Sree Ponmukham Shiva Temple Rep. ... vs Malabar Devaswom Board
2022 Latest Caselaw 9197 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                             &
        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 10TH DAY OF AUGUST 2022/19TH SRAVANA, 1944
                  WP(C) NO. 24936 OF 2022
PETITIONERS:

    1     SREE PONMUKHAM SHIVA TEMPLE REP. BY ITS
          EXECUTIVE OFFICER, PONMUKHAM,
          NELLAYA P.O, PALAKKAD, PIN - 679335

    2     CHAIRMAN, BOARD OF TRUSTEES, SREE PONMUKHAM
          SHIVA TEMPLE, PONMUKHAM, NELLAYA P.O, PALAKKAD,
          PIN - 679335

         BY ADVS.MAHESH V RAMAKRISHNAN
         PRAVEEN K.S.


RESPONDENTS:

   1     MALABAR DEVASWOM BOARD, REP SECRETARY,
         HOUSEFED COMPLEX, ERANJIPALAM P.O,
         KOZHIKODE,PIN - 673006

   2     COMMISSIONER, MALABAR DEVASWOM BOARD,
         HOUSEFED COMPLEX, ERANJIPALAM P.O,
         KOZHIKODE, PIN - 673006

   3     DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD,
         HOUSEFED COMPLEX, ERANJIPALAM P.O,
         KOZHIKODE, PIN - 673006
                                    -2-
W.P.(C). No.24936 of 2022



     4      ASST.COMMISSIONER, MALABAR DEVASWOM BOARD,
            PALAKKAD DIVISION, CIVIL STATION, PALAKKAD, PIN
            - 678001

     5      THE VILLAGE OFFICER, NELLAYA VILLAGE, NELLAYA
            P.O, PALAKKAD, PIN - 679335

     6      NELLAYA GRAMA PANCHAYAT, REP. BY ITS SECRETARY,
            NELLAYA P.O, PALAKKAD, PIN - 679335

     7      KERALA KSHETHRA SAMRAKSHANA SAMITHI, PONMUKHAM,
            NELLAYA, PALAKKAD REPRESENTED BY ITS PRESIDENT,
            PRAKASHAN, S/O AYYAPPANEZHUTHACHAN, AGED 47
            YEARS, RESIDING AT ASHTAMANGALATHODI HOUSE,
            NELLAYA, P.O, POTTACHIRA, PALAKKAD, PIN - 679335

     8      JYOTHISH, S/O GOPALAN, AGED 40 YEARS, SECRETARY,
            KERALA KSHETHRA SAMRAKSHANA SAMITHI, PONMUKHAM,
            RESIDING AT MULLAKKAL HOUSE, NELLAYA P.O,
            POTTACHIRA,PALAKKAD, PIN - 679335

     9      RAGHAVAN, S/O SHIVARAMAN PANICKER, AGED 37
            YEARS, TREASURER, KERALA KSHETHRA SAMRAKSHANA
            SAMITHI, PONMUKHAM, RESIDING AT KALARIKKAL
            HOUSE, NELLAYA
            P.O, POTTACHIRA, PALAKKAD, PIN - 679335

            R1 TO R4 BY SRI.R.LAKSHMI NARAYAN, SC, MALABAR
                                         DEVASWOM BOARD
            R5 BY SRI.S.RAJMOHAN, SR.GOVT.PLEADER
            R6 BY ADVS.SRI.T.C.SURESH MENON
                       SRI.B.DEEPAK


         THIS   WRIT   PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION       ON   10.08.2022,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                                    -3-
W.P.(C). No.24936 of 2022



                               JUDGMENT

Anil K. Narendran, J.

The 1st petitioner is Sree Ponmukham Shiva Temple

represented by its Executive Officer and the 2nd petitioner is

the Chairman of Board of Trustees of the said Temple. The

petitioners have filed this writ petition under Article 226 of the

Constitution of India, seeking a declaration that Sree

Ponmukham Shiva Temple is the absolute owner of the

property covered by Ext.P1 Will and that, respondents 7 to 9

have no manner of right or authority to deal with property or

to collect rent from the buildings situated therein. The

petitioners have also sought for a writ of mandamus

commanding the 5th respondent Village Officer to effect

mutation of the property in favour of the 1st petitioner based

on Ext.P1 Will and to accept land tax of the property from the

petitioners; an order directing respondents 7 to 9 to hand

over the original of Ext.P1 registered Will to the petitioners

forthwith; and an order directing respondents 7 to 9 to pay

the entire amount so far collected by them from the date on

which Ext.P1 Will came into force till date with interest at the

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rate of 12% per annum, forthwith.

2. In the writ petition, it is alleged that though the

property covered by Ext.P1 Will was dedicated by one

Haridasan in favour of the 1st petitioner temple, in the said

document respondents 7 to 9 are mistakenly shown as the

representatives of the said temple. After the death of said

Haridasan, respondents 7 to 9 are dealing with the property

as their private property, by effecting mutation in their name,

paying land tax and collecting monthly rent from the tenants

in the buildings situate therein. The petitioners are appointed

by the statutory authorities under the Madras Hindu Religious

and Charitable Endowments Act, 1951. Despite the issuance

of notice by the petitioners to handover the original of Ext.P1

Will, respondents 7 to 9 refused to do so. In Ext.P2 reply they

claim that the said property belongs to the 7th respondent.

Hence, the petitioners have approached this Court seeking the

aforesaid reliefs.

3. Heard the learned counsel for the petitioners, the

learned Standing Counsel for Malabar Devaswom Board for

respondents 1 to 4 and also the learned Senior Government

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Pleader for the 5th respondent.

4. Section 57 of the Madras Hindu Religious and

Charitable Endowments Act, 1951 deals with the power of the

Deputy Commissioner to decide certain disputes and matters,

which reads thus;

"57. Deputy Commissioner to decide certain disputes and matters.- Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following disputes and matters-

(a) whether an institution is a religious institution;

(b) whether a trustee holds or held office as a hereditary trustee;

(c) whether any property or money is a religious endowment;

(d) whether any property or money is a specific endowment;

(e) whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what the established usage of a religious institution is in regard to any other matter;

(f) whether any institution or endowment is wholly or partly of a religious or secular character; and whether any property or money has been given wholly or partly for religious or secular uses; and

(g) where any property or money has been given for the support of an institution which is partly of a religious and partly of a secular character or the performance of any service or charity connected with such an institution or the performance of a charity which is partly of a religious

W.P.(C). No.24936 of 2022

and partly of a secular character or where any property or money given is apportioned partly to religious and partly to secular uses, as to what portion of such property or money shall be allocated to religious uses.

(underline supplied)"

5. Section 61 of the Act deals with appeal to the

Commissioner. As per sub-section (1) of Section 61, any

person aggrieved by any order passed by the Deputy

Commissioner under any of the foregoing provisions of this

Chapter may, within one month from the date of the

publication of the order or the receipt thereof by the party

concerned, as the case may be, appeal to the Commissioner.

Sub-section (2) of Section 61 provides that any order passed

by the Commissioner on such appeal against which no suit lies

to the Court under the next succeeding section, or in which no

suit has been instituted in the Court within the time specified

in Section 62, sub-section (1), may be modified or cancelled

by the Commissioner if the order has settled or modified a

scheme for the administration of a religious institution or

relates to any of the matters specified in Section 59.

6. Section 62 of the Act deals with suits and appeals.

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As per sub-section (1) of Section 62, any party aggrieved by

an order passed by the Commissioner - (i) under Section 61,

sub-section (1) or sub-section (2), and relating to any of the

matters specified in Section 57, Section 58 or Section 60; or

(ii) under Section 57, Section 58 or Section 60 read with sub-

section (1)(a), (2), or (4)(a) of Section 19 may, within ninety

days from the date of the receipt of such order by him,

institute a suit in the Court against such order; and the Court

may modify or cancel such order, but it shall have no power to

stay the Commissioner's order pending the disposal of the

suit. As per sub-section (2) of Section 62, any party aggrieved

by a decree of the Court under sub-section (1) may, within

ninety days from the date of the decree, appeal to the High

Court. Clause (a) of sub-section (3) of Section 62 provides

that any scheme for the administration of a religious

institution settled or modified by the Court in a suit under

sub-section (1) or on an appeal under sub-section (2) or any

scheme deemed under Section 103, clause (d), to have been

settled or modified by the Court may, at any time, be modified

or cancelled by the Court on an application made to it by the

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Commissioner, the trustee or any person having interest. As

per clause (b) of sub-section (3), any party aggrieved by an

order of the Court under clause (a) may, within ninety days

from the date of the order, appeal to the High Court.

7. In view of the provisions under the Act referred to

hereinbefore, it is for the petitioners to invoke the statutory

remedy provided under Section 57 of the Act for adjudicating

the issue raised in this writ petition.

Without prejudice to the aforesaid right of the

petitioners, this writ petition is dismissed as not maintainable,

leaving open the legal and factual contentions raised by the

petitioners.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE

AV/12/8

W.P.(C). No.24936 of 2022

APPENDIX OF WP(C) 24936/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE REGD WILL NO.51 OF 2017, SRO, CHERPPULASSERY EXECUTED BY SRI.HARIDASAN IN FAVOUR OF SREE PONMUKHAM SHIVA TEMPLE

Exhibit P2 TRUE COPY OF THE REPLY NOTICE DATED 29-08-2019 ISSUED BY THE 7 TH RESPONDENT TO THE 1 ST PETITIONER.

Exhibit P3 TRUE COPY OF THE PETITION DATED 03-01-

2022 SUBMITTED BY THE PETITIONERS BEFORE THE 3 RD RESPONDENT.

Exhibit P4 TRUE COPY OF THE RECEIPT DATED 31-12-

2018 ISSUED BY THE 7 TH RESPONDENT TO A TENANT VIZ., HARIDASASHRAMAM

Exhibit P5 TRUE COPY OF THE RECEIPT DATED NIL ISSUED BY THE 7 TH RESPONDENT TO A TENANT VIZ., MUTHU M.T.

Exhibit P6 TRUE COPY OF THE APPLICATION DATED 30-

08-2017 SUBMITTED BY THE 7 TH RESPONDENT TO THE 6 TH RESPONDENT.