Vimith .K.V vs Union Of India on 18 January, 2024

[Cites 14, Cited by 0]

Kerala High Court

Vimith .K.V vs Union Of India on 18 January, 2024

The petitioner, who is a devotee of Malamakkavu Ayyappankavu Temple of Karikkad Village, which is a temple under the management of Cochin Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding respondents 2 to 7, namely, the State of Kerala represented by the Secretary to Government, Revenue (Devaswom) Department, the District Collector, Thrissur, the Kerala State Pollution Control Board represented by its Assistant Environment Engineer, Thrissur, the District Geologist, Thrissur, the Tahsildar (Land Records), Kunnamkulam and the Cochin Devaswom Board represented by its Secretary to recover land having an extent of 46 Acres comprised in Survey Nos.503, 504/2, 504/3, 504/4, 505/2, 506, 507/1, 507/2, 666, 667, 668, 669, 670, 671, 672, 673, 674 and 675 of Perumpilavu Village belonging to Malamakkavu Ayyappankavu Temple, expeditiously, in a time bound manner. The petitioner has also sought for a writ of mandamus commanding the 3rd respondent District Collector, Thrissur to act upon of Ext.P18 complaint dated 08.11.2023 made by the petitioner as well as other residents in the locality against the 4 W.P.(C)No.39356 of 2023 functioning of a quarry; a declaration that Ext.P4 licence issued to the 9th respondent under the provisions of the Explosives Rules by the Joint Chief Controller of Explosives, South Circle, to possess for use explosives of class 1, 2, 3, 4, 5, 6 or 7 in a magazine; Ext.P5 renewal of licence issued by the Deputy Chief Controller of Explosives, Ernakulam; Ext.P6 quarrying permit issued to the 9th respondent by the 5th respondent Geologist, Thrissur in respect of 0.9945 hectares of land in Survey Nos.666, 674, 674/P, 675 and 675/P of Perumpilavu Village in Kunnamkulam Taluk for extracting 51828 metric ton of granite (building stone); and Ext.P14 Environmental Clearance dated 29.06.2022 granted by the State Level Environmental Impact Assessment Authority, Kerala for the granite (building stone) quarry project of the 9th respondent, are invalid permits, which will not confer any right on respondents 9 to 11 either to do quarrying operations or to get those licence/permit/clearance renewed; and a writ of mandamus commanding respondents 1 to 8 to take appropriate steps to close down the entire mining activities done by respondents 9 to 12 in the land covered by Ext.P1 Settlement Register and Ext.P2 Field Measurement Book.

2. In the writ petition, it is alleged that the Devaswom land of Malamakkavu Ayyappankavu Temple has been 5 W.P.(C)No.39356 of 2023 encroached by respondents 9 to 11 and the 7th respondent Cochin Devaswom Board is not taking any action to resume the Devaswom land, in which respondents 9 to 12 are conducting quarrying operations. In this writ petition, the petitioner would place reliance on the law laid down by the Apex Court in A.A.Gopalakrishnan v. Secretary, Cochin Devaswom Board [(2007) 7 SCC 482], Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132] and Nandakumar v. District Collector and others [2018 (2) KHC 58].

3. In Bharat Singh v. State of Haryana [(1988) 4 SCC 534] the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not 6 W.P.(C)No.39356 of 2023 evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.

4. In M/s.Larsen and Toubro Ltd. v. State of Gujarat [(1998) 4 SCC 387] the Apex Court was dealing with a case arising out of the proceedings initiated for the acquisition of land for M/s.Larsen and Toubro Ltd. under the provisions of the Land Acquisition Act, 1894. The Apex Court noticed that, in the absence of any allegation that Rule 3 the Land Acquisition (Companies) Rules, 1963 had not been complied and there being no particulars in respect of non compliance of Rule 4 also, it is difficult to see as to how the High Court could have reached the finding that statutory requirements contained in these Rules were not fulfilled before issuance of notification under Section 4 and declaration under Section 6 of the Land Acquisition Act. High Court did not give any reason as to how it reached the conclusion that Rules 3 and 4 had not been complied in the face of the record of the case. Rather, it returned a finding which is unsustainable that it was "not possible on the basis of the material on record to hold that there was compliance with Rules 3 and 4". The Apex Court held that, it is not enough to allege that a particular Rule or any provision has not been complied. It 7 W.P.(C)No.39356 of 2023 is a requirement of good pleading to give details, i.e., particulars as to why it is alleged that there is non compliance with a statutory requirement. Ordinarily, no notice can be taken on such an allegation which is devoid of any particulars. No issue can be raised on a plea, the foundation of which is lacking. Even where rule nisi is issued, it is not always for the department to justify its action when the court finds that a plea has been advanced without any substance, though ordinarily department may have to place its full cards before the court. On the facts of the case, the Apex Court found that the State has more than justified its stand that there has been compliance not only with Rule 4 but with Rule 3 as well, though there was no challenge to Rule 3 and the averments regarding non compliance with Rule 4 were sketchy and without any particulars whatsoever. High Court was, therefore, not right in quashing the acquisition proceedings.

5. In Narmada Bachao Andolan v. State of Madhya Pradesh [(2011) 7 SCC 639] a Three-Judge Bench of the Apex Court held that, it is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete the Court is under no obligation to entertain the pleas. Pleadings and particulars are required to 8 W.P.(C)No.39356 of 2023 enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question(s) in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that as a rule relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice.

6. As already noticed hereinbefore, the declaratory relief sought for in this writ petition is that Ext.P4 licence issued to the 9th respondent under the provisions of the Explosives Rules by the Joint Chief Controller of Explosives, South Circle, to possess for use explosives of class 1, 2, 3, 4, 5, 6 or 7 in a magazine; Ext.P5 renewal of licence issued by the Deputy Chief Controller 9 W.P.(C)No.39356 of 2023 of Explosives, Ernakulam; Ext.P6 quarrying permit issued to the 9th respondent by the 5th respondent Geologist, Thrissur in respect of 0.9945 hectares of land in Survey Nos.666, 674, 674/P, 675 and 675/P of Perumpilavu Village in Kunnamkulam Taluk for extracting 51828 metric ton of granite (building stone); and Ext.P14 Environmental Clearance dated 29.06.2022 granted by the State Level Environmental Impact Assessment Authority, Kerala for the granite (building stone) quarry project of the 9th respondent, are invalid permits, which will not confer any right on respondents 9 to 11 either to do quarrying operations or to get those licence/permit/clearance renewed. In the writ petition there is total lack of pleadings insofar as the declaratory relief sought for is concerned. The petitioner has not even chosen to array the statutory authorities who have issued Ext.P4 licence, i.e., the Joint Chief Controller of Explosives, South Circle, Chennai or the Deputy Controller of Explosives, Ernakulam who have issued Ext.P5 renewal of licence or the State Level Environmental Impact Assessment Authority, which has issued Ext.P14 Environmental Clearance.

7. Rule 148 of the Rules of High Court of Kerala, 1971 deals with addition of parties. As per Rule 148, all persons directly affected shall be made parties to the petition. Where 10 W.P.(C)No.39356 of 2023 such persons are numerous, one or more of them may with the permission of the court on application made of the purpose be impleaded on behalf of or for the benefit of all persons so affected; but notice of the Original Petition shall, on admission, be given to all such persons either by personal service or by public advertisement as the Court in each case may direct.

8. The petitioner has not chosen to array the statutory authorities who have issued Ext.P4 licence, Ext.P5 renewal of licence and Ext.P14 Environmental Clearance as respondents in this writ petition. When the licence/consent/clearance granted by the statutory authorities are under challenge in a writ petition filed under Article 226 of the Constitution of India, invoking the extra ordinary jurisdiction of this Court, the writ petition shall contain specific pleadings regarding the statutory violations or procedural violations, with the statutory authorities in the party array.

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].

10. In A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex 11 W.P.(C)No.39356 of 2023 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 '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.

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 charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a 12 W.P.(C)No.39356 of 2023 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 parens 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. 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 the involvement of the Devaswom, securing 'pattayam' or such other deeds, the same cannot confer 13 W.P.(C)No.39356 of 2023 any 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.

13. The averment in paragraph 6 of the writ petition is to the effect that as can be seen from the records a major portion of the property of the deity of Malamakkavu Ayyappankavu Temple is encroached upon by the 9th respondent and his family. The documents marked in paragraph 3 of the writ petition are Ext.P1 settlement register and Ext.P2 Field Measurement Book. The document marked as Ext.P3 are three photographs showing cracks formed in the houses near the quarry of the 9th respondent due to the operation of that quarry.

14. There is total lack of pleadings regarding the encroachment of the Devaswom land of Malamakkavu Ayyappankavu Temple. The petitioner has no case that, alleging encroachment of the Devaswom land he has made any representation or complaint before the 7th respondent Cochin Devaswom Board or its officials. The document marked as Ext.P18 is a complaint dated 08.11.2023 made by the petitioner along with others before the 3rd respondent District Collector, 14 W.P.(C)No.39356 of 2023 wherein it is alleged that there is encroachment of Devaswom land.

In the above circumstances, for the reasons stated hereinbefore, we find that the petitioner is not entitled to any of the reliefs sought for in this writ petition. In the result, the writ petition fails and the same is accordingly dismissed; however with a direction to the 7th respondent Cochin Devaswom Board to take necessary steps to ensure that there is no encroachment in the Devaswom land of Malamakkavu Ayyappankavu Temple, which is a temple under the management of the Board.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

G. GIRISH, JUDGE SMA 15 W.P.(C)No.39356 of 2023 APPENDIX OF WP(C) 39356/2023 PETITIONER EXHIBITS :-

Exhibit.P- 1 TRUE COPIES OF SETTLEMENT REGISTER DATED NIL WITH LEGIBLE COPY Exhibit.P- 2 TRUE COPIES OF FIELD MEASUREMENT BOOK DATED NIL IS Exhibit .P-3 TRUE COPIES OF PHOTOGRAPHS DATED NIL SHOWING CRACKS FORMED IN NEARBY HOUSES Exhibit .P-4 A TRUE COPY OF THE EXPLOSIVES LICENCE DATED 21.05.2012 ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM TO THE 9TH RESPONDENT WITH LEGIBLE COPY Exhibit .P-5 A TRUE COPY OF THE RENEWED EXPLOSIVES LICENCE DATED 12.07.2022 ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM TO 9TH RESPONDENT WITH LEGIBLE COPY Exhibit.P- 6 A TRUE COPY OF THE PERMIT DATED 22.10.2022 ISSUED BY THE DEPARTMENT OF MINING & GEOLOGY, THRISSUR TO THE 9TH RESPONDENT Exhibit.P- 7 A TRUE COPY OF THE CONSENT DATED 26.08.2022 ISSUED BY THE 4TH RESPONDENT TO THE 9TH RESPONDENT Exhibit.P- 8 A TRUE COPY OF THE AGREEMENT BETWEEN THE RESPONDENTS 9 TO 11 AND 12TH RESPONDENT DATED 17.09.2022 WITH LEGIBLE COPY Exhibit .P-9 A TRUE COPY OF INTERIM ORDER PASSED BY SUB COURT, CHAVAKKAD IN IA.NO.02/2023 IN OS.16/2023 DATED 27.05.2023 WITH LEGIBLE COPY Exhibit.P-10 A TRUE COPY OF THE APPLICATION SUBMITTED BY 9TH RESPONDENT BEFORE 8TH RESPONDENT DATED NIL Exhibit .P-11 A TRUE COPY OF THE DECISION TAKEN IN THE MEETING CONDUCTED BY 8TH RESPONDENT 16 W.P.(C)No.39356 of 2023 DATED 16.06.2023 WITH LEGIBLE COPY Exhibit .P-12 A TRUE COPY OF LETTER DATED 03.07.2023 ISSUED BY 5TH RESPONDENT TO 9TH RESPONDENT WITH LEGIBLE COPY Exhibit .P-13 . A TRUE COPY OF LETTER ISSUED BY 8TH RESPONDENT TO 5TH RESPONDENT DATED 16.08.2023 Exhibit .P-14 A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE ISSUED BY THE MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE DATED 29.06.2022 TO 9TH RESPONDENT Exhibit .P-15 A TRUE COPY OF THE LETTER DATED 07.08.2023 ISSUED BY THE STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY TO THE 8TH RESPONDENT Exhibit .P-16 A TRUE COPY OF THE LETTER DATED 30.09.2023 SENT BY 5TH RESPONDENT TO 6TH RESPONDENT Exhibit.P-17 A TRUE COPY OF NOTICE DATED 30.09.2023 ISSUED BY THE 5TH RESPONDENT TO 9TH RESPONDENT Exhibit .P-18 A TRUE COPY OF THE COMPLAINT DATED 08.11.2023 SUBMITTED BEFORE 3RD RESPONDENT BY THE PETITIONER AS WELL AS THE PERSONS RESIDING NEAREST TO THE ALLEGED QUARRY WITH LEGIBLE COPY Exhibit .P-19 A TRUE COPY OF THE RECEIPT ISSUED BY COLLECTORATE, THRISSUR DATED 08.11.2023

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