Kerala High Court
C.P.Sivadasan vs State Of Kerala on 6 March, 2024
Author: Anil K. Narendran
Bench: Anil K. Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE G. GIRISH
WEDNESDAY, THE 6TH DAY OF MARCH 2024 / 16TH PHALGUNA, 1945
WP(C) NO. 8835 OF 2024
PETITIONER:
C.P.SIVADASAN
AGED 63 YEARS
S/O. LATE GOVINDAN NAIR, THE PRESIDENT OF THEKKETHARA
NAIR SAMAJAM, RESIDING AT ERATTAKULAM KALAM, MELARCODE
VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT., PIN -
678703
BY ADVS.P.B.SUBRAMANYAN
P.B.KRISHNAN
SABU GEORGE
B.ANUSREE
MANU VYASAN PETER
MEERA P.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS PRINCIPAL SECRETARY TO
GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -
695001
2 THE MALABAR DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY, HOUSEFED COMPLEX, MINI
BYPASS ROAD, ERANHIPPALAM, KOZHIKODE, PIN - 673006
3 THE COMMISSIONER
MALABAR DEVASWOM BOARD, KOZHIKODE, HOUSEFED COMPLEX,
MINI BYPASS ROAD, ERANHIPPALAM, KOZHIKODE., PIN -
673006
4 THE DEPUTY COMMISSIONER
MALABAR DEVASWOM BOARD, CIVIL STATION, KOZHIKODE,
2
W.P.(C)No.8835 of 2024
PIN - 673020
5 ADV. MOHAN KUMAR
RECEIVER, KAVALAPPARA ESTATE, APPOINTED IN
O.S.NO.26/1975, SUB COURT, OTTAPALAM, PIN - 679101
6 K.VISHNU MOHAN
AGED 56 YEARS
S/O. CHANDRASHEKARAN NAIR, THEKKEKUNATHU VEEDU,
MELARCODE, ALATHUR, PALAKKAD DISTRICT., PIN - 678703
*ADDL.R7 MURUKAN KUTTY, EX-PRESIDENT, THEKKETHARA NAIR
SAMAJAM, S/O.LATE KAKSHMANAN NAIR, R/A.NALINI
MANDIRAM, THEKKETHARA AMSOM, MALARCODE, ALATHUR-678
703
*(IS SUO MOTU IMPLEADED AS THE ADDITIONAL 7TH
RESPONDENT BY THE ORDER DATED 06/03/2024 IN WPC)
R1 BY SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ;
R2 TO R4 BY SRI R.LAKSHMI NARAYAN, SC, MALABAR
DEVASWOM BOARD
R5 BY SRI SANTHEEP ANKARATH
R6 BY SRI P.R VENKATESH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
3
W.P.(C)No.8835 of 2024
JUDGMENT
Anil K. Narendran, J.
The petitioner has filed this writ petition under Article 226 of
the Constitution of India seeking a writ of mandamus
commanding the 3rd respondent Commissioner, Malabar
Devaswom Board to number the application for stay (Ext.P22)
filed in A.P.No.3 of 2024 (Ext.P21), which is an appeal filed under
Section 61 of the Madras Hindu Religious and Charitable
Endowments Act, 1951 against Ext.P20 order dated 20.01.2024 of
the 4th respondent Deputy Commissioner in O.A.No.7 of 2023 and
to consider and pass appropriate orders thereon, within a time
frame to be fixed by this Court. The petitioner has also sought for
a stay of operation and implementation of Ext.P20 order dated
20.01.2024 in O.A.No.7 of 2023 of the Deputy Commissioner till
orders are passed in Ext.P22 application.
2. Heard the learned counsel for the petitioner, the
learned Senior Government Pleader for the 1st respondent, the
learned Standing Counsel for respondents 2, 3 and 4, Sri.Sandeep
Anakarath, the learned counsel for the 5th respondent and also
Sri.P.R.Venkatesh, the learned counsel for the 6th respondent.
Considering the nature of relief proposed to be granted, service of
notice on the additional 7th respondent is dispensed with.
3. Ext.P20 order passed by the 4th respondent Deputy
Commissioner in a proceedings under Section 57(a) of the Act is
under challenge in Ext.P21 appeal filed by the petitioner, invoking
the provisions under Section 61. That appeal was accompanied by
Ext.P22 interlocutory application seeking interim relief, which is
yet to be numbered by the 3rd respondent Commissioner.
4. Section 61 of the Act deals with appeal to the
Commissioner, which reads thus;
"61. Appeal to the Commissioner.-(1) 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. (2) 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."
When an appeal filed invoking the provisions under Section 61 of
the Act is accompanied by an interlocutory application for stay,
the 3rd respondent Commissioner ought to have numbered that
interlocutory application, along with the appeal, and considered
the same on the date on which notice was ordered in the appeal
to the respondents. In case the Commissioner finds that the
consideration of that interim relief can be made only with notice
to the respondents, along with the appeal notice has to be
ordered to the respondents in the interlocutory application as
well. In case emergent orders are required in that interlocutory
application, the Commissioner should give a posting for the
appeal and interlocutory application on a near date. At any rate,
the Commissioner, who is the Appellate Authority, cannot keep
the interlocutory application in an appeal unnumbered, while
issuing notice to the respondents in appeal.
5. In the instant case, on 26.02.2024 the Appellate
Authority has issued notice in Ext.P21 appeal to the respondents
and the matter now stands posted to 20.03.2024 for further
consideration.
6. Having considered the submissions made at the Bar,
we deem it appropriate dispose of this writ petition by directing
the 3rd respondent Commissioner to advance consideration of
Ext.P21 appeal, along with Ext.P22 interlocutory application for
stay, to 12.03.2024 and take an appropriate decision in that
interlocutory application, in accordance with law, after affording
an opportunity of being heard to the petitioner and respondents 5
to 7.
7. The petitioner and respondents 5 and 6 shall be
personally present in the office of the 3rd respondent on
12.03.2024 at 11.00 a.m. The 3rd respondent shall inform the 7th
respondent the posting of the appeal and interlocutory application
on 12.03.2024, in an appropriate manner, if found necessary, by
deputing a messenger.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
G. GIRISH, JUDGE
AV/7/3
APPENDIX OF WP(C) 8835/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF REPORT NO.55 IN O.S.NO.26 OF
1965 ON THE FILE OF THE SUB COURT,
OTTAPALAM, DATED 6-2-1976
Exhibit P1(a) TYPED COPY OF REPORT NO.55 IN O.S.NO.26 OF
1965 ON THE FILE OF THE SUB COURT,
OTTAPALAM, DATED 6-2-1976
Exhibit P2 TRUE COPY OF THE STATEMENT FILED BY THE
RECEIVER IN REPORT NO.55 IN O.S.NO.26 OF
1965 ON THE FILE OF THE SUB COURT,
OTTAPPLAM, DATED 29-7-1976
Exhibit P2(a) TYPED COPY OF THE STATEMENT FILED BY THE
RECEIVER IN REPORT NO.55 IN O.S.NO.26 OF
1965 ON THE FILE OF THE SUB COURT,
OTTAPPLAM, DATED 29-7-1976
Exhibit P3 TRUE COPY OF THE ADDITIONAL STATEMENT
FILED BY THE RECEIVER IN REPORT NO.55 IN
O.S.NO.26 OF 1965 ON THE FILE OF THE SUB
COURT, OTTAPALAM, DATED 11-8-1976
Exhibit P4 TRUE COPY OF REPORT NO.67 FILED BY THE
RECEIVER IN O.S.NO.26 OF 1965 ON THE FILE
OF THE SUB COURT, OTTAPALAM, DATED 2-8-
Exhibit P5 TRUE COPY OF THE TAX RECEIPT
NO.KL0901120/2023 ISSUED BY THE MELARCODE
VILLAGE OFFICE, DATED 10-3-2023
Exhibit P6 TRUE COPY OF THE POSSESSION CERTIFICATE
ISSUED BY THE MELARCODE VILLAGE OFFICE,
DATED 25-9-2021
Exhibit P7 TRUE COPY OF THE ORDER OF THE DEPUTY
COMMISSIONER HR & CE (ADMN) DEPARTMENT,
KOZHIKODE, DATED 26-8-2003
Exhibit P8 TRUE COPY OF THE ORDER IN O.P.NO.197 OF
2018 ON THE FILE OF THE ADDL. DISTRICT
COURT-V, PALAKKAD, DATED 23-3-2019
Exhibit P9 TRUE COPY OF THE INTERIM ORDER IN W.P.(C)
NO.10662 OF 2019 OF THIS HON'BLE COURT,
DATED 10-4-2019
Exhibit P10 TRUE COPY OF THE ORDER IN I.A.NO.3 OF 2021
IN O.S.NO.105 OF 2020 ON THE FILE OF THE
MUNSIFF'S COURT, ALATHUR, DATED 15-3-2021.
Exhibit P11 TRUE COPY OF THE INTERIM ORDER IN W.P.(C)
NO.7329 OF 2021-M OF THIS HON'BLE COURT,
DATED 23-03-2021.
Exhibit P12 TRUE COPY OF THE INTERIM ORDER IN W.P.(C)
NO.11499 OF 2022 OF THIS HON'BLE COURT,
DATED 4-4-2022.
Exhibit P13 TRUE COPY OF THE INTERIM ORDER IN W.P.(C)
NO.9959 OF 2023 OF THIS HON'BLE COURT,
DATED 27-3-2023
Exhibit P14 TRUE COPY OF THE PETITION FILED BY THE 6TH
RESPONDENT UNDER SECTION 57(A) OF THE ACT,
DATED 9-12-2021
Exhibit P15 TRUE COPY OF THE PROFORMA UNDER SECTION
57(A) OF THE ACT SUBMITTED BY THE 6TH
RESPONDENT DATED NIL.
Exhibit P16 TRUE COPY OF THE STATEMENT FILED BY THE
PETITIONER HEREIN TO EXT.P14, DATED 30-6-
Exhibit P17 TRUE COPY OF THE LETTER NO.DEV1/289/2020-
REV OF THE REVENUE (DEVASWOM) DEPARTMENT,
DATED 13-07-2021
Exhibit P18 TRUE COPY OF THE JUDGMENT IN W.P.(C)
NO.24709 OF 2023 OF THIS HON'BLE COURT,
DATED 27-10-2023.
Exhibit P19 TRUE COPY OF THE ADDL. COUNTER AFFIDAVIT
IN O.A.NO.7 OF 2023 ON THE FILE OF THE
DEPUTY COMMISSIONER, MALABAR DEVASWOM
BOARD, DATED NIL-11-2023.
Exhibit P20 TRUE COPY OF THE ORDER IN O.A.NO.7 OF 2023
ON THE FILE OF THE DEPUTY COMMISSIONER,
MALABAR DEVASWOM BOARD, DATED 20-1-2024.
Exhibit P21 TRUE COPY OF A.P.NO.3 OF 2024 ON THE FILE
OF THE COMMISSIONER, MALABAR DEVASWOM
BOARD, DATED NIL-2-2024.
Exhibit P22 TRUE COPY OF UNNUMBERED I.A.NO.____ OF
2024 IN A.P.NO.3 OF 2024 ON THE FILE OF
THE COMMISSIONER, MALABAR DEVASWOM BOARD,
DATED NIL-2-2024.
