Rangorath Gokul Prasad vs The State Of Kerala on 24 May, 2024

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Kerala High Court

Rangorath Gokul Prasad vs The State Of Kerala on 24 May, 2024

The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1st respondent State to complete the proceedings initiated as per Ext.P13 notice, in compliance of Ext.P12 judgment of this Court dated 10.11.2022 in W.P.(C)No.27230 of 2015, as expeditiously as possible, at any rate, within a time frame to be fixed by this Court. The petitioner has also sought for a writ of mandamus commanding respondents 3 and 5 to take urgent action to recover the encroached Devaswom land of the temples, which are controlled institutions under the Malabar Devaswom Board, in a war footing manner and to complete the proceedings within a time frame to be fixed by this Court.

2. On 25.01.2024, when this writ petition came up for admission, the learned counsel for the petitioner was directed to address arguments on the question of maintainability. On 12.02.2024, the learned Senior Government Pleader submitted that an application seeking extension of time is being filed in W.P.(C)No.27230 of 2015, which was disposed of by Ext.P12 judgment.

3. On 28.02.2024, the learned Senior Government Pleader made available for the perusal of this Court, a copy of the minutes WP(C)No.3040 of 2024 ..3..

of the meeting held on 02.02.2024 in the Chambers of the Principal Secretary to Government, Revenue (Devaswom) Department, regarding the formation of a Vigilance Wing and Land Conservancy Unit for Malabar Devaswom Board.

4. On 02.03.2024, respondents 2 and 3 have filed a counter affidavit dated 26.02.2024. Paragraphs 3 to 5 of that counter affidavit read thus:

"3. There are 1403 temples under the supervisory control of the 2nd respondent Board. The right of administration of the temples had been vesting with the trustees. Even after the enactment of Act No.31 of 2008, and formation of the 2 nd respondent Board, each temple under the Board is distinct and having separate entity for the purpose of administration as well as funds. The Government as per G.O.(Rt) No.4824/2000/RD dated 02.12.2004 G.O.(Rt)No.331/ 2005/RD dated 12.1.2005, had appointed a special officer along with a team consisted of retired Deputy Collectors and Village Officers, who had thoroughly examined the land records of 1123 temples kept in the temples, Village Offices, and identified 24693.24 Acres of land under encroachment. The encroachment were getting regularised, by granting purchase certificates indiscriminately by the Land Tribunals, and by fabrication of revenue records, as well as lease deeds etc. Even the temple authorities were not lawfully heard and due to ignorance of the Trustees in legal issues, and due to lack of funds, it were left uncontested. Even after the judgment in CRP No.1561 of 1990 and issuance of circular HR.5.397/1997 dated 4.2.1997 of the Commissioner, H.R. & WP(C)No.3040 of 2024 ..4..

C.E. (Admn) Department, thereon, to the temple authorities, nothing was fructified. If the authority for issuance Purchase Certificate was left with the authorities such as Land Tribunals as provided under KLR Act, the indiscriminate issuance of certificates and assignments would be continued un-interruptedly. The provisions of the Kerala Land Conservancy Act, being made applicable under Section 94 A of the H.R. & C.E. Act, and the law of limitation did not apply for vesting of the right under Sec. 94 of the Act, by the government, the District Collectors, came to be the authorities, under KLC Act. Even after an inch of encroached properties were not evicted under the said provisions. Unless and until a separate legislation providing for constitution of a new Devaswom Tribunal, in Malabar Area, for identification and recovery by eviction of the properties encroached upon and also, investing the right for issuance of Purchase Certificate, divesting the same from the Deputy Collectors and Land Tribunal, which is the only remedy to recover the alienated Devaswom properties, is remote and improbable.

4. It is submitted that the intention behind the empowerment of the issuance of purchase certificate with the Land Tribunals presided by Deputy Collectors, divesting from the Land Tribunals presided by the Tahsildars was to protect the best interest of the temple. As a matter of fact, consequent to the interim order of this Hon'ble Court in W.P.(C)No.8851 of 2020 dated 15.12.2021, the 2 nd respondent Board had engaged counsels for appearance and defence, the Tribunals had issued Purchase Certificates, even by superseding lawful objections raised by the counsels of the Board, in so many cases, and when the WP(C)No.3040 of 2024 ..5..

counsels had to seek time for counter by filing Vakkalath on the particular ground that the custodians of the records regarding the property being the trustees, it had to be procured from the temple in order to file counter. But, the Tribunals were not willing to allow sufficient time for it and the applications were disposed of in many cases hastily without hearing the Commissioner despite having the order of this Hon'ble Court. So, the provisions under Section 94 and 94A of the H.R. & C.E. Act were in a dormant state till now. Even though the District Collector is the authority for eviction under the Kerala Land Conservancy Act, it also entailed ineffective till now. So, Constitution of Land Conservancy Unit also seems to be ineffective and hence the apprehension that it will not serve the purpose if the culmination of the expedited actions till now are anything to go by. Since, the temples under the Board are distinct and separate units for administration as well as the funds, the illegal alienations made by the trustees, would not be contested with ulterior motive. If a Devaswom Tribunal is constituted by an enactment, provisions also can be made therein fixing liability with the temple authorities for the declension occurred on their part.

5. It is submitted that the Board is put to gross difficulty in the implementation of the provisions of the Act, in eviction of encroachments, through the temple authorities, as well as through the revenue authorities, and the merits of constitution of a Devaswom Tribunal, by an enactment empowering the Board to move the Tribunal in case of failure on the part of the temple authorities, which may be the most fructifiable option."

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5. On 13.03.2024, the learned Senior Government Pleader, on instructions, submitted that the petitioner was already heard twice by the Additional Secretary to Government. Thereafter, the matter was adjourned, at the request of the petitioner, since he met with an accident and sustained fracture on his leg.

6. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for the 1st respondent and the learned Standing Counsel for Malabar Devaswom Board for respondents 2 and 3.

7. The grievance of the petitioner is the inaction on the part of the 1st respondent State in constituting a Special Land Conservancy Unit for Malabar Devaswom Board, as sought for in the representation made before the Government. By Ext.P12 judgment, W.P.(C)No.27230 of 2015 was disposed of by directing the 1st respondent State to take an appropriate decision on Ext.P3 representation made by the petitioner, taking note of the law laid down in the decisions referred to in the order of this Court dated 12.10.2022 in that writ petition, within the time limit stipulated in that judgment. Paragraphs 3, 4 and also the last paragraph of the Ext.P12 judgment read thus:

'3. On 12.10.2022 when this matter is taken up for consideration, this Court passed a detailed order which reads thus;

WP(C)No.3040 of 2024

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"The petitioner has filed this writ petition, seeking a writ of mandamus commanding the 1st respondent to take appropriate action for constituting a special land conservancy unit at the office of the Malabar Devaswom Board as requested in Ext.P3, as expeditiously as possible, at any rate, within a time frame to be fixed by this Court and also for a consequential relief.

2. '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]

3. 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.

WP(C)No.3040 of 2024

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4. 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 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.

5. In Mrinalini Padhi v. Union of India [2018 SCC OnLine SC 667] - order dated 05.07.2018 in W.P.(C)No.649 of 2018 - the Apex Court noticed that the issue of difficulties faced by the visitors, exploitative practices, deficiencies in the management, maintenance of hygiene, proper utilisation of offerings and protection of assets may require consideration with regard to all Shrines throughout the India, irrespective of religion practiced in such shrines. It cannot be disputed that this aspect is covered by List III Item 28 of the Seventh Schedule to the Constitution of India and there is need to look into this aspect by the Central Government, apart from State WP(C)No.3040 of 2024 ..9..

Governments. Section 92 of the Code of Civil Procedure, 1908 permits a court also to issue direction for making a scheme or making an arrangement for any charitable or religious institution. Accordingly, the Apex Court directed that, if any devotee moves the jurisdictional District Judge throughout the India with any grievance on the above aspect, the District Judge may either himself/herself or by assigning the issue/ matter to any other court under his/her jurisdiction examine above aspects and if necessary send a report to the High Court. The High Court will consider these aspects in public interest, in accordance with law, and issue such judicial directions as becomes necessary having regard to individual fact situation.

6. 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 involvement of the Devaswom, securing 'pattayam' or such other deeds, the same cannot confer 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.

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7. In A.A. Gopalakrishnan v. Secretary, Cochin Devaswom Board [2018 (3) KHC 549] a Division Bench of this Court found that the task undertaken by the complainant to ensure that the property of the Devaswom is protected and preserved has ultimately brought out the plain truth that the said property was sought to be appropriated by strangers and that the property in Sy.No.1042/2 has been successfully retrieved by the Devaswom, based on the intervention made by this Court and also by the Apex Court [A.A. Gopalakrishnan - (2007) 7 SCC 482]. Proceedings have to be taken to a logical conclusion in respect of the land in Sy.No. 1043 as well. This is more so since in view of the 'parens patriae' jurisdiction being entrusted with the Court in this regard and there is a duty cast upon the Court to take every step to ensure that the property of the deity is protected.

8. The learned Senior Government Pleader seeks a short adjournment to get instructions as to whether steps have already been taken by the State Government to constitute a Special Land Conservancy Unit at the office of the Malabar Devaswom Board, in order to protect Devaswom lands under the control of Malabar Devaswom Board."

4. Heard the learned counsel for the petitioner, learned Government Pleader for respondents 1 and 4 and the learned Standing Counsel for respondents 2 and 3. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the 1st respondent State to take an appropriate decision on Ext.P3 representation made by the petitioner, taking note of the law laid down in the decisions referred to in the order of this Court dated 12.10.2022, as expeditiously as WP(C)No.3040 of 2024 ..11..

possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment, after affording the petitioner an opportunity of being heard.'

8. As already noticed hereinbefore, a hearing has already been conducted on Ext.P3 representation made by the petitioner. The 1st respondent State requires some more time to take an appropriate decision on the request made in that representation. For that purpose, an application for extension of time is filed in W.P.(C) No.27230 of 2015, as I.A.No.1 of 2024.

9. Considering the fact that, an application for extension is pending in W.P.(C)No.27230 of 2015, we find no reason to proceed with this matter further, especially when the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1st respondent State to complete the proceedings initiated in terms of Ext.P12 judgment in that writ petition, within a time limit.

In such circumstances, this writ petition is closed, taking note of the pendency of the proceedings pursuant to Ext.P13 notice before the 1st respondent State.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

APPENDIX OF WP(C) 3040/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 10-12-1990 IN C.R.P.1561 OF 1990 Exhibit P2 TRUE COPY OF THE CIRCULAR DATED 04-12-1997 ISSUED BY HINDU RELIGIOUS AND CHARITABLE ENDOWMENT (ADMINISTRATION) DEPARTMENT Exhibit P3 TRUE COPY OF THE ABOVE COMMUNICATION DATED NIL, A COPY OF WHICH OBTAINED BY THE PETITIONER UNDER THE PROVISIONS OF THE RIGHT TO INFORMATION ACT, 2005 Exhibit P4 TRUE COPY OF THE LETTER DATED 13-06-2013 ISSUED BY THE 1ST RESPONDENT Exhibit P5 TRUE COPY OF THE RELEVANT PAGES OF THE NOTE FILES CONTAINING PROCEEDINGS NO.B1/15715/2013 OF THE OFFICE OF THE LAND REVENUE COMMISSIONER Exhibit P6 TRUE COPY OF THE COMMUNICATION DATED 12-08- 2013, WHICH WAS OBTAINED UNDER THE PROVISIONS OF THE RIGHT TO INFORMATION ACT, 2005 Exhibit P7 TRUE COPY OF THE LETTER DATED 28-04-2014 Exhibit P8 TRUE COPY OF THE RELEVANT PAGES OF THE NOTE FILE OBTAINED UNDER THE PROVISIONS OF RIGHT TO INFORMATION ACT, 2005 Exhibit P9 TRUE COPY OF THE COMMUNICATION NO.B1/8553/14 DATED 22-05-2014.

Exhibit P10 TRUE COPY OF THE RECOMMENDATION OF THE SUBJECT COMMITTEE OF THE STATE LEGISLATURE DATED 7-7-2014 Exhibit P11 TRUE COPY OF THE INTERIM ORDER DATED 12.10.2022 IN W.P.(C)NO.27230 OF 2015 Exhibit P12 TRUE COPY OF THE JUDGMENT DATED 10.11.2022 IN W.P.(C)NO.27230 OF 2015 Exhibit P13 TRUE COPY OF THE NOTICE NO.DEV.

B1/203/2023/REVENUE DATED 05.10.2023 Exhibit P14 TRUE COPY OF THE E-MAIL SENT BY THE PETITIONER TO THE OFFICE OF THE 1ST RESPONDENT DATED 09.10.2023 Exhibit P15 TRUE COPY OF THE E-MAIL DATED 14.10.2023 SENT BY THE PETITIONER TO THE OFFICE OF THE 1ST RESPONDENT Exhibit P16 TRUE COPY OF THE E-MAIL DATED 16.10.2023 SENT TO THE PETITIONER BY THE OFFICE OF THE 1ST RESPONDENT

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