Ward No.12 of Kozhinjampara Grama Panchayat, who are also members of the Padasekhara Committee, have filed this writ petition under Article 226 of the Constitution of India, seeking a WP(C) No.12779/2023 4 / 15 2 W.P.(C)No.12779 of 2023 writ of certiorari to quash Ext.P3 no objection certificate dated 22.04.2017 issued by the 2nd respondent Special Devaswom Commissioner, Cochin Devaswom Board, whereby the 8th respondent Kozhinjampara Grama Panchayat was permitted to renovate Mullaneri Pond owned by the Cochin Devaswom Board having an extent of 6 acres and 73 cents in Re.Sy. Nos.183/1/539/2, 539/1, 577/3/2 and 582/2 of Block No.33 of Kozhipathy Village, under 'Navakerala Mission-Haritha Keralam Project'. The petitioners have also sought for a writ of mandamus commanding respondents 1 to 4 not to issue no objection certificate for removal of sand and clay from Mullaneri Pond owned by the Cochin Devaswom Board, as sought for in Ext.P11 request dated 17.02.2023 made by the 8th respondent Kozhinjampara Grama Panchayat before the 3rd respondent Commissioner, Cochin Devaswom Board; a writ of mandamus commanding the 4th respondent Assistant Commissioner, Thiruvilwamala to conduct an enquiry regarding the removal of sand and clay from Mullaneri Pond owned by the Cochin Devaswom Board on the strength of Ext.P3 no objection certificate dated 22.04.2017 and to file a report before this Court, within a time frame to be fixed by this Court; and a writ of mandamus commanding respondents 1 to 4 to take appropriate WP(C) No.12779/2023 5 / 15 3 W.P.(C)No.12779 of 2023 action for recovery of the amounts collected by the 8th respondent Grama Panchayat and the 10th respondent highest bidder, towards the value of the sand and clay excavated from Mullaneri Pond owned by the Cochin Devaswom Board, within a time limit to be fixed by this Court. The grievance of the petitioners is that, under the guise of renovation of Mullaneri Pond owned by the Cochin Devaswom Board, the Grama Panchayat excavated earth from that pond. After indiscriminate excavation of earth from the said pond, on the strength of Ext.P3 no objection certificate dated 22.04.2017 of the 2nd respondent Special Devaswom Commissioner, the 8th respondent Grama Panchayat submitted Ext.P11 request dated 17.02.2023 before the 3rd respondent Commissioner, Cochin Devaswom Board, seeking permission for further excavation of sand/ordinary clay from the said pond. The 1st petitioner submitted Ext.P12 representation dated 07.03.2023 before the 3rd respondent Commissioner and thereafter filed this writ petition seeking the aforesaid reliefs.
6. On 11.04.2023, when this writ petition came up for admission, the learned Standing Counsel for Cochin Devaswom Board and the learned Standing Counsel for Kozhinjampra Grama Panchayat sought time to get instructions. Having considered the WP(C) No.12779/2023 6 / 15 4 W.P.(C)No.12779 of 2023 submissions made at the Bar, we directed the appearance of the Secretary of the 8th respondent Grama Panchayat and the concerned officer of the Cochin Devaswom Board to be personally present in Court today (12.04.2023) at 2.00 p.m., along with the relevant files. The learned counsel for the petitioners was directed to make available for the perusal of this Court a few photographs of the pond in question.
7. Today, when this matter is taken up for consideration, the Secretary of the 8th respondent Grama Panchayat, the Devaswom Officer of Chittoor Devaswom are personally present in Court. Along with I.A.No.1 of 2023, the petitioners have placed on record, Ext.P13 series of photographs of Mullaneri Pond owned by the Cochin Devaswom Board.
8. Heard the learned counsel for the petitioners, the learned Standing Counsel for Cochin Devaswom Board for respondents 1 to 5, the learned Senior Government Pleader for respondents 6 and 7 and the learned Standing Counsel for Kozhinjampra Grama Panchayat for respondents 8 and 9.
9. '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] WP(C) No.12779/2023 7 / 15 5 W.P.(C)No.12779 of 2023
10. 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 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.
11. 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 WP(C) No.12779/2023 8 / 15 6 W.P.(C)No.12779 of 2023 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.
12. The pond in question, i.e., Mullaneri Pond owned by the Cochin Devaswom Board, under Chittoor Devaswom, is having an extent of 6 acres and 73 cents in Re.Sy. Nos.183/1/539/2, 539/1, 577/3/2 and 582/2 of Block No.33 of Kozhipathy Village. The 8th respondent Kozhinjampra Grama Panchayat secured Ext.P3 no objection certificate dated 22.04.2017 from the Cochin Devaswom Board for renovating Mullaneri Pond owned by the Board, under Chittoor Devaswom, under 'Navakerala Mission-Haritha Keralam Project'. WP(C) No.12779/2023 9 / 15 7 W.P.(C)No.12779 of 2023
13. On a specific query made by this Court, the Secretary of the 8th respondent Kozhinjampra Grama Panchayat, who is personally present in Court, would submit that other than the excavation of sand/ordinary clay from Mullaneri Pond owned by the Cochin Devaswom Board, no work was undertaken in connection with the renovation of the said pond under 'Navakerala Mission-Haritha Keralam Project'. The Devaswom Officer, Chittoor Devaswom, who is personally present in Court, would also submit that the excavation of sand/ordinary clay from Mullaneri Pond owned by the Cochin Devaswom Board is the only work undertaken by the 8th respondent Kozhinjampra Grama Panchayat, in connection with the renovation of the said pond.
14. The learned counsel for the petitioners would point out Ext.P8 proceedings dated 17.12.2020 of the 6th respondent Geologist, Mining and Geology Department, Palakkad, which would show that the Geologist has issued passes for transporting 12,000 metric tons of ordinary clay from Mullaneri Pond owned by the Cochin Devaswom Board. Using 27 passes, out of 200 passes issued by the Geologist, 159 metric tons of ordinary clay has already been removed from the said pond. For removing the balance quantity of 11,841 metric tons of ordinary clay, the validity of the permission granted to the 8th respondent WP(C) No.12779/2023 10 / 15 8 W.P.(C)No.12779 of 2023 Kozhinjampra Grama Panchayat, vide proceedings dated 12.10.2020, was extended up to 16.01.2021, by Ext.P8 proceedings dated 17.12.2020 of the 6th respondent Geologist.
15. During the course of arguments, the submission made by the learned Standing Counsel for Cochin Devaswom Board is that, since the 8th respondent Kozhinjampra Grama Panchayat the Grama Panchayat has agreed to renovate Mullaneri Pond under Chittoor Devaswom, spending Rs.1 Crore under 'Navakerala Mission-Haritha Keralam Project', the 2nd respondent Special Devaswom Commissioner granted Ext.P3 no objection certificate dated 22.04.2017, whereby the Grama Panchayat was permitted to renovate the said pond.
16. The learned counsel for the petitioners would point out that, though the Cochin Devaswom Board issued Ext.P3 no objection certificate dated 22.04.2017 with a specific condition that the ownership of Mullaneri Pond shall remain with the Cochin Devaswom Board, in Ext.P5 decision taken by the Panchayat Committee on 29.06.2020 and Ext.P6 tender notice dated 09.07.2020, it is stated that Mullaneri Pond is in the possession of Kozhinjampra Grama Panchayat.
17. In T. Krishnakumar v. Cochin Devaswom Board [2022 (5) KHC SN 8 : (2022) 4 KLT 798], a Division Bench WP(C) No.12779/2023 11 / 15 9 W.P.(C)No.12779 of 2023 of this Court, in which both of us were parties, held that in view of the law laid down by this Court in Abu K.S. v. Travancore Devaswom Board [2022 SCC OnLine Ker 1642], relying on the decision of the Apex Court in M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65], while leasing out the buildings owned by the Devaswoms, the Cochin Devaswom Board and its officials have to ensure that proper income is generated from the said buildings. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. The action of the Board as a trustee cannot be equated to that of mere landlord. The best interest of the Devaswoms under the control of the Board would be subserved only if income is generated. The major source of revenue of Cochin Devaswom Board is the income received by way of offering by the devotees, the amount received from Vazhipadu and the revenue generated through the auction of temple premises for various activities in connection with rituals and festivals in the temples and also the rental income generated from the buildings owned by the respective Devaswoms. Any default committed by the tenant or licensee of the buildings owned by the Devaswoms in payment of the monthly rent or WP(C) No.12779/2023 12 / 15 10 W.P.(C)No.12779 of 2023 licence free, electricity charges, water charges, statutory dues, etc. has to be dealt with appropriately, so also the use of the building for another purpose or making material alteration or addition to the building.
18. The role assigned to the Cochin Devaswom Board is that of a trustee in the management of the properties vested in the deity. Therefore, the Board is duty bound to scrupulously follow the stipulations contained in the Travancore-Cochin Hindu Religious Institutions Act, 1950 and to administer and manage the Devaswoms and its properties in accordance with the settled legal principles relating to administration of Hindu religious trusts. The Board being the trustee in the management of Devaswom properties is legally bound to perform its duty with utmost care and caution. Any default committed by the Board in protecting the properties of the Devaswoms would certainly amount to a breach of trust.
19. During the course of arguments, the learned Standing Counsel for Cochin Devaswom Board would submit that Ext.P3 no objection certificate dated 22.04.2017 issued by the 2nd respondent Special Devaswom Commissioner has already been withdrawn and Ext.P11 request dated 17.02.2023 made by the 8th respondent Kozhinjampra Grama Panchayat seeking WP(C) No.12779/2023 13 / 15 11 W.P.(C)No.12779 of 2023 permission for further excavation of sand/ordinary clay from Mullaneri pond owned by the Cochin Devaswom Board, under Chittoor Devaswom has already been rejected by the 3rd respondent Commissioner, Cochin Devaswom Board.
20. Having considered the materials on record and the submissions made at the Bar, we deem it appropriate to restrain the 8th respondent Kozhinjampra Grama Panchayat from undertaking any activity in connection with the renovation of Mullaneri pond owned by the Cochin Devaswom Board, under Chittoor Devaswom, until further orders. Any excavation of sand or ordinary earth from Mullaneri Pond owned by the Cochin Devaswom Board, under Chittoor Devaswom, is prohibited by this order, until further orders.
21. It would be open to the Devaswom Officer, Chittoor Devaswom to seek police assistance, if found necessary, to ensure strict compliance of the directions contained in this order. In case any such request is made by the Devaswom Officer, Chittoor Devaswom, the additional 11th respondent Station House Officer, Kozhinjampra Police Station shall render necessary assistance and maintain the law and order situation in the locality.
WP(C) No.12779/2023 14 / 1512 W.P.(C)No.12779 of 2023
22. The counter affidavit on behalf of the 8th respondent Kozhinjampra Grama Panchayat shall be placed on record within four weeks, with specific reference to the averments in the writ petition, and also the observations contained in this order. In the counter affidavit, the Grama Panchayat shall state the works already undertaken for the renovation of Mullaneri pond, under 'Navakerala Mission-Haritha Keralam Project', the quantity of earth and ordinary clay removed from the said pond and also the amount already obtained by the Grama Panchayat in connection with that activity in the Devaswom land.
23. The counter affidavit on behalf of the 1st respondent Cochin Devaswom Board shall be placed on record within four weeks, with specific reference to the averments in the writ petition, and also the observations contained in this order.
List on 07.06.2023.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE MIN 12-04-2023 /True Copy/ Assistant Registrar WP(C) No.12779/2023 15 / 15 APPENDIX OF WP(C) 12779/2023 Exhibit P3 TRUE COPY OF THE PROCEEDINGS NO.R-13744/16 DATED 22-4-2017 OF THE 2ND RESPONDENT Exhibit P5 TRUE COPY OF THE MINUTES OF THE MEETING OF THE PANCHAYAT AS AGENDA ITEM 5 (2) DATED 29-6-2020 Exhibit P6 TRUE COPY OF THE TENDER NOTIFICATION NO.A4/239/2020 DATED 9-7-2020 Exhibit P8 TRUE COPY OF THE PROCEEDINGS NO.102/2020-21/OC/DOP/1639/2020/A1 DATED 17-12-2020 OF THE 6TH RESPONDENT.
Exhibit P11 TRUE COPY OF THE COMMUNICATION NO.A3/618/2023 DATED 17-2-2023 SENT BY THE PANCHAYAT TO THE COMMISSIONER, THE 3RD RESPONDENT Exhibit P12 TRUE COPY OF THE OBJECTION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT DATED 7-3-2023 Exhibit P13 TRUE COPY OF THE PHOTOGRAPHS OF THE POND 12-04-2023 /True Copy/ Assistant Registrar