Anoop S. Ayyappan and Abhimanyu S. Ayyappan v. Travancore 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 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, ``` ## **`1944`** ## **`WP(C) NO. 6137 OF 2023`** ## **`PETITIONERS:`** - **`1 ANOOP S. AYYAPPAN, AGED 39 YEARS S/O LATE T.G. AYYAPPAN PILLAI, RESIDING AT SUJA BHAVAN ERUMELY, ERUMELY P.O, KOTTAYAM DISTRICT, KERALA., PIN - 686509`** - **`2 ABHIMANYU S. AYYAPPAN, AGED 35 YEARS S/O LATE T.G. AYYAPPAN PILLAI, RESIDING AT SUJA BHAVAN ERUMELY, ERUMELY P.O, KOTTAYAM DISTRICT, KERALA, PIN - 686509`** ``` BY ADV SIJO PATHAPARAMBIL JOSEPH ``` ## **`RESPONDENTS:`** - **`1 THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, DEVASWOM HEADQUARTERS NANDANCODE, KAWDIAR POST, THIRUVANANTHAPURAM DISTRICT, PIN - 695003`** - **`2 THE SECRETARY, THE TRAVANCORE DEVASWOM BOARD, DEVASWOM HEADQUARTERS NANDANCODE, KAWDIAR POST, THIRUVANANTHAPURAM DISTRICT., PIN - 695003`** - **`3 THE DEVASWOM COMMISSIONER, THE TRAVANCORE DEVASWOM BOARD, DEVASWOM HEADQUARTERS NANDANCODE, KAWDIAR POST THIRUVANANTHAPURAM DISTRICT, PIN - 695003`** - **`4 THE ADMINISTRATIVE OFFICER, ERUMELY SREE DHARMASASTHA TEMPLE, ERUMELY P.O, KOTTAYAM DISTRICT, PIN - 686509`** - **`5 SREE SABAREESHA SEVA SAMITHI, REPRESENTED BY ITS PRESIDENT, ERUMELY SREE DHARMASASTHA`** 2 ## W.P.(C)No.6137 of 2023 ``` TEMPLE, ERUMELY P.O, KOTTAYAM DISTRICT, PIN - 686509 ``` ``` 6 HARIKRISHNAN, AGED 48 YEARS PRESIDENT, SREE SABAREESHA SEVA SAMITHI, S/O KRISHNANKUTTY, RESIDING AT PEZHUMKAATTIL HOUSE, SREENIPURAM, KANAKAPALAM P.O, ERUMELY, KOTTAYAM DISTRICT., PIN - 686509 ``` ``` SRI G.BIJU- STANDING COUNSEL -TRAVANCORE DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 ## W.P.(C)No.6137 of 2023 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent Devaswom Commissioner, Travancore Devaswom Board to consider and pass orders on Ext.P5 representation dated 31.01.2023 made by the petitioners, as expeditiously as possible, within a time frame to be fixed by this Court. 2. Erumely Sree Dharma Sastha Temple is a temple under the management of the 1[st] respondent Travancore Devaswom Board. In Ext.P5 representation, the petitioners are claiming the right to perform the ritual ‘Nayattuvili’ in Erumely Sree Dharma Sastha Temple. According to the petitioners, their father, late T.G.Ayyappan Pillai performed Nayattuvili in Erumely Sree Dharma Sastha Temple uninterruptedly from 1980 till 2021, as hereditary right. He succumbed to illness on 30.07.2021. After the death of T.G.Ayyappan Pillai, the 1[st] petitioner expressed his desire to continue the ritual of Nayattuvili in the Annual Festival of Erumely Sree Dharma Sastha Temple for the year 2022. However, he was refrained 4 ## W.P.(C)No.6137 of 2023 from performing Nayattuvili in the Annual Festival for the year 2022 by the 4[th] respondent Administrative Officer and the same was performed by a temple staff. The 1[st] petitioner preferred an application under the provisions of Right to Information Act, 2005 to provide the reasons for refraining him from performing the ritual Nayattuvili in the year 2022, to which he was issued with Ext.P4 reply dated 09.04.2022 enclosing therewith a copy of the complaint 13.02.2022 made by the 5[th] respondent Sree Sabareesha Seva Samithi before the 4[th] respondent Administrative Officer. Seeking permission to perform the ritual Nayattuvili on 07.03.2023 in the temple festival for the year 2023, which is scheduled to be held from 27.02.2023 till 08.03.2023, the petitioners submitted Ext.P5 representation dated 31.01.2023 before the 3[rd] respondent Devaswom Commissioner, as evidenced by Ext.P6 postal slip. Due to the inaction on the part of the 3[rd] respondent in considering the request made in Ext.P5, the petitioners are before this Court in this writ petition. 3. Heard the learned counsel for the petitioners and also the learned Standing Counsel for Travancore Devaswom Board for respondents 1 to 4. 5 ## W.P.(C)No.6137 of 2023 4. The issue that arises for consideration in this writ petition is as to whether the petitioners can seek a writ of mandamus commanding the 3[rd] respondent to consider the request made by him in Ext.P5 representation. As noticed hereinbefore, the request made by the petitioners in Ext.P5 is for performing the ritual Nayattuvili in Erumely Sree Dharma Sastha Temple in connection with the Annual Festival. 5. During the course of arguments, the learned Standing Counsel for Travancore Devaswom Board would submit that the petitioners' father late T.G.Ayyappan Pillai was not holding any karayma right or hereditary right to perform Nayattuvili in Erumely Sree Dharma Sastha Temple, in connection with the Annual Festival. 6. In **State of M.P. v. Bhailal Bhai [AIR 1964 SC 1006]** a Constitution Bench of the Apex Court held that the special remedy provided in Article 226 of the Constitution of India is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. 7. In **P.R. Murlidharan v. Swami Dharmananda Theertha Padar [(2006) 4 SCC 501]** the Apex Court was 6 ## W.P.(C)No.6137 of 2023 dealing with a case in which the 1[st] respondent therein claimed himself to be a Sanyasi in the tradition of ‘Sree Chattambi Swamy Thiruvadikal’ and Madathipathi and Sthiradhyakshan of Parama Bhattara Gurukula Seva Sangham, known as ‘Vadayampadi Asharamam’. He filed a suit in the Munsiff's Court, Kolencherry as O.S.No.71 of 2000 for a declaration that he was entitled to continue in the said capacity and he was not allowed to discharge his duties attached to the said office in terms of the purported order dated 20.01.1996 of Kailasanatha Theertha Padar. The said suit was dismissed for default. An application for restoration of the said suit was filed which was also dismissed. In relation to the affairs of the trust a suit as O.S.No.30 of 2002 is pending in the Munsiff's Court, Kolencherry. The said suit has been filed by one G. Parameswaran Nair, founder member of Vadayampadi Asharamam questioning the aforementioned purported resolution dated 07.01.2001. Brahmasree Kailasanatha Theertha Padar filed an interlocutory application for getting himself impleaded as a party, alleging that as per the bye laws, he had admittedly been serving in the said capacity since 1996 and, thus, in law continues to be the Madathipathi and 7 W.P.(C)No.6137 of 2023 Sthiradhyakshan. The said applicant as also the 1[st] respondent before the Apex Court are parties in O.S.No.30 of 2002. Though O.S.No.71 of 2000 filed by the 1[st] respondent was dismissed, he filed W.P.(C)No.16047 of 2004 before this Court praying for police protection. A Division Bench of this Court went into the question as to whether the 1[st] respondent herein was entitled to hold the office of Madathipathi and Sthiradhyakshan for the purpose of issuing an appropriate direction as regards grant of police protection. This Court opined that the State and the police officials have got a legal obligation to give protection to the life and properties of the appellant upon arriving at a finding of fact that he was entitled to hold the said office. Aggrieved by that judgment, the appellant approached the Apex Court. 8. In **P.R. Murlidharan [(2006) 4 SCC 501]** the Apex Court noticed that the construction of the trust and the rights and obligations thereunder were in question. The 1[st] respondent filed a suit in that behalf, which was dismissed. In terms of Order IX, Rule 9 of the Code of Civil Procedure, 1908 another suit would not be maintainable at his instance. Another suit, i.e., O.S.No.30 of 2002 filed by one G. 8 ## W.P.(C)No.6137 of 2023 Parameswaran Nair is pending in the Munsiff's Court. The High Court, despite noticing the said fact, sought to usurp the jurisdiction of the civil court, and determined the contentious issues which were required to be proved in terms of the provisions of the Evidence Act, 1872. It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact. The 1[st] respondent who sought to claim a status was required to establish the same in a court of law in an appropriate proceeding. He for one reason or the other, failed to do so. The provisions of Order IX, Rule 9 of the Code of Civil Procedure stare on his face. He, therefore, could not have filed a writ petition for getting the selfsame issues determined in his favour, which he could not do even by filing a suit. Indeed, the 9 ## W.P.(C)No.6137 of 2023 jurisdiction of the writ court is wide while granting relief to a citizen of India so as to protect his life and liberty as adumbrated under Article 21 of the Constitution, but while doing so it could not collaterally go into that question, determination whereof would undoubtedly be beyond its domain. What was necessary for determination of the question arising in the writ petition was not the interpretation of the documents alone, but it required adduction of oral evidence as well. Such evidence was necessary for the purpose of explaining the true nature of the deed of trust, as also the practice followed by this trust. In any event, the impleading applicant in O.S.No.30 of 2002 has raised a contention that he alone was ordained to hold the said office as per the bye laws of the trust. The qualification of the 1[st] respondent to hold the office was also in question. In this view of the matter, the Apex Court held that such disputed questions could not have been gone into by the High Court in a writ proceeding. Furthermore, the jurisdiction of the civil court is wide and plenary. In a case of this nature, a writ proceeding cannot be a substitute for a civil suit. For the said reasons, the Apex Court set aside the impugned judgment of the Division Bench of this Court. 10 ## W.P.(C)No.6137 of 2023 However, the appeal was allowed with the observation that, in the event the 1[st] respondent feels that he as a person should receive protection to his life, he may make an appropriate representation to the Superintendent of Police, who after causing an inquiry made in this behalf may pass an appropriate order as is permissible in law. 9. In **P.R. Murlidharan [(2006) 4 SCC 501]** , P.K. Balasubramaniam J in his concurring judgment observed that, a writ petition under the guise of seeking a writ of mandamus directing the police authorities to give protection to a writ petitioner, cannot be made a forum for adjudicating on civil rights. It is one thing to approach the High Court, for issuance of such a writ on a plea that a particular party has not obeyed a decree or an order of injunction passed in favour of the writ petitioner, was deliberately flouting that decree or order and in spite of the petitioner applying for it, or that the police authorities are not giving him the needed protection in terms of the decree or order passed by a court with jurisdiction. But, it is quite another thing to seek a writ of mandamus directing protection in respect of property, status or right which remains to be adjudicated upon and when such an adjudication can only 11 ## W.P.(C)No.6137 of 2023 be got done in a properly instituted civil suit. It would be an abuse of process for a writ petitioner to approach the High Court under Article 226 of the Constitution seeking a writ of mandamus directing the police authorities to protect his claimed possession of a property without first establishing his possession in an appropriate civil court. The temptation to grant relief in cases of this nature should be resisted by the High Court. The wide jurisdiction under Article 226 of the Constitution would remain effective and meaningful only when it is exercised prudently and in appropriate situations. On the facts of the case on hand, the learned Judge noticed that, various disputed questions arose based on a deed of trust and the facts pleaded by the writ petitioner and controverted by the other side. The High Court should have normally directed the writ petitioner to have his rights adjudicated upon, in an appropriate suit in a civil court. The fact that a writ petitioner may be barred from approaching the civil court, in view of Order IX, Rule 9 of the Code of Civil Procedure, or some other provisions, is no ground for the High Court to take upon itself, under Article 226 of the Constitution, the duty to adjudicate on the civil rights of parties for the purpose of deciding whether a 12 ## W.P.(C)No.6137 of 2023 writ of mandamus could be issued to the police authorities for the protection of the alleged rights of the writ petitioner. A writ of mandamus directing the police authorities to give protection to the person of a writ petitioner can be issued, when the court is satisfied that there is a threat to his person and the authorities have failed to perform their duties and it is different from granting relief for the first time to a person either to allegedly protect his right to property or his right to an office, especially when the pleadings themselves disclose that disputed questions are involved. As rightly pointed out in the judgment, the High Court was in error in proceeding to adjudicate on the rights and obligations arising out of the trust deed merely based on the affidavits and the deed itself. The High Court should not have undertaken such an exercise on the basis that the right of the writ petitioner under Article 21 of the Constitution is sought to be affected by the actions of the contesting respondents and their supporters and that can be prevented by the issue of the writ of mandamus prayed for. A writ for ‘police protection’ so called, has only a limited scope, as, when the court is approached for protection of rights declared by a decree or by an order passed by a civil court. It 13 ## W.P.(C)No.6137 of 2023 cannot be extended to cases where rights have not been determined either finally by the civil court or, at least at an interlocutory stage in an unambiguous manner, and then too in furtherance of the decree or order. 10. The specific stand taken by the 1[st] respondent Travancore Devaswom Board is that the petitioners’ father late T.G.Ayyappan Pillai was not holding any karayma right or hereditary right to perform Nayattuvili in Erumely Sree Dharma Sastha Temple, in connection with the Annual Festival. Therefore, the claim of the petitioners that their father was holding hereditary right to perform Nayattuvili in the temple in question has to be established before the competent forum. Resolution of such a disputed question of fact cannot be undertaken in exercise of the extra ordinary jurisdiction of the writ court under Article 226 of the Constitution of India. Such an issue cannot be decided by the 3[rd] respondent Devaswom Commissioner by considering a representation made by the petitioners, i.e., Ext.P5 representation dated 31.01.2023. Therefore, no mandamus can be issued commanding the 3[rd] respondent Devaswom Commissioner to consider Ext.P5 representation made by the petitioners. 14 W.P.(C)No.6137 of 2023 In such circumstances, this writ petition fails on the ground of maintainability and the same is accordingly dismissed; however without prejudice to the right of the petitioners to approach the competent forum to establish their customary right, if any, in performing Nayattuvili in Erumeli Sree Dharma Sastha Temple, in connection with the Annual Festival. **sd/ANIL K. NARENDRAN, JUDGE** **sd/P.G. AJITHKUMAR, JUDGE** AV/23/2 15 W.P.(C)No.6137 of 2023 ## **`APPENDIX OF WP(C) 6137/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` ``` A TRUE COPY OF THE MANGALAM NEWS PAPER EXTRACT DATED 08.03.2020, FEATURING THE NAYATTUVILI PERFORMANCE OF LATE MR. T.G. AYYAPPAN PILLAI ``` - **`Exhibit P2`** - **`A TRUE COPY OF THE EXTRACT OF OBITUARY PAGE OF MATHRUBHUMI E-NEWS PAPER DATED 31.07.2021, REPORTING THE DEATH OF MR. T.G. AYYAPPAN PILLAI`** - **`Exhibit-P3 (a) A TRUE COPY OF THE ANNUAL FESTIVAL BROCHURE OF ERUMELY SREE DHARMASASTHA TEMPLE FOR THE YEAR 2011 DATED NIL`** - **`Exhibit P3 (b) A TRUE COPY OF THE ANNUAL FESTIVAL BROCHURE OF ERUMELY SREE DHARMASASTHA TEMPLE FOR THE YEAR 2013 DATED NIL`** - **`Exhibit P 3 (c) A TRUE COPY OF THE ANNUAL FESTIVAL BROCHURE OF ERUMELY SREE DHARMASASTHA TEMPLE FOR THE YEAR 2016 DATED NIL`** - **`Exhibit P 3 (d) A TRUE COPY OF THE ANNUAL FESTIVAL BROCHURE OF ERUMELY SREE DHARMASASTHA TEMPLE FOR THE YEAR 2017 DATED NIL`** - **`Exhibit P4 A TRUE COPY OF THE REPLY GIVEN UNDER THE RIGHT TO INFORMATION ACT, 2005 BY THE 4TH RESPONDENT DATED 09.04.2022`** - **`Exhibit P5 A TRUE COPY OF THE REPRESENTATION DATED 31.01.2023 PREFERRED BY THE PETITIONERS TO THE 3RD RESPONDENT`** - **`Exhibit P6 A TRUE COPY OF THE POSTAL SLIP ISSUED BY INDIA POST DATED 03.02.2023 FOR EXHIBIT P5 REPRESENTATION PREFERRED BY THE PETITIONERS`**