A. L. Varadarajan v. State of Kerala and Malabar Devaswom Board and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 ``` ``` WP(C) NO. 2542 OF 2023 ``` ## **`PETITIONER/S:`** ``` A.L.VARADARAJAN, AGED 51 YEARS S/O. LAKSHMANA IYER, NON HERIDITARY TRUSTEE, SRI VARADARAJA PERUMAL TEMPLE ALAMBALLAM, KOLLENGODE, PALAKKAD 678 506 RESIDING AT SOBHIKA NIVAS, PAYALUR CORNER, KOLLENGODE, PALAKKAD MOB:9037870115 E MAIL:SRIDHARPALAKKAD4116@GMAIL.COM, PIN - 678506 BY ADVS. U.BALAGANGADHARAN R.PRADEEP KUMAR ``` ## **`RESPONDENT/S:`** ``` 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY REVENUE - DEVASWOM, GOVERNMENT SECRETARIAT (ANNEX), THIRUVANANTHAPURAM, PIN - 695001 2 MALABAR DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, HOUSEFED COMPLEX, MINI BYPASS ROAD, ERANHIPPALAM, KOZHIKKODE, PIN - 673006 3 THE COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, MINI BYPASS ROAD, ERANHIPPALAM, KOZHIKKODE, PIN - 673006 4 THE DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD, CIVIL STATION, KOZHIKKODE, PIN - 673020 5 THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, CIVIL STATION, PALAKKAD, ``` WP(C) No.2542 of 2023 -2- ``` PIN - 678001 ``` ``` 6 BHOOMIDEVI SAMEDA VARADARAJA PERUMAL TEMPLE, ALAMAPALLAM GRAMAM, CHITTUR TALUK, PALAKKAD - 678 006 REPRESENTED BY EXECUTIVE OFFICER, PIN - 678006 7 A.R.RAMANATHAN, S/O. LATE RAMAKRISHNA IYYER, 9/447, ALAMPALLAM GRAMAM, CHITTUR TALUK, PALAKKAD DISTRICT, RESIDING AT MAYOORAPRIYA, DOUBLE STREET, KODUVAYUR (PO), CHITTUR, PALAKKAD, PIN - 678101 8 S.RAMACHANDRAN S/O SUBRAHMANYA IYYER, 9/446, ALAMPALLAM GRAMAM, CHITTUR TALUK, PALAKKAD, PIN - 678101 9 A.A.KRISHNAMURTHY, S/O ANANTHA NARAYANA IYYER, 9/24, ALAMPALLAM GRAMAM, CHITTUR TALUK, PALAKKAD, PIN - 678101 10 A.R.VARADARAJAN, S/O RAMANATHA IYYER, DOOR NO. 10/8, ALAMPALLAM GRAMAM, CHITTUR TALUK, PALAKKAD, PIN - 678101 11 A.S.BALASUBRAMANYAN, S/O SUBRAMANYAM, DOOR NO. 9/19, ALAMPALLAM GRAMAM, CHITTUR TALUK, PALAKKAD, PIN - 678101 BY ADVS. Praveen H Harikumar K.MOHANAKANNAN D.S.THUSHARA(K/76/2010) ``` ## **`OTHER PRESENT:`** ``` SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ; SRI R.LAKSHMI NARAYAN- STANDING COUNSEL,MALABAR DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.2542 of 2023 -3- ## **J U D G M E N T** ## Anil K.Narendran, J. The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P6 order dated 26.12.2022 of the 3[rd] respondent Commissioner, Malabar Devaswom Board in R.P. No.11 of 2022, whereby the order of appointment of the petitioner as non-hereditary trustee of Shree Varadarajaswami Temple vide Ext.P1 order dated 13.04.2022 of the 5[th] respondent Assistant Commissioner stands set aside. The petitioner has also sought for a writ of mandamus commanding the 3[rd] respondent to permit him to continue to function as Trustee of Shree Varadarajaswami Temple for the period as stipulated in Ext.P1 order and a declaration that he is entitled to continue as a Trustee of the said Temple as per Ext.P1 and his appointment is not liable to be set aside by the 3[rd] respondent. 2. On 25.01.2023 when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for the 1[st] respondent. The learned Standing Counsel for Malabar Devaswom Board took notice on admission for respondents 2 to 5. Notice on admission by special messenger was ordered to respondents 6 to 11, returnable by 30.01.2023. The learned WP(C) No.2542 of 2023 -4- Standing Counsel for Malabar Devaswom Board was directed to get instructions. 3. On 30.01.2023, when this writ petition came up for consideration, the learned counsel for the petitioner sought time to get instructions regarding W.P.(C) No.28458 of 2022, which is one filed by one Sundararajan A.L, the Secretary of Sree Vardaraja Perumal Bhakthajana Sabha, which was dismissed as not pressed by the judgment dated 08.12.2022. 4. The petitioner has filed an additional affidavit dated 04.02.2023 producing therewith Exhibits P7 to P9. However, the said additional affidavit is not accompanied by an application, as provided under Rule 154 of the Rules of the High Court of Kerala, 1971, for accepting additional facts and documents. In the absence of an application under Rule 154, the said documents or the additional affidavit filed by the petitioner cannot be accepted on file. 5. Heard the learned counsel for the petitioner, the learned Standing Counsel for Malabar Devaswom Board for respondents 2 to 5, the learned Senior Government Pleader for the 1[st] respondent and also the learned counsel for respondents 7 to 11. 6. The only issue that requires consideration in this writ petition is as to whether the petitioner is justified in invoking writ WP(C) No.2542 of 2023 -5- jurisdiction of this Court under Article 226 of the Constitution of India challenging Ext.P6 order dated 26.12.2022 of the 3[rd] respondent Commissioner, Malabar Devaswom Board. 7. As rightly pointed out by the learned Standing Counsel for Malabar Devaswom Board, against Ext.P6 order dated 26.12.2022 of the 3[rd] respondent Commissioner, the petitioner is having a statutory remedy of revision under Section 99 of the Madras Hindu Religious and Charitable Endowments Act, 1951 before the 1[st] respondent. During the pendency of this writ petition, the petitioner has filed a review petition dated 25.01.2023 under Section 99 of the Madras Hindu Religious and Charitable Endowments Act, 1951 before the 1[st] respondent. 8. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** , the Apex Court held that nonentertainment 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 WP(C) No.2542 of 2023 -6- 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. 9. In **Authorised Officer, State Bank of Travancore 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 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** WP(C) No.2542 of 2023 -7- **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. 10. In **Thansingh Nathmal's** case (supra) a Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High WP(C) No.2542 of 2023 -8- Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 11. In **Titaghur Paper Mills'** case (supra) a Three-Judge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only WP(C) No.2542 of 2023 -9- must be availed of. This rule was stated with great clarity by Willes, ## J. in **Wolverhampton New Water Works Co. v. Hawkesford** **[(1859) 6 CBNS 336]** at page 356 in the following passage: "There are three classes of cases in which a liability may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in that passage was approved by the House of Lords in **Neville v. London Express Newspaper Ltd. [1919 AC 368]** and has been reaffirmed by the Privy Council in **Attorney** **General of Trinidad and Tobago v. Gordon Grant and Co.** **[1935 AC 532]** and **Secretary of State v. Mask and Co. [AIR 1940 PC 105]** . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 12. In **Pavithran V. State of Kerala [2009 (4) KHC 4]** , a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order WP(C) No.2542 of 2023 -10- will become final. 13. Viewed in the light of the law laid down by the various decisions referred supra, conclusion is irresistible that when there is a statutory remedy available under Section 99 of the Madras Hindu Religious and Charitable Endowments Act, 1951, the petitioner cannot invoke writ jurisdiction of this Court under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P6 order. In such circumstances, this writ petition fails on the question of maintainability and the same is accordingly dismissed; however, without prejudice to the right of the petitioner to avail statutory remedy before the competent authority. **Sd/ANIL K. NARENDRAN JUDGE** **Sd/P.G. AJITHKUMAR JUDGE** ``` jg ``` WP(C) No.2542 of 2023 -11- ## **`APPENDIX OF WP(C) 2542/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 A TRUE COPY OF THE ORDER DATED 13.04.2022 ISSUED BY THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, PALAKKAD DIVISION ``` ``` Exhibit P 2 A TRUE COPY OF THE RESIGNATION LETTER OF THE PETITIONER DATED 30.11.2020 ``` ``` Exhibit P 3 A TRUE COPY OF THE MINUTES OF THE EXECUTIVE COMMITTEE MEETING OF THE B.J.S. DATED 20..1..2021 ``` ``` Exhibit P 4 A TRUE COPY OF THE NOTICE DATED 24.2.2021 ISSUED BY THE 5TH RESPONDENT ``` ``` Exhibit P 5 A TRUE COPY OF THE COUNTER-STATEMENT DATED 23.12.2022 SUBMITTED BY THE PETITIONER BEFORE THE MALABAR DEVASWOM BOARD COMMISSIONER ``` - `Exhibit P 5 A TRUE COPY OF THE JUDGMENT DATED [ a ] 20.10.2022 IN W.P(C) NO. 14885/2022 OF THIS HONORABLE COURT` ``` Exhibit P 6 A TRUE COPY OF THE ORDER DATED 26.12.2022 IN RP 11/2022 OF THE COMMISSIONER, MALABAR DEVASWOM BOARD KOZHIKODE ```