IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 WP(C).No. 36021 of 2003(L) ---------------------------------------- PETITIONER(S): ------------------------ SREE RAMADASA MISSION DEVI HANUMAD KSHETRAM REP.BY ITS KARYADARSHI.P.H.KRISHNAN NAMBOODIRI, SREE RAMADASA NAGAR, THAZHAKKARA P.O., MAVELIKKARA, ALAPPUZHA. BY SRI.GOVIND K.BHARATHAN, SENIOR ADVOCATE BY ADV. SMT.M.HEMALATHA. RESPONDENT(S): --------------------------- 1. THE DISTRICT COLLECTOR, ALAPPUZHA. 2. M.S.S.HIGH SCHOOL, REPRESENTED BY ITS HEADMASTER, THAZHAKKARA P.O., P.O. MAVELIKKARA. R1 BY SR.GOVERNMENT PLEADER SRI.LAKSHMI NARAYANAN R2 BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE, SRI.V.PHILIP MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.36021/2003 L APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DOCUMENT OF TRANSFER IN FAVOUR OF THE PETITIONER DTD. 05/10/1984. P2: COPY OF THE DEVAPRASHNA CHARTHU DTD. 23/09/1985. P3: COPY OF THE NOTICE OF THE FESTIVAL OF THE TEMPLE. P4: COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DTD.28/06/2003. P5A: COPY OF THE REPRESENTATION DTD. 16/05/2003 SENT BY THE PETITIONER. P5B: COPY OF THE REPRESENTATION DTD. 17/05/2003 SENT BY THE PETITIONER. P5C: COPY OF THE REPRESENTATION DTD. 18/06/2003 SENT BY THE PETITIONER. P5D: COPY OF THE REPRESENTATION DTD. 18/09/2003 SENT BY THE PETITIONER. P6: COPY OF THE ORDER G.O.(MS) 297/03 REV. OF THE STATE GOVERNMENT DTD. 19/09/2003. RESPONDENT'S EXHIBITS & ANNEXURES: R2(A): COPY OF THE ORDER DTD. 26/04/1950 PASSED BY THE DISTRICT COLLECTOR, KOLLAM. R2(B)SERIES: COPY OF THE LAND TAX RECEIPTS DTD. 10/10/2003, 30/03/2000, 09/07/1999, 29/01/1997, 05/03/1994, 16/02/1999 AND 13/01/1993. ANNEX.R1(A): COPIES OF THE MAHAZAR DTD. 9/01/1950 ALONG WITH THE SKETCH ATTACHED HEREWITH. ANNEX.R1(B):PHOTOGRAPHS OF THE PROPERTY. /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 36021 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of October, 2010. JUDGMENT Thottathil B. Radhakrishnan, J, The petitioner claims that the temple made reference to in the writ petition and its assets were put under the management of the petitioner in terms of conferment of rights as per Ext.P1. The petitioner pleads that the temple originally belonged to a very ancient family of the Chettipilla community and that a pond in old Sy. No.29/37 of Thazhakkara village belonged to the Chettipillai community and was called Chettikulam. Petitioner pleads that the Arat festival in relation to the temple was being conducted in Chettikulam. They accordingly filed this writ petition challenging Ext.P6 proposal to renew Kuthakapattom lease of a larger extent including the kulam in favour of the second respondent, which has a private aided school. WPC.36021/2003. 2 2. On the basis of the pleadings of the first respondent District Collector and the statements of the Tahsildar under him, we note that the petitioner belongs to the Hindu community and the second respondent belongs to the Christian community. The first respondent and officers under him would tend to state that the issue in hand is likely to generate communal disharmony, if there is a slicing of the property in question. We leave it at that, after noticing the said stand. 3. While the second respondent claims that the whole of the land was being used as a playground, the specific stand of the first respondent and officers under him is that the land is not put to such use, but lies as a large piece with over grown vegetation and a portion of that, at one end, is a marshy piece, which could have been at one point of time used as a pond. 4. We do not deem it appropriate to look into the aforesaid controversy to render a decision on any issue. Going by the minutes of the proceedings until now, as WPC.36021/2003. 3 recorded by this court during the pendency of this writ petition, right from 2003 until now, the petitioner and the second respondent had virtually submitted before this court that they would stand satisfied if a portion, that could be identified as pond, is earmarked and put in the custody of the petitioner to be used as a pond in connection with the needs of the temple including for Arat, and the remaining portion left to the second respondent as playground. We notice that the quality of rights are such where the antecedent and primary title of the State to the land in question stands conceded. We however notice that even in the counter affidavit filed for and on behalf of the first respondent District Collector, there is a clear statement that though the pond was being used by the members of Chettipillai community, they cannot be considered as users who have reduced it to themselves, to confer on them an indefeasible right to title of the property. The Government stands to assert its right as a custodian of public lands. WPC.36021/2003. 4 5. The second respondent claims that the land was made available by the Government under Kuthakapattam lease in the year 1950 as per Ext.R2(a) for the purpose of the playground of the School and that levy on the basis of Kuthakapattam had also been promptly paid. 6. We take on record the sketch prepared by the Taluk Surveyor, issued by the Tahsildar on 7.10.2008 and placed before this court along with memo dated 7.10.2008. In that, the lie of the property has been noted. The area, which is noted as low lying, is a marshy place, which could be deemed to be a pond. It is so stated in the plan. 7. With the aforesaid, we notice the view of the Government that by now the Kuthakapattom lease in favour of the second respondent also does not survive. The question of renewal is a matter left entirely to the consideration of the Government in accordance with law. Even if there is any application or applications by any or all among the parties in terms of the provisions of the Land Assignment Act, that is also a matter, on which the WPC.36021/2003. 5 competent statutory authority has to take a decision in accordance with law. It has also to be ensured that communal cordiality can never be sacrificed. Secular wealth, the Government lands, cannot be utilized except with the consent of the executive custodian of public lands, namely the Government. Under such circumstances, we deem it appropriate that the issue in hand gains attention at the hands of the Government at its higher level. Therefore, we direct the first respondent District Collector to forward a report to the Principal Secretary to the Government in the Revenue Department, who will ensure that the matter will be considered at the highest level and the grievance of the petitioner and the second respondent would be considered, also, in the light of what has transpired before this court until now, and the parties given an opportunity of hearing to resolve the issue, if possible amicably, at the earliest. In the interregnum, we direct that neither the petitioner nor the second respondent would do anything in relation to the WPC.36021/2003. 6 property without the written sanction of the first respondent District Collector. We deem it appropriate to further direct that the earlier orders of this court dated 31.7.2008 and 26.9.2008 will stand appended to this judgment. So ordered. The Government will make every endeavour to take a final decision at the earliest, at any rate, within a period of six months from the date of receipt of a copy of this judgment and the report of the District Collector. The writ petition is ordered accordingly. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.