Vaikkathur Kshetra Samrakshana ... vs State Of Kerala
2023 Latest Caselaw 594 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                             &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
                 W.P.(C) NO. 5956 OF 2022
PETITIONER:

          VAIKKATHUR KSHETRA SAMRAKSHANA SAMITHI
          REP. BY ITS PRESIDENT, R.SURESH KUMAR,
          S/O.RAMACHANDRAN, AGED 49 YEARS, VAIKKATHUR,
          VALANCHERRY, MALAPPURAM DISTRICT - 676 552.
          BY ADVS.
          S.KRISHNAMOORTHY
          SNEHA ROSE
          P.S.ARUNA

RESPONDENTS:

    1     STATE OF KERALA
          REP. BY SECRETARY TO GOVERNMENT, REVENUE
          DEVASWOM DEPARTMENT, SECRETARIAT,
          THIRUVANANTHAPURAM - 695 001.
    2     MALABAR DEVASWOM BOARD
          REP. BY ITS SECRETARY, HOUSEFED COMPLED,
          ERANHIPALAM, KOZHIKODE - 673 006.
    3     THE COMMISSIONER
          MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX,
          ERANHIPALAM, KOZHIKODE - 673 006.
    4     THE ASSISTANT COMMISSIONER
          MALABAR DEVASWOM BOARD, MALAPPURAM - 679 101.
    5     THE AREA COMMITTEE
          MALABAR DEVASWOM BOARD, MALAPPURAM DIVISION,
          REP. BY ITS CHAIRMAN, TIRUR, MALAPPURAM
          DISTRICT - 678 10.
                               2
W.P.(C) No.5956 of 2022


    6       M.VASUDEVAN
            OORALAN, MAZUVANCHERY MANA, VAIKATHOOR,
            VALANCHERY POST, PIN - 676 552.
    7       PRASAD K.
            S/O.KANAKKARAAY K., KOLAVAN HOUSE, VAIKATHOOR,
            VALANCHERY, MALAPPURAM DIST.- 676 552.
    8       MURALI N.
            S/O.N.K.NARAYANAN ELAYATH, NEDUMKOMBIL ELLAM,
            VAIKATHOOR, VALANCHERY, MALAPPURAM DIST. - 676
            552.
    9       RAMAKRISHNAN K.T.
            S/O.K.NARAYANAN NAIR, PRATHANA VAIKATHOOR,
            VALANCHERY, MALAPPURAM DIST. -676 552.
    10      RAMACHANDRAN P.PONNOTH
            S/O.C.BALAKRISHNAN NAIR, PONNOTH HOUSE,
            MARAMKUNNU, VALANCHERY P.O., MALAPPURAM DIST.,
            PIN - 676 552.
    11      K.V.NARAYANAN
            ADMINISTRATION IN CHARGE, EXECUTIVE OFFICER,
            MALABAR DEVASWOM BOARD, PADINJARAE MADOM
            DEVASWOM, PATTAMBI, MALAPPURAM DIST. - 679 303.
            BY ADVS.
            R1 BY SRI S.RAJMOHAN - SR GOVERNMENT PLEADER
            R2 TO R5 BY SRI.R.LAKSHMI NARAYAN, SC, MALABAR
            DEVASWOM BOARD
            R7 TO R9 BY M.DEVESH
            R11 BY MAHESH V RAMAKRISHNAN


        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL
HEARING ON 22.11.2022, THE COURT ON 12.01.2023 DELIVERED
THE FOLLOWING:
                                     3
W.P.(C) No.5956 of 2022


                                 JUDGMENT

P.G. Ajithkumar, J.

The petitioner, Vaikathuoor Kshetra Samrakshana

Samithi claiming to be the trustee of Sree Vaikkathur

Mahadeva Temple filed this Writ Petition under Article 226 of

the Constitution of India seeking the following reliefs,-

(i) To issue a writ of certiorari or other appropriate writ, order or direction, to call for the records leading to Ext.P4 and Ext.P11 and quash the same;

ii) To issue a writ of mandamus or other appropriate writ, order or direction declaring that the respondents 6 to 10 cannot hold the office since their appointment violated the provisions of the HR&CE Act and the Guidelines in Ext P3; and

iii) To issue a writ of mandamus or other appropriate writ, order or direction, declaring that any members having any allegiance to any politics or having any involvement in politics cannot be appointed as a Non Hereditary Trustees.

2. The contention of the petitioner is that without

complying with the provisions of Section 39(2) of the Madras

Hindu Religious Charitable Endowment Act, 1951 (for short

HR&CE Act), non-hereditary trustees were appointed as per

W.P.(C) No.5956 of 2022

Ext.P4 and the revision petition filed challenging the said

appointment was rejected by the 3rd respondent-Commissioner

quite illegally and capriciously. Ext.P11 is the order. Therefore, it

is absolutely necessary for setting aside Ext.P4, the order of

appointment of non-hereditary trustees and Ext.P11, the order of

the 3rd respondent rejecting the revision petition.

3. A statement was filed by the learned Standing

Counsel for the Malabar Devaswom Board. It is, inter alia,

contended that having the revision petition been dismissed as

per Ext.P11 by the Commissioner, the remedy was to

approach the Government under Section 99 of the HR&CE Act,

and therefore the Writ Petition is not maintainable.

4. Heard the learned counsel appearing for the

petitioner, the learned Senior Government Pleader for the 1 st

respondent, the learned Standing Counsel for the Malabar

Devaswom Board and the learned counsel appearing for

respondents 6 to 11.

5. As per Ext.P4, non-hereditary trustees were

appointed to the trustee board of the Vaikathur Mahadeva

W.P.(C) No.5956 of 2022

Temple. The appointment was for a period of two years from

the date of appointment, namely, 08.01.2021. The challenge

against the appointment before the 3rd respondent-

Commissioner was unsuccessful. Ext.P11 is the order. Going

by the provisions of Section 99 of the HR&CE Act any order or

proceedings of the Commissioner is subject to revision by the

Government. Further, the appointment of non-hereditary

trustees made under Section 39(2) of the HR&CE Act is able

to be challenged before the competent civil court as provided

in Section 39(4) of the Act. When the term of office of the

non-hereditary trustees, respondent Nos.7 to 10, is already

over and as the available statutory remedy has not been

availed, we are of the view that the Writ Petition deserves

only to be dismissed. Accordingly the Writ Petition is

dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr

W.P.(C) No.5956 of 2022

APPENDIX OF WP(C) 5956/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE SAID AGREEMENT DATED 1/3/1976 EXECUTED BY THE HEREDITARY TRUSTEES IN FAVOUR OF THE PETITIONER SAMITHI.

EXHIBIT P2 A TRUE COPY OF THE BYE-LAW OF THE SAMITHI WITH REGISTRATION CERTIFICATE AND MEMORANDUM OF ASSOCIATION.

EXHIBIT P3 TRUE COPY OF THE PUBLIC NOTICE ISSUED BY THE 4TH RESPONDENT DATED 3/8/2019. EXHIBIT P4 TRUE COPLY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 8/1/2021.

EXHIBIT P5            TRUE COPY OF THE PHOTO THAT APPEARED
                      IN    THE    MEDICAL    SHOWING    HIS

PARTICIPATION OF THE 7TH RESPONDENT IN THE POLITICAL PARTY CONFERENCE.

EXHIBIT P6 TRUE COPY OF HE NOTIFICATION DATED 7/8/2014.

EXHIBIT P7 TRUE COPY OF THE POSTER PUBLISHED DURING THE ELECTION PERIOD SHOWING THE CANDIDATURE OF 9TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 19/2/2021 IN WPC NO.2048/21 OF THIS COURT.

EXHIBIT P9 TRUE COPY OF THE ORDER OF THE MUNSIFF COURT TIRUR IN IA NO.2/2021 IN OS NO.47/2021 DATED 10/2/2021.

EXHIBIT P10 TRUE COPY OF THE COUNTER AFFIDAVIT IN WPC NO.2048/2021 DATED 4/2/2021 FILED BY THE 10TH RESPONDENT.

W.P.(C) No.5956 of 2022

EXHIBIT P11 TRUE COPY OF THE ORDER DATED 26/4/2021 IN RP 2/2021 ISSUED BY THE 3RD RESPONDENT.

RESPONDENT EXHIBITS ANNEXURE R2(A) PHOTOCOPY OF JUDGMENT DATED 07.08.2017 IN W.P.(C) NO.33845 OF 2016.