M.Madhava Warrier vs Commissioner
2021 Latest Caselaw 2180 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

   WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942

                      WP(C).No.34011 OF 2019(B)


PETITIONER:

               M.MADHAVA WARRIER,
               AGED 64 YEARS
               S/O. LATE MADHAVA WARRIER, SOPANAM, KARAPPATH,
               PEELICODE P.O., HOSDURG TALUK, KASARAGOD-671353.

               BY ADVS.
               SRI.M.RAMESH CHANDER (SR.)
               SMT.K.A.SANJEETHA
               SRI.BALU TOM

RESPONDENTS:

      1        COMMISSIONER,
               MALABAR DEVASWOM BOARD, ERANHIPALAM P.O., KOZHIKODE-
               673001.

      2        DEPUTY COMMISSIONER,
               MALABAR DEVASWOM BOARD, ERANHIPALAM P.O., KOZHIKODE-
               673001.

      3        PEELICODE RAYARAMANGALAM BHAGAVATHI TEMPLE,
               REPRESENTED BY ITS CHAIRMAN, BOARD OF TRUSTEES,
               PEELICODE P.O., KASARAGOD-671353.

               R3 BY ADV. SRI.MAHESH V RAMAKRISHNAN



               SRI. R.LAKSHMI NARAYAN - SC

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD         ON
20.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.34011 OF 2019            2




                             JUDGMENT

Dated this the 20th day of January 2021

The petitioner asserts that he is working as a

'Kazhakam' from 15.07.1989 in the services of the 3 rd respondent

temple, which is under the administrative control of the Malabar

Devaswom Board. He claims that he is entitled to emoluments from

the temple and that since there were not honoured by the 3 rd

respondent, he had approached the 2nd respondent Deputy

Commissioner, who, however, rejected it through Ext. P1 order. He

says that, he, therefore, preferred an appeal before the 1 st

respondent - Commissioner Malabar Devaswom Board, who,

thereupon, issued Ext. P2 order allowing his claim.

2. The petitioner's grievance, as voiced in this writ

petition by his learned Counsel Smt. K.A. Sanjeetha, is that in spite

of Ext. P2 order having been issued as early as on 17 th July, 2014,

no amounts have been disbursed to him by the 3 rd respondent till

now. The petitioner, therefore, prays that the 3 rd respondent be

directed to comply with Ext. P2 order and that he be granted all

the pecuniary benefits specified thereunder.

3. In response, Shri. Mahesh Ramakrishnan, the

learned counsel appearing for the 3 rd respondent, submitted that as

evidenced from Ext. P2, it was issued without hearing his client and

recording that they were absent on the day when it was issued,

namely on 17.7.2014. The learned counsel submitted that since the

record in Ext. P2 regarding the absence of his client is unjustified,

he had preferred Ext.P5 application, under Order IX Rule 13 of the

Code of Civil Procedure (C.P.C.), to have the said exparte order

vacated.

4. Shri. Mahesh Ramakrishnan further added that

even though the Commissioner had posted the above application of

his client for consideration on 13.1.2021, neither the petitioner nor

his counsel was present, constraining the said Authority to adjourn

it to 3.2.2021. He thus contented that since Ext. P5 is still

pending, Ext. P2 order cannot be said to have become final and

therefore, prayed that this Court may not direct implementation of

the said order at this point of time.

5. Shri. R. Lakshmi Narayan, learned Standing

Counsel appearing for the Malabar Devaswaom Board, representing

respondents 1 and 2, submitted that Ext. P5 application is next

posted before the 1st respondent on 3.2.2021, and that of both side

co-operate, the matter can be disposed of without any further

delay.

6. In reply, Smt. K. A. Sanjeetha, learned counsel for

the petitioner, submitted that Ext. P5, is not maintainable, since

the provisions of the C.P.C. are not applicable to the proceedings

from which Ext. P2 order has arisen. She prayed, therefore, that

this Court may not direct Ext. P5 to be disposed of by the 1 st

respondent and that the 3rd respondent be directed to implement

Exts. P2 to P4 orders.

7. Even when I hear Smt. K. A. Sanjeetha on the

afore lines, the fact remains that the petitioner had approached the

Commissioner with Ext. P5 application on 25.9.2014, which is less

than about two and half months from the date on which Ext. P2

order had been issued. Obviously, therefore, the questions whether

the said application is maintainable and whether the 3 rd respondent

is entitled to any relief, are matters that are within the

competence of the 1st respondent to consider. Hence, it will not be

justified this for Court to jump into any conclusion at this time; and

am of the firm opinion that Ext. P5 should be disposed of by the 1 st

respondent at the earliest, particularly because, the matter has

been pending from the year 2014 onwards. In the afore

circumstances, I order this writ petition and direct the 1 st

respondent to dispose of Ext. P5, after affording an opportunity of

being heard to both sides on 3-2-2021 or on any other date that

may be fixed for such purpose, and issue appropriate orders there

on as expeditiously as possible, but not later than by the end of

April, 2021.

I make it clear that the question of maintainability of

Ext. P5 will also be specifically adverted to by the Commissioner

and answered by him in his resultant order.

Sd/-

DEVAN RAMACHANDRAN JUDGE SMF/20.01

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 PHOTOSTAT COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 18/11/2011.

EXHIBIT P2 PHOTOSTAT COPY OF THE ORDER DATED 17/07/2014 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P3 PHOTOSTAT COPY OF THE REPRESENTATION TO THE 1ST RESPONDENT DATED 10/04/2019.

EXHIBIT P4 PHOTOSTAT COPY OF THE COMMUNICATION ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT DATED 23/09/2019.

EXHIBIT P5 PHOTOSTAT COPY OF THE AFFIDAVIT FILED BEFORE THE 1ST RESPONDENT DATED 25/09/2014.

EXHIBIT P6 PHOTOSTAT COPY OF THE REPRESENTATION BEFORE THE 1ST RESPONDENT.

EXHIBIT P7 PHOTOSTAT COPY OF THE REPLY GIVEN BY THE 3RD RESPONDENT DATED 17/07/2019.

EXHIBIT P8 PHOTOSTAT COPY OF THE COMMUNICATION ISSUED BY THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD DATED 07/10/2020.

//TRUE COPY// PA TO JUDGE