Kerala High Court

Sree Ponmukham Shiva Temple vs State Of Kerala on 4 March, 2025

Author: Anil K.Narendran

Bench: Anil K.Narendran

WP(C) NO. 8607 OF 2025           1

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         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

                             &

        THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.

 TUESDAY, THE 4TH DAY OF MARCH 2025 / 13TH PHALGUNA, 1946

                   WP(C) NO. 8607 OF 2025

PETITIONERS:

    1     SREE PONMUKHAM SHIVA TEMPLE,
          REP. BY ITS EXECUTIVE OFFICER, PONMUKHAM, NELLAYA P.O.,
          PALAKKAD, PIN - 679335.

    2     BOARD OF TRUSTEES OF SREE PONMUKHAM SHIVA TEMPLE,
          REP. BY TRUSTEE, PONMUKHAM, NELLAYA P.O., PALAKKAD,
          PIN - 679335.


          BY ADV MAHESH V RAMAKRISHNAN

RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE
          (DEVASWOM) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-
          , PIN - 695001.

    2     MALABAR DEVASWOM BOARD,
          REPRESENTED BY ITS SECRETARY, HOUSEFED COMPLEX,
          ERANJIPALAM P.O, KOZHIKODE, PIN - 673006.

    3     COMMISSIONER,
          MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANJIPALAM
          P.O, KOZHIKODE, PIN - 673006.

    4     DEPUTY COMMISSIONER,
          MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANJIPALAM
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          P.O, KOZHIKODE, PIN - 673006.

    5     KERALA KSHETHRA SAMRAKSHANA SAMITHI,
          PONMUKHAM, NELLAYA, PALAKKAD REPRESENTED BY ITS
          PRESIDENT, PRAKASHAN, S/O AYYAPPAN EZHUTHACHAN, AGED 47
          YEARS, RESIDING AT ASHTAMANGALATHODI HOUSE, NELLAYA
          P.O., POTTACHIRA, PALAKKAD, PIN - 679335.

    6     JYOTHISH M,
          S/O GOPALAN, AGED 40 YEARS, SECRETARY, KERALA KSHETHRA
          SAMRAKSHANA SAMITHI, PONMUKHAM, RESIDING AT MULLAKKAL
          HOUSE, NELLAYA P.O., POTTACHIRA, PALAKKAD, PIN -
          679335.

    7     RAGHAVAN P.K.,
          S/O SHIVARAMAN PANICKER, AGED 37 YEARS, TREASURER,
          KERALA KSHETHRA SAMRAKSHANA SAMITHI, PONMUKHAM,
          RESIDING AT KALARIKKAL HOUSE, NELLAYA P.O., POTTACHIRA,
          PALAKKAD, PIN - 679335.


OTHER PRESENT:

          SRI. S. RAJMOHAN, SR. GP;
          SMT. R. RANJANIE, SC , MDB

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 04.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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                         JUDGMENT

Muralee Krishna, J.

This writ petition is filed by the petitioners under Article 226

of the Constitution of India seeking the following reliefs:

"(a) To issue a writ of Mandamus or other appropriate writ or order directing the Respondent No.3 to transfer Ext.P3 Appeal and the entire files concerning the same to the 1 st respondent forthwith;

(b) To issue a writ of Mandamus or other appropriate writ or order directing the Respondent No.1 to consider and pass orders on Ext.P3 Appeal by invoking the power u/Sec.99 of the Madras Hindu Religious and Charitable Endowments Act, 1951, expeditiously and within a time frame, after affording opportunity of being heard to the petitioners and the Respondents 5 to 7."

2. According to the petitioners, the 5th respondent Kerala

Kshethra Samrakshana Samithi is collecting rent from the tenants

in the buildings situated in the property of the 1st petitioner temple

without having any legal right or authority. Though the petitioners

issued a notice dated 07.08.2019 to respondents 5 to 7

demanding them to hand over original documents pertaining to

the property wherein the building is situated and to stop

unauthorised collection of rent from the tenants, the 5th

respondent issued a reply notice dated 29.08.2019 to the 1st

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petitioner refusing to heed the demands made in the notice. Then

the petitioners approached the 4th respondent Deputy

Commissioner by filing O.A.No.17 of 2022 praying to initiate

appropriate action for recovery of the property from respondents

5 to 7 and also filed W.P.(C)No.24936 of 2022 before this Court

seeking appropriate directions in the matter. As per Ext.P1

judgment dated 10.08.2022, the writ petition was dismissed

observing that the petitioners to invoke the statutory remedy

provided under Section 57 of the Madras Hindu Religious and

Charitable Endowments Act, 1951, ('the Act' for short), for

adjudicating the issue raised in the writ petition. The legal and

factual contentions raised by the petitioners were left open in that

judgment. Pursuant to Ext.P1 judgment, the 4th respondent

passed Ext.P2 order dated 18.03.2024. Challenging the said

order, respondents 5 to 7 filed Ext.P3 appeal as Appeal No.7 of

2024 before the 3rd respondent Commissioner. Though Ext.P4

notice dated 17.05.2024 was issued by the 3rd respondent,

directing the petitioners to appear before him for a hearing on

05.06.2024, thereafter the appeal was not posted. The 4th

respondent Deputy Commissioner, who passed Ext.P2 order is

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now appointed as the Commissioner. Hence he cannot consider

Ext.P3 appeal. In a similar matter, by Ext.P5 judgment dated

05.08.2024 in W.P.(C)No.22082 of 2024, this Court transferred

the appeal filed before the Commissioner to the State of Kerala,

directing it to take a decision treating it as a revision filed under

Section 99 of the Act.

3. Heard the learned counsel for the petitioners, the learned

Senior Government Pleader and the learned Standing Counsel for

Malabar Devaswom Board. Having considered the limited prayer

in the writ petition, issuance of notice to respondents 5 to 7 is

dispensed with.

4. The grievance of the petitioners is that the 5th respondent

is collecting rent from the tenants in the building situated in the

property of the temple without any legal right or permission for

the same. O.A.No.17 of 2022 filed by the petitioner before the 4th

respondent-Deputy Commissioner under Section 57 of the Act was

disposed of by virtue of Ext.P2 order dated 18.03.2024. Ext.P3

appeal filed by the petitioners against Ext.P2 order is now pending

before the 3rd respondent-Commissioner.

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5. Section 99 of the Act deals with the power of Government

to call for records and pass orders which reads thus:

"99. Power of State Government to call for records and pass orders:- (1) The State Government may call for and examine the record of the Board or Commissioner or any Deputy or Assistant Commissioner, of any Area Committee or of any trustee in respect of any proceeding, not being a proceeding in respect of which a suit or an appeal to a Court is provided by this Act, to satisfy themselves as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein; and, if, in any case, it appears to the State Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, they may pass orders accordingly:

Provided that the State Government shall not pass any order prejudicial to any party unless he has had a reasonable opportunity of making his representations. (2) The State Government may stay the execution of any such decision or order, pending the exercise of their powers under sub-section (1) in respect thereof."

6. Having considered the fact that the Deputy Commissioner,

who passed Ext.P2 order, is presently holding the charge of

Devaswom Commissioner, Malabar Devaswom Board, we deem it

appropriate to dispose of this writ petition by directing the 1 st

respondent-State to take an appropriate decision on Ext.P3 appeal

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which is now pending before the 3rd respondent-Commissioner,

Malabar Devaswom Board invoking its power under Section 99 of

the Act, treating it as a revision, as expeditiously as possible, at

any rate within a period of three months from the date of receipt

of a copy of this judgment.

Sd/-