IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 WP(C).No. 3531 of 2010(N) ------------------------------------- PETITIONER: ------------------- SIVANANDA YOGA VEDANTA DHANWANTARI ASHRAM, NEYYAR DAM, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY ITS ADMINISTRATON MANAGER, SRI.A.SURESH KUMAR. BY ADVS. MR.SUDHEER GANESH KUMAR.R, MR.B.PREMOD. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVT. SECRETARAIT, THIRUVANANTHAPURAM. 2. THE SECRETARY, IRRIGATION DEPARTMENT, SECRETARIAT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. ASSISTANT EXECUTIVE ENGINEER, DAM SECTION, NEYYAR DAM IRRIGATION DEPARTMENT, THIRUVANANTHAPURAM. 4. THE ASSISTANT ENGINEER, DAM SECTION, NEYYAR DAM IRRIGATION DEPARTMENT, THIRUVANANTHAPURAM. 5. THE TAHSILDAR, TALUK OFFICE, NEYYATTINKARA, THIRUVANANTHAPURAM. R1 TO R5 BY GOVT. PLEADER MR. M.A. AZIF. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3531/2010-N: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPLICATION DT. 30/11/04 FILED BY THE ASHRAM BEFORE THE R.5. EXT.P.2: COPY OF THE LETTER DT. 17/11/1962 FROM THE EXE. ENGINEER IRRIGATION DEPARTMENT TO THE SUPERINTENDING ENGINEER, IRRIGATION, SOUTH CIRCLE, TRIVANDRUM. EXT.P.3: COPY OF THE RELEVANT PORTION OF THE EXTRACT OF THE ORDER DTD. 19/05/1961. EXT.P.4: COPY OF THE EXTRACTS OF THE BUILDING TAX REGISTER ISSUED BY THE SECRETARY, KALLIKKAD GRAMA PANCHAYATH. EXT.P.5: COPY OF THE CERTIFICATE OF POSSESSION ISSUED BY THE KALLIKKAD GRAMA PANCHAYATH. EXT.P.6: COPY OF THE AUCTION NOTICE. EXT.P.7: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE MINISTER FOR IRRIGATION DEPARTMENT. EXT.P.8: COPY OF THE REPRESENTATION DTD. 28/12/2009 SUBMITTED BY THE PETITIONER BEFORE THE CHIEF ENGINEER, IRRIGATION DEPARTMENT. EXT.P.9: COPY OF THE AUCTION NOTICE DTD. 18/01/2010 PUBLISHED ON 30/01/2010. EXT.P.10: COPY OF THE PHOTOGRAPHS OF THE PROPERTY. EXT.P.11: COPY OF THE SKETCH SHOWING THE PROPERTY PROCESSED BY THE ASHRAM PREPARED BY THE TALUK SURVEYOR, TALUK OFFICE, NEYYATTINKARA. EXT.P.12: COPY OF THE APPLICATION FOR LONG TERM LEASE SUBMITTED BY THE PETITIONER DT. 28/01/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 3531 of 2010-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of March, 2010. JUDGMENT The petitioner is an Ashram represented by its Administration Manager. The grievance raised in this writ petition relates to the action taken as per Ext.P9 to conduct auction to take yield from the trees in certain properties which according to the petitioner, are in the possession of the Ashram. 2. Short facts leading to the dispute are the following: The Ashram is having various activities, agricultural and charitable, for the welfare of the general public. It is conducting training centres without any profit motive for propagating preaching and practicing Yoga, Vedanta, Philosophy, residential yoga courses and annual kids camp. The properties and functioning of the Ashram are managed by trustees by virtue of a trust deed dated 6.10.1990. The Ashram was founded by Swami Vishnudevananda, known as “The flying Swami”. It is submitted that the Ashram is doing social, philosophical and humanitarian activities to the people all over the world. It is averred in para 3 of the writ petition that the activities include grant of computers and laboratory equipments worth Rs.1,50,000/- to four wpc3531 /2010 2 schools, donations of Rs.25,000/- to 25 temples, donations of Rs.10 lakhs to three schools and around Rs.6 crores for constructing houses to the poor and for renovation of their houses. 3. The Ashram has purchased various properties to the extent of more than 10 acres in different survey numbers shown in para 2 of the writ petition. There are various buildings also in these properties. Apart from that, the Ashram is in possession of five chain belt area of land near to the Neyyar Dam which originally belonged to one Mr. Ayyappan Pillai. The said area of land was possessed and enjoyed by Ayyappan Pillai from the Government after acquisition of the said property towards construction of Neyyar Dam. It is pointed out that based on the permission granted by the Government, he was allowed to plant trees for preventing soil erosion and was taking yield also. It is stated that he was continuing in possession of the property from 1951 onwards and the right of Shri Ayyappan Pillai was transferred to the Ashram by his successors who are well wishers of the Ahsram and the Ashram is possessing and enjoying the said property and the land nearer to the reservoir is maintained by the Ashram by planting trees to prevent soil erosion. 4. It is the case of the petitioner that Shri Ayyappan Pillai was granted permission to plant rubber trees in the terrace land sloping towards wpc3531 /2010 3 the reservoir to prevent soil erosion to the reservoir, in the month of November 1962. Now the same are maintained by the Ashram. The Ashram has constructed retaining wall also to prevent the falling of soil to the road. For getting a valid title by way of patta, Ext.P1 application was filed before the fifth respondent, but without any action. It is pointed out that the said Ayyappan Pillai was being allowed to continue in possession earlier by way of various documents. Ext.P2 is one such document. Ext.P3 is the copy of G.O.(MS) No.494 dated 19.5.1961 whereby the Government prescribed that the lands within the five chain belt area will be leased without specifying any time limit, subject to the condition that the areas so leased out should be planted with soil binding trees according to the directions of the Soil Conservation Department, cancelling alternative sites allotted to them, if any or the area will be conserved by adopting antisoil erosion measures departmentally. 5. It is further averred in para 9 of the writ petition that for the last 50 years Shri Ayyappan Pillai and thereafter his successors have been taking yield from the properties. There is a Temple which was constructed by Shri Ayyappan Pillai having deities of Murugan, Devi, Ayyappan and Ganapathy and regular poojas are performed in the temple in the morning and evening and the people in the locality and from other places visit the wpc3531 /2010 4 temple regularly. There is a Kudeeram of Swamiji which is also regularly visited by the devotees. Ext.P4 is the true copy of the extract of building tax register issued by the Secretary, Kallikkad Grama Panchayat and Ext.P5 is the copy of the certificate of possession issued by the President of the said panchayat. 6. It is submitted that ignoring these, now action is being taken by the respondents to auction the right to collect improvements from the land in question. Ext.P6 is one of the auction notices issued by the respondents. The petitioner thereafter filed Ext.P7 representation and approached this Court by filing W.P.(C) No.14747/2009. The said writ petition was withdrawn without prejudice to the right of the petitioner to avail other remedies. Again, auction proposals have emanated and Ext.P8 is the representation submitted by the petitioner before the Chief Engineer of Irrigation Department. It is at this stage Ext.P9 auction notice has been issued. 7. It is averred in the writ petition that as far as the Temple and Kudeeram of Swamji are concerned, the Temple is assigned building No.227/3 and the meditation hall nearby is also numbered as 226/3. 8. The petitioner has produced various photographs as Exts.P10 and Ext.P11 is the true copy of the sketch prepared by the Taluk Surveyor, wpc3531 /2010 5 Taluk Office, Neyyattinkara, showing that the property is processed by the Ashram. Ext.P12 is the application for long term lase submitted by the petitioner, which is said to be pending. 9. Learned Govt. Pleader submitted that in the light of the fact that W.P.(C) No.14747/2009 was withdrawn, without prejudice to the contentions of the petitioner and the right to move other forums, this writ petition cannot be maintainable and the petitioner is not entitled for any reliefs. 10. Learned counsel for the petitioner submitted that the petitioner is only seeking for a direction to the official respondents to consider the application for grant of lease in the light of the long and uninterrupted possession of the properties. It is submitted that the various averments above will justify the claim for grant of a lease and if third parties' rights are created at this stage, the petitioner will be put to undue hardship which will affect the feelings of the devotees also. It is therefore prayed that the auction may be kept in abeyance pending a decision to be taken on the applications submitted by the petitioner. 11. The various aspects pointed out by the petitioner will be examined and the representations, Exts.P7, P8 and P12 will be considered and a decision will be taken by the second respondent, after hearing the petitioner, wpc3531 /2010 6 within a period of three months from the date of receipt of a copy of this judgment. 12. This Court had passed an interim order on 3.2.2010 which was being extended from time to time. Therefore, the auction proposed as per Ext.P11 has not been finalised. No fresh notice of action has been evidently issued in the light of the pendency of this writ petition. Therefore, a decision with regard to the auction will depend upon the decision to be taken by the second respondent in the matter, as directed above. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/