NANDAKUMAR Vs. DISTRICT COLLECTOR

JUDGEMENT

(1.) Ext.P10 order passed by the 2nd respondent herein (pursuant to Ext.P9 verdict passed by a Division Bench of this Court in D.B.P.No.138/2012 for finalising the statutory appeal in terms of the relevant provisions of The Kerala Land Conservancy Act, 1957) is under challenge. The basic question to be considered is whether the remand ordered by the 2nd respondent after setting aside Ext.P8 order passed by the 4th respondent, for not having obtained consent of the District Collector (allegedly as stipulated under Section 13A of The Kerala Survey and Boundaries Act, 1961) is correct or sustainable, more so when no such stipulation is seen from the said provision.

(2.) A brief description of the factual position is necessary, to have clarity as to the sequence of events and proceedings which resulted in Ext.P10. The petitioner is stated as an ardent devotee of Udayathumvathil Sree Krishna Swamy temple and was a member of the Temple Advisory Committee, whose tenure is admittedly over. He is aggrieved of the encroachment of the Devaswom property by the nearby inhabitants; particularly the respondents 6 to 11. It is stated that the encroachment on the Devaswom property was brought to the notice of the Authorities concerned; but no timely action was taken from any corner. In the said circumstances, the petitioner in O.P.No.2340/2001 had approached this Court (preferred by the Udayathumvathil Sree Krishna Swamy Temple Kshetra Kshema Samithi, joining hands with another person) which culminated in Ext.P1 judgment dated 18.9.2001, relegating the said petitioners to move the civil court. Pursuant to the said verdict, O.S.No.1685 of 2002 was filed before the civil court by the Devaswom Board and another. The Advocate Commissioner appointed by the Court (to cause the properties to be measured out based on relevant survey records and the 'Thanathu register' maintained by the Devaswom) inspected the properties and effected measurement with the assistance of the competent authority of the Survey/Revenue departments and Ext.P2 report, along with the sketch, was submitted; identifying as many as 'nine encroachments' over the property belonging to the Devaswom. However, in the due course, it was realized by the Devaswom that no suit was maintainable before the civil court (presumably by virtue of the bar under Section 20A of The Kerala Land Conservancy Act) and hence Ext.P3 memo was submitted by the learned Standing Counsel for permission to withdraw the suit without prejudice to pursue other appropriate remedies. It is stated that the suit was dismissed as withdrawn accordingly, granting the liberty as above.

(3.) Despite the lapse of six years, no further step was pursued by the Devaswom; which made the devotees to file a complaint before the Ombudsman for Travancore & Cochin Devaswoms, referring to actual facts and figures, as borne by Ext.P4. Pursuant to the said complaint, the Ombudsman visited the temple and submitted Ext.P5 report dated 30.6.2012 before this Court, which was the subject matter of consideration in D.B.P.No.138/2012. Paragraphs 3 and 4 of the said report are relevant and hence they are reproduced below:-