Madhu T. K vs The State Of Kerala
2021 Latest Caselaw 5000 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR.JUSTICE N.NAGARESH

    THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942

                       WP(C).No.3648 OF 2020(E)


PETITIONER:

               MADHU T. K.,
               AGED 48 YEARS,
               S/O. THANKAPPAN,
               RESIDING AT DEVI DARSHAN,
               NANGARATHALAMELE,
               ATHIYANNUR, NEYYATTINKARA.

               BY ADVS.
               SHRI.V.S.BABU GIREESAN
               SMT.K.PREETHA JOHN
               SHRI.R.SREEKANTAN NAIR

RESPONDENTS:

      1        THE STATE OF KERALA,
               REPRESENTED BY THE CHIEF SECRETARY,
               SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

      2        THE DISTRICT COLLECTOR,
               THIRUVANANTHAPURAM, KUDAPPANAKKUNNU,
               THIRUVANANTHAPURAM-695001.

      3        THE SUB DIVISIONAL MAGISTRATE,
               THIRUVANANTHAPURAM, KUDAPPANAKKUNNU,
               THIRUVANANTHAPURAM-695001.

     *4        K. SUSEELAN
               S/O. KUTTAN PANICKER,
               MANNAM VILAKATHU VEEDU,
               THIRUPURATHOOR DESOM,
               THIRUPURAM VILLAGE,
               NEYYATTINKARA-695014 (REMOVED)

     *5        M. KUNJIKRISHNAN,
               S/O. MADHAVAN, VADAKKE KUZHIVILA VEEDU,
               THIRUPURATHOOR DESOM,
               THIRUPURAM VILLAGE,
               NEYYATTINKARA-695014 (REMOVED).

     *6        S. BHASKARAN,
               S/O. SANKARAN,
 WP(C).No.3648/2020(E)

                               2

             THAZHE MULLARATHANATHU VEEDU,
             ATHIYANNOOR VILLAGE,
             NEYYATTINKARA-695014 (REMOVED).

      7      S. KRISHNANKUTTY,
             S/O. SANKARAN,
             THAZHE MULLARATHANATHU VEEDU,
             OF .DO. .DO. 695014.

     *8      N. REMESAN,
             S/O. NARAYANAN,
             MARY VILASOM BUNGALOW,
             THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE,
             NEYYATTINKARA-695014.(REMOVED)

     *9      C. PADMANABHA PILLAI,
             S/O. CHELLAPPAN PILLAI,
             MANNANVILAKATHU VEEDU,
             OF .DO. .DO. 695014 (REMOVED).

     *10     K. KUTTAN PANICKER,
             S/O. KUMARU PANICKER,
             ATHAZHAMANGALATHU SANTHA BHAVAN,
             OF .DO. .DO. 695014 (REMOVED).

      11     A. MADHAVAN,
             S/O. ANTHONI, MELE VANIKUZHI VEEDU,
             THIRUPURATHOOR DESOM,
             THIRUPURAM VILLAGE, NEYYATTINKARA -695014.

     *12     S. SAHADEVAN,
             S/O. SANKARAN, VALIYAVEETTU VILAKETHU VEEDU,
             THIRUPURATHOOR DESOM,
             THIRUPURAM VILLAGE-695014 (REMOVED).

      13     T. K. VIJAYAN,
             S/O. THANKAPPAN, MELE PONGUVILA VEEDU,
             NANGARATHALA, VENPAKAL DESOM,
             ATHIYANNOOR VILLAGE-695014.

      14     THAMARAKSHY,
             D/O. GOURI, KODIVILAKATHU VEEDU,
             HAVING NEEROTTUKARA VEEDU,
             THIRUPURAM DESOM-695014.
 WP(C).No.3648/2020(E)

                                   3

        *15   K.AMBUJAKSHY,
              D/O.KARTHIYAYANI, ERUVILAKATHU VEEDU,
              OF .DO. 695014. (REMOVED)

              *(RESPONDENTS R4,R5,R6,R8,R9,R10,R12 AND R15 ARE
              REMOVED FROM PARTY ARRAY AT THE RISK OF THE
              PETITIONER AS PER ORDER DATED 07.10.2020 IN IA
              NO.6/2020 IN WP(C)3648/2020).

        16    R.CHANDRASEKHARAN,
              S/O.RAGHAVAN,
              OF .DO. DO. 695014

ADDL.   17    SASIDHARAN,
              S/O OF MRUTHYUNJAYAN,
              AGED 72 YEARS,
              MEKKE KUZHIVALA VEEDU, THIRUPURAM DESOM,
              NEYYATTINKARA, NOW RESIDING AT FLAT NO.104,
              JOURNALIST ROAD, NCC NAGAR,
              PEROORKADA, THIRUVANANTHAPURAM.

ADDL.   18    T.K.THANKAPPAN NAIR,
              S/O.TANU PILLAI, PULIMMODU VEEDU,
              THIRUPRAM DESAM, NEYYATTINKARA

              (ADDITIONAL R17 AND R18 ARE IMPLEADED AS PER ORDER
              DATED 11.02.2021 IN I.A.NO.2 OF 2020).

              R13 BY ADV. SRI.P.GOPAL
              R13 BY ADV. SRI.B.MURALEEDHARAN
              R16 BY ADV. SRI.G.S.REGHUNATH
              ADDL. R17 & 18 BY ADV. GOVIND PADMANABHAN
              R1-3 BY GOVERNMENT PLEADER SMT. DEEPA NARAYANAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.3648/2020(E)

                                     4




                              JUDGMENT

Dated this the 11th day of February, 2021

This writ petition has been filed seeking for a

direction to allow Ext.P7, respecting Ext.P5 judgment.

2. Ext.P7 is a petition filed by the writ petitioner and

others addressed to the Executive Magistrate,

Thiruvananthapuram seeking to give direction to the

respondents therein, to hand over the key of the

Iruvaikkonam Bhagavathy Temple to the public immediately

as per the decision in Second Appeal No.631 of 2001 of this

Court.

3. There were some disputes relating to

administration of Iruvaikkonam Bhagavathy Temple, at

Thirupuram Village, Neyyattinkara. Members of Neerottukara

veedu filed O.S.No.114 of 1983 for declaration of their rights

over the Temple and its property. The suit was decreed in WP(C).No.3648/2020(E)

their favour. A few of the defendants in the suit filed A.S.

No.186 of 1995, which was dismissed. However in the

Second Appeal, this Court reversed the judgment of the

Courts below. It is submitted that a Special Leave Petition

SLP No.6815 of 2020 is pending before the Hon'ble Apex

Court.

4. The learned counsel for the petitioner stated that

this Court in Ext.P5 judgment held that the temple in question

was managed by Kshethra Yogam, through its elected

committee atleast from the year 1967 onwards. This Court in

Ext.P5 judgment further held that the temple in question

managed by a section of people represented the deity and

thereby acquired the character of a public temple under the

authority of the public. Accordingly, the suit filed by the

plaintiffs were dismissed.

5. The learned counsel for the petitioner contended

that since the suit has been dismissed and this Court

categorically found that it is a temple belonging to public, WP(C).No.3648/2020(E)

necessarily the administration of the temple should be

handed over to the public. The petitioner and about 200

others filed Ext.P7 representation before the Executive

Magistrate, Thiruvananthapuram seeking to take necessary

steps to hand over the keys to the public.

6. The 13th respondent opposed the writ petition. The

learned counsel for the 13th respondent submitted that they

represented 'Iruvaikkonam Bhagavathy Kshethra Yogam

Trust' and petitioner is a person who does not have any role

in the administration of the temple. On the other hand, the

counsel for the petitioner would contend that the petitioner

represent 'Iruvaikkonam Kshethra Yogam Committee', which

alone is eligible and entitled to administer the temple.

7. The learned counsel representing R14 to R17 on

the other hand would argue that they have already preferred

a Special Leave Petition before the Hon'ble Apex Court

against Ext.P5 judgment of this Court and the matter is

pending. The learned counsel for R14 to R17 would further WP(C).No.3648/2020(E)

argue that this writ petition itself is not maintainable and if the

petitioner wants administration of temple to be handed over to

Iruvaikkonam Kshethra Yogam committee, then the petitioner

should resort to appropriate civil proceedings. Jurisdiction of

this Court under Article 226 of the Constitution of India cannot

be invoked to decide the issue.

8. The learned counsel for the additional respondents

17 and 18 contended that they are the President and

Assistant Secretary of the Committee now functioning. The

relief sought in the writ petition is to give life to Ext.P5

judgment of this Court in S.A. No.631/2001 in the broad

interest of the society.

9. I have heard the learned counsel for the petitioner

and the learned Government Pleader representing the

respondents 1 to 3, the learned counsel appearing for the 13 th

respondent and the learned counsel appearing for the

additional 17th and 18th respondents.

10. It is true that this Court has held in Ext.P5 WP(C).No.3648/2020(E)

judgment, that the temple in question has attained the

character of a public trust and the plaintiffs in the O.S. cannot

seek a claim for exclusive administration of the temple.

Therefore there is no doubt that the plaintiffs in the suit

cannot claim a right over the administration. But the issue

involved in this writ petition is, which is the administrative

body entitled to administrate the temple. The petitioner would

submit that it is 'Iruvaikkonam Kshethra Yogam Committee' of

which the petitioner is the Secretary since 2017, which is

entitled to administer committee. On the other hand, the

counsel for the 13th respondent would submit that

'Iruvaikkonam Bhagavathy Kshethra Yogam Trust' of which

the 13th respondent is the Secretary, is entitled to administer

the temple.

11. This is a disputed question of fact which this Court

cannot go into and decide in exercise of the powers under

Article 226 of the Constitution of India. If the petitioner and

the 13th respondent have any dispute regarding the authority WP(C).No.3648/2020(E)

of a committee to administer the temple, it is open to them to

resort to appropriate civil proceedings.

12. The learned counsel for the 13 th respondent would

submit that Ext.R13(a) is the trust deed, the validity of which

has been upheld in Ext.P5 judgment. Therefore the selection

of the committee should be governed by Ext.R13(b). This

Court does not deem it appropriate to enter into any finding in

that regard in this writ petition.

13. The contention of the learned counsel for the

petitioner is that the Sub Divisional Magistrate has ample

power under Section 145 of the Criminal Procedure Code to

interfere in the matter and give appropriate directions to hand

over the administration of the temple to the petitioner,

especially when there is likelihood of law and order problem

in the area relating to the administration of the temple and

conduct of festivals.

14. However, I find that invoking the power under

Article 226 of the Constitution of India, this Court cannot WP(C).No.3648/2020(E)

direct the Sub Divisional Magistrate to put any party to the

dispute into possession of any property. This view is

supported by the judgment of the Hon'ble Apex Court

reported in Bhinka & Others v. Charan Singh [AIR 1959 SC

960]. In the circumstances, this Court cannot direct the Sub

Divisional Magistrate to consider Ext.P5 representation in

which the prayer of the petitioner is to hand over the keys of

the temple.

15. The learned Government Pleader on the basis of

the report received from the Station House Officer and the

Sub Divisional Magistrate would submit that there is likelihood

of law and order issues relating to the temple activities and

the State should be permitted to deal with such situation. The

State Government can indeed exercise its executive powers

in case there are law and order problems and State will be at

liberty to take such action as is permissible under law.

Parties to the writ petition will be at liberty to bring to the

notice of the State if there is likelihood of such law and order WP(C).No.3648/2020(E)

problem.

In the circumstances, no relief can be granted to

the petitioner in this writ petition. The writ petition therefore

stands disposed of with the above observations.

Sd/-

N. NAGARESH JUDGE SR WP(C).No.3648/2020(E)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 COPY OF THE SKETCH PREPARED BY THE SURVEY AUTHORITY SHOWING THE LOCATION OF THE TEMPLE PROPERTY.

EXHIBIT P2 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

EXHIBIT P2(A) TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

   EXHIBIT P3           TRUE COPY OF THE INTERIM ORDER PASSED
                        BY     THIS    HON'BLE     COURT   IN

I.A.NO.339/2008 DATED 11.04.2008.

   EXHIBIT P3(A)        TRUE COPY OF THE INTERIM ORDER PASSED
                        BY     THIS    HON'BLE     COURT   IN

I.A.NO.210/2008 DATED 19.02.2010.

EXHIBIT P4 TRUE COPY OF THE REPORT OF THE LOCAL POLICE SUBMITTED BEFORE THE 2ND RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 12.11.2019.

EXHIBIT P6 TRUE COPY OF THE MINUTES DATED 19.01.2020.

EXHIBIT P7 TRUE COPY OF THE APPLICATION WITH THE ENDORSEMENT OF THE 2ND RESPONDENT.

   EXHIBIT P8           TRUE COPY OF THE CHART.

   EXHIBIT P9           COPY OF THE ORDER DATED 18.07.2019 IN

I.A.No.10 AND 12 OF 2019 IN S.A.No.631 OF 2001 OF THE HON'BLE HIGH COURT OF KERALA

EXHIBIT P10 COPY OF THE MINUTES DATED 21.09.2014 OF THE GENERAL BODY WP(C).No.3648/2020(E)

EXHIBIT P11 COPY OF THE PASSBOOK OF THE VENPAKAL SERVICE CO-OPERATIVE BANK

EXHIBIT P12 COPY OF THE LIST OF VALUABLES OF THE TEMPLE PREPARED ON 21.09.2014

EXHIBIT P13 COPY OF THE REPORT OF DEPOSIT OF GOLD ORNAMENTS OF THE TEMPLE IN THE BANK

EXHIBIT P14 COPY OF RECEIPTS SHOWING PAYMENT DATED 31.08.2014, 13.09.2015, 23.10.2015

EXHIBIT P15 COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 28.03.2017 AND 15.05.2017

EXHIBIT P16 COPY OF THE BASIC TAX RECEIPTS FROM 2014 TO 2020

EXHIBIT P17 COPY OF THE RECEIPTS OF PAYMENT OF ELECTRICITY BILLS

EXHIBIT P18 COPY OF THE ORDER IN S.A.NO.631 OF 2001 DATED 18.07.2019.

EXHIBIT P19 COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P20 COPY OF THE MINUTES OF THE MEETING OF A COMMITTEE DATED 28.02.2016.

EXHIBIT P20(A) COPY OF THE MINUTES OF THE MEETING OF A COMMITTEE DATED 20.03.2016.

RESPONDENTS' EXHIBITS:

EXHIBIT R13(A) TRUE COPY OF THE TRUST DEED NO.110/1982 DATED 14.10.1982 OF THE BALARAMAPURAM SUB REGISTRY.

EXHIBIT R13(B) TRUE COPY OF THE NIYAMAVALI OF ERUVAI BHAGAVATHI KSHETHRA YOGAM TRUST.

WP(C).No.3648/2020(E)

EXHIBIT R17 COPY OF THE MINUTES OF THE COMMITTEE DATED 17.03.2020.

EXHIBIT R17(A) COPY OF THE MINUTES OF THE COMMITTEE DATED 22.03.2020.

EXHIBIT R17(B) COPY OF THE MINUTES OF THE COMMITTEE DATED 09.05.2020.

   SR                    //TRUE COPY//            PA TO JUDGE