MADAYI THIRUVARKATTUKAVU DEVASWAM v. STATE OF KERALA

in the Writ Petition, though not much required for deciding W.P.(C)No.35164 of 2023 7 the issue involved in the Writ Petition.

4. The averment that the petitioner temple own and possess landed properties situated in various resurvey numbers of Madayi Village is incorrect and hence denied. The averment that the landed property on which the sanctum sanctorum of the temple situates is an area having an approximate extent of 300 acres and the same is popularly known as ’Madayippara’ is incorrect and hence denied. There is no such entity known as ’Madayi Thiruvarkattukavu Devaswom’, but it is true that the temple known as ’Madayi Thiruvarkattukavu Temple’ is one among the temples under the Chirakkal Kovilakam Devaswom, of which the petitioner is the Executive Officer respect temple ’Madayi Thiruvarkattukavu Temple’. The management of the immovable properties was confined to the temple site alone, since the deity never owned and possessed any other properties. The properties other than the temple site continued to be in the name of the Valiya Raja of Chirakkal Kovilakam in jenmam right. The Executive Officer of the temple has no authority to sue and be sued on behalf of the temple in respect of properties other than temple site.

5. It is true that there is another temple viz., Sree Vadukunda Shiva Temple and a temple tank also situates in the property. But that temple and tank do not fall under Chirakkal Kovilakam Devaswom, or within the properties claimed by the petitioner. The administration of the said temple is by a different administration and not by the petitioner. The said temple does not come under Chirakkal Kovilakam Devaswom and it is managed by the

6. The Malabar Devaswom Board published a list of W.P.(C)No.35164 of 2023 8 temples falling under the Thalassery Division of the Board, in its website. A true copy of the list of temples falling under the Thalassery Division of the Board, in its website and obtained by the petitioner is produced herewith and marked as Exhibit R9 (a). The Madayi Thiruvarkattukavu Temple is Sl.No.37 in the list in Kannur Taluk. The Vadukunda Shiva Temple is Sl. No.113 in the list in Kannur Taluk. From the is seen that the Madayi Thiruvarkattukavu Temple is classified as a special grade temple and the Vadukunda Shiva Temple is not graded, and it appears to be a private temple. When Exhibit P1 is read along with Exhibit R9(a) it is clear that the Valiya Raja of Chirakkal Kovilakam is the owner of the Devaswom.

7. It is true that the Madayipara consists of ancient monuments like “Joothakkulam", "Square wells" and other wells. Existence of these structures disproves the claim of the petitioner regarding title over the entire 300 acres. Madayi is believed to be one of the oldest Jewish settlements. The procession of the deity during the "Pooram Festival" in the petitioner temple takes place from the temple site through Madayipara-Madayi Kavu Road, accessing the Pazhayangadi-Vengara Road to reach Vadukunda Siva Temple. The averment that the property of the temple comprises of various survey subdivision numbers viz. 9/1, 23/1A2, 30/2A, 37/1, 8/1, 46/1, 21/2A, 108 and 7/1 and some other survey sub-divisions of Madayi Village is incorrect and denied. The property is an ancient property of the Chirakkal Kovilakam family and the deity of the petitioner temple has no ownership or possession over properties except the temple site. W.P.(C)No.35164 of 2023 9

8. It is false to say that the property has been registered in the name of the petitioner temple in the revenue records as evident from the Adangal Register. Exhibit P1 shows that the owner of the properties is Valiya Raja of Chirakkal Kovilakam. Said Valiya Raja of owner of Chirakkal Kovilakam being the owner of the private temple was the owner of the devaswom also. Hence Exhibit P1 could not be read in such a manner, to assume the ownership of the properties on the deity. The averment that petitioner temple has been paying land tax for the entire property regularly is false and denied. The payment of basic tax by the Executive Officer is only in the capacity of a manger and it could not be considered as payment on behalf of the petitioner, since the owner is the Valiya Raja of Chirakkal Kovilakam as per Exhibit P1. Exhibit P3 judgement is not one in rem and it could not be treated as a decision on the title and possession of the properties by the petitioner.

9. The road shown in Exhibit P4 and P14 photographs is vested with the Government of Kerala, Public Works Department. The said road is not seen in the asset register of the 9th respondent. The incidents stated in paragraphs No.7 to 9 of the Writ Petition were not brought to the notice of the 9th respondent. It is true that the 9th respondent has not issued any license to anybody for erecting or conducting any kiosk either on the roadside or in the properties allegedly belonging to the petitioner.

10. The petitioner stated in the ground No.D that the Devaswom property is having iron fence, which was dismantled by some unauthorized vendors. The petitioner had never approached this respondent for building permit W.P.(C)No.35164 of 2023 10 to erect such iron fence abutting the PWD road and this respondent has not granted any such permit as per the prevailing Kerala Panchayat Building Rules. If any application for building permit is received in this regard, it will be considered in accordance with law. Similarly the hawkers’ kiosks seen in Exhibit P14 photographs are also unauthorized and the 9th respondent Panchayat has not granted any license. From the above Writ Petition, I got the notice of functioning unauthorized vendors on the side of the public road, action has been taken to remove the unauthorized vendors and their kiosks and notices have been issued to the occupants individually, after identifying them. A true copy of the notice dated 10.11.2023 issued by the 9th respondent on 15.11.2023 to Gangadharan is produced herewith and marked as Exhibit R9(b). A true copy of the notice dated 14.11.2023 issued by the 9th respondent to M.Koman is produced herewith and marked as Exhibit R9(c). A true copy of the notice dated

16.11.2023 issued by the 9th respondent to Mariyam. U is produced herewith and marked as Exhibit R9(d). A true copy of the notice dated 16.11.2023 issued by the 9th respondent to Mohammed Shareef is produced herewith and marked as Exhibit R9(e). A true copy of the notice dated 10.11.2023 issued by the 9th respondent to Radha. K is produced herewith and marked as Exhibit R9(f). A true copy of the notice dated 16.11.2023 issued by the 9th respondent to Sajina.A.V is produced herewith and marked as Exhibit R9(g). A true copy of the notice dated

10.11.2023 issued by the 9th respondent to Sukumaran.T is produced herewith and marked as Exhibit R9(h). A true copy of the notice dated 16.11.2023 issued by the 9th W.P.(C)No.35164 of 2023 11 respondent to Sunil.K is produced herewith and marked as Exhibit R9(i). A true copy of the notice dated 10.11.2023 issued by the 9th respondent to Surendran.T.V is produced herewith and marked as Exhibit R9(j). A true copy of the notice dated 16.11.2023 issued by the 9th respondent to Unni is produced herewith and marked as Exhibit R9(k).

11. From the report submitted by the 5th respondent it is understood that at present there is no dumping of waste in the surrounding area of the PWD road. This respondent visited the site on 10.11.2023 and confirmed the same. Any application for hawker’s license if received, along with required documents, such applications also will be considered and decided only in accordance with law.

12. The first prayer in the Writ petition is to issue a Writ of Mandamus or any other appropriate Writ, order or direction, directing the respondents to prevent the unauthorized conduct of tea-shops/thattukadas/food-stalls which are illegally erected in the property of the petitioner and take legal action against the persons concerned against the illegal erection of such temporary shops in violation of the law and by trespassing into the petitioner temple property. In as much as the unauthorised conduct of kiosks in a private property, this respondent can initiate action only against the person claiming to be owner of the property. It is the responsibility of owner of such private properties to protect their properties from trespass. This respondent can initiate action against such persons who use or occupy public properties unauthorisedly.

13. As far as the second prayer in the Writ Petition is concerned, removal of the sheds erected in the property and the waste dumped in the property of the petitioner W.P.(C)No.35164 of 2023 12 Devaswom and to restore the property to its original position etc. are not the statutory functions of this respondent. Since this respondent has already initiated action against unlicensed vendors in Madayipara, the interim prayer sought for against this respondent also will not lie. Therefore the honourable Court may be pleased to dismiss the writ petition with cost to this respondent.”

7. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 to 6 and additional 10th respondent, the learned Standing Counsel for Malabar Devaswom Board for respondents 7 and 8 and also the learned counsel for the 9th respondent Grama Panchayat.

8. The issue that requires consideration in this writ petition is as to whether any interference of this Court is warranted on the issue pointed out by the petitioner, at this point of time.

9. 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.35164 of 2023 13 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.

10. 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 W.P.(C)No.35164 of 2023 14 the doctrine of parens patriae will also apply in exercising the jurisdiction.

11. The Madras Hindu Religious and Charitable Endowments Act, therefore, makes it irrefragable that the administration of all religious endowments, including temples, are always under the general superintendence and control of the Commissioner, Malabar Devaswom Board and the Commissioner have the power to pass orders to ensure that the endowments are properly administered and income is duly appropriated only for the purposes of the endowment. Even though the temples are autonomous and independent and not owned by the Devaswom Board (except those temples over which, under the provisions of Section 8B of the Act, the Board has assumed management as per the request of the Trustee), they are under the complete supervisory control of the Commissioner appointed under the Act and who is obligated statutorily to ensure that the endowments are administered at the highest standards and that its income is used and appropriated only for the purpose for which it is founded.

12. Madayi Thiruvarkattukavu Devaswom is a controlled institution under the Malabar Devaswom Board. As held in the decisions referred to supra, it is the duty of the trustees, W.P.(C)No.35164 of 2023 15 hereditary trustees and non-hereditary trustees to be faithful to the Devaswom and manage, protect and safeguard the interest 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’ has to be dealt with sternly.

13. In Satheesh v. Travancore Devaswom Board and others [2022 (1) KLT 940], in the context of the annual festival in Thuravoor Mahakshethram, which is a temple under the management of Travancore Devaswom Board, a Division Bench of this Court in which one among us [Anil K. Narendran, J.] was a party, issued various directions, wherein it was held that, once roads are constructed as per the standards and guidelines prescribed by the Indian Roads Congress, it has to be maintained as such without any encroachment on the right of way or on the pedestrian facilities provided as per such standards and guidelines. Footpaths are not intended for stocking articles for trade or for display of goods by traders, in front of their shops or establishments. Similarly, footpaths are W.P.(C)No.35164 of 2023 16 not intended for holding campaigns, demonstrations, etc., by political parties and other organisations, by causing obstructions free movement of pedestrians. No political party or organisation can be permitted to encroach footpath or right of way of public roads, in connection with any such protest, demonstrations, etc., by erecting any temporary structures on the right of way or on the pedestrian facilities, forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances. The said decision is one rendered after taking note of the law laid down by the Apex Court in Saghir Ahmad v. State of U.P. and others [AIR 1954 SC 726], whereby a Constitution Bench of the Apex Court agreed with the statement of law made by the Division Bench of the Madras High Court in paragraph No.24 of the decision in C.S.S.Motor Service v. Madras State [AIR 1953 Madras 279] that all public streets and roads vest in the State, but that the State holds them as trustees on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may W.P.(C)No.35164 of 2023 17 be requisite for protecting the rights of the public generally.

14. The petitioner had earlier approached this Court in W.P.(C)No.4382 of 2019 seeking a writ of mandamus commanding respondents 4 to 8 therein namely, the District Police Chief, Kannur, the Sub Inspector of Police, Pazhayangadi Police Station, the District Collector, Kannur, the Village Officer, Madayi and the Tahsildar, Kannur to prevent the 10th respondent therein, namely, K. Muhammed of KMT Constructing Company and his workers from entering upon the properties of Sree Thiruvarkattukavu Devaswom, taking vehicles properties, unloading granite stone pieces in the property or causing damage to the property. The petitioner has also sought for other consequential reliefs. That writ petition was disposed of by Ext.P3 judgment dated 05.04.2019, whereby the 9th respondent therein namely, the Kerala Public Works Department (Roads Division), represented by its Executive Engineer, Kannur and the 10th respondent Contractor were directed to remove the entire granite stones unloaded by them in the property of the petitioner Devaswom manually and without using JCB or any other similar equipment and to restore the property to its original position, within ten days from that date. Respondents 4 and 5 therein were directed to afford adequate protection to the W.P.(C)No.35164 of 2023 18 properties of Madayi Thiruvarkattukavu Devaswom and also to ensure that its geographical peculiarities and richness of biodiversity with the presence of flora and fauna are preserved and protected.

15. Now the grievance of the petitioner in this writ petition is the encroachment made on the Devaswom land of Madayi Thiruvarkattukavu Devaswom by putting up unauthorised teashops, etc., as seen in Ext.P14 series of photographs and dumping of waste in the Devaswom land.

16. In the counter affidavit filed by the 9th respondent Grama Panchayat, it is contended that the property in question is an ancient property of Chirakkal Kovilakom and the deity of Madayi Thiruvarkattukavu Devaswom has no ownership or possession over those properties, except the temple site. In the counter affidavit the 9th respondent has also pointed out the pendency of O.S.No.7 of 2016 before the Sub Court, Payyannur filed by the Executive Officer of Madayi Thiruvarkattukavu Devaswom against the Grama Panchayat for recovery of possession of 2.30 Acres of land in Re-Survey No.38/1 of Madayi Village, on the strength of title and for mandatory injunction and also prohibitory injunction. We do not propose to consider those aspects in this writ petition, since a civil suit filed by the W.P.(C)No.35164 of 2023 19 Executive Officer is pending before the competent civil court.

17. Having considered the pleadings and materials on record and also the submissions made at the Bar, we notice that a survey and fixation of boundary of the Devaswom land of Madayi Thiruvarkattukavu Devaswom on the side of the Madayipara-PWD Road by the additional 10th respondent Taluk Surveyor is necessary to find out whether there is any encroachment on the Devaswom land, by third parties, by erecting temporary sheds for tea stalls, etc., and by dumping waste. In such circumstances, this writ petition is disposed of directing the petitioner to approach the additional 10th respondent Taluk Surveyor with a proper application for survey and fixation of boundary of the Devaswom land of Madayi Thiruvarkattukavu Devaswom, on the side of Madayipara-PWD Road, within a period of three weeks from the date of receipt of a certified copy of this judgment, after complying with the statutory requirements. In case any such application is received, the additional 10th respondent Taluk Surveyor shall take necessary steps to identify the boundary of the Devaswom land of Madayi Thiruvarkattukavu Devaswom, with notice to the petitioner and other affected parties, if any. The entire exercise W.P.(C)No.35164 of 2023 20 in this regard shall be completed, as expeditiously as possible, at any rate, within a further period of three months. The 6th respondent District Collector, Kannur and the Secretary of the 9th respondent Madayi Grama Panchayat shall take necessary steps to ensure that there is no encroachment whatsoever in the right of way or on the pedestrian facilities of Madayipara-PWD Road and that there is no dumping of waste in that area near the boundary of the Devaswom land of Madayi Thiruvarkattukavu Devaswom. AV Sd/- ANIL K. NARENDRAN, JUDGE Sd/- G. GIRISH, JUDGE W.P.(C)No.35164 of 2023 21 APPENDIX OF WP(C) 35164/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 TRUE COPY OF THE ADANGAL EXTRACT OF RESURVEY NO.23/1A2 OF MADAYI VILLAGE ISSUED BY THE VILLAGE OFFICER, MADAYI TRUE COPY OF THE BASIC TAX RECEIPT FOR THE YEAR 2023-24 DATED 15-06-2023 ISSUED BY THE VILLAGE OFFICER, MADAYI TO THE PETITIONER. TRUE COPY OF THE JUDGMENT DATED 05-04-2019 IN W.P.(C)NO.4382 OF 2019 OF THIS HON’BLE COURT. TRUE COPY OF THE PHOTOGRAPHS OF ’MADAYIPPARA’ TRUE COPY OF THE PETITION DATED 22-10-2021 LODGED BY THE PETITIONER BEFORE THE 5TH RESPONDENT TRUE COPY OF THE PETITION DATED 10-12-2021 LODGED BY THE PETITIONER BEFORE THE 5TH RESPONDENT. TRUE COPY OF THE PETITION DATED 22-02-2022 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. TRUE COPY OF THE RECEIPT DATED 11-03-2022 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER TRUE COPY OF THE NOTICE DATED 14-06-2023 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT. Exhibit P10 TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT DATED 16-06-2023 SIGNED BY THE 4TH RESPONDENT. Exhibit P11 TRUE COPY OF THE NOTICE DATED 14-06-2023 ISSUED BY THE PETITIONER TO THE 5TH W.P.(C)No.35164 of 2023 22 RESPONDENT Exhibit P12 Exhibit P13 Exhibit P14 Exhibit P15 Exhibit P16 RESPONDENT EXHIBITS EXHIBIT R-9(A) TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT DATED 16-06-2023 SIGNED BY THE 5TH RESPONDENT. TRUE COPY OF THE COMPLAINT DATED NIL SUBMITTED BY A WORSHIPPER MUNDAYADAN MUKUNDAN NAMBIAR BEFORE THE 6TH RESPONDENT. TRUE COPY OF THE PHOTOGRAPHS OF THE PRESENT SITUATION OF THE ’MADAYIPPARA’ TRUE COPY OF THE JUDGEMENT DATED 07-09-2023 IN COC NO.1949/2023 OF THIS HON’BLE COURT. TRUE COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHOOMI DAILY DATED 13-10-2023. A TRUE COPY OF THE LIST OF TEMPLES FALLING UNDER THE THALASSERY DIVISION OF THE MALABAR DEVASWOM BOARD, IN ITS WEBSITE AND OBTAINED BY THE PETITIONER EXHIBIT R-9(B) A TRUE COPY OF THE NOTICE DATED 10-11-2023 ISSUED BY THE 9TH RESPONDENT ON 15-11-2023 TO GANGADHARAN EXHIBIT R-9(C) A TRUE COPY OF THE NOTICE DATED 14-11-2023 ISSUED BY THE 9TH RESPONDENT TO M.KOMAN EXHIBIT R-9(D) A TRUE COPY OF THE NOTICE DATED 16-11-2023 ISSUED BY THE 9TH RESPONDENT TO MARIYAM.U EXHIBIT R-9(E) A TRUE COPY OF THE NOTICE DATED 16-11-2023 ISSUED BY THE 9TH RESPONDENT TO MOHAMMED SHAREEF EXHIBIT R-9(F) A TRUE COPY OF THE NOTICE DATED 10-11-2023 ISSUED BY THE 9TH RESPONDENT TO RADHA.K EXHIBIT R-9(G) A TRUE COPY OF THE NOTICE DATED 16-11-2023 ISSUED BY THE 9TH RESPONDENT TO SAJINA.A.V W.P.(C)No.35164 of 2023 23 EXHIBIT R-9(H) A TRUE COPY OF THE NOTICE DATED 10-11-2023 ISSUED BY THE 9TH RESPONDENT TO SUKUMARAN.T EXHIBIT R-9(I) A TRUE COPY OF THE NOTICE DATED 16-11-2023 ISSUED BY THE 9TH RESPONDENT TO SUNIL.K EXHIBIT R-9(J) A TRUE COPY OF THE NOTICE DATED 10-11-2023 ISSUED BY THE 9TH RESPONDENT TO SURENDRAN.T.V EXHIBIT R-9(K) A TRUE COPY OF THE NOTICE DATED 16-11-2023 ISSUED BY THE 9TH RESPONDENT TO UNNI