JOYTHISH. S vs STATE OF KERALA REPRESENTED BY IT’S SECRETARY TO GOVERNMENT
- Court
- Kerala High Court
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
THURSDAY, THE 10 DAY OF SEPTEMBER 2026 / 19TH BHADRA, 1948
WP(C) NO. 11984 OF 2026
PETITIONER:
JOYTHISH. S, AGED 42 YEARS,
PUTHENPARAMBIL, VALIYAKULANGARA SOUTH,
MAHADEVIKAD P.O, KARTHIKAPPALLY VILLAGE,
KARTHIKAPPALLY TALUK,
ALAPPUZHA DISTRICT, PIN - 690516
BY ADVS.
SHRI.N.K.KARNIS
SMT.S.CHYTHANYA
SMT.DEVIKA V.
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO
GOVERNMENT
REVENUE (DEVASWOM) DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
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2 TRAVANCORE DEVASWOM BOARD,
REPRESENTED BY ITS SECRETARY
DEVASWOM HEAD QUARTERS, NANDANCODE,
THIRUVANANTHAPURAM, PIN - 695003
3 THE COMMISSIONER OF DEVASWOM
DEVASWOM HEAD QUARTERS, NANDANCODE,
THIRUVANANTHAPURAM, PIN - 695003
4 THE SPECIAL TAHSILDAR (LAND CONSERVANCY UNIT),
DEVASWOM HEAD QUARTERS, NANDANCODE,
THIRUVANANTHAPURAM, PIN - 695003
5 THE ASSISTANT COMMISSIONER OF DEVASWOM, HARIPAD GROUP
REPRESENTED BY ITS SECRETARY,
DEVASWOM HEAD QUARTERS, NANDANCODE,
THIRUVANANTHAPURAM, PIN - 695003
6 THE SECRETARY, KARTHIKAPPALLY GRAMA PANCHAYATH
KARTHIKAPPALLY P.O,
ALAPPUZHA DISTRICT, PIN - 690516
7 ADV. S. KRISHNAMOORTHY
AMPANAT MADOM, MAHADEVIKAD P.O,
KARTHIKAPPALLY VILLAGE, ALAPPUZHA-690 516,
NOW RESIDING AT AMPANAT 39/468, MONASTERY ROAD,
KARIKKAMURY, KOCHI,
ERNAKULAM DISTRICT, PIN - 682011
8 THE KARTHIKAPPALLY BRAHMANA SAMOOHAM, REP. BY ITS
ACTING PRESIDENT ADV. S. KRISHNAMOORTHY
AMPANAT MADOM, MAHADEVIKAD P.O,
KARTHIKAPPALLY VILLAGE,
ALAPPUZHA- 690 516, NOW RESIDING AT AMPANAT 39/468,
MONASTERY ROAD, KARIKKAMURY, KOCHI,
ERNAKULAM DISTRICT, PIN - 682011
9 THE TAHSILDAR, KARTHIKAPPALLY TALUK
REVENUE TOWER, HARIPAD P.O,
ALAPPUZHA DISTRICT, PIN - 690514
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10 THE DISTRICT SURVEY SUPERINTENDENT
CIVIL STATION, 2ND FLOOR, ALISSERY ROAD,
ALAPPUZHA, PIN - 688001
11 THE DIRECTOR OF ARCHIVES
DIRECTORATE OF STATE ARCHIVES, NALANDA,
THIRUVANANTHAPURAM, PIN - 695003
BY ADVS.
SRI. S.V. BALAKRISHNA IYER (SR.)
SRI.G.SANTHOSH KUMAR (SC,TDB)
ADV. K.R.SUNIL SPL.G.P.
SMT.SNEHA ROSE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.07.2026, THE COURT ON 10.09.2026 DELIVERED THE FOLLOWING:
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C.R.
JUDGMENT
K. V. Jayakumar, J.
This writ petition is preferred under Article 226 of the Constitution of India.
2. The petitioner, Sri. Joythish S., states that he is a devotee and
worshiper of Valiyakulangara Devi of Mahadevikad in Karthikappally of Alappuzha
District (“the temple” for the sake of brevity). The said temple is under the
administration of the 2nd respondent Travancore Devaswom Board (TDB).
3. The petitioner contends that, earlier, he has preferred a writ petition
as WP(C) No. 30586 of 2023 for the recovery of the properties of the deity of
Valiyakulangara temple as per the entries in the Settlement Register of erstwhile
Travancore State, now illegally possessed by the 8th respondent Karthikappally
Brahmana Samooham. The 7th respondent, Adv. S. Krishnamoorthy is the acting
President of Karthikappally Brahmana Samooham (hereinafter referred to as “the
Samooham”).
4. The aforesaid writ petition was disposed of by this Court by Ext.P2
judgment dated 02.02.2024 directing the 4th respondent, the Special Tahsildar
(Land Conservancy Unit), to measure the properties and to finalise the survey of the
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disputed land.
5. According to the petitioner, there is a vast extent of immovable
property belonging to the deity of the temple. The main temple and the other small
temples are situated in 1 acre and 55 cents of property comprised in Block No. 10,
Re-Survey Nos. 280/3, 376/1, 376/4 (Old Survey No. 3762) of Karthikappally Village.
Apart from that, the temple owns 2 acres and 26 cents of properties comprised in
Block No.10, Old Survey No. 3750, 3752.3755 A, 3755 B, 3755 C, 3756 A, 3756 B,
3758, 3760, 3761 A, 3762) of Karthikappally Village. According to the petitioner, the
properties were in use and enjoyment of the temple and are lying as a compact
block adjacent to the western side of the temple premises, which includes buildings.
The aforesaid properties belonging to the deity of the temple are enlisted in Ext.P1
Settlement Register of Travancore State.
6. The petitioner contends that the Survey and Settlement of Travancore
State commenced in 1885 during the reign of His Highness Sree Moolam Thirunal
and was finalised in 1910. In the said Settlement Register, the Sirkar land given to
cultivators on various tenures was termed as ‘Pandaravaka land’. So the Settlement
Register of 1910 is taken as the basic record of land-related matters.
7. According to the petitioner, in order to curb mismanagement of the
temple lands, those lands were leased out. In the year 1811, the temples in
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Travancore were brought under the control of the state. The lands originally owned
by the temples (Janmam lands) were leased out to tenants for cultivation. The
tenants (Pattomdars) used to pay rent (Pattom) in paddy or cash to the temples or
to the then State Controlled Devaswom Department.
8. The petitioner asserts that the 8th respondent Samooham obtained
properties on lease and the temple expenses were funded by the income derived
from the lease. The said lease arrangement was shown in Ext. P1 Settlement
Register as “Sirkar Valiyakulangara Devaswom Pattam”. In Ext.P1 Settlement
Register, the properties were shown in possession of Valiyakulangara Padinjare
Madathil Erikum Karthikappally Samoohakar as Pattadars. The petitioner further
contends that the claim of the 8th respondent Samoohakar is that they got the
properties before 1905. After the Royal Proclamation of the year 1886, survey and
settlement were declared. The settlements were made to each landholder by
providing ‘Patta’ of a permanent nature for 30 years. Therefore, on the expiry of the
said 30 years, the tenure of the 8th respondent expired. After the expiration of the
lease period, the 8th respondent Samooham is illegally holding the properties of the
deity.
9. Therefore, the petitioner submitted a representation before the Board
for the recovery of the property by initiating appropriate proceedings. Since there
was no positive response from the part of the 2nd respondent Board, the petitioner
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instituted WP(C) No. 30586 of 2023 before this Court. By the judgment dated
02.02.2024, this Court has directed the 4th respondent to measure out the property
and finalise the survey of the disputed properties with the relevant records.
10. Pursuant to the directions issued in Ext.P2 judgment, on 04.12.2024
the 4th respondent initiated the proceedings. The 4th respondent issued a notice
bearing No. A3 696/2023 dated 10.11.2024 to the 8th respondent Samooham. The
4th respondent did not serve notice to the writ petitioner. The petitioner has placed
on record a true copy of the notice and exhibited it as Ext.P3
11. The petitioner again approached this Court and instituted a writ
petition as WP(C) No. 6502/2025 contending that a copy of Ext.P3 notice was not
served on the petitioner, violating the directions issued in Ext.P2 judgment. On
01.04.2025, the aforesaid writ petition was disposed of, directing the 4th respondent
to conduct a joint survey of the entire property after giving proper intimation to the
petitioner and all the affected parties. Ext.P4 is the true copy of the said judgment.
Even though the 7th respondent challenged the judgment by filing a Review
Petition. The same was dismissed vide Ext.P5 order dated 11.04.2025.
12. Pursuant to the directions issued in Exts.P2 and P4 judgments, a joint
survey was conducted and the 4th respondent filed Ext.P6 report dated 28.06.2025.
Pursuant to Ext.P7 letter issued by the 4th respondent, the 7th respondent has
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produced a Settlement Pattayam No. 12 dated 1071 ME (1896) before the Special
Tahsildar and claimed that the 8th respondent Samooham acquired rights over the
properties of the deity. Ext.P8 is the true copy of the Settlement Pattayam. The
petitioner contends that Ext.P8 is a forged and sham document created by the 7th
respondent along with his henchmen. The petitioner filed his written objection
before the 4th respondent challenging the validity of Ext.P8 settlement Pattayam.
Thereafter, the 4th respondent passed Order No. A3 696/23 dated 27.09.2025,
directing the 2nd respondent Board to approach the competent Civil Court to
establish the right over the disputed properties. Challenging the said order, Ext.P9,
the petitioner preferred this writ petition inter alia seeking the following reliefs:
(i) Call for the records relating to the Ext.P9 from 4th respondent
(ii) Set aside Ext.P9 order passed by the 4th respondent that the above
order is passed without properly exercising the statutory power vested
with the 4th respondent.
(iii) Issue a writ of mandamus or any other appropriate writ or order
directing the 11th respondent to ascertain the genuine nature of the
Ext.P8 Settlement Pattayam produced by the 7th respondent.
(iv) Declare that there is no title dispute with respect to the disputed
properties in Old Survey No. 3750, 3752, 3755A, 3757B, 3758, 3760,
3761A, 3761 as they are shown as Devaswom properties of
Valiyakulangara Devi Temple in Ext.P1 and Ext.P6 of the 4th respondent
and no title deed or assignment or purchase certificate is produced by the
7th and 8th respondent that no transfer of ownership is obtained to the
above respondents.”
13 Challenging Ext.P9 order, the petitioner has filed Ext.P10 Review
Petition. But the same was dismissed vide Ext.P11 order.
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14. The 4th respondent, Special Tahsildar (Land Conservancy Unit), has
filed a counter affidavit contending that a joint survey was conducted by the 4th
respondent in accordance with the survey records and an order dated 27.09.2025
was passed. It is stated in the report that the proceedings under the Kerala Land
Conservancy Act (“KLC Act” for the sake of brevity) cannot be initiated. Therefore, a
direction was given to the TDB to initiate appropriate legal proceedings through a
competent civil court to establish their rights over the disputed properties.
15. The 7th respondent, Adv. S. Krishnamoorthi, has placed on record a
counter affidavit, refuting the allegations raised in the writ petition. According to the
7th respondent, the writ petition is not maintainable. The writ court cannot
adjudicate the disputed questions of fact and law invoking the powers under Article
226 of the Constitution of India.
16. In the counter, it is stated that the writ petition is filed with some
ulterior motive with an intention to harass the respondent. The father of the
respondent was the President of Karthikappally Grama Panchayat for about 20
years. According to the 7th respondent, the writ petitions are filed by the petitioner
one after the other due to the political rivalry against the father of the respondent.
17. It is further contended that the petitioner has repeatedly filed Caveat
Petitions before the Munsiff Court and District Court through Adv. Chaythanya Beno,
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who is the Standing Counsel of 6th respondent Karthikapally Grama Panchayat, and
to substantiate his contentions, the respondent has placed on record Ext.R7(a), a
copy of the Caveat Petition dated 07.10.2025 filed before the Munsiff Court,
Haripad. It is further stated in the counter that the intention of the petitioner is only
to obstruct the enjoyment of these lands and restrict the activities of the Brahmana
Samooham. The attempt of the writ petitioner is to inject poison into the mind of
the devotees by stating that the temple properties are illegally possessed by the
Brahmana Samooham.
18. It is further contended that the litigation is mooted as a tool for
personal vengeance, and one Mr. Gopal Beno has published a Facebook post against
the 7th respondent intending to mislead the local people. Ext.R7(b) is the true copy
of the Facebook post dated 16.03.2025.
19. According to the 7th respondent, the challenge against Ext.P9 is
unsustainable. It is submitted that in order to initiate Section 27 of the Travancore
Cochin Hindu Religious Institutions Act (“TCHRI” Act for the sake of brevity), the
property must be in possession of the Devaswom as on 12th April 1922. On that
date, the Devaswom was not in possession of the disputed properties. The lands
are not mentioned in the Asset Register of the Devaswom Board.
20. Pursuant to Exts.P2 and P4 judgments, an exhaustive survey has been
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conducted by the authorities and the 4th respondent has submitted a final survey
report. He has placed on record a copy of the said report and marked it as
Ext.R7(c). A contempt case was filed as Contempt of Court Case (C) No. 388 of
2025 by the 8th respondent, which was closed by this Court, stating that a detailed
survey has been conducted pursuant to the judgments of this Court and a report has
been filed by the Special Tahsildar. Ext.R7(d) is the copy of the judgment in the
Contempt case dated 25.07.2025.
21. It is further contended that the 4th respondent, after hearing the
petitioner and all the affected parties and after perusing the original Settlement
Pattayam (Ext.P8) produced by this respondent, passed the Ext. P9 order. Ext.P8
Settlement Pattayam was issued by the Diwan Peshkar of erstwhile Travancore
State, which clearly states that these lands are assigned in favour of Brahmana
Samooham after paying the Kist amount. According to the 7th respondent, the 8th
respondent got absolute title and ownership over the said properties by virtue of
Ext.P8 Settlement Pattayam.
22. It is asserted that the Brahmana Samooham has been in continuous
occupation of the disputed land since 1071 ME (1896 A D) onwards. The nature of
the land was described as Valiyakulangara Devaswom Pattom under the head
‘Enam’, which did not confer any right to the Devaswom to initiate proceedings
under the provisions of the Land Conservancy Act attracting Section 27 of the TCHRI
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Act.
23. The 8th respondent Brahmana Samooham has also placed on record a
detailed counter affidavit as directed by this Court. It is stated that the writ
petitioner has no locus standi to challenge the veracity of Ext.P8 in a writ petition.
The issues with respect to the genuineness and validity of Ext.P8 Settlement
Pattayam can only be decided by a competent civil court after taking evidence. The
writ petitioner, who is a third party, cannot challenge the authenticity of the
document. The 8th respondent has produced a legible and clear copy of the
relevant pages of Ext.P1 Settlement Register exhibited as Ext.R8(a).
24. It is stated in the counter that the Settlement Register is the final
document of title. The land settled was Pandaravaka or Devawom Pattom, and the
Devaswom properties were treated as Pandaravaka lands since there was no
separation until the issuance of Devaswom Proclamation on 12th April 1922.
25. It is further contended that a reading of the Royal Proclamation dated
21st Edavom 1040 (2.6.1865), popularly known as the Pattom Proclamation and the
the Royal Proclamation dated 14th Kumbham 1061 (24.2.1886) called the Revenue
Settlement Proclamation, the Settlement Regulation 1071, and the Royal
Proclamation, dated 30th Meenam 1097 (12.4.1922), called the Devaswom
Proclamation, leaves no room for doubt that the Pattadars and holders under other
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tenures under the Sarkar and Devaswoms, as at the commencement of the Survey
Settlement carried out pursuance to the Revenue Settlement Proclamation referred
above, have all proprietary rights by virtue of the Pattom Proclamation, and holders
were given Pattayams.
26. The respondent has placed on record the true copy of the Pattom
Proclamation issued by the then Travancore State in 1040 ME and marked as
Ext.R8(b). According to the 8th respondent Samooham, the Pattom Proclamation is
called the ‘Magna Carta’ of Pattom Holders. The said Proclamation has granted
absolute proprietary rights over the property to the pattadars (tenants). Ext.P8 is
one such Pattayam issued in favour of the 8th respondent. Similar pattayams were
issued to the landholders throughout Kerala. It is further stated that a reading of
Ext. R8(a) would show that the Pattayams have conferred proprietary title to the
Pattayam holders. Pattayam Nos. 12 and 13 were issued in favour of the 8th
respondent, and thereby the Brahmana Samooham is the title holder of the survey
numbers mentioned therein. Further, the 8th respondent has paid the
amount/Adangal tax in installments as per the Pattayam and therefrom,
continuously paying the Land tax also.
27. The 8th respondent asserts that there is a public road demarcating the
disputed property from the temple property. The temple property is situated in
Survey No. 386/3. Survey No. 386/4 is a public road, which demarcates the temple
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property from the property of the Samooham.
28. The respondent submitted that the TDB is not entitled to initiate any
proceedings under the Land Conservancy Act, within the scope of Section 27 of the
TCHRI Act. The land was never classified as ‘Devaswom Vaga’ or ‘Devaswom
Poramboke’. Furthermore, the land was never held by the Valiyakungara Devaswom
in the revenue records as on 12th April 1922.
29. By virtue of the Settlement Proclamation of 1061ME (1886), the
Government decided to settle the lands in favour of tenants after remitting the
Adangal tax. After the issuance of the Pattayam, no further tenants subsist.
30. Pursuant to Exts. P2 and P4 judgments, a joint survey was conducted,
and, as per Ext. P6 final report of the 4th respondent, the disputed lands had
already been settled in favour of the 8th respondent. In the present writ petition,
the petitioner seeks the very same reliefs as those claimed in the earlier writ
petitions.
31. It is further contended that a public interest litigation instituted at the
instance of a devotee amounts to an abuse of the process of law.
32. Sri. N.K. Karnis, the learned counsel for the petitioner, submitted that
pursuant to Exts. P2 and P4 judgments of this Court, the 4th respondent, the Special
Tahsildar (Land Conservancy Unit) under the KLC Act, conducted a joint survey of
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the properties having an extent of 163 cents, classified as Sirkar Valiyakulangara
Devaswom, out of which 101 cents alone are found in possession of the 8th
respondent Samooham and the remaining 62 cents are found to be in possession of
the strangers.
33. The learned counsel has pointed out that in Ext.P1 Settlement
Register, those properties were classified as Devaswom land. The said landed
properties were transferred to the 8th respondent Samooham on lease for a period
of 30 years. After the expiration of the lease period of 30 years, the said properties
will have to be surrendered to Valiyakulangara Devaswom.
34. The learned counsel urged that Ext.P9 order of the Special Tahsildar is
illegal and liable to be set aside to initiate proceedings under the KLC Act read with
Section 27 of the TCHRI Act.
35. The learned counsel argued that Ext.P8 Settlement Pattayam, on the
basis of which the 8th respondent claimed title over the properties, is a concocted,
forged and fabricated document. The 7th respondent has produced Ext.P8
Settlement Pattayam only after the filing of Ext.P6 report. Ext.P8 Pattayam became
invalid after the period of 30 years, ie., in the year 1926.
36. It was submitted that the Settlement Register is a public document by
virtue of Section 74 of the Indian Evidence Act. The correctness and the contents of
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the documents can be challenged in the court of law. The findings of the 4th
respondent that the disputed properties are settled in favour of the 8th respondent
are illegal, arbitrary, absurd and warrant interference from this Court.
37. Placing reliance on the judgment in Nandakumar v. District
1
Collector Ernakulam and others , it was held that the mere possession of
properties and entries in the settlement register are totally worthless when the
question is with respect to the encroachment of properties vested in the deities of a
temple.
38. The learned counsel pointed out that the 4th respondent Special
Tahsildar is bound to protect the interest of the Devaswom.
39. Sri. Balakrishna Iyer, the learned Senior Counsel, as instructed by Adv.
Sneha Rose, for the 8th respondent Samooham, has raised a preliminary objection
that the writ petition is not maintainable either on facts or on law. The learned
Senior Counsel submitted that the disputed questions of fact and law and the rival
claims as to the right, title and interest in the properties can only be adjudicated by
a competent civil court having jurisdiction. The writ court cannot adjudicate
complicated factual and legal questions which require detailed evaluation of
evidence.
1
(2018 (2) KHC 58)
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40. The learned Senior Counsel further submitted that the disputed
properties are in possession of the 8th respondent Samooham for the past 130
years. Originally, the Samooham obtained property only for a period of 30 years.
Subsequently, as per Ext.P8 Settlement Pattayam, the Samooham obtained
proprietary rights and title in those properties.
41. The learned counsel submitted that the writ petitioner has no locus
standi to challenge the veracity and the genuineness of Ext. P8 Settlement Pattayam
in a writ petition. The writ petitioner is a third party and he cannot challenge the
right, title and interest of the 8th respondent Samooham by instituting a writ
petition.
42. The learned Senior Counsel further submitted that pursuant to Exts.P2
and P4 judgments, a joint survey was conducted and the survey was finalised vide
Ext.P6 order of the Special Tahsildar. The impugned Ext.P9 order was passed by
the Special Tahsildar after a detailed hearing of the petitioner and the 8th
respondent. The Ext. P10 Review Petition filed by the writ petitioner challenging
Ext.P9 order is dismissed by Ext.P11 order of the 4th respondent.
43. The learned counsel would further point out that the order of the
Special Tahsildar is appealable under Section 16 of the KLC Act. In view of the
efficacious alternative remedy, and without availing the statutory remedy, the writ
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petitioner rushed to this Court and preferred the present writ petition with an
ulterior motive to harass the 7th respondent Krishnamoorthy, who is a practicing
advocate.
44. The learned counsel would further submit that by the passing of Ext.P9
order, the directions issued in Exts. P2 and P4 judgments have been duly complied
with. The petitioner is trying to re-agitate the matter by instituting a fresh writ
petition by seeking almost similar reliefs as that of the former writ petition.
According to the learned counsel for the 8th respondent, the present writ petition is
barred by the principles of res judicata and constructive res judicata.
45. The learned counsel would then point out that Ext.R8(a), the relevant
pages of the Settlement Register, published on 9th June 1905, is the final document
of title.
46. R8(b), the Pattom Proclamation by His Highness the Maharaja of
Travancore issued on 2nd June 1865 declared that the holders of pattadars will get
heritable, saleable and transferable rights in the properties possessed by them.
47. On going through the pleadings and submissions, the following issues
arise for our consideration:
(i) Whether the writ petition is maintainable?
(ii) Whether an alternative and efficacious remedy is available to the writ
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petitioner?
(iii) Whether the writ court can adjudicate the rival claims as to the right,
title, or interest in the immovable property?
(iv) Whether the writ court can invoke the provision of the Land
Conservancy Act to disturb the prolonged and continuous possession?
48. The learned counsel for the 8th respondent Samooham submitted that
the writ petition is not maintainable in view of the efficacious alternative remedy of
statutory appeal available under the KLC Act.
49. On the other hand, the learned counsel for the writ petitioner argued
that the availability of an alternative remedy, by itself, is not a ground to dismiss a
writ petition and to reject the claim of the petitioner.
2
50. In Radha Krishan Industries v. State of H.P . , the Apex Court laid
down the principles to be followed by the writ Court in cases where there is an
alternative remedy available. Paragraph 27 of Radha Krishan Industries (Supra)
reads thus:
“ 27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue
writs can be exercised not only for the enforcement of fundamental
rights, but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a writ
2
[(2021) 6 SCC 771],
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petition. One of the restrictions placed on the power of the High Court is
where an effective alternate remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where : ( a )
the writ petition has been filed for the enforcement of a fundamental
right protected by Part III of the Constitution; ( b ) there has been a
violation of the principles of natural justice; ( c ) the order or proceedings
are wholly without jurisdiction; or ( d ) the vires of a legislation is
challenged.
27.4. An alternate remedy by itself does not divest the High Court
of its powers under Article 226 of the Constitution in an appropriate case
though ordinarily, a writ petition should not be entertained when an
efficacious alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself prescribes
the remedy or procedure for enforcing the right or liability, resort must be
had to that particular statutory remedy before invoking the discretionary
remedy under Article 226 of the Constitution. This rule of exhaustion of
statutory remedies is a rule of policy, convenience and discretion.
27.6. In cases where there are disputed questions of fact, the
High Court may decide to decline jurisdiction in a writ petition. However,
if the High Court is objectively of the view that the nature of the
controversy requires the exercise of its writ jurisdiction, such a view
would not readily be interfered with.”
(emphasis supplied)
51. In the instant case, the challenge is against Ext.P9 order passed by the
4th respondent under Section 15 of the KLC Act, which is an appealable order under
Section 16 of the Act. In the instant case, the impugned Ext.P9 order was passed
by the competent authority, Special Tahsildar and Executive Magistrate, on
27.09.2025. The writ petitioner, without availing and exhausting the statutory
remedy, approached this Court and instituted the writ petition on 23.03.2026.
52. The writ petitioner has not stated any reason for non-availing of and
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non-exhaustion of the statutory remedy available to him. The writ petitioner has no
case that the competent authority who passed the order has acted in violation of the
principles of natural justice or that the said authority acted without jurisdiction.
53. We find from the records that sufficient opportunity of hearing was
afforded to the writ petitioner to raise his contentions before the competent
authority prior to the passing of Ext. P9 order. At this juncture, it is pertinent to
note the contention of the 7th respondent that the petitioner is instituting writ
petitions against him, one after the other, only to harass the 7th respondent, who is
a practicing advocate of this Court with some ulterior motive.
54. Yet another preliminary ground urged by the learned counsel for the
8th respondent Samooham is that there are rival claims as to the ownership of the
properties. The 8th respondent Samooham has been occupying the disputed
properties for the past 130 years. According to the 8th respondent, they have
acquired proprietary right, title and interest in the properties by virtue of Ext.R8(a)
Settlement Pattayam. The petitioner claimed that the properties belonged to the
deity and the 8th respondent Samooham is only a lessee, who has to surrender the
leasehold property to the temple after the expiration of the lease.
3
55. In Gunwant Kaur v. Municipal Committee, Bhatinda , the Apex
Court held that the High Court is not deprived of its jurisdiction to entertain a
3
(AIR 1970 SC 802)
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petition under Art.226 merely because in considering the petitioner's right to relief,
questions of fact may fall to be determined. In a petition under Art.226 the High
Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction
is, it is true, discretionary, but the discretion must be exercised on sound judicial
principles. When the petition raises questions of fact of a complex nature, which
may for their determination require oral evidence to be taken, and on that account
the High Court is of the view that the dispute may not appropriately be tried in a
writ petition, the High Court may decline to try a petition. Rejection of a petition in
limine will normally be justified where the High Court is of the view that the petition
is frivolous or because of the nature of the claim made dispute sought to be
agitated, or that the petition against the party against whom relief is claimed is not
maintainable or that the dispute raised thereby is such that it would be inappropriate
to try it in the writ jurisdiction, or for analogous reasons.
56. In New Okhla Industrial Development Authority v. Kendriya
4
Karamchari Sahkari Grih Nirman Samiti , the Apex Court observed that in a
petition under Article 226, the High Court has jurisdiction to try issues both of fact
and law. When the petition raises complex questions of fact which may, for their
determination, require oral evidence to be taken and on that account the High Court
is of the view that the disputed statement may not be appropriately tried in a writ
4
(2006) 9 SCC 524
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petition, the High Court should ordinarily decline to try the petition.
57. In Orissa Agro Industries Corpn. Ltd. and Others v. Bharati
5
,
Industries and Others the Apex Court held that where a complicated question of
fact is involved and the matter requires thorough proof on factual aspects, the High
Court should not entertain the writ petition. Whether or not the High Court should
exercise jurisdiction under Art.226 of the Constitution would largely depend upon
the nature of dispute and if the dispute cannot be resolved without going into the
factual controversy, the High Court should not entertain the writ petition.
58. In the case on hand, there are rival claims as to the ownership of the
immovable properties. The dispute involves the adjudication of complicated
questions of fact and law which require thorough proof and detailed evidence.
59. Considering the nature of the controversy involved in this case, and
the non-exhaustion of the statutory remedy available to the petitioner, we are of the
firm view that this is not a fit case to exercise the powers of judicial review vested
with this Court under Article 226 of the Constitution of India.
60. Another contention of the writ petitioner is to invoke the powers
vested under Section 15 of the KLC Act by the 4th respondent Special Tahsildar and
to evict the encroacher from the Devaswom land.
5
(2005 KHC 2232)
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61. The KLC Act contemplates a summary procedure for the eviction of
unauthorized occupants from the Government land. By virtue of Section 27 of the
TCHRI Act, the temple properties are also deemed to be Government land for the
limited purpose of applying the provisions of the KLC Act.
62. In the instant case, admittedly, the 8th respondent Samooham has
been occupying the disputed properties since 1896. The said Samooham is claiming
ownership on the strength of Ext.P8/Ext.R8(a) Settlement Pattayam. If that be so,
the crucial question which arises for our consideration is whether Section 15 of the
KLC Act can be invoked to evict the Samooham.
63. This Court in Shree Kumramputhoor Bhagavathy Devaswom
6
Kshethra Samrakshana Samithi v. Malabar Devaswom Board in Paragraph
70 of the judgment observed as follows:
“70. However, if the occupant is occupying land for several
decades on the strength of sale deed, lease deed and purchase
certificates, the court should be loath to direct the competent authority
under the KLC Act to order eviction. If an occupant is occupying in the
property of the government or that of the Devaswom on the strength of
sale deed/lease deed/purchase certificate issued by the competent
authority under the KLR Act, his occupation cannot be termed as
‘unauthorised’ or ‘illegal’. In other words, his occupation is supported by
some documents issued by the governmental authorities.”
64. In Government of Andhra Pradesh v. Thummala Krishna Rao
6
2026 KHC OnLine 34
[ ]
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7
And Another , a Bench of three Honourable Judges of the Apex Court, while
interpreting Sections 6 and 7 of Land Encroachment Act, 1905 (A.P. Act 3 of 1905),
expressed the view that where the title to the land is bona fide disputed by the
occupant, such dispute must be adjudicated not by the summary proceedings, but
by civil suit.
8
65. In State of Rajasthan v. Padmavati Devi , another Bench
consisting of three Honourable Judges of the Apex Court followed the judgment of
Thummala Krishna Rao (supra) and reiterated the very same principle while
interpreting the provisions of Rajasthan Land Revenue Act, 1956 (15 of 1956).
66. In view of the Authoritative pronouncement of the Apex Court in
Thummala Krishna Rao (supra) and Padmavati Devi (supra), we are of the
considered view that where the person in occupation of land raises a bona fide
dispute involving complicated questions of title and the right to remain in possession
of the land, and the controversy involves the applicability and interpretation of
various laws, disputed questions of fact requiring recording of evidence, the matter
is to be adjudicated by the competent civil court and not by the writ court.
67. Another Contention advanced is that Section 27 of the TCHRI Act
cannot be invoked in the instant case, as the property was not in possession of the
7
(1982) 2 SCC 134
8
[1995 Supp (2) SCC 290]
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Board as on 12th April 1922. Before further discussion, it would be useful to extract
Section 27 of the TCHRI Act.
“S.27 Devaswom properties.--
Immovable properties entered or classed in the revenue records
as Devaswom Vaga or Devaswom Poramboke and such other
Pandaravaga lands as are in the possession or enjoyment of the
Devaswoms mentioned in Schedule I after the 30th Meenam, 1097
corresponding to the 12th April, 1922, shall be dealt with as Devaswom
properties. The provisions of the Land Conservancy Act of 1091 (IV of
1091) shall be applicable to Devaswom lands as in the case of
Government lands.”
68. It is pertinent to note that, in the instant case, the 8th respondent
Samooham has been in possession and enjoying the land from 1896 onwards.
Therefore, we have no hesitation in holding that neither Section 27 of the TCHRI
Act nor the provisions of the KLC Act have any application in the facts of the instant
case.
69. The main challenge in this writ petition is that Ext.P9 order passed by
the 4th respondent, Special Tahsildar, is illegal and liable to be set aside. We have
carefully gone through Ext.P9 order. Pursuant to the directions issued by this Court
in Ext.P2 and P4 judgments, the joint survey was conducted and the survey was
finalised by Ext.P6 report. From the records, we find that, after finalising the
survey, notices were sent to the petitioner and the respondents, and the affected
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parties were afforded an opportunity of personal hearing. The evidence of the writ
petitioner was also recorded by the Special Tahsildar. The writ petitioner stated
before the competent authority that he was satisfied with the joint survey conducted
on 13.05.2024. However, he expressed his objection to the conclusion that there
was no encroachment in the temple land. He further stated that the burden of proof
in this case is with the 8th respondent Samooham. The competent authority after a
detailed consideration of the joint survey report and the contention of the parties,
concluded that the properties described in Old Survey Nos.3750, 3752, 3755
(A,B,C), 3756 (A, B), 3757, 3758, 3760, 3762 and 3766 in Karthikappally Village are
in the name of private individuals and covered by purchase certificates.
70. It is further stated in Ext.P9 order that the 8th respondent has
produced title deeds in support of their claim, and that the writ petitioner has
expressed doubts as to the genuineness of the said deeds. Therefore, the
competent authority concluded that an action under the KLC Act cannot be taken in
the controversy. The competent authority has also issued a direction to the TDB to
initiate appropriate action before the competent civil court.
71. The competent authority under the KLC Act has also placed profuse
reliance on the judgment of this Court in Harrison Malayalam Ltd. Cochin v.
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9 10
State of Kerala and others , Harrison Malayalam Ltd. v. State of Kerala ,
11
Deviprasad M.N. and others v. District Collector, Wayanad , wherein this
court observed that the writ court cannot interfere if the person in occupation of
the land has a semblance of title. On going through Ext.P9 order of the special
tahsildar, we are unable to accept the contention that the said order is illegal,
arbitrary and unjustifiable.
72. On a careful consideration of the submissions advanced by the counsel
for the parties, pleadings and materials placed on record, we are of the considered
view that the reliefs claimed in the writ petition cannot be granted. The writ petition
is devoid of any merits and liable to be dismissed.
The writ petition is dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
msp
9
(2014 (4) KHC 245)
10
(2018 (2) KHC 719)
11
(2019 (4) KHC 28)
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APPENDIX OF WP(C) NO. 11984 OF 2026
PETITIONER EXHIBITS
Exhibit-P1 COPY OF THE SETTLEMENT REGISTER
Exhibit-P2 COPY OF JUDGMENT DATED 02/02/2024 IN WPC
NO.30586/2023
Exhibit-P3 COPY OF THE NOTICE NO:A3 696/2023 DATED ON
10/11/2024 ISSUED BY THE 4TH RESPONDENT
Exhibit-P4 COPY OF JUDGMENT IN WRIT PETITION(C)
NO.6502/2025
Exhibit-P5 COPY OF JUDGMENT DATED 11/04/2025 IN REVIEW
PETITION AS 510/2025
Exhibit-P6 COPY OF REPORT BEARING NO.E2(B) 1449/25 DATED
28/06/2025 FILED BY THE 4TH RESPONDENT
Exhibit-P7 COPY OF LETTER NO.A3-696/2023 DATED
02/07/2025 ISSUED BY THE 4TH RESPONDENT
Exhibit-P8 COPY OF THE SETTLEMENT PATTAYAM NO 12 DATED
1071 ME (1896) FILED BEFORE THE 4TH
RESPONDENT
Exhibit-P9 COPY OF ORDER NO.A3-696/23 DATED 27/09/2025
PASSED BY THE 4TH RESPONDENT
Exhibit-P10 COPY OF THE PETITION DATED 25/10/2025 FILED
BY THE PETITIONER BEFORE THE 4TH RESPONDENT
Exhibit-P11 COPY OF ORDER NO.A3-696/2023 DATED 25/10/2025
BY THE 4TH RESPONDENT
Exhibit-P12 COPY OF RELEVANT PAGE NO.08 OF THE COUNTER
AFFIDAVIT IN WRIT PETITION NO. 30586/2023
Exhibit-P13 COPY OF THE PHOTOGRAPH OF THE R7(G) OF THE
COUNTER AFFIDAVIT IN WRIT PETITION NO.
30586/2023
Exhibit-P14 COPY OF THE JUDGMENT DATED 18/02/2026 IN WRIT
PETITION (C) NO.24943/2023
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RESPONDENT EXHIBITS
Exhibit R7(a) TRUE COPY OF ONE OF SUCH CAVEAT PETITION
DATED 7/10/2025 FILED BEFORE THE MUNSIFF
COURT HARIPAD
Exhibit R7(b) TRUE COPY OF ONE OF SUCH FACE BOOK POST DATED
16/3/2025
Exhibit R7(c) TRUE COPY OF THE SURVEY REPORT
TRUE COPY OF THE JUDGMENT DATED 25-7-2025 IN
CONTEMPT OF COURT CASE (C) NO. 388 OF 2025
Exhibit R7(d)
Exhibit R8(a)
A TRUE COPY OF THE RELEVANT PAGES OF THE
SETTLEMENT REGISTER CERTIFIED BY THE
ARCHAEOLOGICAL DEPARTMENT
Exhibit R8(b)
A TRUE COPY OF THE PATTOM PROCLAMATION ISSUED
BY THE THEN TRAVANCORE STATE DATED 1040 ME
Exhibit R8(c) TRUE COPY OF THE BUILDING CERTIFICATE DATED
6.5.2026 ISSUED BY THE KARTHIKAPALLY GRAMA
PANCHAYATH
PETITIONER EXHIBITS
Exhibit-P15 COPY OF THE 'OZHUKUREKHA' ISSUED BY THE
SUPERINTENDENT FROM THE CENTRAL ARCHIVES AS
PER LETTER NO.RM.1-1075/2026/CA DATED
27/07/2026
Exhibit-P16 COPY OF THE LETTER NO.RM4-1070/2026/CA DATED
14/07/2026 ISSUED BY THE SUPERINTEND, CENTRAL
ARCHIVES, THIRUVANANTHAPURAM ALONG WITH
TRANSLATION IN MALAYALAM
Exhibit-P17 COPY OF THE APPLICATION DATED 14/07/2026
UNDER RIGHT TO INFORMATION ACT
Exhibit-P18 COPY OF LETTER NO. SAD-CAT/8/2026-RM3 DATED
22/07/2026 THE SUPERINTENDENT OF CENTRAL
ARCHIVES DEPARTMENT