Partly allowed

A P. Parameswaran Namboothiri v. State of Kerala

Kerala HC9 Aug 2023WP(C)/6526/2023

Case brief

AI extract

What is this about?

The Court held that pendency of suits challenging the Travancore Devaswom Board's assumption of temple administration is not a bar to urgent renovation. The writ petition was disposed of by quashing only a specific clause in the government order, while allowing the Board to seek necessary permissions from civil courts before proceeding.

What did the court decide?

The Government Order dated 01.02.2023 was quashed insofar as it mandates Uralungal Labour Contract Co-operative Society to execute the work. All other provisions remain valid.

A P. Parameswaran Namboothiri Vs State of Kerala — Writ and Judicial Review | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 9^TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945 W.P.(C) NO. 6526 OF 2023

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PETITIONER:

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A P. PARAMESWARAN NAMBOOTHIRI

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AGED 70 YEARS, S/O. A.K.PARAMESWARAN NAMBOOTHIRI, AGED 70, ATHIMON ILLOM, KOOTHATTUKULAM, MUVATTUPUZHA TALUK, ERNAKULAM, PIN – 686662.

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BY ADVS. P.B.SUBRAMANYAN P.B.KRISHNAN SABU GEORGE MANU VYASAN PETER MEERA P.

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEVASWOM DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.

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2 THE SECRETARY, TOURISM DEPARTMENT, STATE OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.

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3 THE DIRECTOR TOURISM DEPARTMENT, PARK VIEW, THIRUVANANTHAPURAM, PIN – 695033.

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4 TRAVANCORE DEVASWOM BOARD, REPRESENTED BY THE SECRETARY, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEADQUARTERS, NANTHANCODE, KAWADIYAR POST, THIRUVANANTHAPURAM, PIN – 695003.

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5 THE COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEADQUARTERS, NANTHANCODE, KAWADIYAR POST, THIRUVANANTHAPURAM, PIN – 695003.

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6 URALUNGAL LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD. NO.10957, MADAPPALLY COLLEGE P.O., VADAKARA, KOZHIKODE, REPRESENTED BY ITS PRESIDENT, PIN – 673102, 7 SIVASWOM KSHETHRA DHARMA PALANA SAMITHI, REG NO. 6/4/2010, (SIVASWOM TRUST) KOOTHATTUKULAM P.O., ERNAKULAM DISTRICT, KERALA- 686662. REPRESENTED BY ITS PRESIDENT R. SYAMDAS, S/O AYYAPPAN NAIR, AGED 56 YEARS, NARMADA, KOOTHATTUKULAM-686662, ERNAKULAM DISTRICT.*

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8 D.RAJESH, S/O DAMODARAN NAIR, AGED 52 YEARS, KULANGARAYIL HOUSE, KOOTHATTUKULAM-686662, ERNAKULAM DISTRICT.*

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*ADDL. R7 AND R8 ARE IMPLEADED AS PER THE ORDER DATED 14.03.2023 IN I.A. 1/2023. BY ADVS. R1 TO R3 BY SHRI.S.RAJMOHAN, SENIOR G.P. R4 & R5 BY SRI G.SANTHOSH KUMAR - STANDING COUNSEL- TRAVANCORE DEVASWOM BOARD R6 BY M.SASINDRAN R7 & R8 BY V.V.NANDAGOPAL NAMBIAR R7 & R8 BY SMITHA (EZHUPUNNA) R7 & R8 BY CHITRA JOHNSON

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 09.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.6526 of 2023

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JUDGMENT

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P.G. Ajithkumar, J.

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The petitioner is a senior male member of Athimon Illom. Koothattukulam Mahadeva Temple belongs to Athimon Illom. Lord Mahadeva is the main Deity in the Temple. There are Upadevathas also. The Idol of the Temple is fabled to have spouted at the place where Arjuna had Thapassu and pleased with the Thapassu Lord Mahadeva gave Darshan. Such an ancient Temple, it has been under the administration of Athimon Illom. There were attempts to grab control over the Temple from many quarters, without any success. In the year 2011, the members of Athimon Illom allowed an organisation named, ‘Sivaswom’ to assist in the affairs of the Temple. When the period of that agreement was over, the arrangement with Shivaswom was terminated. Due to that, the said organisation instigated the Travancore Devaswom Board to take over the Temple. Disregarding the objection by the petitioner, the Board assumed administration of the Temple by issuing a Gazette notification on 12.11.2019, which is Ext.P1. The petitioner approached this Court challenging the order of

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assumption, under Section 37(2) of the Travancore Cochin Hindu Religious Institutions Act, 1950 (for short TCHRI Act). But the petitioner was relegated to the remedy of a suit. Therefore, he filed O.S.No.18 of 2020 before the District Court, Ernakulam. Another member of the Illom filed O.S.No.20 of 2020 before the District Court, Ernakulam alleging that her private properties were included in Ext.P1 notification. Yet another suit, O.S.No.3 of 2020, was filed by a few members of the Illom with the grievance that their private properties were also included in Ext.P1 notification. Pending such proceedings, the Director, Tourism Department of the State Government issued an order dated 01.02.2023 to undertake renovation of the Temple spending an amount of Rs.5 crores. It is proposed that the work will be carried out through Uralungal Labour Contract Co-operative Society. Ext.P7 is the said order. The petitioner, in the above circumstances, has filed this Writ Petition under Article 226 of the Constitution of India, seeking a writ of certiorari quashing Ext.P7.

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Respondent Nos.4 and 5 filed a counter affidavit. The allegations that the Travancore Devaswom Board illegally had assumed administration of the Koothattukulam Devaswom is denied. The facts and circumstances leading to the assumption and also necessitating the renovation work in terms of Ext.P7 are narrated in the counter affidavit. Paragraph Nos.12 to 16 in the counter-affidavit are extracted below:-

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“12. It is submitted that on the basis of the judgment in W.P.(C) No. 284 of 2017 the Board entrusted the Devaswom Commissioner to take necessary steps in the affairs of the Devaswom. Accordingly the Devaswom commissioner issued direction to the Deputy Devaswom commissioner Vaikom and Land Special Officer to enquire about the present condition of the temple and to file report. Reports dated 09.03.2017 and 16.03.2017 were submitted by the Deputy Devaswom Commissioner and Land Special Officer respectively. These reports clearly show the poor state of the temple. The reports also reveals that the vast extent of land shown as the property of the temple in settlement register are now not in the possession of the temple. Valuable movable properties of the temple also were missing and the reports suggest emergent steps to save

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centuries old temple. The report of the Deputy Devaswom Commissioner reveals the sorry state of affairs of the temple due to the gross mismanagement of Athimon Illom. Thereafter the Devaswom commissioner submitted detailed report before the Board and the Board heard the representatives of Athimon Illom and Sivaswom. After hearing all interested parties and comprehensive study of materials, the Board issued preliminary notification under Section 37 and 38 of the TCHRI Act. 13. Due to the total neglect of the temple by the members of the Athimon Illom, the condition of the centuries old temple was pathetic and it is the duty of the Board to take immediate steps to redress the situation. The Board is duty bound to protect and safeguard the properties of deities and stop fences from eating crops on the basis of false claim of ownership. The steps initiated by the Board are in consonance with law and various judicial pronouncements and in the best interest of the temple. The petitioner had miserably failed to adduce evidence to prove his version against the process of assumption. Accordingly the Board issued final notification in the Official Gazette dated 19.11.2019 finalising the process of assumption. 14. After the assumption of the temple by the Board, its officials and the devotees of the temple have made enormous efforts to do proper maintenance to the temple structure and to bring its past glory. In the

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meanwhile, the Government of Kerala passed budget for the financial year 2020-2021. In this budget report, the Government had allotted Rs.5 Crores to renovate the Koothattukulam Mahadeva Temple, which is in dilapidated state of affairs. The Temple Advisory Committee of the temple submitted a representation before the Assistant Commissioner Thrikkariyoor to produce a consent letter of the Board to implement the work by the Tourism Department, Government of Kerala. The Board considered the importance, urgency and the necessity of the renovation work and the budget allocation made in the Kerala Budget, by proceedings dated 20.01.2021 had directed the Devaswom Commissioner to issue the NOC. True copy of the Board decision dated 20.01.2021 is produced herewith and marked as Exhibit-R4(a) . Accordingly, the Devaswom Commissioner had issued a no objection certificate on 21.01.2021, to execute the maintenance of the temple by keeping the ownership of temple within the Devaswom Board. True copy of the consent letter dated 21.01.2021 issued by the Devaswom Commissioner is produced herewith and marked as Exhibit-R4(b) . Thereafter on 06.01.2023, the Devaswom Commissioner had executed a consent letter to execute the work in the supervision of the Devaswom Board. True copy of the consent letter dated 06.01.2023 issued by the Devaswom Commissioner is produced herewith and marked as Exhibit-R4(c) .

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The Department of Tourism issued Ext. P7 order giving administrative sanction to the execution of above work. The amount set apart for the maintenance of the temple is Rs.5 Crores and the period for the completion of work is estimated as 18 months. The move of the Government is to renovate this neglected temple by using the Government fund and the same is very much helpful and support to the Koothattukulam temple to bring back its lost glory. The devotees of the temple and the Devaswom Board are very much interested in the execution of this project. The dilapidated state of the temple could be improved almost by the execution of this work. There is no dispute regarding the fact that the temple requires renovation work in urgent.

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The anxiety of the petitioner has no importance in this situation since as of now the petitioner has no right in the administration of temple. The move of the petitioner is against the interest of the temple. The petitioner's intention is to obstruct every move of the renovation of temple with certain mysterious reason. The only reason stated in the writ petition for his objection is that litigations are pending in respect of takeover of temple. The Board issued permission for the implementation of the work, by keeping the ownership of the temple in the Travancore Devaswom Board and safekeeping the interest of the temple. The intension of the Board is very transparent and to protect the property of temple in a good condition. The order dated

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29.09.2022 of the Addl. District Court-V in I.A. No. 2 of 2020 in O.S. 3 of 2020 to maintain status quo has no meaning that the respondents shall not make any improvements or maintenance to the temple structures or safeguard the interest of the temple.”

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The Writ Petition was admitted on 27.02.2023. As

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per the order dated 14.03.2023 in I.A.No.1 of 2023, additional respondent Nos.7 and 8 were impleaded. The learned Senior Government Pleader, on instructions submitted on the said

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date, that the inclusion of the name of the 6^th respondent, Uralungal Labour Contract Co-operative Society Ltd. in Ext.P7 is a mistake. That submission was recorded. No other respondents choose to file any counter affidavit.

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Heard the learned counsel appearing for the petitioner, the learned Senior Government Pleader, the learned Standing Counsel for the Travancore Devaswom Board, the learned counsel appearing for the 6^th respondent and also the learned counsel for additional respondent Nos.7 and 8.

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The 4^th respondent-Travancore Devaswom Board, after necessary enquiry, as provided in Section 38 of the TCHRI Act issued a preliminary notification for assumption of

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Koothattukulam Devaswom. After considering the objections the Board had decided to assume the administration of the Devaswom for which the Board had issued Ext.P1 Gazette notification. The members of the Athimon Illom, which was in the administration of the Temple are challenging the said order. O.S.No.18 of 2020 was filed by the petitioner along with another before the District Court, Ernakulam, seeking a decree setting aside Ext.P1 order. Ext.P3 is a copy of the plaint in the suit. Ext.P4 is a copy of the written statement filed by Travancore Devaswom Board and its Commissioner, who are defendant Nos.1 and 2 in the said suit. Naturally, the said suit has to be tried by the District Court, Ernakulam and a logical conclusion has to be arrived at. Similarly, O.S.Nos.3 and 20 of 2020, which were filed by different members of the Athimon Illom challenging the order of assumption on the ground that the private properties of the plaintiffs in the respective suits were also included in Ext.P1 notification are pending trial.

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It is seen that I.A.No.3 of 2020 filed by the plaintiff in O.S.No.20 of 2020 before the Additional District Court-V, Ernakulam, seeking an order of temporary injunction was dismissed. Ext.P5 would show that the plaintiff therein took up the matter before this Court by filing F.A.O.No.85 of 2022. While disposing of that appeal as per the judgment dated 07.11.2022, this Court directed the trial court to dispose of the suit within a period of five months and in the meantime the Travancore Devaswom Board was directed not to take possession of the property involved in that suit.

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The plaintiffs in O.S.No.3 of 2020 filed I.A.No.2 of 2020 seeking an order of temporary prohibitory injunction. Ext.P6 is a copy of that order dated 29.09.2022 in I.A.No.2 of 2020 of the Additional District Court-V, Ernakulam. The Travancore Devaswom Board and its Commissioner are the defendants in that suit. As per Ext.P6 both parties are directed to maintain the status quo of the property involved in that suit. The learned counsel appearing for the petitioner would submit that in the light of Exts.P5 and P6 the

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Travancore Devaswom Board or the Government cannot undertake any construction or renovation work of the Temple or in the properties of Koothattukulam Devaswom. The learned counsel further would submit that when legality and correctness of Ext.P1 are under challenge in a properly instituted suit, the Travancore Devaswom Board cannot have any kind of work in the Temple or the property.

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The learned Senior Government Pleader and also the Standing Counsel for the Travancore Devaswom Board would submit that the Temple structures of Koothattukulam Devaswom are at a stage of dilapidation and that unless repaired and renovated the same would collapse. The Temple structures are said to have archaeological importance and the Department of Archaeology has already taken initiative to protect the Temple structures as heritage monuments. Respondent Nos.7 and 8 produced Exts.R7(d) and R7(e), which are the letters issued by the officials of the Department of Archaeology in the above regard. It is seen from the said documents that the Department of Archaeology has taken

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initiative for protection of the Temple structures and the steps are on the anvil. Pointing out the aforesaid circumstances, the learned Senior Government Pleader and also the learned Standing Counsel for the Travancore Devaswom Board would submit that Ext.P7 order shall be implemented, lest the whole Temple structures would be destroyed.

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It is stated in clause (5) of Ext.P7 that the work sanctioned as per that order would be undertaken by the 6^th respondent. The learned Senior Government Pleader submitted that such a clause was included in Ext.P7 mistakenly and the Department of Tourism will execute the work in accordance with the Government regulations by inviting tenders and in consultation with the Travancore Devaswom Board. When there is a transparent mechanism for execution of public works spending public money, we fail to understand why a Co-operative Society, which under law, can claim no privilege in the matter of execution of a public work under the Government, was ordered to be entrusted with the work without any tendering process. In the light of the

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submission of the Senior Government Pleader, on instructions, that clause No.(5) in Ext.P7 is a mistake, we restrain ourselves from making any further comment on that aspect.

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From the materials on record and the submissions at the Bar, it is established that the Temple and other structures in Koothattukulam Devaswom require immediate renovation, and sometimes restoration. The works contemplated in Ext.P7 order are in that regard. We haveno doubt in our mind that pendency of suits, which were filed challenging the assumption of Temple by the Travancore Devaswom Board and inclusion of different properties in the notification shall not result in absolute ruin of the Temple structures. That would not be at the interest of no one including the plaintiffs in the suits, namely, O.S.Nos.3, 18 and 20 of 2020. In such circumstances, we are of the view that the relief claimed by the petitioner to quash Ext.P7 cannot be issued in the exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, except in regard to clause No.(5) in it. As pointed out above, the competent civil court as well as this Court issued orders of

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prohibitory injunction and status quo with respect to some of the properties included in Ext.P1 notification. Therefore, it is for respondent Nos.1 to 5 or any of them to approach the civil court to get permission or clarification/ modification of Exts.P5 and P6 orders, if required, in order to carry out the work envisaged in Ext.P7 order.

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Accordingly, this Writ Petition is disposed of by quashing clause No.(5) alone in Ext.P7 order dated 01.02.2023. It is made clear that respondent Nos.1 to 5 or any of them shall approach the civil court to get permission or clarification/modification of Exts.P5 and P6 orders, if required,

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in order to carry out the work envisaged in Ext.P7 order, before the commencement of the work. We make it clear that the work that would be carried out as per Ext.P7 will not be a bar in adjudicating rights in the aforementioned suits.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/P.G. AJITHKUMAR, JUDGE

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dkr

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APPENDIX OF WP(C) 6526/2023

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE FINAL GAZETTEE NOTIFICATION PUBLISHED IN THE KERALA GAZETTE ON 12-11-2019 EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.32685 OF 2019 OF THIS HON'BLE COURT, DATED 12-08-2021 EXHIBIT P3 TRUE COPY OF THE PLAINT IN O.S.NO.18 OF 2020 ON THE FILE OF THE DISTRICT COURT, ERNAKULAM, DATED 16-3-2020 EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 1 AND 2 IN O.S.NO.18 OF 2020 ON THE FILE OF THE DISTRICT COURT, ERNAKULAM, DATED 1007-2021 EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN FAO NO.85 OF 2022 ON THE FILE OF THIS HON'BLE COURT, DATED 7-11-2022 EXHIBIT P6 TRUE COPY OF THE ORDER IN I.A.NO.2 OF 2020 IN O.S.NO.3 OF 2020 ON THE FILE OF THE ADDL. DISTRICT COURT-V, ERNAKULAM, DATED 29-09-2022 EXHIBIT P7 TRUE COPY OF GOVERNMENT ORDER NO.45/2023/TSM, OF THE TOURISM DEPARTMENT, DATED 1-2-2023 EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGES OF THE BOOK WRITTEN BY SRI.MADHAVA JI RESPONDENT EXHIBITS EXHIBIT R7(A) A TRUE COPY OF THE JUDGMENT DATED 12.01.2017 IN WPC NO: 284/2017

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EXHIBIT R7(B) TRUE COPY OF THE JUDGMENT DATED 19-111951 IN AS NO. 176 OF 1124 OF HIGH COURT OF JUDICATURE TRAVNACORE -COCHIN EXHIBIT R7(C) TRUE COPY OF EXTRACT OF SETTLEMENT REGISTER OF MUVATTUPUZHA TALUK HIGHLIGHTING THE SY.NO. OF TEMPLE PROPERTY EXHIBIT R7(D) A TRUE COPY OF THE REPORT OBTAINED BY ONE OF THE DEVOTEE UNDER THE RTI ACT DATED 8.4.2018 EXHIBIT R7(E) TRUE COPY OF THE COMMUNICATION ISSUED BY THE HEAD OF DEPARTMENT OF ARCHAEOLOGY, UNIVERSITY OF KERALA TO MINISTER TOURISM DATED 01.11.2022

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EXHIBIT-R4(A) TRUE COPY OF THE BOARD DECISION DATED 20/01/2021. EXHIBIT-R4(B) TRUE COPY OF THE CONSENT LETTER DATED 21/01/2021 ISSUED BY THE DEVASWOM COMMISSIONER.

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EXHIBIT-R4(C) TRUE COPY OF THE CONSENT LETTER DATED 06/01/2023 ISSUED BY THE DEVASWOM COMMISSIONER.

A P. Parameswaran Namboothiri v. State of Kerala

Case brief

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A P. Parameswaran Namboothiri v. State of Kerala

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