M.P.Manikantan vs The Malabar Devaswom Board
2021 Latest Caselaw 1759 Ker

W.P(C).1311/2021                          1


               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                   THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

                                      &

                    THE HONOURABLE MR. JUSTICE K.HARIPAL

     MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                          WP(C).No.1311 OF 2021(L)


PETITIONER/S:

        1.         M.P.MANIKANTAN
                   AGED 49 YEARS
                   S/O. RAGHAVA PISHARADI, REGHU NIVAS,
                   THALAYANNAKKAD, KADAMBOOR P.O., OTTAPALAM, PALAKKAD
                   DISTRICT

        2.         BHASKARAN NAIR, S/O.LATE SANKARA PANICKER,
                   AGED 71 YEARS, PULATHARAKALAM, PO, THALAYANNAKKAD,
                   KADAMBOOR PO, OTTAPALAM, PALAKKAD DISTRICT.

                   BY ADVS.
                   SRI.K.MOHANAKANNAN
                   SMT.A.R.PRAVITHA
                   SMT.D.S.THUSHARA
                   SRI.H.PRAVEEN (KOTTARAKARA)
                   SMT.T.V.NEEMA


RESPONDENT/S:

        1          THE MALABAR DEVASWOM BOARD
                   HOUSEFED COMPLEX, MINI BYPASS ROAD, ERANHIPALAM,
                   KOZHIKODE,KERALA-673 006, REPRESENTED BY ITS
                   SECRETARY

        2          THE COMMISSIONER,
                   MALABAR DEVASWOM BOARD, ERAHNIPALAM, HOUSEFED
                   COMPLEX, MINI BYPASS ROAD, ERANHIPALAM,
                   KOZHIKODE,KERALA-673 006

        3          THE ASSISTANT COMMISSIONER,
                   MALABAR DEVASWOM BOARD, PALAKKAD-678 013
 W.P(C).1311/2021                        2



        4          THE EXECUTIVE OFFICER,
                   THALAYANNAKKAD SIVA TEMPLE, THALAYANAKKAD ,
                   KADAMBOOR P.O., OTTAPALAM, PALAKKAD
                   DISTRICT-678 714

                   SRI.R. LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(C).1311/2021                          3




                                 JUDGMENT

Haripal, J.

Claiming themselves as devotees of Sree Thalayannakkad

Siva Temple in Ottappalam of Palakkad district, which is under the

control of the Malabar Devaswom Board, the petitioners have

approached this Court under Article 226 of the Constitution of India

seeking the following reliefs:-

"i). To issue a writ of mandamus or any other appropriate writ or order or direction directing respondents 2 and 3 to ensure that Exts.P3 and P4 reports are implemented in its letter and spirit and the unauthorised usage of the temple property is prevented forthwith by the 4th respondent;

ii) To issue a writ of mandamus or any other appropriate writ or order or direction directing the 4 th respondent to ensure that the temple property is protected as mentioned by the Assistant Commissioner in Ext.P3 and P4 reports and also preventing vehicles by the public for transportation of materials;

iii) To issue a writ of mandamus or any other appropriate writ or order or direction directing respondents 1 to 4 to ensure that the temple and property covered by Ext.P1 is protected and that there is no encroachment or trespass to the property by strangers within a time frame to be fixed by this Hon'ble Court."

2. According to the petitioners, the temple has 32.80 Ares

of land in R.Sy.No.8/3&7, which stands enclosed, and there is a gate

at the entrance. When the western side of the temple property was

attempted to be used for taking vehicles by private persons through

the temple property and the gate, the first petitioner approached

respondents 2 and 3 by filing Ext.P2 representation on 07.09.2020.

Pursuant to the representation, the 3rd respondent issued a

communication on 22.09.2020, which is produced and marked as

Ext.P3. The 3rd respondent had also sent the Ext.P4 report to the 2nd

respondent. The grievance of the petitioners is that some

neighbouring property owners are taking vehicles through the

temple property and also transporting building materials in

connection with the construction of a building. If that is permitted,

in course of time, the portion of the property may become a public

way. Hence they have approached this Court with the above

mentioned prayers.

3. Heard the learned counsel for the petitioners and also

the learned standing counsel for the Malabar Devaswom Board.

4. The learned standing counsel has brought to our notice a

communication sent by the 2nd respondent to the 4th respondent

dated 16.01.2021. This communication was issued, evidently,

basing on the Ext.P4 report of the 3rd respondent.

5. It is certain that the temple property remains properly

enclosed with a gate at the entry point. A gate is a contrivance which

restricts entry. The fact that there is a gate itself is an indication that

the owner of the property has intended to regulate entry. The

grievance of the petitioners is that some neighbouring land owners

are taking vehicles through the gate and also transporting building

materials through the property. From Ext.P4, it is certain that

building materials are allowed to be taken through the property on

the basis of the permission granted by the 3 rd respondent. No doubt,

a pathway passing through the temple property is being used by the

neighbouring land owners. The 4th respondent had permitted

transport of building materials through vehicles through the

property. The apprehension of the petitioners is that if the property

of the temple is permitted to be used for passage of vehicles and

also for transporting materials, that may ultimately result in

transforming the property into a public way. Now the 2 nd

respondent has directed the 4th respondent for taking necessary steps

for protecting the temple property and to prohibit the use of the

property for transport of vehicles. We record the submission. In the

light of the order dated 16.01.2021 issued by the 2 nd respondent, no

doubt, the 4th respondent will take appropriate steps for abating any

act that would render the temple property used as a public way for

passage of vehicles.

Recording the said submission the writ petition is disposed of.

Sd/-

C.T. RAVIKUMAR JUDGE

Sd/-

K.HARIPAL JUDGE

okb/18/01/2021 //True copy// P.S. to Judge

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGE OF THE BASIC TAX REGISTER

EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DT.7.9.2020

EXHIBIT P3 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT DATED 22.09.2020

EXHIBIT P4 TRUE COPY OF THE REPORT DATED 3.12.2020 FORWARDED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT WITHOUT ENCLOSURE