K.A. Narayanan Embranthiri vs *(Malabar Devaswom Board
2022 Latest Caselaw 3335 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                             &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
                 W.P.(C) NO. 12719 OF 2020
PETITIONER:

         K.A. NARAYANAN EMBRANTHIRI,
         AGED 85 YEARS, S/O.LATE NARAYANAN,
         VADAKKE GRAMAM, PUTHUKKODE,
         PALAKKAD DISTRICT-678 687.
         BY ADV V.M.KRISHNAKUMAR


RESPONDENTS:

    1    MALABAR DEVASWOM BOARD,
         PALAKKAD DIVISION, KENNATHUPARAMBU,
         KUNNATHURMEDU, PALAKKAD, KERALA-678 013,
         [REPRESENTED BY ASSISTANT COMMISSIONER]*.

         *SUO MOTU CORRECTED AS 'REPRESENTED BY ITS
         SECRETARY' AS PER ORDER DATED 22.03.2022.
    2    DISTRICT COLLECTOR,
         COLLECTORATE, PALAKKAD, PIN-678 013.
    3    THE VILLAGE OFFICER,
         PUTHUCODE VILLAGE, THRISSUR DISTRICT, PIN-678
         687.
    4    KRISHNAN,
         AGED 56 YEARS, S/O.CHATHAYI, GRACE BUNGALOW,
         PUTHUCODE VILLAGE, MANAPPADOM P.O., PALAKKAD
         DISTRICT, PIN-678 687.
    5    PUTHUCODE GRAMAPANCHAYATH,
         PUTHUCODE, PALAKKAD, PIN-678 687, REPRESNETED BY
         ITS SECRETARY.
    6    PUTHUCODE VADAKKEGRAMA SAMOOHAM,
         PUTHUCODE, PALAKKAD, PIN-678 687, REPRESENTED BY
         SECRETARY, JAYAKRISHNAN.
                                2
W.P.(C)No.12719 of 2020


    7**     ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD,
            PALAKKAD DIVISION, KENNATHUPARAMBU,
            KUNNATHURMEDU, PALAKKAD- 678013.
            **SUO MOTU IMPLEADED AS ADDITIONAL 7TH RESPONDENT
            AS PER ORDER DATED 22.03.2022.

            BY ADVS.
            R1 & R7 BY SRI.R.LAKSHMI NARAYAN, SC, MALABAR
            DEVASWOM BOARD
            R2& R3 BY S.RAJ MOHAN, SR.GOVERNMENT PLEADER
            R5 BY C.A.ANOOP
            R4 & R6 BY S.LAKSHMI
            R4 & R6 BY S.AMINA
            R4 & R6 BY RENI JAMES
            R4 & R6 BY S.SHAFEEKA
            R4 & R6 BY APARNA ANIL



      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL
HEARING ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                       3
W.P.(C)No.12719 of 2020



                                 JUDGMENT

Anil K. Narendran, J.

The issue raised in this writ petition revolves around a

pond, namely, 'Ayyankulam' in Re-survey No.431/2, Block No.33

of Puthucode Village in Palakkad District. According to the

petitioner, the said pond belongs to him, which is being misused

by the 4th respondent, at the instance of the 1st respondent

Malabar Devaswom Board. In the writ petition, the petitioner has

stated that he is ready and willing to dedicate the said pond to

the public and to handover its possession and ownership to the

5th respondent Puthucode Grama Panchayat. One of the reliefs

sought for in this writ petition is against Ext.P4 proceedings dated

24.10.2019 of the 1st respondent Malabar Devaswom Board,

whereby, the Annapoorneswary Sevasamithi was released from

the responsibility of maintaining Puthucode Vadakkegrama

Samooham Siva Temple and the 6th respondent Puthucode

Vadakkegrama Samooham, represented by its Secretary, is

given charge of that Temple. The petitioner has field this writ

petition, invoking the extraordinary jurisdiction of this Court

W.P.(C)No.12719 of 2020

under Article 226 of the Constitution of India, seeking a writ of

certiorari to quash Ext.P4 order dated 24.10.2019 of the 1 st

respondent to the extent that the same transfers 'Ayyankulam' to

the 6th respondent; a writ of mandamus commending the 2nd

respondent District Collector to consider and pass orders on

Ext.P5 representation dated 06.03.2020 within the time limit that

may be fixed by this Court; and a writ of mandamus commanding

respondents 2 to 5 to to clear the pond at the expense of

respondents 4 and 5.

2. On 26.06.2020, when this writ petition came up for

admission, the learned Standing Counsel for Malabar Devaswom

Board entered appearance for the 1st respondent and the Senior

Government Pleader entered appearance for respondents 2 and

3. Urgent notice by speed post was ordered to respondents 4 to

6.

3. On 05.08.2021, the petitioner has filed I.A.No.1 of

2021 seeking an order directing respondents 2 and 5 to ensure

that the quality of water in the 'Ayyankulam' is maintained

without spoiling the drinking water of the neighbouring wells.

W.P.(C)No.12719 of 2020

I.A.No.2 of 2021 is one filed for accepting Exts.P7 and P8 as

additional documents.

4. On 08.12.2021, the 6th respondent has filed a counter

affidavit opposing the reliefs sought for in this writ petition. The

said respondent is claiming right and title over 'Ayyankulam' on

the strength of Ext.R6(c) registered Will bearing No.20/1987 of

SRO Alathur, executed by Sri.Chathayi in favour of Sri.Krishnan

and Ext.R6(d) gift deed executed by the said Krishnan in favour

of the 6th respondent Puthucode Vadakkegrama Samooham,

represented by its President.

5. On 20.01.2022, the learned Standing Counsel for the

Malabar Devaswom Board has filed a statement on behalf of the

1st respondent, opposing the reliefs sought for in this writ

petition; wherein it is contended, inter alia, that the rival claims

of the petitioner and the 6 th respondent cannot be adjudicated in

writ proceedings under Article 226 of the Constitution of India. In

case the petitioner is aggrieved by Ext.P4 order of the additional

7th respondent Assistant Devaswom Commissioner, he can invoke

the statutory remedy as provided in Section 18 of the Madras

W.P.(C)No.12719 of 2020

Hindu Religious and Charitable Endowments Act, 1951.

6. Heard the learned counsel for the petitioner, the

learned Standing Counsel for the Malabar Devaswom Board for

respondents 1 and 7, the learned Senior Government Pleader for

official respondents, the learned counsel for respondents 4 and 6

and also the learned Standing Counsel for the 5th respondent

Grama Panchayat.

7. Insofar as the challenge made in this writ petition

against Ext.P4 order of the additional 7 th respondent Assistant

Devaswom Commissioner is concerned, a statutory remedy is

provided in sub-section (1) of Section 18 of the Act, whereby the

Commissioner is empowered to call for records and examine the

records of the Assistant Commissioner, in respect of any

proceedings under this Act (not being a proceeding in respect of

which a suit or an appeal to a Court is provided by this Act), to

satisfy himself as to the regularity of such proceeding, or the

correctness, legality or propriety of any decision or order passed

therein. Therefore, if the petitioner is feeling aggrieved by Ext.P4

order, he has to invoke the statutory remedy provided under

W.P.(C)No.12719 of 2020

Section 18 of the Act by approaching the Commissioner. The

locus standi of the petitioner to challenge Ext.P4 order shall be

considered on the strength of Exts.P2 and P3.

8. The petitioner is claiming title and possession over

the 'Ayyankulam' pond. On the other hand, the 6th respondent is

claiming title and possession over the said pond on the strength

of Exts.R6(c) and R6(d) documents. The said factual dispute

cannot be resolved in writ proceedings under Article 226 of the

Constitution of India.

In such circumstances, leaving open the legal and factual

contentions raised by the petitioner and the 6 th respondent, this

writ petition is disposed of without prejudice to the legal right, if

any, of the petitioner to establish his right over 'Ayyankulam' by

approaching the competent civil court.

Sd/-

ANIL K. NARENDRAN, Judge

Sd/-

P.G. AJITHKUMAR, Judge dkr

W.P.(C)No.12719 of 2020

APPENDIX OF WP(C) 12719/2020

PETITIONER EXHIBITS EXHIBIT P1 PHOTOGRAPH SHOWING THE POND IN RE.SY.NO.431/2 OF PUTHUCODE VILLAGE.

EXHIBIT P2 TRUE COPY OF THE BASIC TAX REGISTER MAINTAINED BY PUTHUCODE VILLAGE OFFICE. EXHIBIT P3 TRUE COPY OF THE VILLAGE SKETCH SHOWING AYYANKULAM.

EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 24.10.2019.

EXHIBIT P5 TRUE COPY OF THE APPLICATION FILED BY PETITIONER'S SON PRAMOD AND OTHERS DATED 06.03.2020.

EXHIBIT P6          TRUE COPY OF THE REPORT OF THE VILLAGE
                    OFFICER   TO    THE    REVENUE    DIVISIONAL
                    OFFICER DATED 19.09.2019.
EXHIBIT P7          TRUE COPY OF THE NEWS PAPER REPORT
                    PUBLISHED IN MALAYALA MANORAMA DAILY
                    DATED 10.06.2021.
EXHIBIT P8          TRUE COPY OF THE COMPLAINT FILED BY
                    SRIJITH    R.    BEFORE    THE    INSPECTOR,
                    VADAKKANCHERY     POLICE    STATION    DATED
                    10.06.2021.
RESPONDENT'S EXHIBITS
EXHIBIT R6(A)       TRUE COPY OF THE REGISTRATION CERTFICATE

NO.C1172/2004 ISSUED BY THE REGISTRAR OF SOCIETIES IN FAVOUR OF THE 6TH RESPONDENT.

EXHIBIT R6(B) TRUE COPY OF G.O.(MS) NO.1144 DATED 28.12.1947 ISSUED BY THE GOVERNMENT OF MADRAS.

EXHIBIT R6(C)       TRUE COPY OF THE REGISTERED WILL BEARING
                    NO.20/1987    SRO   ALATHUR    EXECUTED   BY

MR.CHATHAYI IN FAVOUR OF MR.KRISHNAN.

EXHIBIT R6(D) TRUE COPY OF THE GIFT DEED NO.3416/2004, SRO ALATHUR EXECUTED BY THE FOURTH RESPONDENT.