Dismissed

V.N.Narayanan Nambiithiri v. State of Kerala

Kerala HC29 Nov 2021WA/272/2020

Case brief

AI extract

What is this about?

The High Court dismissed this writ appeal filed by a temple president challenging a Single Judge's order. The Single Judge had directed removal of temple structures erected after a Supreme Court cutoff date of 29.09.2009 on public lands. The High Court found no jurisdictional errors, upheld the order pending encroachment identification, and clarified that action follows such identification.

What did the court decide?

The writ appeal was dismissed with clarification that revenue action follows encroachment identification.

V.N.Narayanan Nambiithiri Vs State of Kerala — Land Acquisition | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 29^TH DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943

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WA NO. 272 OF 2020

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AGAINST THE JUDGMENT IN WP(C) 2812/2015 OF HIGH COURT OF KERALA DATED 15.10.2019

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APPELLANT/PETITIONER:

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V.N.NARAYANAN NAMBIITHIRI, AGED 75 YEARS, S/O. NARAYANAN NAMBOOTHIRI, VALIYAMKOL MANA, CHELAMATTOM, OKKAL P.O., PERUMBAVOOR, ERNAKULAM DISTRICT, (THE PRESIDENT, CHELAMATTOM DEVAWOM BHARANA SAMITHY, CHELAMATTOM,OKKAL P.O., PERUMBAVOOOR, ERNAKULAM DISTRICT)

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BY ADV ALEXANDER JOSEPH SRI. S.KRISHNANUNNI, SR.

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, STATE SECRETARIAT, THIRUVANANTHAPURAM-695 001

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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, REP BY ITS SECRETARY, OKKALP.O., PERUMBAVOOR 683550

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9 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT MINISTRY OF ENVIRONMENT AND FOREST, NEW DELHI-110001

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10 SRI.MURALIDHARAN @ MURALI, AGED 39 YEARS S/O. BHASKARAN NAIR, THOZHELIL HOUSE (SREE NILAYAM),OKKAL P.O., PERUMBAVOOR683550

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BY ADVS. S.VINOD BHAT

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SRI.K.P.HARISH, SR. GOVERNMENT PLEADER SRI. PHILIP J VETTICKATTU SRI.JAYASANKAR V NAIR, CGC

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.No.272 of 2020

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JUDGMENT

Dated this the 29^th day of November, 2021

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S.MANIKUMAR, C.J.

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Appellant, who is the President of Chelamattom Devaswom Bharana Samithy managing Chelamattom Sree Krishna Swamy Temple (for short ‘Chelamattom temple’), Okkal P.O., Perumbavoor, has filed this writ appeal challenging the judgment dated 15.10.2019 in W.P.(C)No.2812 of 2015, by which a learned Single Judge found that the erections in question were made by Chelamattom temple after the cut off date in Ext.P10 order and issued directions to remove the same.

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Sri.S.Krishnanunni, learned Senior Counsel for the appellant submitted that Chelamattom temple is located on the banks of Periyar river at Chelamattam Village of Kunnathunadu Taluk of Ernakulam district, and is famous for 'Pithrutharpanam'. 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.

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W.A.No.272 of 2020

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The case of the appellant/writ petitioner is that the tenth respondent, a member of the Thozhelil family pretends that there exists 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 appellant 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 further alleged that the tenth respondent has also installed a contribution box for the newly constructed temple in the nearby public road.

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In the writ petition, the main relief sought for was for a declaration that the 10^th respondent has no right or authority to construct temples, Bhandaram and other structures in Government Puramboke land of Periyar River and road Puramboke of Chelamattom temple road of the 8 respondent, of Chelamattom Kara of Chelamattom Village of Kunnathunadu taluk and to perform religious practices and construction activities therein.

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Writ petitioner/appellant had also sought for a direction to the respondents 1 to 9 to remove the illegal and unauthorized constructions including temple, Bhandaram and other structures, done by the 10^th respondent or his men, or agents in Government Puramboke land of Periyar

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W.A.No.272 of 2020

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River and road Puramboke of Chelamattom temple road of the 8^th respondent, of Chelamattom Kara of Chelamattom Village of Kunnathunadu Taluk, duly evicting him and his men or agents therefrom.

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Direction of this court was also sought to prevent the 10^th respondent and his men and agents from doing any construction or religious activities in Government Puramboke land of Periyar River and road Puramboke of Chelamattom temple road of the 8^th respondent, of Chelamattom Kara of Chelamattom Village and direction to prevent the 10^th respondent from playing loud speakers, preparing Balithara and conducting of Vavubali and Pithrutharpanam in the river Puramboke of Periyar River at Chelamattom Kara of Chelamattom Village of Kunnathunadu taluk.

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After considering the pleadings and the materials on record, learned single Judge disposed of the writ petition by the impugned judgment, relevant portion of which reads thus:

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“7. 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

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W.A.No.272 of 2020

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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 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. 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

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W.A.No.272 of 2020

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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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Contentions urged by the appellant in the writ appeal are that no proper enquiry was conducted to decide as to whether Chelamattam Temple has encroached upon river Puramboke.

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Moreover, Chelamattam temple did not get an opportunity to contest the observations in Ext.R10(h) report of the Tahsildar, Kunnathunadu Taluk. According to the appellant, construction of temporary sheds by Chelamattam temple was undertaken on the direction of revenue and other authorities. These temporary sheds are constructed to accommodate large crowd assembled at Chelamattam Temple for performing 'vavu bali'.

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We have heard Sri.S.Krishnanunni, learned Senior Counsel for the appellant, Sri.K.P.Harish, learned Senior Government Pleader for respondents 1 to 7, Sri.Philip J. Vettikattu, learned counsel for respondent No.8, Sri.Jaishankar V.Nair, learned Central Government Counsel and Sri.Vinod Bhat, learned counsel for respondent No.10 and perused the

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W.A.No.272 of 2020

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materials available on record.

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It is also brought to our notice that a proceeding under the Land Conservancy Act has been consequently initiated against the tenth respondent for restoring the encroached puramboke land and the same is pending. It is also evident from records that the Hon’ble Apex Court in Special Leave to Appeal No.8519/2006 has directed that 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 Hon'ble Apex Court in the said matter. It was also clarified in that case that the State Governments are free to take appropriate action as regards such structures erected prior to 29.09.2009.

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In our considered opinion, what weighed with the learned Single Judge most importantly in the matter of issuing directions to the competent authority to proceed with the action already initiated against the 10^th respondent, and the alleged encroachment made by Chelamattam temple as indicated in Ext.R10(h) report of the Tahsildar, Kunnathunadu Taluk, is basically the directions issued by the Hon'ble Supreme Court in the Special Leave Petition stated supra, by which the State Governments were directed

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W.A.No.272 of 2020

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to take appropriate action against the encroachment made by any religious institutions in public properties.

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It is also equally important to note that the learned Single Judge has not concluded anything in the judgment in question and by the directions issued, the learned Single Judge has only indicated that necessary steps shall be taken in order to identify whether there is any encroachment made by the 10^th respondent as well as the Chelamattam temple.

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In our considered opinion, when the order of the Hon'ble Supreme Court was brought to the notice of the learned Single Judge, necessarily and taking into account Ext.R10(h) report of Tahsildar, Kunnathunadu Taluk the direction as to the encroachment, if any, of Chelamattam temple was inevitable.

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Taking into account all the above aspects, we are of the considered opinion that there are no established circumstances made out by the appellant to interfere with the judgment of the learned Single Judge there being no jurisdictional error or other legal infirmities justifying us to interfere with the judgment exercising the powers conferred on us in an intra court appeal filed under Section 5 of the Kerala High Court Act, 1958.

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However, we clarify the judgment of the learned Single Judge, to

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W.A.No.272 of 2020

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the effect that the directions are made by the learned Single Judge with the intention of ascertaining as to whether there are any encroachments made by the Chelamattam temple and the 10^th respondent, and therefore, any action by the revenue authorities can only be after identifying as to whether there are any encroachments made by the respective parties.

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Writ appeal is disposed of with the above modification.

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SD/- S.MANIKUMAR CHIEF JUSTICE

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SD/- SHAJI P. CHALY JUDGE

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jes

V.N.Narayanan Nambiithiri v. State of Kerala

Case brief

What is this about?

What did the court decide?

V.N.Narayanan Nambiithiri v. State of Kerala

Case brief

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