Disposed

V N Narayanan Namboothiri v. State of Kerala

Kerala HC15 Oct 2019WP(C)/2812/2015

Case brief

AI extract

What is this about?

This writ petition challenged constructions by the tenth respondent on government river puramboke land. The court applied a Supreme Court directive banning temple construction on public places post-29.09.2009. It directed authorities to expeditiously finalize ongoing removal proceedings against the respondent and initiate similar action against encroachments by the petitioner's temple.

What did the court decide?

Directed competent authorities to expedite finalization of proceedings against the complainant and initiate proceedings against the petitioner's temple encroachments.

V N Narayanan Namboothiri Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941

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WP(C).No.2812 OF 2015(B)

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PETITIONER/S:

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V.N. NARAYANAN NAMBOOTHIRI AGED 72 YEARS S/O.NARAYANAN NAMBOOTHIRI, VELIYAMKOL MANA, CHELAMATTOM, OKKAL P.O., PERUMBAVOOR, ERNAKULAM DISTRICT. (THE PRESIDENT, CHELAMATTOM DEVASWOM BHARANA SAMITHY, CHELAMATTOM, OKKAL P.O., PERUMBAVOOR, ERNAKULAM DISTRICT).

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BY ADV. SRI.ALEXANDER JOSEPH

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RESPONDENT/S:

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1 STATE OF KERALA

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REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, STATE SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE DISTRICT COLLECTOR ERNAKULAM, CIVIL STATION, KAKKANAD, ERNAKULAM-682030.

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3 THE REVENUE DIVISIONAL OFFICER MUVATTUPUZHA-686661.

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4 THE TAHSILDAR KUNNATHUNADU TALUK PERUMBAVOOR-683542.

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5 THE VILLAGE OFFICER CHELAMATTOM, PERUMBAVOOR-683542.

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6 THE DISTRICT SUPERINTENDENT OF POLICE ERNAKULAM RURAL, ALUVA-683101.

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7 THE SUB INSPECTOR OF POLICE PERUMBAVOOR, 683542.

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8 OKKAL GRAMA PANCHAYAT

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REP.BY ITS SECRETARY, OKKAL P.O., PERUMBAVOOR, 683550.

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9 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY

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WPC No.2812 of 2015 2

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OF ENVIRONMENT & FOREST, NEW DELHI, 110003.

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10 SRI.MURALIDHARAN MURALI AGED 39 YEARS S/O.BHASKARAN NAIR, THOZHELIL HOUSE, (SREE NILAYAM), OKKAL P.O., PERUMBAVOOR, 683550.

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R1 TO R7 BY SHRI. VINOD B., GOVERNMENT PLEADER R8 BY ADV. PHILIP J. VETTICKATTU R9 BY ADV. SHRI.P. VIJAYAKUMAR R10 BY ADVS. S. VINOD BHAT & LEGITH T.KOTTAKKAL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-09-2019, THE COURT ON 15-10-2019 DELIVERED THE FOLLOWING

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WPC No.2812 of 2015 3

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J U D G M E N T

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This is an unusual litigation where the petitioner who is representing a Temple is complaining of the alleged conduct of the tenth respondent who is representing another temple in passing off religious services as those of the temple which the petitioner is representing. Though the aforesaid is the real dispute, the relief sought in the writ petition being an entirely different one namely a direction to the respondents to remove the unauthorized structures constructed by the tenth respondent in Government lands, it is unnecessary to delve into the real dispute between the petitioner and the tenth respondent for the disposal of the writ petition.

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In the context of the relief sought in the writ petition, the facts relevant are the following: The petitioner is the president of Chelamattom Sree Krishna Swamy Temple (Chelamattom Temple) located on the banks of Periyar river. 52 cents of land lying adjacent to the Chelamattom Temple belonged to Thozhelil family. When the said property was partitioned among the sharers, an extent measuring 2 cents located close to the river, stated to be an extent of excess land in the possession of the family, was set apart as a place of worship for the members of the family. The case of the petitioner is that the tenth respondent, a member of the Thozhelil family pretends that there exists

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a Bhagavathi Temple in the said 2 cents and formed a trust in the year 2010 for managing the affairs of that temple. It is alleged by the petitioner that after forming the trust, the tenth respondent has trespassed into the adjoining river puramboke on the banks of river and constructed a new temple and allied structures. It is alleged that the tenth respondent has also installed a contribution box for the newly constructed temple in the nearby public road. It is also the case of the petitioner that Chelamattom Temple is a place where devotees throng for performing oblation for the departed souls and the attempt of the tenth respondent is to mislead the devotees of the Chelamattom Temple for diverting them for performance of the aforesaid ritual in the temple constructed by him. It is stated by the petitioner that the tenth respondent has established the temple and ancillary structures in the river puramboke without obtaining permission of the District Administration in terms of Ext.P4 guidelines issued by the State Government. It is alleged by the petitioner that though he has preferred several complaints before the District Administration and competent authorities under the Land Conservancy Act for removal of the encroachments made by the tenth respondent, they are not acted upon. The petitioner, therefore, seeks appropriate directions to respondents 1 to 3 to remove the unauthorized constructions made by the tenth respondent in the river puramboke as also the contribution box erected by him in the nearby panchayat road.

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The stand taken by the tenth respondent in the counter affidavit filed by him is that he has not erected any permanent structure in the river purampoke, and the Bhagavathi Temple is situated in the registered land adjoining to the river puramboke. It is, however, conceded that a few temporary structures have been constructed by him in the river puramboke so as to enable the devotees of the temple to perform oblation for the departed souls. It is pointed out by the tenth respondent that such temporary sheds have been erected by Chelamattom Temple also in the river puramboke adjacent to that temple for facilitating performance of the aforesaid religious ritual. The tenth respondent has produced along with his counter affidavit the report and sketches prepared by the concerned Village Officer on the complaint of the petitioner as Ext.R10(h).

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A counter affidavit has been filed by the fourth respondent, the Tahsildar, stating, among others that the complaint has been enquired into and it was found that the tenth respondent has enclosed to his possession 20.35 Ares of river puramboke adjacent to the 52 cents of property belonged to his family and constructed a temple therein. It is also stated in the counter affidavit that proceedings under the Land Conservancy Act has been consequently initiated against the tenth respondent for restoring the encroached puramboke land and the same are pending. It is also stated in the counter affidavit that Chelamattom Temple has constructed sheds in the Government land

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adjoining that temple in an area measuring 38.72 Ares and a granite wall in another extent of 4.25 ares near the river.

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The petitioner has filed a detailed reply affidavit dealing with the contentions taken by the fourth and tenth respondents in their counter affidavits. The stand taken by the petitioner in the reply affidavit as regards the alleged encroachment made by Chelamattom Temple is that the granite wall is one constructed by the Government for the purpose of protecting the boundaries of the river and the structures in the puramboke measuring 38.72 Ares are only temporary structures.

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Heard the learned counsel for the petitioner, the learned Government Pleader as also the learned counsel for the tenth respondent.

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As noted, the case of the petitioner is that the Bhagavathi Temple that exists in the neighbourhood of the Chelamattom Temple is an unauthorized structure erected by the tenth respondent in Government puramboke and the same is, therefore, liable to be removed. Though the tenth respondent has stated in the counter affidavit filed by him that the Bhagavathi Temple is situated in the registered land adjoining the puramboke, he himself has produced Ext.R10(h) report and sketches prepared by the Village Officer demarcating the boundary of the registered lands and puramboke land in the area. Ext.R10(h) report and sketches prima facie indicate that both the Chelamattom Temple as also the tenth respondent have encroached

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WPC No.2812 of 2015 7

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upon the river puramboke and erected structures. The sketches appended to the said report also indicate that the tenth respondent has encroached upon an extent of 20.35 Ares of puramboke land and Chelamattom Temple has encroached upon an extent of 42.97 Ares of puramboke land. Both the petitioner as also the tenth respondent would take the stand that the structures erected by them are temporary and the structures erected by their rivals are permanent. Both of them do not conspicuously mention as to when those structures were erected. I wonder as to why despite having been convinced that both Chelamattom Temple as also the tenth respondent have encroached upon Government puramboke land, action is not being taken by the authorities under the Land Conservancy Act against the said encroachments.

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Be that as it may, in terms of Ext.P10 order, the Apex Court has directed all the State Governments as early as on 29.09.2009 that no construction shall be permitted in the name of Temple, Church, Mosque, Gurudwara etc. on public places and the said order was made absolute in the subsequent orders issued by the Apex Court in the said matter. Of course, it was clarified in the said case that the State Governments are free to take appropriate action as regards such structures which have been erected prior to 29.09.2009. There is not much dispute in this case as to the time at which the tenth respondent has erected structures, as the Trust of which the tenth respondent is a representative itself was constituted only in the month of October, 2010.

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Likewise, in the absence of any specific material indicating the time during which the structures have been erected by Chelamattom Temple, it can be presumed that those are also structures erected after the cutoff-date mentioned by the Apex Court in Ext.P10 order. In the circumstances, in the light of Ext.P10 order, I am of the view that the encroachments made by the Chelamattaom Temple as also the tenth respondent are liable to be removed.

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In the result, the writ petition is disposed of directing the competent authority among the respondents to continue, and finalise expeditiously the proceedings already initiated against the tenth respondent under the Land Conservancy Act for removal of the encroachment made by him. Simultaneously, proceedings shall also be initiated and finalised in respect of the encroachments made by the Chelamattaom Temple as indicated in ExtR10(h) report, in accordance with law.

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Sd/-

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P.B.SURESH KUMAR, JUDGE

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pkk

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WPC No.2812 of 2015 9

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE DEED NO. 5856 OF 2010 OF PERUMBAVOOR SRO.
EXHIBIT P2	TRUE COPY OF THE JUDGMENT DATED 21.12.2013 IN O.S. NO.213/2011 OF THE MUNSIFF'S COURT, PERUMBAVOOR.
EXHIBIT P3	TRUE COPY OF THE JUDGMENT DATED 7.10.2015 IN A.S. NO.07/2014 OF THE SUB COURT, PERUMBAVOOR.
EXHIBIT P4	TRUE COPY OF GO(P) NO. 217/05/HOME DATED 25.7.2005
EXHIBIT P5	TRUE COPY OF THE REPRESENTATION DATED 16.7.2019 OF THE PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P6	TRUE COPY OF THE COMPLAINT OF THE PETITIONER TO THE 6TH RESPONDENT.
EXHIBIT P7	TRUE COPY OF THE STOP MEMO DATED 27.12.2014 ISSUED BY THE 8TH RESPONDENT TO THE 10TH RESPONDENT.
EXHIBIT P8	TRUE COPY OF THE GUIDE LINE ON COMMUNAL HARMONY'S ISSUED BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA
EXHIBIT P9	TRUE COPY OF THE COMPLAINT DATED 21.01.2015
EXHIBIT P10	TRUE COPY OF THE ORDER DATED 29.9.2009 IN SPECIAL LEAVE TO APPEAL NO.8519/2006 OF THE HON'BLE SUPREME COURT
EXHIBIT P11	TRUE COPY OF THE ORDER DATED 31.01.2018 IN SPECIAL LEAVE TO APPEAL NO. 8519/2006 OF THE HON'BLE SUPREME COURT
EXHIBIT P12	TRUE COPY OF THE LETTER DATED 13.7.2016 FORWARD BY THE PROJECT REPORT OF THE 6TH RESPONDENT TO THE FIRST RESPONDENT.

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WPC No.2812 of 2015 10

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RESPONDENTS EXHIBITS:

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EXHIBIT R8 (a) : TRUE COPY OF THE PETITION DATED 20.12.2014 FILED BY THE CHELAMATTOM DEVASWOM BOARD BEFORE THE OKKAL GRAMA PANCHAYAT EXHIBIT R8 (b) : TRUE COPY OF THE INITIMATION DATED 20.12.2014 FROM THE VILLAGE OFFICER, CHELAMATTOM, OKKAL. EXHIBIT R9 (c) : TRUE COPY OF THE NOTICE DATED 27.12.2014 FROM THE OKKAL GRAMA PANCHAYAT. EXHIBIT R10 (a) : COPY OF THE SKETCH EXHIBIT R10 (b) : PHOTOGRAPHS EXHIBIT R10 (c) : PHOTOGRAPHS EXHIBIT R10 (d) : PHOTOGRAPHS EXHIBIT R10 (e) : PHOTOGRAPHS EXHIBIT R10 (f) : COPY OF THE ORDER DATED 31.01.2014 IN I.A. NO. 176 OF 2014 IN A.S. NO. 7/2014 OF THE SUB COURT, PERUMBAVOOR. EXHIBIT R10 (g) : COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S.NO. 213 OF 2013 OF THE MUNSIFF COURT, PERUMBAVOOR. EXHIBIT R10 (h) : COPY OF THE REPORT NO. C2- 7485 OF 2015 DATED 29.6.2015 OF THE 4TH RESPONDENT.

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WPC No.2812 of 2015 11

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WPC No.2812 of 2015 12

V N Narayanan Namboothiri v. State of Kerala

Case brief

What is this about?

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V N Narayanan Namboothiri v. State of Kerala

Case brief

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