Shaji .K.T vs Malabar Devaswom Board
2022 Latest Caselaw 6458 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 8TH DAY OF JUNE 2022 / 18TH JYAISHTA, 1944
                   WP(C) NO.13195 OF 2022
PETITIONER:

          SHAJI.K.T
          AGED 45 YEARS
          S/O.CHANDRAN, KALATHUMTHODI HOUSE, GURUVAYOORAPPAN
          COLLEGE P.O., PALAZHIPALA,
          KOZHIKODE DISTRICT-673 008
          BY ADVS.
          K.MOHANAKANNAN
          A.R.PRAVITHA
          D.S.THUSHARA
          H.PRAVEEN (KOTTARAKARA)
          T.ANCY
          MAYA S. KUMAR
          BERIN BABY


RESPONDENTS:

    1     MALABAR DEVASWOM BOARD
          HOUSEFED COMPLEX, ERANJIPALAM, KOZHIKODE-673 006,
          REPRESENTED BY ITS COMMISSIONER
    2     THE COMMISSIONER,
          MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX,
          ERANJIPALAM, KOZHIKODE-673 006
    3     THE MANAGING TRUSTEE,
          SREE VALAYANAD BHAGAVATHI DEVASWOM, KOMMERI P.O.,
          KOZHIKODE-673 007
    4     THE MANAGER/EXECUTIVE OFFICER,
          SREE VALAYANAD BHAGAVATHI DEVASWOM, KOMMERI P.O.,
          KOZHIKODE-673 007


          SRI R. LAKSHMI NARAYAN- STANDING COUNSEL ,MALABAR
          DEVASWOM BOARD

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                       2

W.P.(C) No.13195 of 2022

                            JUDGMENT

Anil K. Narendran, J

The petitioner, who is a devotee of Sree Valayanad

Bhagavathi, has filed this writ petition under Article 226 of the

Constitution of India seeking a writ of mandamus commanding the

2nd respondent Commissioner, Malabar Devaswom Board, to hear

the petitioner before finalising the proceedings evidenced by

Exts.P3 and P4 and to permit him to adduce evidence both oral

and documentary. The petitioner has also sought for a writ of

mandamus commanding the 2nd respondent not to finalise the

proceedings pursuant to Exts.P3 and P4 without hearing the

petitioner and without perusing the documents made mention in

Ext.P3.

2. On 07.04.2022, when this writ petition came up for

admission, the learned Standing Counsel for Malabar Devaswom

Board took notice on admission for respondents 1 and 2. Urgent

notice on admission by speed post was ordered to respondents 3

and 4.

3. Heard the learned counsel for the petitioner, the

learned Standing Counsel for Malabar Devaswom Board for

W.P.(C) No.13195 of 2022

respondents 1 and 2. Despite service of notice, none appears for

respondents 3 and 4.

4. Today, when this case is taken up for consideration, the

learned counsel for the petitioner and also the learned Standing

Counsel for Malabar Devaswom Board would point out the

judgment of this Court dated 20.05.2022 in W.P.(C) No.14154 of

2022. The said writ petition was one filed by the hereditary trustee

of Valayanad Bhagavathi Temple in Kozhikode District, seeking a

writ of certiorari to quash order No.J2-2994/2019/MDB dated

16.04.2022 (Ext.P23) of the Commissioner, Malabar Devaswom

Board, in a proceedings under Section 45 of the Madras Hindu

Religious and Charitable Endowments Act, 1951, initiated against

him. By the said order, he was removed from the hereditary

trusteeship of Valayanad Bhagavathi Temple, for the reasons

stated in that order. In that writ petition, the hereditary trustee

had raised various contentions, in order to challenge the order

dated 16.04.2022. One of the contentions raised was that, the

Commissioner, Malabar Devaswom Board passed the said order

ignoring the pendency of W.P.(C)No.27286 of 2021, in which the

common order dated 24.08.2021 in I.A.Nos.26, 27 and 28 of 2021

W.P.(C) No.13195 of 2022

in Case No.J2-2994/2019/MDB (Ext.P21) was under challenge.

Relying on the law laid down by the Apex Court in Magadh Sugar

and Energy Limited v. State of Bihar [2021 (5) KLT 667

(SC)], it is contended that, since the order dated 16.04.2022 is

one issued in violation of the principles of natural justice, it can be

challenged under Article 226 of the Constitution of India.

5. W.P.(C) No.14154 of 2022 was disposed by judgment

dated 20.05.2022. Paragraphs 9 to 16 of that judgment reads

thus:

9. Ext.P23 order of the 1st respondent Commissioner is one passed in a proceedings in which the petitioner was issued with a notice and was represented by a counsel. On 09.03.2022, the 1st respondent heard the learned counsel for the petitioner herein and also the learned counsel for supplementary respondents 2 and 3, namely, N.Kesavan Moosad and K.P.Kinhinarayanan Moosad. In case, the reasoning of the 1st respondent in Ext.P23 order is erroneous, it is for the petitioner to challenge that order by invoking the statutory remedy available under sub-section (5) of Section 45 of the Act, before the 3rd respondent State.

10. In view of the provisions under sub-section (5) of Section 45 of the Act, an appeal against the order of the Commissioner in a proceedings under sub-section (1) of Section 45 of the Act has to be filed within one month from the date of receipt of a copy of that order. Ext.P23 order is

W.P.(C) No.13195 of 2022

one dated 16.04.2022. The petitioner challenged that order in this writ petition, which is one filed on 18.04.2022. Therefore, the petitioner can be permitted to invoke the statutory remedy against Ext.P23 order, within a reasonable time to be fixed in this judgment.

11. On 19.04.2022, when this writ petition came up for admission, the Vacation Bench granted an interim stay of Ext.P23 order, for a period of two months, taking note of the pendency of W.P.(C)No.27286 of 2021, in which Ext.P21 order of the 1st respondent in I.A.Nos.26, 27 and 28 of 2021 in the very same proceedings was under challenge. That writ petition, along with connected matters, ended in dismissal by the judgment dated 17.05.2022.

12. In Kalabharati Advertising v. Hemant Vimalnath Narichania [(2010) 9 SCC 437], a decision relied on by the learned Standing Counsel for Malabar Devaswom Board, the Apex Court reiterated that, the forum of the writ court cannot be used for the purpose of giving interim relief as the only and the final relief to any litigant. If the court comes to the conclusion that the matter requires adjudication by some other appropriate forum and relegates the said party to that forum, it should not grant any interim relief in favour of such a litigant for an interregnum period till the said party approaches the alternative forum and obtains interim relief.

13. As already noticed hereinbefore, the Vacation Bench granted interim stay of Ext.P23 order of the 1 st respondent Commissioner, taking note of the pendency of W.P. (C)No.27286 of 2021. Therefore, the said order shall continue for a period to be fixed in this judgment, so as to

W.P.(C) No.13195 of 2022

enable the petitioner to challenge Ext.P23 order in an appeal filed under sub-section (5) of Section 45 of the Act, before the 3rd respondent State, along with an application for interim relief.

14. The learned Senior Counsel for the petitioner would submit that the petitioner shall file an appeal before the 3 rd respondent, against Ext.P23 order of the 1 st respondent, within a reasonable time, along with an application for stay. Till consideration of that interlocutory application, the interim order granted by the Vacation Bench may be permitted to continue.

15. The learned Senior Government Pleader, on instructions, would submit that in case the petitioner files an appeal within the time limit to be stipulated in this judgment, along with an application for interim relief, the 3 rd respondent shall consider the application for interim relief on 10.06.2022, with notice to both sides and thereafter an order in that interlocutory application shall be passed on or before 17.06.2022.

16. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions;

(i) The petitioner shall challenge Ext.P23 order of the 1 st respondent Commissioner by filing an appeal before the 3 rd respondent State, invoking the provisions under sub-section (5) of Section 45 of the Madras Hindu Religious and Charitable Endowments Act, along with an application for interim relief. In case, the memorandum of appeal along with application for interim relief is filed before the 3 rd respondent, after complying with the statutory

W.P.(C) No.13195 of 2022

requirements, before 10.06.2022, the 3rd respondent shall treat that appeal as one filed within the time limit specified in sub-section (5) of Section 45 of the Act.

(ii) The 3rd respondent shall consider the application for interim relief filed in that appeal on 10.06.2022 with notice to the Executive Officer, Sree Valayanad Devaswom and also the President and Secretary of Sree Valayanad Devi Kshetra Upadesaka Samithi and pass appropriate orders on that application, on or before 17.06.2022, uninfluenced by the order of stay granted by this Court in this writ petition, which shall continue to be in force till 17.06.2022 or the date on which the 3rd respondent passes orders in that application, whichever is earlier.

(iii) The petitioner shall serve a copy of the memorandum of appeal and stay petition and also a copy of this judgment to the Executive Officer of Valayanad Bhagavathi Temple and also the President and Secretary of Sree Valayanad Devi Kshetra Upadesaka Samithi and an acknowledgment to that effect made by them shall be enclosed along with the memorandum of appeal filed before the 3rd respondent."

Since the proceedings before the 2nd respondent

Commissioner referred to in this writ petition has already been

disposed of by the order dated 16.04.2022, which was marked as

Ext.P23 in W.P.(C) No.14154 of 2022, we find that this writ

petition can be disposed of, leaving open the legal and factual

contentions raised by the petitioner, without prejudice to the right

of the petitioner to raise all such contentions before the

W.P.(C) No.13195 of 2022

appropriate authority under sub-section(5) of Section 45 of the

Act, at appropriate stage.

Sd/-

ANIL K.NARENDRAN JUDGE

Sd/-

P.G. AJITHKUMAR JUDGE PV

W.P.(C) No.13195 of 2022

APPENDIX OF WP(C) 13195/2022

PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 1.2.2019 IN WRIT PETITION NO.40648/2018 Exhibit P2 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.12681/2019 DATED 26.4.2019 Exhibit P3 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT IN IA 17/2019 IN J6-6023/2017 DATED 27.4.2019 Exhibit P4 TRUE COPY OF THE ORDER NO.J6-6023/2017 MDB DATED 13.5.2019 OF MALABAR DEVASWOM BOARD Exhibit P5 TRUE COPY OF THE COMMON JUDGMENT IN RP NO.407/2019 IN WP 40648/2018 AND CONNECTED CASES DATED 19.12.2019