IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 25TH JANUARY, 2008 / 5TH MAGHA, 1929 WP(C).No. 9846 of 2006(V) PETITIONERS: ----------------- 1. B. SETHUMADHAVAN, VALLEPARAMBIL HOUSE POOZHIKKAL P.O., KADUTHURUTHY, KOTTAYAM. 2. A.C. KRISHNAKUMAR, S/O. P.M. CHANDRASEKHARA PILLAI, AMBIKA SADANAM, POOZHIKAL P.O., KADUTHURUTHY. 3. M.G. RAVEENDRAN NAIR, BANGLAVIL HOUSE, POOZHIKKAL P.O., KADUTHURUTHI. 4. P.M. KESAVA PILLAI, THEKKE POOVAPPILLILL HOUSE, POOZHIKKAL P.O., KADUTHURUTHI. BY ADV. SRI.GOVIND K.BHARATHAN (SR.) SRI.MANU MOHAN SRI.M.S.SARUN KUMAR RESPONDENTS: ------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOTTAYAM. WP(C) NO.9846 OF 2006 :-2-: 3. THE SUPERINTENDENT OF SURVEY, VAIKOM TALUK, VAIKOM. 4. TRAVANCODRE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, OFFICE OF TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM. 5. THE COMMISSIONESR, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM. 6. THE ASSISTANT COMMISSIONER, ETTUMANOOR SUB GROUP, TRAVANCORE DEVASWOM BOARD, ETTUMANOOR. 7. SUB GROUP OFFICER, MANNAR SUB GROUP, TRAVANCORE DEVASWOM BOARD, MANNAR. R1 TO R3 BY GOVT. PLEADER SRI.R.LAKSHMINARAYANAN. BY ADV. SRI.K.N.VENUGOPALA PANICKER, SC, TDB R4 TO R7 BY ADV.SRI.P.PARAMESWARAN NAIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (WP(C) No. 9846 OF 2006) PETITIONER'S EXHIBITS: Ext.P1: Copy of the Circular dtd. 17.1.2003 issued by the Devaswom Secretary. Ext.P2: Copy of the representation dtd.24.3.2004 addressed to the President of the Travancore Devaswom Board. Ext.P3: Copy of the representation dtd.6.8.2004 filed by the petitioners before the Assistant Commissioner, Ettumanoor. Ext.P4: Copy of the complaint made to the Chief Minister. Ext.P5: Copy of the Circular dated 20.3.1974. -True Copy- P.A.to Judge. P.R.RAMAN & V.K.MOHANAN, JJ. --------------------------------------------- W.P(C).No. 9846 of 2006 V --------------------------------------------- Dated this the 25th day of January, 2008 J U D G M E N T Raman,J: There was an interim prayer that a direction may be issued to the fourth respondent to ensure that no survey is conducted on the properties of the temple without their knowledge and without the presence of the officials of the 4th respondent and that such survey is conducted strictly in accordance with the records in the custody of the Devaswom regarding the lands belonging to the Elamakkudy Sree Mahadeva Temple. In the interim order passed by this Court, it was made clear that further survey of the properties involving the land of the concerned temple would be conducted only after notice to the 6th and 7th respondents and would not be finalised without further orders from this Court. As regards the other reliefs, the matter came up for consideration before us. 2. The Ombudsman had filed Report No.7 and as per that report, a complaint was received from the WP(C) NO.9846 of 2006 :-2-: devotees of Elamakkudy Sree Mahadava Temple alleging trespass to temple properties. The Ombudsman, after conducting personal visit of the properties, after notice to the parties and after collecting informations about the actual state of affairs, ascertained as to why the directions of the Board for construction of the compound wall was not implemented and had recommended as follows:- (i) I notice that there is no Bhandaram outside the temple and if a Bhandaram is installed on the road side, the temple is likely to get more income from the devotees. The Deputy Commissioner has agreed to install one at the time of construction of the compound wall on the northern side. (ii) There is no dispute with regard to the boundaries on the northern and western sides of the temple compound and there is entrance to the temple from the road. It is stated that the Devaswom Board has already directed construction of compound wall on the northern and western sides with a gate so that further encroachment on the two sides can be stopped. The Deputy Commissioner has agreed to do the needful in this matter also. (iii) The suit filed as O.S.No.15 of 2006 now stands stayed under S.10 of the Code of Civil Procedure stating WP(C) NO.9846 of 2006 :-3-: that the same dispute is substantially before the High Court in W.P.No.9846 of 2006. In the writ petition, the prayers are to arrange for a thorough survey and to measure the property of the temple and to take immediate steps to stop usage of the pathway through the temple property by adjacent land owners and for other reliefs. The suit is for a declaration that the Aanjili tree cut from the temple property belongs to the temple and for injunction not to remove the tree cut. Section 20A of the Land Conservancy Act creates a bar of jurisdiction for the civil courts in respect of such suits and by virtue of S.50 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 provisions of Land Conservancy Act is made applicable to the lands belonging to the Travancore Devaswom Board. S.11 of the Land Conservancy Act authorises the District Collector to summarily evict persons in unauthorised occupation. There is also provision for a suit challenging the order on the ground the land in respect of which the order has been passed is not a land belonging to the Devaswom. (iv) In view of the above and subject to further arguments by counsel and consideration by this Hon'ble Court, I am of opinion that this is a fit case where the District Collector, Kottayam can be directed to proceed under the Land Conservancy Act and to settle the dispute after hearing both sides. On finalisation of the proceedings, a compound wall can be constructed on the remaining two sides also to put an end to further encroachment in the temple property. (v) The Deputy Commissioner may be directed to take steps to put a Bhandaram near the gate on the northern side of the compound wall and compound walls on the WP(C) NO.9846 of 2006 :-4-: northern and western sides where there is no dispute may be directed to be constructed even before the District Collector proceeds under the Land Conservancy Act.” 2. We have heard the parties. The recommendations as suggested by the Ombudsman are accepted. The Travancore Devaswom Board will take further steps for implementation of the same. The District Collector, Kottayam is directed to take proceedings under the Land Conservancy Act in accordance with law and file a report after conducting survey of the property by the third respondent only after giving notice of such survey to respondents 6 and 7 and any other parties who may be interested. Respondent Nos.6 and 7 shall make available all Devaswom records at the time of survey. 3. Since the suit is already stayed in view of the pendency of this writ petition, we direct that the stay will continue until the Land Conservancy Proceedings come to a logical end and thereafter appropriate steps WP(C) NO.9846 of 2006 :-5-: shall be taken by the Devaswom Board to withdraw the suit. The writ petition is accordingly closed. Sd/- P.R.RAMAN, Judge Sd/- V.K.MOHANAN, Judge Mbs/ -True Copy- WP(C) NO.9846 of 2006 :-6-: P.R.RAMAN & V.K.MOHANAN, JJ. -------------------------------------------- O.P.NO. OF 2001 ------------------------------------ J U D G M E N T WP(C) NO.9846 of 2006 :-7-: DATED: -2007