Disposed

The Secretary, v. the Devaswom Commissioner

Kerala HC16 Aug 2023DBP/8/2023

Case brief

AI extract

What is this about?

Court determined jurisdiction of Devaswom Board regarding temple property. Directed Revenue Department to decide land status within three months noting Devaswom Board claims. Left acquisition challenge open for future consideration.

What did the court decide?

Directed Additional Chief Secretary, Revenue Department to determine land status within three months with Board notice. If correction needed, Board must apply to competent authority after due process.

The Secretary, Vs the Devaswom Commissioner — Service and Employment | Kerala HC (2023)

¶1

DBP No.8 of 2023

¶2

¶3

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶4

PRESENT

¶5

THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN

¶6

¶7

THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

¶8

WEDNESDAY, THE 16^TH DAY OF AUGUST 2023 / 25TH SRAVANA, 1945

¶9

DBP NO.8 OF 2023

¶10

IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - TDB PROCEEDINGS INITIATED - REG.

¶11

TDB REPORT NO.43 OF 2022 - AROOR KARTHIAYINI DEVI TEMPLE - TO CREATE ENCUMBRANCE ON THE PROPERTY BELONGING TO THE TEMPLE BY

THE BOARD.

PETITIONER/S:

THE SECRETARY,

TEMPLE ADVISORY COMMITTEE, ARROR SREE KARTHIAYANI DEVI TEMPLE, ARROR, PIN - 688534.

¶16

RESPONDENT/S:

¶17

1 THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM - 695003.

¶18

2 THE LAND SPECIAL OFFICER, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM - 695003.

¶19

3 THE DISTRICT COLLECTOR, ALAPPUZHA - 688001.

¶20

4 THE STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM-695001

¶21

5 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIATE THIRUVANANTHAPURAM-695001.

¶22

6 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HOME DEPARTMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM -695001

¶23

OTHER PRESENT:

¶24

SRI S.RAJMOHAN- SR GOVERNMENT PLEADER ; SRI G.SANTHOSH KUMAR- STANDING COUNSEL-TRAVANCORE

¶25

DBP No.8 of 2023

¶26

¶27

DEVASWOM BOARD ; SRI P.RAMACHANDRAN- AMICUS CURIAE

¶28

THIS DEVASWOM BOARD PETITION HAVING BEEN FINALLY HEARD ON 16.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

DBP No.8 of 2023

ORDER

Anil K. Narendran, J.

¶33

This DBP is registered based on TDB report No.43 of 2022 of the learned Ombudsman in Complaint No.72 of 2022, which was one filed by the Secretary of the Temple Advisory Committee of Aroor Sree Karthiayini Devi Temple, pointing out the attempts that are being made to encumber the land of the said temple, which is under the management of the Travancore Devaswom Board, having an extent of 47 cents in Sy.No.13/5B/1-63 of Aroor Village, for the purpose of constructing a Police Station.

¶34

A copy of the complaint is marked as Annexure-O1. Before the learned Ombudsman, the 1^st respondent Devaswom Commissioner submitted Annexure-O2 report dated 13.09.2022, producing therewith a copy of the letter dated 23.07.2022 addressed to the 3^rd respondent District Collector, specifically pointing out the statutory mandate of Section 27 of the Travancore-Cochin Hindu Religious Institutions Act, 1950. The 3^rd respondent District Collector, Alappuzha submitted Annexure-O3 reply dated 25.10.2022, which was followed by Annexure-O4 report dated 23.11.2022 of the 1^st respondent Devaswom Commissioner. After taking note of the rival contentions, the learned Ombudsman submitted TDB Report No.43 of 2022.

¶35

On 07.02.2023, when this DBP came up for

¶36

DBP No.8 of 2023

¶37

¶38

consideration, the State of Kerala, represented by the Principal Secretary to Government, Revenue (Devaswom) Department; the Additional Chief Secretary to Government, Revenue Department; and the Additional Chief Secretary to Government, Home Department were suo motu impleaded as additional respondents 4 to 6. The learned Standing Counsel for Travancore Devaswom Board took notice for respondents 1 and 2. The learned Senior Government Pleader took notice for the 3^rd respondent and for additional respondents 4 to 6. The learned Standing counsel and the learned Senior Government Pleader sought time to get instructions.

¶39

On 13.02.2023, this Court passed an interim order to

¶40

the effect that no construction on the disputed property shall be made without obtaining prior permission of this Court.

¶41

The 3^rd respondent District Collector has filed an affidavit dated 22.07.2023.

¶42

Heard the learned counsel for Travancore Devaswom Board for respondents 1 and 2, the learned Senior Government Pleader for the 3^rd respondent and also for additional respondents 4 to 6, and the learned Amicus Curie for the learned Ombudsman. 6. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of

¶43

DBP No.8 of 2023

¶44

¶45

incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per sub-section (3) of Section 1 of the Act, substituted by the Kerala Adaptation of Laws Order, 1956, Part I of the Act shall extend to Travancore, Part II of the Act shall extend to Cochin and Part III of the Act shall extend to the whole of the State of Kerala, excluding the Malabar District.

¶46

Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with vesting of administration in Board. As per Section 3, t he administration of incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds as well as the fund constituted under the Devaswom Proclamation, 1097 M.E. and the surplus fund constituted under the Devaswom (Amendment) Proclamation, 1122 M.E. which were under the management of the Ruler of Travancore prior to the first day of July, 1949, except the Sree Padmanabhaswamy Temple, Sree Pandaravaka properties and all other properties and funds of the said temple, and the management of all institutions which were under the Devaswom Department shall vest in the Travancore Devaswom Board.

¶47

Section 4 of the Act deals with constitution of the Travancore Devaswom Board. As per sub-section (2) of Section

¶48

DBP No.8 of 2023

¶49

¶50

4, the Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board.

¶51

Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub-section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per sub-section (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their jurisdiction.

¶52

Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with duties of the Board. As per Section 15A, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials and employees and also the

¶53

DBP No.8 of 2023

¶54

¶55

employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions; (iv) to establish and maintain proper facilities in the temples for the devotees.

¶56

Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. As per Section 24, the Board shall, out of the Devaswom Fund constituted under Section 25, maintain the Devaswoms mentioned in Schedule I [i.e. incorporated Devaswoms], keep in a state of good repair the temples, buildings, and other appurtenances thereto, administer the said Devaswoms in accordance with recognised usages, make contributions to other Devaswoms in or outside the State and meet the expenditure for the customary religious ceremonies and may provide for the educational uplift, social and cultural advancement and economic betterment of the Hindu community.

¶57

Section 27 of the Act deals with Devaswom properties. As per Section 27, immovable properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30th Meenam, 1097 corresponding to the 12th April, 1922, shall be dealt with as Devaswom properties. The

¶58

DBP No.8 of 2023

¶59

¶60

provisions of the Land Conservancy Act of 1091 (IV of 1091) shall be applicable to Devaswom lands as in the case of Government lands.

¶61

Section 31 of the Act deals with management of Devaswoms. As per Section 31, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated, and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage.

¶62

'Deva' means God and 'swom' means ownership in Sanskrit and the term 'Devaswom' denotes the property of God in common parlance. [see: Prayar Gopalakrishnan and another v. State of Kerala and others - 2018 (1) KHC 536]

¶63

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

¶64

setting up false claims of ownership or tenancy, or adverse

¶65

DBP No.8 of 2023

¶66

¶67

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.

¶68

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 apart from the revisional jurisdiction under Section 103 of the Kerala Land Reforms Act, 1963, the Court is having inherent jurisdiction and the doctrine

¶69

of parens patriae will also apply in exercising the jurisdiction.

¶70

DBP No.8 of 2023

¶71

¶72

The stand taken in the affidavit dated 22.07.2023 of the 3^rd respondent District Collector is that the additional 5^th respondent Principal Secretary to Government, Revenue Department vide letter No.M2/10/2021 dated 26.03.2021 directed the office of the 3^rd respondent to take action for transfer of 25.50 Ares of land comprised in Sy.No.13/5B1 of Aroor Village in Cherthala Taluk to the Home Department, under the Land Transfer Rules for the construction of Aroor Police Station. The Tahsildar (LR), Cherthala reported that 25.50 Ares of land comprised in Sy.No.135/B1 in Aroor Village is suitable for the construction of Aroor Police Station. As per the settlement register, the land is in the possession of Travancore Devaswom Board as ‘Pandaravakapattam’. The report of the Tahsildar (LR) along with the settlement register, location sketch and mahazar was submitted before the Land Revenue Commissioner, on 11.07.2022, for the transfer of land to the Home Department for the construction of the Police Station under the Land Transfer Rules. The Land Revenue Commissioner, vide letter dated 19.07.2022 directed the 3^rd respondent to submit the land transfer document as per Circular No.LRK2/27511/17. Accordingly, the Tahsildar (LR), Cherthala was instructed to prepare and submit the land transfer document. While so, the Assistant Devaswom Commissioner, Vaikom pointed out that 63

¶73

DBP No.8 of 2023

¶74

¶75

cents of land belonging to Aroor Devaswom Karthiyayini Temple cannot be transferred except for the purpose of the Devaswom, without the knowledge or consent of the Travancore Devaswom Board.

¶76

Before the learned Ombudsman, the 3^rd respondent District Collector filed Annexure-O3 statement dated 25.10.2022, wherein it is stated that as per village records 25.50 Ares of land comprised in Sy.No.13/5B of Aroor Village is included in the puramboke register and in the settlement register it is recorded as ‘Velithara’ used for Ezhunnallippu of Aroor Bhagavathy. In Annexure-O3 statement, it is stated that a case relating to a pathway through this property is pending against the Devaswom Commissioner. In such circumstances, the District Police Chief was requested to obtain a no-objection certificate from the Travancore Devaswom Board.

¶77

In view of the provisions under sub-section (1) of Section 15 of the Travancore-Cochin Hindu Religious Institutions Act, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Aroor Devaswom shall vest in and be exercised by the Travancore Devaswom Board in accordance with the provisions of

¶78

the said Act. In view of the provisions under Section 15A of the

¶79

DBP No.8 of 2023

¶80

¶81

Act, the Travancore Devaswom Board has a statutory duty to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly and to establish and maintain proper facilities in the temples for the devotees. In view of the provisions under Section 27 of the Act, immovable properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30th Meenam, 1097 corresponding to the 12th April, 1922, shall be dealt with as Devaswom properties.

¶82

In Annexure-O3 statement dated 25.10.2022 filed before the learned Ombudsman, the 3^rd respondent District Collector has stated that as per village records 25.50 Ares of land comprised in Sy.No.13/5B1 of Aroor Village is included in the puramboke register and in the settlement register it is recorded as ‘Velithara’ used for Ezhunnallippu of Aroor Bhagavathy. If at all the revenue records in respect of the said land require correction, it is for the Travancore Devaswom Board to take necessary action by submitting a proper application before the competent authority.

¶83

In the above circumstances, this DBP is disposed of by directing the additional 5^th respondent Additional Chief Secretary

¶84

DBP No.8 of 2023

¶85

¶86

to Government, Revenue Department to take a decision on the status of the disputed land in Survey No.13/5B1 of Aroor Village included in the puramboke register, which is recorded as ‘Velithara’ used for Ezhunallippu of Aroor Bhagavathy in the settlement register, either through the Land Revenue Commissioner or any other competent officer, with notice to the Travancore Devaswom Board and also the Secretary of the Temple Advisory Committee of Aroor Sree Karthiyayini Devi Temple, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this order. Before the competent authority the Travancore Devaswom Board shall be afforded with a reasonable opportunity to produce materials to substantiate its claim. The order passed by the competent authority shall be a ‘reasoned order’, after adverting to the legal and factual contentions raised on behalf of the Travancore Devaswom Board and by the Secretary of the Temple Advisory Committee, with specific reference to the statutory provisions referred to hereinbefore. Based on the decision taken by the competent authority, if correction is required in the revenue records, the Travancore Devaswom Board shall submit proper application before the appropriate authority. The challenge made in Annexure-O1 complaint against the acquisition of the disputed land for the

¶87

DBP No.8 of 2023

¶88

¶89

purpose of constructing a police station is left open to be raised again, after the decision of the competent authority in terms of

¶90

the directions contained hereinbefore.

¶91

Sd/ANIL K. NARENDRAN, JUDGE

¶92

Sd/-

¶93