K.C.U.Raja vs The Commissioner
2022 Latest Caselaw 5303 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                 &
          THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
   FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
                     WP(C) NO. 14154 OF 2022
PETITIONER:

          K.C.U.RAJA
          AGED 95 YEARS
          ZAMORIN RAJA OF CALICUT, HEREDITARY TRUSTEE, SREE
          VALAYANAD DEVASWOM, VALAYANAD, KOMMERI P.O,
          KOZHIKODE -2, RESIDING AT C1 AYODHYA APARTMENTS,
          TIRUVANNUR, KOZHIKODE DISTRICT, PIN - 673029.
          BY ADVS.
          T.KRISHNANUNNI (SR.)
          A.C.VENUGOPAL
          VIDHYA. A.C


RESPONDENTS:

    1     THE COMMISSIONER
          MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, P.O,
          ERANJIPALAM, KOZHIKODE - 673006.
    2     MALABAR DEVASWOM BOARD,
          REPRESENTED BY THE COMMISSIONER, HOUSEFED COMPLEX,
          ERANHIPPALAM P.O, KOZHIKODE - 673006.
    3     STATE OF KERALA,
          REPRESENTED BY THE SECRETARY TO GOVERNMENT,
          DEVASWOMS DEPARTMENT, GOVERNMENT OF KERALA,
          SECRETARIAT, TRIVANDRUM, PIN - 695001.
    4     SREE VALAYANADU DEVI KSHETHRAM,
          ULSAVAGOSHA COMMITTEE, KOMMERI (P.O), KOZHIKODE -
          673006.
    5     SHAJI K.T,
          S/O. CHANDRAN, KALATHUMTHODI, P.O.G.A. COLLEGE,
          PALAZHI PALA, KOZHIKODE - 683014.
    6     ADDL.R6. P.K.KRISHNA VARMA
          (SOUGHT TO BE IMPLEADED)
          BY ADVS.
                                  2

W.P.(C) No.14154 of 2022


             K.RAMAKUMAR (SR.)
             T.RAMPRASAD UNNI
             S.M.PRASANTH
             R.S.ASWINI SANKAR
             G.RENJITH


THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                 3

W.P.(C) No.14154 of 2022



                           JUDGMENT

Anil K.Narendran, J.

The petitioner, who is the hereditary trustee of Valayanad

Bhagavathi Temple in Kozhikode District, has filed this Writ

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

writ of certiorari to quash Ext.P23 order No.J2-2994/2019/MDB

dated 16.04.2022 of the 1st respondent-Commissioner, Malabar

Devaswom Board, in a proceedings under Section 45 of the

Madras Hindu Religious and Charitable Endowments Act, 1951,

initiated against the petitioner, who is the hereditary trustee of

the aforesaid temple. By Ext.P23 order, the petitioner is removed

from the hereditary trusteeship of Valayanad Bhagavathi Temple,

for the reasons stated in that order. In this writ petition, the

petitioner has raised various contentions, in order to challenge

Ext.P23 order. One of the contentions raised is that, the 1 st

respondent Commissioner passed Ext.P23 order ignoring the

pendency of W.P.(C)No.27286 of 2021, in which Ext.P21 common

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

No.J2-2994/2019/MDB was under challenge. Relying on the law

laid down by the Apex Court in Magadh Sugar and Energy

W.P.(C) No.14154 of 2022

Limited v. State of Bihar [2021 (5) KLT 667 (SC)], it is

contended that, since Ext.P23 order is one issued in violation of

the principles of natural justice, it can be challenged under Article

226 of the Constitution of India.

2. On 19.04.2022, when this Writ Petition came up for

admission, taking note of the fact that the challenge made

against Ext.P21 common order dated 24.08.2021 in I.A.Nos.26,

27 and 28 of 2021 in Case No.J2/2994/2019 is pending in W.P.

(C)No.27286 of 2021, which has already been reserved for

judgment on 11.03.2022, the Vacation Bench granted an interim

order staying the operation of Ext.P23 order for a period of two

months, pending the judgment in W.P.(C)No.27286 of 2021,

despite the contention regarding maintainability of the issue

raised by the learned Standing Counsel for Malabar Devaswom

Board.

3. By a detailed judgment dated 17.05.2022, W.P.

(C)No.27286 of 2021 and connected writ petitions were

dismissed as not maintainable, in view of the statutory remedy

available under Section 99 of the Madras Hindu Religious and

Charitable Endowments Act, 1951 (for brevity 'the Act').

Paragraph 42 and also the operative portion of that judgment

W.P.(C) No.14154 of 2022

read thus;

"42. We have delved deep into the materials placed on record in these matters. There is nothing to find even prima facie that there has been violation of the principles of natural justice or lack of jurisdiction in issuing Ext.P21 in W.P.(C)No.27286 of 2021 and Ext.P6 in W.P. (C)No.27288 of 2021. Ext. P21 in W.P.(C)No.27286 of 2021 was passed by the Commissioner after hearing the parties in detail. Ext.P6 in W.P.(C)No.27288 of 2021 was issued by the Deputy Commissioner invoking the provisions in Ext.P1 scheme, as per which only the administration of the Temple in question is being carried out. Correctness or not of those orders is a matter to be looked into by the Government in exercise of the powers invested in it under Section 99 of the HR&CE Act after analysing and appreciating the materials in the file, including the disputed questions of fact. It may be uncharitable to say that such a statutory remedy is not effective. Suffice it to say that the apprehension of the petitioners, that the Revisional Authority may not act fairly and judicially, is no reason to entertain a Writ Petition. A plea based on violation of any fundamental right of the respective petitioners is rather not available in these cases. They do not call in question the vires of any statutory provision. In the said circumstances, the petitioners should not have rushed to this Court at this stage. Hence, we hold that W.P.(C)Nos.27286 and 27288 of 2021 are also not maintainable.

The result is: W.P.(C)No.23304 of 2021, W.P.

W.P.(C) No.14154 of 2022

(C)No.27286 of 2021 and W.P.(C)No.27288 of 2021 are dismissed as not maintainable. The petitioner in W.P. (C)No.23304 of 2021 is bound to answer Ext.P5 therein and the 2nd respondent can proceed with it, of course, strictly in accordance with law. We make it clear that none of our observations would trammel the factual and legal contentions of petitioners in the proceedings before the respective statutory authorities."

4. Heard the learned Senior Counsel for the petitioner,

the learned Standing Counsel for Malabar Devaswom Board for

respondents 1 and 2 and also the learned Senior Government

Pleader for the 3rd respondent. Considering the nature of relief

proposed to be granted, service of notice on respondents 4 and 5

is dispensed with.

5. The main contention of the learned Senior Counsel for

the petitioner is that Ext.P23 order is one issued in violation of

the principles of natural justice, since the petitioner was not

provided with a reasonable opportunity to substantiate his

contentions before the 1st respondent Commissioner. Per contra,

the learned Standing Counsel for Malabar Devaswom Board

would contend that there is no violation of the principles of

natural justice, as contended by the petitioner, and that the

petitioner has to invoke the statutory remedy available under

W.P.(C) No.14154 of 2022

sub-section (5) of Section 45 of the Act, in order to challenge

Ext.P23 order before the 3rd respondent State.

6. In Commissioner of Income Tax v. Chhabil Das

Agarwal [(2014) 1 SCC 603] the Apex Court held that non-

entertainment of a writ petition under Article 226 of the

Constitution of India when an efficacious alternative remedy is

available is a rule and self imposed limitation. It is essentially a

rule of policy, convenience and discretion rather than a rule of

law. Undoubtedly, it is within the discretion of the High Court to

grant relief under Article 226 of the Constitution of India, despite

the existence of alternative remedy. However, High Court must

not interfere if there is an adequate efficacious alternative

remedy available to the petitioner and he has approached the

High Court without availing the same, unless he has made out an

exceptional case warranting such interference or there exists

sufficient ground to invoke the extraordinary jurisdiction under

Article 226.

7. In Authorised Officer, State Bank of v. Mathew

K.C. [(2018) 3 SCC 85] the Apex Court reiterated that the

discretionary jurisdiction under Article 226 of the Constitution of

India is not absolute but has to be exercised judiciously in the

W.P.(C) No.14154 of 2022

given facts of a case and in accordance with law. The normal rule

is that a writ petition under Article 226 of the Constitution of

India ought not to be entertained if alternative statutory

remedies are available, except in cases falling within the well

defined exceptions as observed in Chaabil Das Agarwal's case

(supra), i.e., where the statutory authority has not acted in

accordance with the provisions of the enactment in question or in

defiance of the fundamental principles of judicial procedure, or

has resorted to invoke the provisions which are repealed, or

when an order has been passed in total violation of the principles

of natural justice. After referring to the law laid down in

Thansingh Nathmal v. Superintendent of Taxes [AIR 1964

SC 1419] and Titaghur Paper Mills Company Ltd. v. State of

Orissa [(1983) 2 SCC 433] the Apex Court held that High

Court will not entertain a petition under Article 226 of the

Constitution if an effective alternative remedy is available to the

aggrieved person or the statute under which the action

complained of contains a mechanism for redressal of grievance.

Therefore, when a statutory forum is created by law for redressal

of grievances, a writ petition should not be entertained ignoring

the statutory dispensation.

W.P.(C) No.14154 of 2022

8. In Magadh Sugar and Energy Limited v. State of

Bihar [2021 (5) KLT 667 (SC)], a decision relied on by the

learned Senior Counsel for the petitioner, a Three-Judge Bench of

the Apex Court reiterated that, while the High Court would

normally not exercise its writ jurisdiction under Article 226 of the

Constitution if an effective and efficacious alternate remedy is

available, the existence of an alternate remedy does not by itself

bar the High Court from exercising its jurisdiction in certain

contingencies. This principle has been crystallised in the decisions

in Whirpool Corporation v. Registrar of Trademarks,

Mumbai [(1998) 8 SCC 1] and Harbanslal Sahni v. Indian

Oil Corporation Ltd. [(2003) 2 SCC 107]. In Radha Krishan

Industries v. State of Himachal Pradesh [2021 (2) KLT

OnLine 1158 (SC) : 2021 SCC OnLine SC 334] a Two Judge

Bench of the Apex Court summarised the principles governing the

exercise of writ jurisdiction by the High Court, where an effective

alternative remedy is available, as follows;.

"28. The principles of law which emerge are that:

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

W.P.(C) No.14154 of 2022

(ii) The High Court has the discretion not to entertain a Writ Petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where

(a) the Writ Petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice;

(c) the order or proceedings are wholly without jurisdiction; or

(d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

W.P.(C) No.14154 of 2022

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a Writ Petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."

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 1 st

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 one dated

W.P.(C) No.14154 of 2022

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 1 st

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

W.P.(C) No.14154 of 2022

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 enable the petitioner to

challenge Ext.P23 order in an appeal filed under sub-section (5)

of Section 45 of the Act, before the 3 rd 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 1st 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

W.P.(C) No.14154 of 2022

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 3rd 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 3rd respondent, after complying with the statutory 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

W.P.(C) No.14154 of 2022

by this Court in this writ petition, which shall continue to be in force till 17.06.2022 or the date on which the 3 rd 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.

Sd/-

ANIL K. NARENDRAN JUDGE

Sd/-

P.G. AJITHKUMAR JUDGE

dkr

W.P.(C) No.14154 of 2022

APPENDIX

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 27.08.2017 Exhibit P2 TRUE COPY OF THE LETTER DATED 11.08.2017 BY THE COMMITTEE TO THE PETITIONER.

Exhibit P3 TRUE COPY OF THE DETAILED REPORT ('PRASHNAMCHARTHU') PROVIDED BY THE ASTROLOGER, SRI. T.K UNNI PANICKER DATED 23.08.2017.

Exhibit P4 TRUE COPY OF THE PETITIONER'S ORDER DATED 25.08.2017.

Exhibit P5 TRUE COPY OF THE WRITTEN APPROVAL DATED 01.09.2017 GIVEN BY SRI.

SANKARANARAYANAN NAMBOODIRIPAD, THANDRI OF THE TEMPLE.

Exhibit P6 TRUE COPY OF THE LETTER DATED 23.11.2017 TO THE 2ND RESPONDENT.

Exhibit P7 TRUE COPY OF THE COUNTER-SIGNED PAGES OF THE STOCK REGISTER.

Exhibit P8 TRUE COPY OF THE REPRESENTATION DATED 27.11.2017 BY THE 4TH RESPONDENT.

Exhibit P9 TRUE COPY OF THE REQUEST LETTER BY THE 4TH RESPONDENT DATED 30.11.2017.

Exhibit P10 TRUE COPY OF THE ORDER OF THE PETITIONER DATED 30.11.2017.

Exhibit P11 TRUE COPY OF THE NOTICE DATED 27.02.2018 ISSUED BY THE 1ST RESPONDENT Exhibit P12 TRUE COPY OF REPLY DATED 26.03.2018 SEND BY THE PETITIONER Exhibit P13 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.

40648 OF 2018 DATED 01.02.2019.

Exhibit P14 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT W.P.(C) NO. 12681 OF 2019 Exhibit P15 TRUE COPY OF THE ORDER DATED 13.05.2019

W.P.(C) No.14154 of 2022

PASSED BY THE 1ST RESPONDENT.

Exhibit P16 TRUE COPY OF THE JUDGMENT IN W.P (C) 15901 OF 2019, W.P (C) 17124 OF 2019 AND R.P. NO. 407 OF 2019 IN W.P.(C) NO.

40648 OF 2018 DATED 19.12.2019 Exhibit P17 TRUE COPY OF THE CHARGE MEMO DATED 12.10.2020 ISSUED BY THE 1ST RESPONDENT Exhibit P18 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN SLP (CIVIL)NO. 3073 OF 2021 DATED 05.03.2021.

Exhibit P19 TRUE COPY OF THE REPLY LETTER DATED 26.04.2021 SENT BY THE PETITIONER TO THE 1ST RESPONDENT Exhibit P20 TRUE COPY OF THE AFFIDAVIT AND PETITIONS FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT AS I.A.NO. 26 OF 2021, I.A.NO. 27 OF 2021 AND I.A.NO. 28 OF 2021 IN J2/2994/2019.

Exhibit P21 TRUE COPY OF THE COMMON ORDER DATED 24.08.2021 PASSED BY THE 1ST RESPONDENT IN I.A.NO. 26 OF 2021, I.A.NO. 27 OF 2021 AND I.A.NO. 28 OF 2021 IN J2/2994/2019. AND TYPED-COPY Exhibit P22 TRUE COPY OF THE ORDER DATED 07.04.2021 IN W.P.(C) NO. 13195 OF 2022.

Exhibit P23 TRUE COPY OF THE ORDER DATED 16.04.2022 BY THE 1ST RESPONDENT.

RESPONDENTS' EXHIBIT: NIL