IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 WP(C).No. 2314 of 2004(A) ------------------------- PETITIONER: ------------ SRI.VARIAMCODE BHAGAVATHY TEMPLE AND DEVASWOM REPRESENTED BY ITS EXECUTIVE OFFICER M.BABU, S/O. NARAYANAN, RESIDING AT NARUKARA, MANJERI, MALAPPURAM DISTRICT. BY ADV. SRI.MOHAN C.MENON KRISHNA KUMAR K PRABHA R.MENON P RESPONDENTS: ------------- 1. THE COMMISSIONER (ADMINISTRATION DEPARTMENT) HR & CE, KOZHIKODE. 2. KUNNATH PARVATHIKUTTY AMMA, D/O.LAKSHMIKUTTY AMMA, RESIDING AT KUNNATH HOUSE, P.O.VARIANCODE, VIA THIRUNNAVAYA. 3. KUNNATH ANANDAKUMAR S/O. PARVATHIKUTY AMMA, RESIDING AT KUNNATH HOUSE, P.O.VARIANCODE, VIA THIRUNNAVAYA. 4. KUNNATH UNNIKRISHNAN NAIR S/O. PARVATHIKUTTY AMMA, RESIDING AT KUNNATH HOUSE P.O.VARIANCODE, VIA THIRUNNAVAYA. 5. KUNNATH SOBHANA D/O. SAROJINI, RESIDING AT VETTAKATTIL VEEDU, P.O.NADUVATTOM, KUTTIPPURAM. 6. KUNNATH PREMALATHA D/O. SAROJINI, RESIDING AT VETTAKATTIL VEEDU, P.O.NADUVATTOM. WPC NO.2314/2004 7. KUNNATH GEETHA D/O. SAROJINI, RESIDING AT VETTAKATTIL VEEDU, P.O.NADUVATTOM, KUTTIPPURAM. 8. KUNNATH CHITHRA, D/O. INDIRA, RESIDING AT CHEMMALAMACHATHU VEEDU, P.O.THIRURANGADI, KAKKADU. 9. BALAKRISHNAN NAIR S/O. PARUKUTTY AMMA, RESIDING AT KUNNATH MADATHIL HOUSE, P.O.VARIANCODE, VIA THIRUNNAVAYA. * 10. THANKUMMU ALIAS KOUSALYA AMMA, RESIDING AT KUNNATH MADATHIL HOUSE, P.O.VARIANCODE, VIA THIRUNNAVAYA. (DELETED) 11. KOYAKUTTY S/O. ALAVIKUTTY HAJI, RESIDING AT MOZHIYOTTIL P.O., VARIANCODE VIA THIRUNNAVAYA. * 12. MOHAMMED S/O. ALAVIKUTTY HAJI, RESIDING AT MOZHIYOTTIL P.O., VARIANCODE VIA THIRUNNAVAYA. (DELETED) 13. ALAVIKUTTY, /O. MOZHIYOTTIL MOIDEEN HAJI RESIDING AT MOZHIYOTTIL, P.O.VARIANCODE, VIA THIRUNNAVAYA. 14. IBRAHIM S/O. MOZHIYOTTIL MOIDEEN HAJI, RESIDING AT MOZHIYOTTIL P.O.VARIANCODE VIA THIRUNNAVAYA. 15. HAMSA S/O. MOZHIYOTTIL MOIDEEN HAJI, RESIDING AT MOZHIYOTTIL, P.O.VARIANCODE VIA THIRUNNAVAYA. 16. ANEESHA D/O. MOZHIYOTTIL MOIDEEN HAJI, RESIDING AT MOZHIYOTTIL, P.O.VARIANCODE VIA THIRUNNAVAYA. 17. RAZIYA D/O. MOZHIYOTTIL MOIDEEN HAJI, RESIDING AT MOZHIYOTTIL, P.O.VARIANCODE, VIA THIRUNNAVAYA 18. JAMSHAAD (MINOR), S/O. MOZHIYOTTIL MOIDEEN HAJI, RESIDING AT MOZHIYOTTIL, P.O.VARIANCODE VIA THIRUNNAVAYA, REPRESENTED BY MOTHER VADAKKINIYATHU PULLATTU AYISUMMA. WPC NO.2314/2004 19. MOHAMMED HAJI, S/O. SAIDALIKUTTY, RESIDING AT KANJEERAMPARAMBIL, P.O.VAIRANCODE, VIA THIRUNNAVAYA. 20. KADEESAKUTTY UMMA, W/O. MOHAMMED HAJI, RESIDING AT ALACHAMBATTU, P.O.VAIRANCODE, VIA THIRUNNAVAYA. (* RESPONDENTS 10 & 12 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER IN I.A.NO.2567/04 DATED 23/02/2004) BY ADV. SRI.T.KRISHNAN UNNI (SR.) FOR R2TO9,11,14,16, THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.2314/2004 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE PETITION M.P.2/02 DATED 04/03/2003. P2 : COPY OF the WRITTEN STATEMENT DATED 28/01/02. P3 : COPY OF THE ORDER DATED 20/12/2003. RESPONDENT'S EXHIBITS R4(a) : COPY OF the PETITION SUBMITTED BY EXECUTIVE OFFICER TO 19TH RESPONDENT ON 05/02/2000. R4(b) : COPY OF THE ORDER OF THE COMMISSIONER H.R.&C.E. DEPARTMENT, KOZHIKKODE DATED 09/05/2006. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. ------------------------- WP(C) No. 2314 of 2004 --------------------------------- Dated, this the 3rd day of June, 2008 J U D G M E N T Ramachandran Nair, J. Petitioner is a public religious trust managing the Variamcode Bhagavathy Temple. The petitioner made application under Section 87 of the Hindu Religion and Charitable Endowments Act before 1st respondent for issuing a certificate for the property owned by the temple. However, the Commissioner issued Ext.P3 order declining to issue certificate but leaving freedom to petitioner to go to Civil Court for recovering the possession of the properties. It is this order i.e. under challenge in this writ petition. 2. We heard learned counsel appearing for petitioner, learned counsel appearing for contesting respondents and learned Government Pleader for 1st respondent. 3. Even though the contention of learned counsel for petitioner that the properties of the Devaswom would have been trespassed or encroached or otherwise occupied by various persons at some time in the past, we do not think Section 87 is intended to WP(C) No.2314/2004 -2- achieve the purpose of recovering the properties through orders by the Commissioner. In fact, the purpose of Section 87 is to ensure retention of properties by the Devaswom on transfer of management of temples, wherein the Commissioner is vested power to restore the properties of the Devaswom to it, if retained by trustees, managers, servants or any other persons after transfer. It is clear from the proviso to the Section that the Commissioner's order is subjected to Civil Court orders pertaining to the property. In other words, Section 87 recognises that Civil Court is the ultimate authority to settle dispute, if any, on land. The only difference is that the proviso to the Section contemplates filing of suit by the person against whom an order is passed by the Commissioner under Section 87 of the Act. In this case, the Commissioner instead of considering the nature of possession and enjoyment of the properties by the contesting respondents, felt that Devaswom can recover the properties by obtaining orders from Civil Court. The petitioner itself has conceded that the Devaswom properties are in the hands of others for long period. Therefore, obviously petitioner cannot seek eviction through orders of the Commissioner under Section 87 to be enforced through Magistrate WP(C) No.2314/2004 -3- Court. We, therefore, agree with the 1st respondent that the remedy available to the petitioner is to approach the Civil Court, to restore the properties of the Devaswom. Learned counsel for petitioner pointed out that through an amended provision to the Land Conservancy Act, which is brought into force through an amendment i.e. introduction of Section 94A, the provision of the Land Conservancy Act is made applicable to the properties of the temples. If that be so, it is for petitioner to approach the authorities under the Land Conservancy Act with appropriate petition for restoring the properties. 4. Learned counsel for contesting respondents submitted that even though proceedings under Section 87 are not maintainable as rightly held by 1st respondent, some of the persons in possession and control of the properties have offered to sell the properties at the price fixed by the District Collector. We do not know why the Collector should be involved in a matter that would be settled through negotiation. In fact, the land owners should keep in mind that the properties when restored to the temple will certainly increase the glory of the temple and it is for them to demand only reasonable cost for the land. We leave the matter to WP(C) No.2314/2004 -4- be settled by the people involved with the management of the temple and the owners of the land. Property can be restored by adequately compensating the present owners. We feel, this will certainly prevent unnecessary litigation among locals in the name of the temple. The writ petition is closed with the above observation. (C.N.RAMACHANDRAN NAIR, JUDGE) (V.K.MOHANAN, JUDGE) jg