Kerala High Court
Triprayar Sreerama Swami Temple ... vs The Director General
Author: Anu Sivaraman
Bench: Thottathil B.Radhakrishnan, Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938
WP(C).No. 4984 of 2016 (W)
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PETITIONERS/PETITIONER:
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1. TRIPRAYAR SREERAMA SWAMI TEMPLE DEVELOPMENT COMMITTEE
(ORDER NO. CDB A5/4734/13 DATED 11-9-14, COCHIN DEVASWOM
BOARD), VALAPAD POST, TRIPRAYAR, THRISSUR, KERALA
680567, REPRESENTED BY ITS SECRETARY, U.P.KRISHNANUNNI.
2. PONNOTH GOPALAKRISHNAN NAIR
PRESIDENT OF TRIPRAYAR SREERAMA SWAMI TEMPLE DEVELOPMENT
COMMITTEE, (ORDER NO. CDB A5/4734/13 DATED 11-9-14,
COCHIN DEVASWOM BOARD), VALAPAD POST, TRIPRAYAR,
THRISSUR, KERALA 680567, RESIDING AT "KRISHNAKRIPA",
TRIPRAYAR, NATTIKA POST, THRISSUR-680566.
BY ADVS.SRI.C.P.KUNJHIKANNAN
SRI.S.K.MADHU
RESPONDENTS/RESPONDENTS:
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1. THE DIRECTOR GENERAL, ARCHAEOLOGICAL SURVEY OF INDIA
JANPATH, NEW DELHI-110011.
2. THE DIRECTOR AND COMPETENT AUTHORITY
DEPARTMENT OF ARCHAEOLOGY, GOVERNMENT OF KERALA, SREE
PADAM PALACE, FORT POST, THIRUVANANTHAPURAM.
3. SUPERINTENDING ARCHAEOLGIST
PURATATVA BHAVAN, F.F.19(A), K.S.H.B.FLATS, PULLAZHY,
THRISSUR-680012.
4. COCHIN DEVASWOM BOARD
REPRESENTED BY ITS SPECIAL DEVASWOM COMMISSIONER, ROUND
NORTH, THRISSUR-680002.
R1 & 3 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR
GENERAL
R4 BY ADV. SRI.UNNIKRISHNAN V.ALAPATT, SC, COCHIN
DEVASWOM BOARD
R4 BY ADV. SRI.KRISHNA MENON, SC, COCHIN DEVASWOM BOARD
R3 BY SRI.DINESH SHENOY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28.07.2016, THE COURT ON 04-08-2016 DELIVERED THE FOLLOWING:
WP(C).No. 4984 of 2016 (W)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1:-PHOTOCOPY OF THE RELEVANT PORTION OF
ASHTAMANGALYAPRASANAM/DEVAPRASNAM CHARTHU DTD
30/8/2013
P2:-PHOTOCOPY OF THE NOTICE CIRCULATED BY THE
PETITIONER COMMITTEE DTD NIL
P3:-PHOTOCOPY OF THE LETTER NO 1/6/09/M-TRS/550 DTD
8/12/2014 OF THE ARCHAEOLOGICAL SURVEY OF INDIA
P4:-PHOTOCOPY OF THE RELEVANT PAGES (PAGE 1 AND 24) OF
THE MINUTES OF THE MEETING OF THE EXPERT ADVISORY
COMMITTEE OF THE IST RESPONDENT
P4(A):-PHOTOCOPY OF THE ORDER NO 542/11/CA/AMASR DTD
25/7/2013 OF THE 2ND RESPONDENT
P4(B):-PHOTOCOPY OF THE JUDGMENT IN WPC 8621/08 DTD
29/10/2008
P5:-PHOTOCOPY OF THE PLAN AND LETTER DTD 28/5/2015 OF
KANIPAYYUR KRISHNAN NAMBOOTHIRI
P6:-PHOTOGRAPHS OF THE PRESENT GOSALA KRISHNA TEMPLE
SITUATED AT THE NORTH EASTERN SIDE OF THE TRIPRAYAR
SWAMI TEMPLE
P7:-PHOTOCOPY OF THE ORDER NO A5-4734/15 DTD 17/7/2015
P8:-PHOTOCOPY OF THE THAMBOOLAPRASNA CHARTU DTD
8/7/2015
P9:-PHOTOCOPY OF THE LETTER OF THE TANTRI DTD 5/8/2015
TO THE 2ND RESPONDENT
P9(A):-PHOTOCOPY OF THE LETTER OF TANTRI DTD 5/9/2015
ADDRESSING TO THE PETITIONER COMMITTEE
P10:-PHOTOCOPY OF THE LETTER DTD 12/8/2015 TO THE
DIRECTORATE OF ARCHAEOLOGY
P11:-PHOTOCOPY OF THE ORDER F NO 1/6/12-13/M-TRS/323
DTD 25/8/2015 ADDRESSING TO THE 4TH RESPONDENT
P12:-PHOTOCOPY OF THE ABOVE ORDER NO 4/13/KTC/2005-M-
3254 DTD 9/9/2015 ADDRESSING THE 4TH RESPONDENT
RESPONDENT(S)' EXHIBITS
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R3(A): TRUE COPY OF THE NOTIFICATION DATED 05.06.1982 OF
DEPARTMENT OF CULTURE ARCHAEOLGICAL SURVEY OF INDIA.
/True Copy/
P.A. to Judge
THOTTATHIL B.RADHAKRISHNAN, Ag.C.J.&
ANU SIVARAMAN, J.
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W.P.(C).No.4984 of 2016
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Dated this the 4th day of August, 2016
JUDGMENT
Anu Sivaraman,J.
1.This writ petition is filed challenging Exhibit.P11 and P12 orders issued by the respondents declining permission for reconstruction of Sreekovil of Gosala Krishnan situated within the premises of the Tripayar Sreerama Swami Temple and for allied reliefs.
2.Heard learned counsel for the petitioners, learned Assistant Solicitor General of India appearing for respondents 1 to 3 and learned standing counsel for the Cochin Devaswom Board.
3.The Temple Development Committee of the Tripayar Sreerama Swami Temple had sought permission for the renovation/reconstruction of the Sreekovil of Gosala Krishnan which is situated adjacent to the Tripayar Sreerama Swami Temple. It is stated that since the temple has been notified as a W.P.(C).No.4984/16 2 protected monument under the Ancient Monuments and Archaeological Sites and Remains Act,1958 (hereinafter referred to as 'the Act'), reconstruction of the Sreekovil of Gosala Krishnan which is within the restricted distance from the said monument requires prior permission from the Archaeological Survey of India. Request for prior permission was, therefore, submitted before the competent authorities with all required documents. The request was repeatedly turned down by on the ground that the construction of a modern temple within the premises of the Sreerama Swami Temple, Triprayar will adversely affect the ancient ambiance of the temple and may result in contravening the provisions of the Act, since it comes well within the prohibited area of the monument.
4.It is submitted that the present structure of the Sreekovil was constructed only in the year 1988 and serious problems were noticed when it was being put to use. In a Devaprasnam conducted in the temple also, a requirement of making reconstruction was found, and further steps were W.P.(C).No.4984/16 3 taken by the temple authorities in the matter. Though entire records were placed before the respondents, no permission for the reconstruction was forthcoming, it is submitted. Thereafter, by Exhibits P11 and P12, the 3rd respondent has informed the special commissioner that the request made by the petitioner committee for reconstruction cannot be allowed.
5.A counter affidavit was filed on behalf of respondents 1 and 3 contending that the Archaeological Survey of India is concerned only with the physical characters of the monuments and does not propose to interfere with the religious or spiritual matters with regard to the temple. Under the provisions of the Act, no reconstruction is permissible within the prohibited distance without the prior permission of the competent authority under the Act. It is further stated that permitting such reconstruction would not be conducive to the preservation of the monument or to maintaining the ancient ambiance of the temple. W.P.(C).No.4984/16 4
6.We notice that the Triprayar Sreerama Swami Temple is an ancient temple which is still being put to use for worship by devotees in large numbers. Exhibit R3(a) notification dated 05.06.1982 is produced along with counter affidavit filed on behalf of respondents 1 and 3. It is a preliminary notice calling for objections to a declaration that the entire temple is a protected monument. It is seen from Exhibit P12 and Exhibit R1(a) produced by the respondents that the mural paintings on the walls of the temple have been declared under Section 4 of the Act as ancient monuments of national importance. Though Exhibit R3(a) notification under section 4(1) of the Act calling for objections was published as early as on 05.06.1982, no further step for declaring the temple to be an ancient monument has been issued. In the above view of the matter, the objections that the respondents can raise with regard to the reconstruction of the Sreekovil of Gosala Krishnan is limited to its location in the vicinity of the protected monument.
W.P.(C).No.4984/16 5
7.Section 20C of the Act reads thus:
"Application for repair or renovation in prohibited area, or construction or re-construction or repair or renovation in regulated area:- (1) Any person, who owns any building or structure, which existed in a prohibited area before the 16th day of June, 1992, or, which had been subsequently constructed with the approval of the Director-General and desires to carry out any repair or renovation of such building or structure, may make an application to the competent authority for carrying out such repair or renovation as the case may be.
(2) Any person, who owns or possesses any building or structure or land in any regulated area, and desires to carry out any construction or re-construction or repair or renovation of such building or structure on such land, as the case may be, may make an application to the competent authority for carrying out construction or re-
construction or repair or renovation, as the case may be." It is therefore clear that the only restriction imposed by the statute as regards the construction of new building and alteration of an existing building is that prior permission of the department has to be obtained. There is no absolute prohibition in altering or erecting any structure within the prohibited limits of protected monuments. W.P.(C).No.4984/16 6
8.There is no dispute between the parties that the Sreekovil of Gosala Krishnan was constructed in the present form only in the year 1988. Though the Gosala itself is an old existing structure, as matters stand now, it is not a ancient monument. The reconstruction is sought for by the Temple Development Committee on the ground that it has been found in a Devaprasnam that certain modifications are to be made. This is a matter of faith and would come within the right to profess and practice a religion. In view of the fact that the temple and all appurtenant structures are being used as places of public religious worship, an attempt to reconcile the various interests without conflict was an endeavor which ought to be made in a case of this nature.
9.In the above circumstances, in the absence of any statutory bar, we are of the opinion that this is a fit case where the respondents should have granted permission in W.P.(C).No.4984/16 7 terms of the provisions of the Act for reconstruction of the Sreekovil without, in any manner, affecting or damaging the existing structure of the Gosala. We find no justification in the refusal on the part of the respondents in permitting reconstruction of a modern structure, which is sought for on the ground of religious beliefs and faith apart from real necessity.
In the result:
Exhibits P11 and P12 communications are set aside. The 4th respondent, Cochin Devaswom Board is directed to take appropriate steps for reconstruction of the Sreekovil of Gosala Krishna, as sought for in Exhibit P10 immediately. Orders shall be passed, specifying the conditions and time limit for the execution of the reconstruction, within two weeks from date of receipt of a copy of this judgment. The 4th respondent shall see that the reconstruction is carried out in a time bound manner as also without causing any damage to any of the existing structures of the Gosala. The W.P.(C).No.4984/16 8 3rd respondent shall visit the site and give necessary instructions for carrying out the work without causing any damage to the declared monuments or to any of the old structures in existence. This writ petition is ordered accordingly.
sd/-
Thottathil B. Radhakrishnan, Acting Chief Justice sd/-
Anu Sivaraman, Judge sj