IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36021 of 2003(L)
1. SREE RAMDASA MISSION
... Petitioner
Vs
1. DISTRICT COLLECTOR,ALAPPUZHA
... Respondent
For Petitioner :SRI.GOVIND K.BHARATHAN (SR.)
For Respondent :SRI.V.N.ACHUTHA KURUP (SR.)
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :05/10/2010
O R D E R
THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ.
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W.P.(C). No. 36021 of 2003
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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.