Kerala High Court
Padmakumar P vs The Secretary on 23 September, 2024
Author: Anil K.Narendran
Bench: Anil K.Narendran
2024:KER:72797
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
MONDAY, THE 23RD DAY OF SEPTEMBER 2024 / 1ST ASWINA, 1946
WP(C) NO. 10862 OF 2022
PETITIONERS:
1 PADMAKUMAR P
AGED 43 YEARS
S/O. UNNIKRISHNAN NAIR, KOTTAYIL, KOTTAPURAM,
PALAKKAD DISTRICT-679 518
2 UMAMAHESH V,
S/O. VISWANATHAN, AGED 38 YEARS, NADUTHODI
(HOUSE), KARIMPUZHA P.O., SREEKRISHNAPURAM,
PALAKKAD DISTRICT, KERALA - 679 513.
BY ADVS.
KRISHNADAS P. NAIR
K.L.SREEKALA
HARIDAS P.NAIR
M.A.VINOD
MANOJ KUMAR N.
VISHNU PRASAD
SHINTO THOMAS
RESPONDENTS:
1 THE SECRETARY
SREEKRISHNAPURAM BLOCK PANCHAYATH,
SREEKRISHNAPURAM, PALAKKAD DISTRICT-679 513
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W.P.(C) No.10862 of 2022
2 THE COMMISSIONER,
MALABAR DEVASWOM BOARD, MALABAR DEVASWOM BOARD
OFFICE, ERANJIPPALAM, KOZHIKODE-673 006
3 THE ASSISTANT COMMISSIONER,
MALABAR DEVASWOM BOARD, THE ASSISTANT
COMMISSIONER OFFICER, PALAKKAD DISTRICT-679 513
4 THE EXECUTIVE OFFICER,
THIRUVILAYANADU BHAGAVATHI TEMPLE, KOTTAPURAM,
SREEKRISHNAPURAM, PALAKKAD DISTRICT-679 513
BY ADVS.
PHILIP T.VARGHESE
R.LAKSHMI NARAYAN
MAHESH V RAMAKRISHNAN
THOMAS T.VARGHESE
ACHU SUBHA ABRAHAM
V.T.LITHA
K.R.MONISHA
SHRUTHI SARA JACOB
ALEX THOMAS
ARJUN RAJA P.C.
SREENATH VIJAYARAGHAVAN
SRI RAJMOHAN S, SR GP
SMT R RANJANIE, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.P.(C) No.10862 of 2022
JUDGMENT
P.G.Ajithkumar, J
The petitioners claim to be devotees of Thiruvilayanadu
Bhagavathi and Sree Puvakkod Mahadeva Temple, Karimpuzha,
Kottapuram. The said temple is a controlled institution under the
Malabar Devaswom Board. The temple owns around 3 Acres of
land comprised in Re-survey No.297/17. There are encroachments
on the property. Respondent Nos.2 to 4 decided to provide a
portion of the said property for the construction of a toilet under
"Take a Break" scheme of the Government. For that purpose, a
portion of the temple premises was handed over to the 1st
respondent. The consent letter issued by the 4th respondent in that
regard is Ext.P1. An agreement in that regard was executed
between the 1st respondent and the 4th respondent on 03.02.2022
which is Ext.P4. An amount of Rs.50,000/- was paid to the 1st
respondent by the 4th respondent in terms of that agreement.
2. It is contended that if the toilet is constructed, the
property of the temple being utilised for the construction would be
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lost forever and members of the general public would always have
access to the temple premises. The devotees protested against it
since the said act would amount to encroachment upon the temple
property and would be against the temple rituals and
practices. Respondents, despite such protest, have been
proceeding with the construction. In the said circumstances, the
petitioners filed the writ petition seeking the following reliefs.
i) Issue a writ of mandamus or other appropriate
writ, order or direction directing the respondents 1 and
4 to call for the records leading to Exhibit P4 and quash
the same;
ii) Issue a writ of mandamus or other appropriate
writ, order or direction directing the respondents 2 to 4
to call for the records leading to Exhibit P1 and Exhibit
P2 and to quash the same;
iii) Issue a writ of mandamus or other appropriate
writ, order or direction directing the respondents 1 to 4
to consider Exhibit P7 and stop the constructions in the
temple properties as per Exhibit P3.
3. Petitioners have filed I.A No.1 of 2022 producing
therewith Ext.P8, I.A No.3 of 2022 producing therewith Ext.P9 and
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I.A. No.5 of 2022 producing therewith Exts.P10 to P13.
4. When this matter came up for consideration on
06.04.2022, this Court, after considering the materials on record
including the photographs of the temple premises and the
construction, ordered the parties to maintain status quo in respect
of the construction in question for a period of one week. The said
interim order has been extended from time to time and is in force.
5. A counter affidavit was filed by the 1st respondent. It
contends that the project for construction of public toilet in the
property of the 4th respondent was taken up as part of the scheme
evolved by the Central and State Governments. As consented by
the 4th respondent only, the project was taken up. It is contended
that by construction of the toilet in the Temple property, the
practices and rituals in the Temple will not be affected. The said
construction will be beneficial to the devotees of the Temple and
would not cause any hardship or inconvenience to them. The
construction will help the Devaswom to save a considerable sum
for, otherwise it has to construct toilets which is absolutely
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necessary for the devotees coming to the Temple. In terms of the
agreement entered in this regard, the basement of the toilet has
already been constructed. This respondent accordingly seeks to
dismiss the petition.
6. The 4th respondent has filed a counter affidavit
producing therewith Ext.R4(a) and R4(b). This respondent
contends that the writ petition is not maintainable since
alternative remedy is available to the petitioner. It is averred that
the construction was permitted as allowed by the Malabar
Devaswom Board and as part of a Government programme,
"Shuchithwa Mithra". The toilet proposed to be constructed will be
beneficial not only to the devotees but also the general
public. The Board of Trustees of the Temple as per Ext.P2
resolved to construct a toilet in the property of the Temple and an
agreement in that regard was executed. Basement for the toilet
had already been constructed. It is further contended that the
construction is on a corner of the vacant space outside the Temple
premises and the same would not in any way affect the functioning
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of the Temple or affect the interest of the devotees. It is thus
contended that the writ petition is not maintainable.
7. The learned Standing Counsel for the Malabar
Devaswom Board filed a statement on behalf of the 2nd respondent
producing therewith Annexure R2(a). The stand taken by the 2 nd
respondent is that the Board took a policy decision to grant
sanction for construction of toilets in the temple compounds under
"Shuchithwa Mithra" scheme in the property outside the temple
compounds by the temple contributing 10% of the estimate
amount, but not exceeding Rs.50,000/-. It has specifically insisted
that such constructions should not affect the rituals and practices
in the Temple. It was in terms of the said general decision,
permission was accorded to the 4th respondent for the construction
of the toilet. This respondent also accordingly contends that this
writ petition is not maintainable.
8. Heard the learned counsel for the petitioners, the
learned Standing Counsel for the 1st respondent, the learned
Standing Counsel for the Malabar Devaswom Board and the
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learned counsel for the 4th respondent.
9. From the pleadings adverted to above, it can be seen
that permission was granted for the construction of a toilet in the
property of the 4th respondent Devaswom on the request of the
1st respondent. Ext.P4 is the agreement in that regard. An amount
of Rs.50,000/- was paid by the 4th respondent as its
contribution. Ext.P2 would show that the Board of Trustees of the
4th respondent took a decision to accord permission for the
construction of the toilet. Annexure R2(a) would show that the
2nd respondent Board has given permission for using the Temple
property for the construction of toilet.
10. The 1st respondent has taken up such a project as part
of a Government scheme. The question is, can the property of the
Temple, ownership of which is vested with the deity, be utilised
for such a public purpose on the premises that the devotees of the
Temple will also be benefitted?
11. The aforementioned question was considered by this
Court in W.P.(C) No.24711 of 2023. Construction of toilets in the
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property of Cherpulassery Sree Ayyappan Kavu, a Temple under
the control of the Malabar Devaswom Board in terms of the same
scheme was in question. This court, after a detailed consideration
of the matter, and also by referring incidentally to the facts and
circumstances of the present case, held as follows:
"16. In M.V. Ramasubbiar v. Manicka Narasimachara
[(1979) 2 SCC 65], in the context of Sections 49, 51 and
52 of the Trusts Act, 1882, the Apex Court explained the
nature of the fiduciary position of the trustee and his duties
and obligations. It is the duty of the trustees of the property
to be faithful to the Trust and execute any document with
reasonable diligence in the manner of an ordinary prudent
man of business would conduct his own affairs. A trustee
could not, therefore, occasion any loss to the Trust and it is
his duty to sell the property if at all that was necessary, to
the best advantage.
17. 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
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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.
18. 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. The
Division Bench further 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 High Court
is the guardian of the deity and apart from the revisional
jurisdiction under Section 103 of the Kerala Land Reforms
Act, 1963, the High Court has inherent jurisdiction and the
doctrine of parens patriae will also apply in exercising the
jurisdiction.
19. Cherpulassery Sree Ayyappan Kavu is a controlled
institution under the Malabar Devaswom Board. In view of the
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law laid down in the decisions referred to supra, it is the duty
of the trustees of Cherpulassery Sree Ayyappan Kavu to be
faithful to the Devaswom and manage, protect and safeguard
the interests and properties of the Devaswom, with
reasonable diligence. The Malabar Devaswom Board and its
officials are duty-bound to exercise their supervisory control
in order to ensure that the interests and properties of the
Devaswom are protected and safeguarded by its trustees and
the employees of the Devaswom. Any act of 'fence eating the
crops' should be dealt with sternly.
20. In T. Krishnakumar v. Cochin Devaswom Board
[(2022) 4 KLT 798] a Division Bench of this Court in which
one among us [Anil K. Narendran, J] was a party held that in
view of the law laid down by this Court in Abu K.S. v.
Travancore Devaswom Board [2022 SCC OnLine Ker
1642: 2022:KER:6409], relying on the decision of the Apex
Court in M.V. Ramasubbiar v. Manicka Narasimachara
[(1979) 2 SCC 65], while leasing out the buildings owned
by the Devaswoms, the Cochin Devaswom Board and its
officials have to ensure that proper income is generated from
the said buildings. In such transactions, the Board and its
officials have to show reasonable diligence in the manner of
an ordinary prudent man of business to conduct his own
affairs. The action of the Board as a trustee cannot be
equated to that of mere landlord. The best interest of the
Devaswoms under the control of the Board would be
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subserved only if income is generated.
21. In T. Krishnakumar [(2022) 4 KLT 798], the
Division Bench noticed that the major source of revenue of
the Cochin Devaswom Board is the income received by way
of offering by the devotees, the amount received from
Vazhipadu and the revenue generated through the auction of
temple premises for various activities in connection with
rituals and festivals in the temples and also the rental income
generated from the buildings owned by the respective
Devaswoms. Therefore, while dealing with the buildings
owned by the Devaswoms, the Cochin Devaswom Board and
its officials have to ensure that proper income is generated
from the said building. In such transactions, the Board and
its officials have to show reasonable diligence in the manner
of an ordinary prudent man of business to conduct his own
affairs, by ensuring that the lease rental or licence fee of the
buildings owned by the Devaswoms is not lower than the
prevailing market rent. The action of the Board in demanding
lease rental or licence fee for the buildings owned by the
Devaswoms taking into consideration the prevailing market
rent cannot be termed as an action of the Board demanding
exhorbitant or rack-rent, since, while leasing out the buildings
owned by the Devaswoms, the Board and its officials have to
ensure that proper income is generated from the said
buildings.
22. In Rajan P.N. and another v. State of Kerala and
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others [2023 SCC OnLine Ker 5089] a Division Bench of
this Court in which one among us [Anil K. Narendran, J] was
a party held that the aforesaid principle in T. Krishnakumar
[(2022) 4 KLT 798] is equally applicable in the case of
properties, including lands owned by the Temples under the
Malabar Devaswom Board.
23. As already noticed in the order dated 14.04.2023, the
permission that was granted by the 2nd respondent
Commissioner, Malabar Devaswom Board, while giving
administrative sanction for constructing a toilet block under
Suchitwa Mission Scheme in the Devaswom land of
Thiruvilayanadu Bhagavathi Temple, which is the subject
matter in W.P.(C)No.10862 of 2022 was for the construction
of a toilet block similar to "Take a Break" under the
Suchithwamithra Programme, for the use of the devotees, at
a proper place in the temple compound. In that permission,
which is extracted hereinbefore at paragraph No.14, it is
made clear that the maintenance of toilet block shall be
without violating the temple custom and practices.
xxxxxxx
25. A reading of the Government order dated 27.07.2020
would make it explicitly clear that the constructions of such
toilet complexes intended for the use of public, giving right to
the Local Self Government Institutions to make provision for
the operation and maintenance of the toilet block by
auctioning that right by way of public auction or entrusting
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the same to Kudumbasree Unit, cannot be permitted in
temples, which are controlled institutions under the Malabar
Devaswom Board. As evident from Ext.P3 photograph the
name of Cherpulassery Municipality is exhibited prominently
in the building, which is legally impermissible in respect of a
building constructed in the Devaswom land."
12. In the light of the above, the conclusion is irresistible
that the permission granted by the 4th respondent to the 1st
respondent to construct a toilet in the Temple property is illegal
and liable to be set aside. Exts.P1, P2 and P4 are accordingly
quashed. The 1st respondent is prohibited from proceeding with
construction of the toilet in the property of the 4th respondent.
Writ petition is allowed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
PV
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APPENDIX OF WP(C) 10862/2022
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE CONSENT LETTER OF
ISSUED BY THE 4TH RESPONDENT TO THE 1ST
RESPONDENT DATED 19.01.2022
Exhibit P2 THE TRUE COPY OF THE LETTER ISSUED BY
THE 4TH RESPONDENT TO THE 1ST RESPONDENT
DATED 03.02.2022
Exhibit P3 THE TRUE COPY OF THE ESTIMATE REPORT OF
THE 1ST RESPONDENT DATED 03.02.2022
Exhibit P4 THE TRUE COPY OF THE AGREEMENT BETWEEN
1ST RESPONDENT AND THE 4TH RESPONDENT
DATED 03.02.2022
Exhibit P5 THE TRUE COPY OF THE RECEIPT DATED
03.02.2022
Exhibit P6 THE TRUE COPY OF THE SKETCH PREPARED BY
THE 1ST RESPONDENT
Exhibit P7 THE TRUE COPY OF THE COMPLAINT FILED BY
THE PETITIONERS AND OTHER DEVOTES TO THE
RESPONDENTS DATED 03.03.2022
Exhibit P9 THE TRUE COPY OF THE PHOTOGRAPHS OF
CONSTRUCTION IN THE 4TH RESPONDENT
TEMPLE UNDER THE RESPONDENTS
Exhibit P10 THE TRUE COPY OF THE CONSENT LETTER
ISSUED TO THE 1ST RESPONDENT BY THE
TRUSTEES DATED 5/2/2022
Exhibit P11 THE TRUE COPY OF THE LETTER ISSUED BY
THE CHAIRMAN, POOVAKKODU MAHADEVA TEMPLE
ADMINISTRATIVE COMMITTEE, KOTTAPPURAM,
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PALAKKAD TO THE 1ST RESPONDENT DATED
7/2/2022
Exhibit P12 THE TRUE COPY OF THE AGREEMENT BETWEEN
1ST RESPONDENT AND THE CHAIRMAN,
POOVAKKODU MAHADEVA TEMPLE
ADMINISTRATIVE COMMITTEE KOTTAPPURAM,
PALAKKAD DISTRICT DATED 7/2/2022
Exhibit P13 THE TRUE COPY OF THE RECEIPT ISSUED BY
THE 1ST RESPONDENT CHAIRMAN, POOVAKKODU
MAHADEVA TEMPLE ADMINISTRATIVE COMMITTEE
KOTTAPPURAM, PALAKKAD DISTRICT DATED
7/2/2022
RESPONDENT EXHIBITS
Exhibit R4(a). True copy of the Letter No.C-76/2021
dated 17-01-2022 issued by the 1st
Respondent to the petitioner.
Exhibit R4(b). True copies of the photographs of the
temple compound.
