Kerala High Court
Devi S.Menon vs State Of Kerala on 7 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
W.P.(C)NO.10766 OF 2018
PETITIONER/S:
DEVI S. MENON,
83 YEARS,
D/O.LAKSHMIKUTTY AMMA,
AYYAMPILLY HOUSE, PADINJARE NADA,
IRINJALAKUDA, THRISSUR DISTRICT.
BY ADV. SRI.V.M.KRISHNAKUMAR
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, DEVASWOM DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.
2 SREE KOODALMANIKYAM DEVASWOM,
REP. BY ITS ADMINISTRATOR,
OFFICE OF SREE KOODALMANIKYAM DEVASWOM,
IRINJALAKUDA, THRISSUR DISTRICT, PIN-680121.
3 ADMINISTRATOR,
SREE KOODALMANIKYAM DEVASWOM,
OFFICE OF SREE KOODALMANIKYAM DEVASWOM,
IRINJALAKUDA, THRISSUR DISTRICT, PIN-680121.
4 COMMISSIONER OF DEVASWOMS
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.
OTHER PRESENT:
SRI S. RAJMOHAN, SR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)NO.10766 OF 2018
2
"CR"
JUDGMENT
Anil K. Narendran, J.
The petitioner, a devotee of Sangameswara Swami of
Sree Koodalmanikyam Temple, Irinjalakuda, who owns land
comprised in Survey No.657/1 of Manavalassery Village with a
residential building situated therein, has filed this writ petition
under Article 226 of the Constitution of India, seeking a writ of
mandamus commanding the 1st respondent State and the 2nd
respondent Koodalmanikyam Devaswom to consider Ext.P2
representation dated 03.03.2015 and Ext.P3 representation
dated 17.10.2016, within a time limit to be fixed by this Court,
after affording her an opportunity of being heard. The
petitioner has also sought for a writ of certiorari to quash
Ext.P5 communication dated 05.12.2017 of the 3rd respondent
Administrator, Koodalmanikyam Devaswom, whereby she is
required to remove the encroachments on 5 cents of
Devaswom land comprised in Survey No.658/1 & 2 of
Manavalassery Village, within a period of one week, and give
vacant possession to Koodalmanikyam Devaswom, failing
which legal proceedings will be initiated against her.
W.P.(C)NO.10766 OF 2018
2. In Ext.P5, the 3rd respondent has pointed out that
the 2nd respondent Devaswom had initiated proceedings
against the petitioner, requiring her to remove the
encroachments in the aforesaid land and give vacant
possession. The petitioner challenged those proceedings by
filing O.S.No.547 of 2008 before the Munsiff Court,
Irinjalakuda, which has already been withdrawn. The
petitioner was informed vide Ext.P4 reply dated 10.11.2016 of
the 3rd respondent that, Devaswom land having an extent of 5
cents comprised in Survey No.658/1 & 2 of Manavalassery
Village cannot be assigned to her, in view of the provisions
under the Koodalmanikyam Devaswom Act, 2005, as sought
for in the representations already submitted.
3. On 27.03.2018, when this writ petition came up for
admission, the learned Standing Counsel for Koodalmanikyam
Devaswom sought time to get instructions from respondents 2
and 3. On 13.04.2018, while granting time to the learned
Standing Counsel for Devaswom to file statement, this Court
has passed an interim order to maintain status quo. The said
interim order, which was extended from time to time, is still in
W.P.(C)NO.10766 OF 2018
force.
4. On 19.03.2021 the petitioner filed I.A.No.1 of 2021,
seeking an order directing the 1 st respondent State to consider
Ext.P2 representation dated 03.03.2015, wherein a request
has been made to assign Devaswom land having an extent of
5 cents comprised in Survey No.658/1 & 2 of Manavalassery
Village, on payment of the land value to be fixed by the 1st
respondent State.
5. On 28.06.2021, when this writ petition came up for
consideration, this Court passed the following order;
"The recitals in Ext.P2 would reveal that the petitioner
herself would admit the fact that she is not having title
over the property. Earlier, O.S.No.547 of 2008 was
instituted by her before the Munsiff Court, Irinjalakuda
against Koodalmanikyam Devaswom. Ext.P2 would
reveal that subsequently it was withdrawn. That apart,
Ext.P2 would also reveal that the intention of the
petitioner is to purchase the property in question. We are
at loss to understand how the petitioner can claim an
absolute right to purchase the property, especially when
the property belongs to a Devaswom and going by the
legal position, the Devaswom is only a trustee of the
property of the deity concerned, who is a perpetual
minor. Though in Ext.P2 the petitioner discloses the
factum of institution of an original suit and the
W.P.(C)NO.10766 OF 2018
subsequent withdrawal of the same, the reason therefor,
is not very clear from Ext.P2. In the said circumstances,
the petitioner shall disclose such aspects by filing an
additional affidavit. The question of extension of the
order initially granted on 13.04.2018 and extended from
time would be decided then. However, taking note of the
fact that an interim order was passed on 13.04.2018 and
it is still in force till today, we are extending the interim
order passed on 13.04.2018 till 14.07.2021."
(underline supplied)
Thereafter, the interim order was extended further on
13.07.2021, 19.07.2021, 05.08.2021 and 13.08.2021.
6. On 06.07.2021, the petitioner has filed I.A.No.2 of
2021 producing therewith Ext.P6 order of the Principal Munsiff
Court, Irinjalakuda, in I.A.No.1225 of 2013 in O.S.No.547 of
2008, whereby she was permitted to withdraw that suit with
liberty to file fresh suit on the same cause of action. It is
averred in paragraph 3 of the affidavit filed before this Court,
in support of I.A.No.2 of 2021, that the petitioner had earlier
filed O.S.No.547 of 2008 before the Munsiff Court,
Irinjalakuda, which was subsequently withdrawn. However,
despite the direction contained in the order of this Court dated
28.06.2021, the petitioner has not disclosed in the said
affidavit, the reason for withdrawing O.S.No.547 of 2008.
W.P.(C)NO.10766 OF 2018
7. Heard the learned counsel for the petitioner, the
learned Senior Government Pleader for the 1 st respondent
State and the learned Standing Counsel for Koodalmanikyam
Devaswom, for respondents 2 to 4.
8. The petitioner owns land comprised in Survey
No.657/1 of Manavalassery Village with a residential building
situated therein. By Ext.P5 communication dated 05.12.2017
of the 3rd respondent Administrator, which is under challenge
in this writ petition, the petitioner is required to remove the
encroachments on 5 cents of Devaswom land comprised in
Survey No.658/1 & 2 of Manavalassery Village, within a period
of one week, and give vacant possession to Koodalmanikyam
Devaswom, failing which legal proceedings will be initiated
against her.
9. In the year 2008, the petitioner challenged the
proceedings initiated by Koodalmanikyam Devaswom,
requiring her to remove the encroachments in the Devaswom
land comprised in Survey No.658/1 & 2 of Manavalassery
Village, by filing O.S.No.547 of 2008 before the Munsiff Court,
Irinjalakuda. By Ext.P6 order of the Principal Munsiff Court,
W.P.(C)NO.10766 OF 2018
Irinjalakuda, dated 06.06.2013 in I.A.No.1225 of 2013, the
petitioner was permitted to withdraw O.S.No.547 of 2008,
with liberty to file fresh suit on the same cause of action.
10. The recitals in Ext.P2 representation made by the
petitioner (paragraphs 4 and 5) would show that, in the
survey conducted in the year 2005 it was found that she is in
possession of 5 cents of Devaswom land comprised in Survey
No.658/1 & 2 of Manavalassery Village and accordingly, she
was issued with a notice. On receipt of that notice, she filed
O.S.No.547 of 2008 before the Munsiff Court, Irinjalakuda,
contending that, the measurement of Devaswom property was
not properly done in the survey already conducted. During the
pendency of that suit, the property was again measured, as
directed by the Munsiff Court and it was found that she is in
possession of the aforesaid Devaswom land having an extent
of 5 cents. Therefore, the petitioner sought permission of the
Munsiff Court to withdraw O.S.No.547 of 2008 and accordingly
that suit was dismissed as withdrawn, by the order dated
06.06.2013, with liberty to file fresh suit on the same cause of
action. As already noticed, despite the direction contained in
the order of this Court dated 28.06.2021, the petitioner has
W.P.(C)NO.10766 OF 2018
not disclosed in the affidavit filed before this Court in support
of I.A.No.2 of 2021, the reason for withdrawing O.S.No.547 of
2008.
11. The recitals in Ext.P2 representation and also the
averments in this writ petition would show that, the petitioner
who owns land comprised in Survey No.657/1 of
Manavalassery Village with a residential building situated
therein, is in possession of 5 cents of Devaswom land
comprised in Survey No.658/1 & 2 of Manavalassery Village.
After the dismissal of O.S.No.547 of 2008, the petitioner
submitted Exts.P2 and P3 representations, with an intention to
purchase the said Devaswom land having an extent of 5 cents,
on payment of the land value to be fixed by the 1 st respondent
State.
12. Section 11 of Koodalmanikyam Devaswom Act,
2005 deals with alienation of Devaswom properties. As per
sub-section (1) of Section 11, no movable property of non-
perishable nature which is in the possession of the Committee
and the value of which is more than five thousand rupees and
no jewellery shall be sold, pledged or otherwise alienated
unless it is sanctioned by the Commissioner as being
W.P.(C)NO.10766 OF 2018
necessary or beneficial to the Devaswom. As per sub-section
(2) of Section 11, any exchange, sale, mortgage or lease of
any immovable property belonging to, given or endowed for
the purposes of the Devaswom shall be null and void unless it
is sanctioned by the Commissioner as being necessary or
beneficial to the Devaswom. As per sub-section (3) of Section
11, before according sanction under sub-section (1) or sub-
section (2), the Commissioner shall publish the particulars
relating to the proposed transaction in such manner as may be
prescribed inviting objections and suggestions with respect
thereto and shall duly consider all objections and suggestions
received from the Committee or other persons having interest
in the Temple.
13. As per sub-section (4) of Section 11 of the Act, the
Commissioner, on according sanction under sub-section (1) or
sub-section (2), may impose such conditions and give such
directions as he may deem necessary regarding the utilization
of the amount raised by the transaction, the investment
thereof, and, in the case of mortgage, regarding the discharge
of the same within a reasonable period. As per sub-section (5)
of Section 11, a copy of the order made by the Commissioner
W.P.(C)NO.10766 OF 2018
under this Section shall be communicated to the Government
and to the Committee and shall be published in such manner
as may be prescribed. As per sub-section (6) of Section 11,
the Committee may, within three months from the date of
receipt of the copy of order, and any person having interest in
the temple, may, within three months from the date of
publication of the order, institute a suit in the court to modify
the order or to set aside it. As per sub-section (7) of Section
11, notwithstanding anything contained in sub-section (1), no
antiquity belonging to the Devaswom shall be sold, pledged or
otherwise alienated. As per Explanation to sub-section (7), for
the purpose of this sub-section 'antiquity' shall have the same
meaning as in the Antiquities and Art Treasures Act, 1972
14. 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, require 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
W.P.(C)NO.10766 OF 2018
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.
15. 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] a
Three-Judge Bench of 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. That was
a case wherein the alleged encroachment of Temple property
was raised in a complaint filed by a devotee. The Division
Bench noticed that 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 Court is the guardian of the deity and
W.P.(C)NO.10766 OF 2018
apart from the revisional jurisdiction under Section 103 of the
Kerala Land Reforms Act, 1963, the 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 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 the proceedings in DBP No.21 of 2009 and the
CRPs filed under Section 103 of the Kerala Land Reforms Act.
16. In the instant case, the property in question, having
an extent of 5 cents, comprised in Survey No.658/1 & 2 of
Manavalassery Village, is Devaswom property. As per Section
2(e) of Koodalmanikyam Devaswom Act, 'Devaswom' means
the Temple, and includes its properties and endowments and
the subordinate temples attached thereto. As per Section 2(i),
'Temple' means Koodalmanikyam Temple at Irinjalakuda. The
property in question having an extent of 5 cents is that of the
deity of Sree Koodalmanikyam Temple, a perpetual minor.
17. The role of Koodalmanikyam Devaswom, its
Managing Committee constituted under Section 3 of the
Koodalmanikyam Devaswom Act and also the Administrator
W.P.(C)NO.10766 OF 2018
appointed under Section 14 of the said Act, is that of a trustee
in management of the properties vested in the deity, a
perpetual minor. The Managing Committee is legally bound to
administer, control and manage Devaswom properties in
accordance with the provisions of the said Act. The
Administrator and also the Commissioner shall function within
the frame work of the statute. They have a duty to safeguard
Devaswom properties from any wrongful claims of ownership
tenancy or adverse possession. They should be vigilant to
prevent any such usurpation or encroachment of Devaswom
properties. Since the deity being a perpetual minor, applying
the doctrine of parens patriae, this Court is having inherent
jurisdiction to protect and safeguard the properties of Sree
Koodalmanikyam Temple from any such wrongful claims or
misappropriation. In view of the provisions under sub-section
(2) of Section 11 of the Act, any exchange, sale, mortgage or
lease of any immovable property belonging to, given or
endowed for the purposes of the Devaswom shall be null and
void unless it is sanctioned by the Commissioner as being
necessary or beneficial to the Devaswom. Therefore, any sale,
exchange or lease of the aforesaid Devaswom land having an
W.P.(C)NO.10766 OF 2018
extent of 5 cents for the beneficial enjoyment of the
petitioner, who owns land comprised in Survey No.657/1 of
Manavalassery Village, is legally impermissible. Therefore, no
interference is warranted on Ext.P5 communication issued by
the 3rd respondent Administrator or any proceedings initiated
by the 2nd respondent Devaswom and its Administrator, in
accordance with law, to remove the encroachments on the
aforesaid Devaswom land having an extent of 5 cents and for
vacant possession of the said land to Koodalmanikyam
Devaswom.
18. Another relief sought for in this writ petition is a
writ of mandamus commanding the 1st respondent State and
the 2nd respondent Koodalmanikyam Devaswom to consider
Ext.P2 representation dated 03.03.2015 and Ext.P3
representation dated 17.10.2016, within a time limit to be
fixed by this Court, after affording her an opportunity of being
heard.
19. In State of U.P. v. Harish Chandra [(1996) 9
SCC 309] the Apex Court held that no mandamus can be
issued to direct the Government to refrain from enforcing the
provisions of law or to do something which is contrary to law.
W.P.(C)NO.10766 OF 2018
In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259] the
Apex Court reiterated that, generally, no Court has
competence to issue a direction contrary to law nor can the
Court direct an authority to act in contravention of the
statutory provisions. The courts are meant to enforce the rule
of law and not to pass the orders or directions which are
contrary to what has been injected by law.
20. As already noticed hereinbefore, the petitioner is in
possession of 5 cents of Devaswom land comprised in Survey
No.658/1 & 2 of Manavalassery Village. In the survey
conducted in the year 2005 and also in the survey conducted
during the pendency of O.S.No.547 of 2008 it was found that
the petitioner is in possession of the said Devaswom land.
After the dismissal of O.S.No.547 of 2008, the petitioner
submitted Exts.P2 and P3 representations, with an intention to
purchase the said Devaswom land, on payment of the land
value to be fixed by the 1st respondent State, for the beneficial
enjoyment of the petitioner, who owns land comprised in
Survey No.657/1 of Manavalassery Village. Since any sale,
exchange or lease of the aforesaid Devaswom land for the
beneficial enjoyment of the petitioner, who owns land
W.P.(C)NO.10766 OF 2018
comprised in Survey No.657/1 of Manavalassery Village, is
legally impermissible, the petitioner cannot seek a writ of
mandamus commanding respondents 1 and 2 for time bound
consideration of the request made in Exts.P2 and P3, since
no mandamus can be issued to direct respondents 1 and 2 to
do something which is contrary to law.
In the result, the petitioner is not entitled to any of the
reliefs sought for in this writ petition. The writ petition fails
and the same is accordingly dismissed. No order as to costs.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
K. BABU, JUDGE
MIN
W.P.(C)NO.10766 OF 2018
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 PHOTOGRAPH SHOWING THE HOUSE IN WHICH
PETITIONER IS RESIDING.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED
03.03.2015 FILED BY THE PETITIONER
BEFORE THE SECRETARY DEVASWOM
DEPARTMENT WITHOUT ANNEXURES.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED
17.10.2016 BEFORE THE DEVASWOM
COMMISSIONER WITH COPY TO CHAIRMAN,
SREE KOODALMANIKYAM DEVASWOM MANAGING
COMMITTEE.
EXHIBIT P4 TRUE COPY OF THE LETTER DATED
10.11.2016 OF THE ADMINISTRATOR TO
DEVASWOM BOARD.
EXHIBIT P5 TRUE COPY OF LETTER OF THE
ADMINISTRATOR DATED 05.12.2017.
EXHIBIT P6 TRUE COPY OF THE ORDER OF THE COURT OF
THE PRINCIPAL MUNSIFF, IRINJALAKUDA IN
I.A.NO.1225/13 IN OS.NO.547/2008 DATED
06.06.2013.
