IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 WP(C).No. 37947 of 2007(P) -------------------------- PETITIONER(S): --------------- 1. DR.SATISH BHAT S,S/O SREEDHARA BHAT, T.P.9/190.VALANKARA FLATS,CATHEDRAL ROAD, THAMARASSERY,KOZHIKODE 763 573. 2. D.VENKATASWARA SHENOY, H.NO.8/3265-A, KARTHIKA,EDAKKAD,KOZHIKODE-673 005. 3. KISHORE KRISHNA T.K,S/O KRISHNA BHAKTHAN THUMPAYIL HOUSE,NEAR U.P.SCHOOL,WEST HILL, KOZHIKODE 5. 4. K.BHAGIRATH NATH,2/504,SHENOY'S COLONY, NALLIKAM,KARAPARAMBA,KOZHIKODE. 5. V.NARAYANA PRABHU,S/O VITTAPA PRABHU, EX-SERVICEMEN ROAD,WEST HILL,KOZHIKODE-5. BY ADV. SRI.GOVIND K.BHARATHAN (SR.) SRI.C.P.KUNJHIKANNAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, CIVIL STATION,KOZHIKODE. 3. THE SPECIAL TAHSILDAR(LAND ACQUISITION), KOZHIKODE. 4. SREE KASHI MATH,WEST HILL, CHUNGAM,KOZHIKODE-5, (BRANCH MATH OF SREE KASHI MATH SAMSTHAN,VARANASI) REPRESENTED BY ITS MANAGER,R.MURALEEDHARA SHENOY. ADDL.R5.THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, PALAKKAD. (IMPLEADED AS PER ORDER DATED 1 /2/ 2008 IN I.A. NO.1607/2008. ) ADV. SRI.THOMAS ANTONY SC FOR NHAI GOVERNMENT PLEADER SRI.BASANTH BALAJI SRI.K.P.CHANDRASEKHAR(ADV.COMMNR.) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 5/12 /2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ......0 WPC NO. 37947/2007. APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF THE JUDGMENT DATED 22/7/2005 IN W.P.11565/2000 OF THIS HON'BLE COURT. EXT.P2: COPY OF THE JUDGMENT DATED 13/2/2006 IN W.A. 2415/2005 OF THIS HONURABLE COURT. EXT.P3: COPY OF THE ROUGH SKETCH OF THE PROPOSED ACQUISITION. EXT.P4: COPY OF THE INTERIM ORDER DATED 16/1/2006 IN W.A.2415/2005. EXT.P5; COPY OF THE PHOTOGRAPHS OF LORD GANESHA TEMPLE. EXT.P6: ORIGINAL COPY OF THE PLAN. EXT.P7 A TO C. PHOTOGRAPHS SHOWS THE INSIDE THE THIDAPPALLY. EXT.P8A AND B: PHOTOGRAPHS OF THE VITOBA RUKMAYI MANDIR. RESPONDENTS EXHIBITS: EXT.R3(a): TRUE COPY OF THE ALIGNMENT SKETCH PREPARED IN RELATION TO THE SAID MATH. EXT.R3(b). TRUE COPY OF THE ALIGNMENT SKETCH PREPARED BY THE REQUISITIONING AUTHORITY EXECUTIVE ENGINEER, N.H. DIVISION, CALICUT. /TRUE COPY/ P.A. TO JUDGE. PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No.37947 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of December, 2008 JUDGMENT The petitioners are members of Gowda Saraswath Brahmin community owing allegiance to Shrimad Raghavendra Thirtha Swami referred to in the writ petition as junior pontiff. They have instituted this writ petition under Article 226 challenging all proceedings for acquisition of portions of the premises of Sree Vitoba Rukmayi Mandir Temple, said to be a fully consecrated place of worship where daily poojas are conducted and devotees belonging not only to Gowda Saraswath Brahmin community but also from among Hindu worshiping public belonging to other communities regularly come to offer their prayers. The first respondent is the State , the second respondent is the District Collector and the third respondent is the land acquisition officer. The fourth respondent is Sree Kashi Math which is said to be the Kozhikode branch of the Math of Sree Kashi Math Samsthan, Varanasi said to be the religious institution of Gowda Saraswath WPC.No.37947/07 2 Brahmins all over the world. The Project Director, National Highway Authority of India was impleaded as additional respondent No.5. Executive Engineer, National Highway Division, Kozhikode was impleaded as additional respondent No. 6 accepting the submission by Sri.Thomas Antony, standing counsel for the National Highway Authority of India that this work is being carried out presently by the additional 6th respondent. 2. It is conceded by the petitioners in paragraph 9 that this court had occasion to deal with the challenge of the land acquisition proceedings under challenge, in O.P.No. 11565/00 as well as in W.A. No.2415/05. It is also conceded that the original petition was dismissed by a Single Judge of this court (myself) vide Ext.P1 judgment and that Ext.P1 judgment was confirmed by a Division Bench by Ext.P2 judgment. Anticipating resistance to this writ petition on the ground of maintainability in the teeth of Exts.P1 and P2, the petitioners submit that Shrimad Raghavendra Thirtha Swami was initiated by Sri.Sudhindra Thirtha Swami as the junior pontiff of the Kashi Math. The petitioners point out that Sri. Sudhindra Thirtha WPC.No.37947/07 3 Swami ( referred to as the senior pontiff) had prior to the installation of the junior pontiff executed a power of attorney in favour of Sri.Varadharaja Bhat. Upon the demise of Sri.Varadharaja Bhat, the affairs of the Kasimath Samsthan at Kozhikode was being looked after by some of the local devotees of the temple and in the absence of any duly constituted power of attorney the day today affairs of the temple was managed by Sri. R. Muralidhara Shenoy. It is submitted that differences of opinion have cropped up between the senior and junior pontiffs and the District Court, Thirupathy is presently in seizin of the issue between the junior and the senior pontiffs. On account of the rift between the senior and junior pontiffs a split has taken place amongst the members of the community. 3. According to the petitioners the writ petition leading to Ext.P1 judgment ( which was filed by Kasi Math Samsthan Varanasi through the senior pontiff represented by its manager and power of attorney holder Sri. V.R.Bhat) was instituted urging that the proceedings for acquisition was a fraud committed by the authorities and that the proposal to acquire the property of the Samsthan was in WPC.No.37947/07 4 fact to save the property of a Mosque situated at a junction of two roads practically touching the NH. The petitioners submit that a very valid ground that the property proposed to be acquired is the Thidappally of the temple and includes Ganapathy temple also, was not prominently raised. Petitioners submit that they were totally unaware of the proceedings for acquisition or the proceedings before this court which culminated in Exts.P1 and P2 judgments. It is only after obtaining copies of Exts.P1 and P2 judgments that they could realise that serious and important aspects which could have been urged before this court were not actually urged. Petitioners further submit that this court passed Ext.P1 judgment carrying an impression that by the acquisition, the temple was not going to be affected at all and that only a building by name Sudindra Vasathi Gruha which accommodates the employees of the temple was going to be affected and that too only to a small extent. Petitioners have produced Ext.P4 copy of an interim order which was passed by a Division Bench of this court in WA.No. 2415/05 which was filed against Ext.P1 and submits that the Division Bench actually became inclined to ascertain the factual aspect of the WPC.No.37947/07 5 matter i.e. whether the building portion proposed to be acquired constitute portion of the temple and in that regard directed the district collector to ascertain the factual aspect on the basis of the photographs produced by the Advocate General. Petitioners complain that despite the directions given under Ext.P4, the factual aspects were not ascertained by the District Collector nor was the Division Bench appraised about those aspects. The Division Bench however agreed with the finding of the Single Judge under Ext.P1 that the building portion which is proposed to be acquired was only part of the building which accommodates the employees of the temple and accordingly dismissed the writ appeal. According to the petitioners, the paramount contention that the building which was going to be effected was the Thidappally of the temple and that the Thidappally was an essential part of the temple and demolition of the Thidappally would amount to destroying the temple as dismembering the arm of the human body were never put forth before this court and no materials were placed before this court to substantiate the above aspect of the matter though there were atleast faint pleadings to that effect. WPC.No.37947/07 6 4. The petitioners also allege that the alignment of the road in front of the temple has been fixed deliberately with an intention to save a mosque and they highlight that if the road is shifted slightly to the western side, there will be no necessity to acquire the temple property at all and that the buildings which will be affected on account of such shifting are all dilapidated buildings situated on the western side of the existing road. Ext.P3 according to the petitioners is the site plan showing the area where the acquisition is proposed and the petitioners contend that it is evident from Ext.P3 itself that acquisition of portion of the building in the manner now proposed itself will not solve the problem of straightening the road. The petitioners attribute malafides to the concerned in not going in for acquiring the buildings situated on the western side of the road said to be belonging to influential people. Petitioners contend that they constitute the denomination of the Vitoba Rukmayi Mandir Temple. According to them the temple is a leading place of worship of the Gouda Saraswada Brahmins Community of the area and they reiterate in paragraph 21 that the present attempt is to save the mosque as well as the traders occupying the dilapidated WPC.No.37947/07 7 buildings on the western side of the road. According to them the action of the respondent is malafide, discriminatory and violative of fundamental rights. Petitioners further submit that the idol of Lord Ganesh was excavated from land which is now proposed to be acquired. Petitioners submit that it is a very ancient idol and its existence was discovered through Deva Prasnam and have produced Ext.P5 photographs of the statue of Lord Ganesh. It is contended that the respondents have no authority to demolish an existing temple for the purpose of straightening the road. On the above pleadings, the petitioners raise the following grounds : A. Acquisition of a portion of the Thidappally of the temple will destroy the temple itself. The principles of the Agamas and Sasthras dictate that the Thidappally is one of the most important structures in a temple complex. It is the kitchen where the Lords' food is prepared and according to Vasthu it is the place of fire. None of these aspects have been projected before either the Single or Division Bench, thus affecting the interests of denomination who are the persons actually own the temple. The petitioners were WPC.No.37947/07 8 totally unaware of the proceedings of the court and they became aware only when the land acquisition officials turned up in furtherance of acquisition proceedings. The petitioners submit that the respondents are in no way entitled to acquire the temple building without considering the true facts of the case including the case as presented by the petitioners herein before this Honourable Court. B. Acquiring the temple and exempting the mosque violates the petitioners' fundamental right to equality under Article 14 of the Constitution of India. The attitude of the respondents is also high handed, arbitrary and authoritarian. C. The entire proceedings are in violation of the Principles of Natural Justice. Notice should have been taken out to the denomination before going ahead with acquisition proceedings. 5. The petitioners have filed this writ petition with the following prayers : i) call for the records leading to the acquisition proceedings for acquiring the petitioners property situated in Sy.Nos. 175/3, WPC.No.37947/07 9 R.S. 1-2-108 and the building in the property which is the Thidappally of the temple and to issue a writ of certiorari or other appropriate writ order or direction quashing the same; ii) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 3 to refrain from taking any steps to acquire any portion of the land belonging to the petitioners situated in Sy.175/3, R.S.1-2-108 and restraining them from interfering with any of the structures on the said land. 6. On behalf of the third respondent a detailed counter affidavit was filed on the 6th March, 2008. Inter alia, it is contended therein that the composite notification under Section 4(1) and Section 17(4) regarding the acquisition was published in the gazette, in local dailies and the public notice of the substance of the notification was given in the locality apart from giving individual notices to all known interested parties, the last date being 25.11.1997. The enquiry under Section 5A was dispensed with and the declaration under Section 6 was issued on 4.2.1998 and was published in the gazette, newspapers as well as in the local dailies, the first date of publication being 11.2.1998, WPC.No.37947/07 10 the day on which the declaration was published in the gazette. It is submitted that for convenience of land acquisition proceedings, the entire extent was divided into blocks I and II and land belonging to Kashi Math Samsthan was included in Block No.I. The above land has an extent of 3.04 ares and during the course of the land acquisition proceedings Mr.R.Varadaraja Bhat who was the Power of Attorney Holder of Kashi Math Samsthan, Varanasi moved the civil court by filing O.S.No.774/98 and interlocutory application for temporary injunction restraining the land acquisition authorities from enforcing the proposed acquisition without taking into consideration the objections filed by the petitioners therein. It is submitted that the learned Munsiff by his order dated 27.2.1999 in the petition for temporary injunction directed the petitioner therein to file his objections before the land acquisition officer within three days and directed the land acquisition officer to consider those objections on merits within one month. Stay of dispossession was given till the objections are considered. It is submitted that the petitioner before the Munsiff's Court filed his objections before the land acquisition officer WPC.No.37947/07 11 on 3.3.1999. On receiving the objections, notice for personal hearing on 16.3.1999 was given to the petitioner and on that date the petitioner appeared through Adv.Mr.Anil Viswanath and sought for time till 18.3.1999. Time was accordingly granted and on 18.3.1999 the objection which was urged by Adv.Anil Viswanath was that the temple belongs to a linguistic minority community and therefore the properties under acquisition were to be exempted from acquisition. It is claimed that the objections were considered in detail and since it was found that the acquisition was inevitable for alleviating the traffic congestion and for avoiding further accidents, the objections were rejected. Ext.R3(a) is copy of the alignment sketch showing the properties of the Kashi Math under acquisition is produced. It is then contended that pursuant to the order rejecting the objections filed by the petitioner before the civil court, the acquisition proceeded further and award enquiry was conducted on 12.4.2000. But the authorities of Kashi Math did not attend the award enquiry. However, as requested by them, award enquiry was adjourned and conducted on 24.4.2000. This was done after promulgation and service of the notice under the land acquisition WPC.No.37947/07 12 act and finally the award was passed determining the compensation payable for the properties under acquisition on 30.6.2000. It was thereafter that Mr.Varadaraj Bhat, the Power of Attorney Holder of Kashi Math filed O.P.No.11565/2000. Possession could not be taken of the properties in view of the interim order passed by this court in that O.P. Award notice under Section 12(2) was served on all interested parties except the Kashi Math. 7. It is pointed out that, in the meanwhile, the West Hill Vyapari Vyavasayi Association complained that Ganapathi Mandapa was illegally erected on the land under acquisition by the Manager of Kasimath on 19/2/2005 and 20/2/2005. On site inspection, the Revenue Inspector attached to the office of the third respondent found that the Ganapathy Mandapa has been illegally erected on the land, which was already acquired, as per award No.3/2000. Finally O.P. 11565/2000 was dismissed by this court holding that it is only a portion of the Sudhinra Vasathi Graha building, which accommodates employees of the temple which is going to be affected and that too only to a small extent. This court directed under the judgment that separation of the WPC.No.37947/07 13 acquired portion of the building from the unacquired portion shall be done by making use of the concrete cutting machines at the expense of the petitioner. It is submitted that in obedience to the direction of this court regarding the manner in which the acquired portion of the building should be separated from the unacquired portion notice was issued to the parties. But, the parties did not attend the meeting. Therefore, steps were taken by the land acquisition officer for separating the acquired portion of the building from the unacquired portion. At that time, Kasimath Samasthan filed W.A. No.2415/2005 challenging the judgment in O.P. No.11565/2000. The writ appeal was dismissed by this court stating that the public purpose of straightening and widening of the Highway cannot be sacrificed only with a view to save such portion of the building which is not likely to affect the appellants adversely in any manner. It is then submitted that notice under Section 47 of the Land Acquisition Act was issued to Sri. Varadaraja Bhatt Sri.Kasimath Vyavasthapaka Samathi, West Hill and also to Sri.Muralidhar Acharalkya, Manager Kasimath Samsthan directing them to vacate the lands and structures or to appear before WPC.No.37947/07 14 the R.D.O for hearing on 8/8/2006. The Manger of Kasimath appeared before the RDO's court and stated that they are ready to vacate the building and requested for a month's time for vacating the building and for removing the idol of Ganapathy from the building. But, they did not keep their word though the time given was expired. Accordingly, it was decided to take forceful possession. Possession however could not be taken due to the protest of Kasaimath Samrakshana Samithy workers. Thereafter, the RDO convened an all party meeting in his chamber on 18/10/2006. All the political party leaders except those of BJP, RSS and VHP were of the view that the land acquisition proceedings shall continue but no final decision was taken in the meeting. Later, it was decided on 18/11/2007 the possession of the acquired land should be taken with police help. At that juncture Sri.Muralidhar Acharya approached the Assistant Commissioner, North Kozhikode city and requested for postponement of the eviction for two months i.e. after the Mandala season due to some religious rituals involved with the Ganapathi idol which is to be removed in the process of eviction. The Commissioner of Police requested the District WPC.No.37947/07 15 Collector to consider this request favourably. Accordingly, the District Collector directed the RDO to get the assurance in writing from Sri.Muralidhar Acharya and to allow two months time. But the Manager stated that though they are willing to vacate the building within the time limit, they are not ready to give it in writing. It is pointed out that till date no action has been taken by the authorities of Kashimath to replace the idol of Lord Ganapathi. The counter affidavit goes on to deny the various grounds raised in the writ petition. It is pointed out that out of the total extent of 55.50 cents, land to be acquired for the purpose will be just 7.50 cents. The reason stated by this court in the Judgment in O.P. No.11565/2000 are highlighted in the counter affidavit. As regards the Ganapathi statute, it is submitted that even at the time of passage of the award, the statue did not exist at the place where it exists now. The statute was erected illegally on the acquired land only on 19/2/2005 and 20/2/2005 and the construction of the Ganapathi Mantapa was without permission from the concerned authorities and hence illegal. The allegations of fraud and mala fides in the matter of acquisition proceedings are denied in the counter WPC.No.37947/07 16 affidavit. It is pointed out that there is a sharp curve very near to the land of Kasimath under acquisition. For straightening the sharp curve the math's land is essential. The region called as Kulangara Kavala at West Hill in Kozhikode between 241/400 to 241/7000 of NH 17 is accident Prone area and many valuable human lives and property were lost during the past many years due to accident. The general public as well as the media were pressing for the improvement of the road by removing bottle neck of the road and by straightening of sharp curve at this accident Prone area. The allegation of mala fides are without any basis. Purpose of the acquisition is a genuine public purpose and is in the larger interest of the public in general and not to save the mosque as alleged. Lastly, it is submitted that all the adjacent lands except that of Kasimath have already been taken over for the purpose of straightening of the curve and without getting the land belonging to Kasimath the acquisition proceedings cannot be completed. It is pointed out that some about 25 years ago, the land was owned by some other persons and hospital was functioning there. The property was converted as a temple only after Kasimath came to WPC.No.37947/07 17 have this property and the temple is not an ancient one, as the petitioner claims. 8. The petitioners have filed a reply affidavit. It is submitted that the judgment in O.P.No.11565/2000 was based on the plan submitted by the department and the fact is that the persons representing the Kashi Math at that time did not make the correct representation of the matter before the officials. It is alleged that the plan produced along with the counter affidavit is a totally fabricated and factually incorrect one and not according to scale. Important buildings etc. are not shown in this plan at the correct locations. It is alleged that the location of the Mosque is shown wrongly. Several parts of the buildings shown in the plan have been deliberately manipulated in such a manner as to justify acquisition of the temple. As against Ext.R3A, Ext.P6 claimed to be a plan drawn to scale by a licensed building Supervisor is produced. It is claimed that Ext.P6 shows the correct location of the temple and the Mosque. It is alleged that facts and circumstances of the case have been misrepresented by the respondents which will be demonstrated by Ext.P6. No mention is WPC.No.37947/07 18 made of the transformer situated near the Mosque at the intersection of the Kannur road with the road going to West Hill Barracks in Ext.R3A. The exact location of the Mosque is in the western side touching the National Highway 17, Kannur road and southern side touching the road to West Hill Barracks. It is alleged that the above aspect of the matter was deliberately misinterpreted and misrepresented in Ext.R3A. Producing Exts.P7 A to P7C photographs, it is contended that the statement in the counter affidavit that only a small portion of the building Sudhindra Vasathigriha is going to be affected by acquisition is incorrect. It is claimed that Exts.P7A to P7C photographs are taken from inside the building and those photographs will show that the building is not a residential building but the Thidappally of the temple, namely, the building where the naivadyam is prepared. It is pointed out that it is in this building that the Kalasa Kudam required for conduct of pooja of the deity is stored and naivadiam is prepared and other preparations for religious rituals are made and cooking vessels are stored. The petitioners have produced Exts.P8A and P8B photographs stated to be photographs of the Vitoba Rukmayi Mandir and the Deities WPC.No.37947/07 19 installed therein. It is claimed that the building sought to be acquired is not a residential building for temple staff, as contended. It is pointed out that during temple festivals, special rituals used to be performed at a raised platform which existed ever since the temple came to being. It was later discovered during the Devaprasnam that there was a strong Ganesha presence in that area and on excavation the ancient idol of Lord Ganesha was discovered under the mound. It was thereafter that the idol of Lord Ganesha was installed in its present location. 9. The petitioners filed I.A.No.7598 of 2008, an application for issuance of a Commission