Kerala High Court
Vijayakumar vs The Commissioner on 12 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
WP(C) NO. 9323 OF 2021
PETITIONERS:
1 VIJAYAKUMAR,S/O.LATE MALATHY NESYAR, PALLIANA HOUSE,
ANNAKARA P.O., POOVATHUR (VIA), ANNAKARA VILLAGE,
CHAVAKKAD TALUK, THRISSUR-680 508.
2 JAYABALA,D/O.LATE MALATHY NESYAR, PALLIANA HOUSE,
ANNAKARA P.O., POOVATHUR (VIA), ANNAKARA VILLAGE,
CHAVAKKAD TALUK, THRISSUR-680 508.
3 SHOBHA,D/O.LATE MALATHY NESYAR, PALLIANA HOUSE,
ANNAKARA P.O., POOVATHUR (VIA), ANNAKARA VILLAGE,
CHAVAKKAD TALUK, THRISSUR-680 508.
BY ADVS.
M.P.ASHOK KUMAR
SMT.BINDU SREEDHAR
SHRI.ASIF N
RESPONDENTS:
1 THE COMMISSIONER
MALABAR DEVASWOM BOARD, KOZHIKODE-673 001.
2 ASSISTANT COMMISSIONER,
MALABAR DEVASWOM BOARD, MALAPPURAM, THIROOR-676 101.
3 THE EXECUTIVE OFFICER,SREE GURUVAYOOR PARTHASARATHY
TEMPLE, GURUVAYOOR, THRISSUR-680 101.
SRI.R.LAKSHMI NARAYAN, SC, MDB
SRI.MOHAN C.MENON
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.08.2021, ALONG WITH WP(C).10372/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) 9323 & 10372/2021 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
WP(C) NO. 10372 OF 2021
PETITIONER:
MADHAVAN
AGED 54 YEARS
S/O.SATHI NASIYAR, PALLIANA HOUSE, ANNAKKARA,
THRISSUR DISTRICT, PIN-680 508.
(THE NAME OF PETITIONER AMENDED AS "MADHAVAN @ P.MADHU
AS PER ORDER DATED 12.8.21 IN I.A 1/21 IN WP(C)
10372/2021)
BY ADVS.
A.PARVATHI MENON
SRI.P.SANJAY
RESPONDENTS:
1 THE COMMISSIONER
MALABAR DEVASWOM BOARD, KOZHIKODE-673 001.
2 ASSISTANT COMMISSIONER,
MALABAR DEVASWOM BOARD, MALAPPURAM, THIROOR-676 101.
3 THE EXECUTIVE OFFICER,
SREE GURUVAYOOR PARTHASARATHY TEMPLE, GURUVAYOOR,
THRISSUR-680 101.
SRI.R.LAKSHMI NARAYAN,SC, MDB
SRI.MOHAN C.MENON
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.08.2021, ALONG WITH WP(C).9323/2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C) 9323 & 10372/2021 3
JUDGMENT
Murali Purushothaman, J.
In the captioned Writ Petitions, the petitioners are challenging
order No. H8-450/21/M.D.B. dated 23.02.2021 of the Commissioner,
Malabar Devaswom Board (hereinafter referred to as 'the
Commissioner'). The said order is produced as Ext.P4 in W.P.(C).No.
9323/2021 and Ext.P2 in W.P.(C) No.10372/2021. The Exhibits are
referred to as they appear in W.P. (C) No.9323/2021. Since the issues
involved in both the Writ Petitions are the same, they are being disposed
of by this common judgment.
2. The petitioners in both the Writ Petitions state to be members of
two of the five thavazhis who claim to own the Sree Chirakkal
Bhagavathy Temple, Annakkara in Chavakkad Taluk, Thrissur District
(hereinafter referred to as 'the temple'). The first petitioner in W.P.(C)
No.9323/2021 claims to be the seniormost male member of the five
thavazhis who is presently managing the temple. According to the
petitioners, on 07.04.2021, the Executive Officer, Sree Guruvayoor
Parthasarathy Temple, Guruvayoor, the 3rd respondent, came to the
temple premises along with HR & CE officials and informed the first
petitioner in W.P. (C) No.9323/2021 that they have come to take over the
administration of the temple as ordered in Ext. P4 order of the
Commissioner. In Ext.P4, it is stated that the administration of the
temple is not carried on in accordance with the provisions of the Madras
Hindu Religious and Charitable Endowments Act, 1951 ('MHR & CE
Act', for short) and Rules or the guidelines issued by the Malabar
Devswom Board (MDB) and therefore, based on reports referred to
therein and the decision of the MDB and in the interests of the temple,
an Executive Officer is appointed to assist the Trustee to carry out the
day to day administration of the temple, who is to take over the
administration of the temple with immediate effect. Ext. P4 recites that it
has been issued in exercise of the powers under Section 20 of the MHR
& CE Act.
3. The case of the petitioners is that before issuing Ext.P4 order,
no notice whatsoever was issued to them and no enquiry or hearing was
conducted by the Commissioner. According to the petitioners, the temple
is not a notified temple under the MHR & CE Act and it is a family
temple and the MDB has no jurisdiction to interfere in the affairs of the
temple. Ext.P4 has been impugned on various grounds such as lack of
jurisdiction of the Commissioner to pass the order, violation of
principles of natural justice, breach of statutory provisions and
procedures etc.
4. When W.P.(C).No.9323/2021 came up for admission on
16.04.2021, the learned standing counsel for the MDB submitted that
further proceedings pursuant to Ext. P4 order will not be taken till
24.04.2021 and the Writ Petition was posted for further consideration on
23.04.2021. On the said day, W.P.(C) No.10372/2021 also came up for
consideration and the undertaking on behalf of the first respondent was
made applicable to both Writ Petitions and the undertaking is being
extended from time to time.
5. The learned standing counsel for the first respondent has filed a
statement denying the averments and allegations in the Writ Petitions.
However, in paragraph 8 of the statement, it is admitted that Ext.P4
order was issued without giving an opportunity of hearing to the
petitioners.
6. When the Writ Petitions came up for consideration today, the
learned standing counsel for the first respondent fairly submitted that
since the case of the petitioners is that Ext.P4 order was passed without
giving opportunity of hearing to them, the first respondent will
reconsider the matter and pass orders afresh after notice and affording
opportunity of hearing to the petitioners. The counsel for the petitioners
submitted that, in such event, the petitioners shall be permitted to raise
all factual and legal contentions before the first respondent and the first
respondent shall pass a speaking order taking note of their contentions,
within a time frame.
In the light of the submissions made as above, there will be a
direction that Ext.P4 shall be treated as a show cause notice and a copy
of the same shall be served by the 1 st respondent on the seniormost male
member of each of the 5 thavazhis. The list of the seniormost male
member of the 5 thavazhis shall be furnished by one among the
petitioners to the first respondent along with a certified copy of the
judgment within two weeks from the date of receipt of the judgment.
The 1st respondent shall serve copy of Ext.P4 on these members within
three weeks thereafter by specifying time for showing cause. The first
respondent shall consider all legal and factual contentions of the
members who respond to the notice as aforesaid and afford opportunity
of hearing to them and take a fresh decision in accordance with law,
untrammeled by any findings in Ext.P4, expeditiously. With these
directions, the Writ Petitions are disposed of. Needless to say, since
Ext.P4 is only to be treated as a show cause notice, the same shall not be
enforced.
Sd/-
C.T.RAVIKUMAR
JUDGE
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
spc/
APPENDIX OF WP(C) 10372/2021
PETITIONER'S EXHIBITS
EXHIBIT P1: TRUE COPY OF THE FINAL JUDGMENT IN OS 101 OF 1967
OF THE SUB COURT, THRISSUR DATED 20.07.1971.
EXHIBIT P2: TRUE COPY OF THE ORDER NO.H8-450/2021/MDB DATED
23.02.2021 SERVED TO THE PETITIONERS ON 07.04.2021.
APPENDIX OF WP(C) 9323/2021
PETITIONERS' EXHIBITS
EXHIBIT P1: TRUE COPY OF THE FINAL JUDGMENT IN OS 101 OF 1967
OF THE SUB COURT, THRISSUR DATED 20.07.1971.
EXHIBIT P2:TRUE COPY OF THE ORDER IN IA 2243(A)/2016 IN OP 7 OF
2016 OF SUB JUDGE CHAVAKKAD DATED 15.09.2017.
EXHIBIT P3: TRUE COPY OF THE INTERIM ORDER PASSED BY THIS
HON'BLE COURT IA 2671/17 IN CRP 570 OF 2017 DATED 17.10.2017.
EXHIBIT P4: TRUE COPY OF THE ORDER NO.H8-450/2021/MDB DATED
23.02.2021 SERVED TO THE PETITIONERS ON 07.02.2021.
EXHIBIT P5 :TRUE COPY OF THE RECEIPT GIVEN BY THE 2ND PETITIONER
DATED 07.04.2021.
EXHIBIT P6 :TRUE COPY OF THE RELEVANT PAGE OF SCHEDULE VI IN
O.S.101 OF 1967 OF SUB COURT, THRICHUR DT 30.7.1971.
EXHIBIT P7:TRUE COPY OF THE APPLICATION DT.17.04.2021.
EXHIBIT P8:TRUE COPY OF THE REPLY DAT.18.06.2021 ISSUED FROM THE
OFFICE OF DY.COMMISSIONER.
EXHIBIT P9:TRUE COPY OF THE APPLICATION DT.26.04.2021.
EXHIBIT P10:TRUE COPY OF THE REPLY DAT.18.06.2021 ISSUED BY THE
OFFICE OF DY.COMMISSIONER.
EXHIBIT P11:TRUE COPY OF THE RELEVANT EXTRACT OF THE BASIC TAX
REGISTER DT 04.03.2021.
EXHIBIT P12:TRUE COPY OF THE ENCUMBRANCE CERTIFICATE OF THE
PROPERTY OF THE TEMPLE FROM 01.01.1930 TO 01.01.1975 DT
23.03.2021.
EXHIBIT P12(A):TRUE COPY OF THE ENCUMBRANCE CERTIFICATE OF THE
PROPERTY OF THE TEMPLE FROM 01.01.1976 TO 27.04.2021 DT
16.07.2021.
RESPONDENTS' EXHIBITS:
ANNEXURE R1(A):THE PHOTOCOPY OF THE REPORT DATED 16.1.2021
SUBMITTED BY DIVISIONAL INSPECTOR, GURUVAYOOR TO 1ST RESPONDENT.
W.P.(C) 9323 & 10372/2021 10
ANNEXURE R1(B):THE PHOTOCOPY OF THE REPORT DATED 23.1.2021
SUBMITTED BY DIVISIONAL INSPECTOR, GURUVAYOOR TO 1ST RESPONDENT.
ANNEXURE R1(C):THE PHOTOCOPY OF THE RECEIPT DATED 29.3.2012
ISSUED FROM THE OFFICE OF THE SECOND RESPONDENT TO THE TEMPLE.
ANNEXURE R1(D):THE PHOTOCOPY OF THE PAGE OF CONTRIBUTION AND
AUDIT DEMAND REGISTER OF HR & CE (ADMN) DEARTMENT, KERALA
