Chandran K.A. v. Malabar Devaswom Board

WP(C) No.41188 of 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 23[RD] DAY OF JANUARY 2023 / 3RD MAGHA, 1944** ## **WP(C) NO. 41188 OF 2022** ## **PETITIONER/S:** CHANDRAN K.A., AGED 51 YEARS S/O.ANDI, KAIPPACHERRY HOUSE, ULIKKAL P.O, KANNUR DISTRICT, PIN-670 705. BY ADVS. P.U.SHAILAJAN NIDHEESH T.P ## **RESPONDENT/S:** - 1 THE COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERAHIPPALAM P.O, KOZHIKODE-673 006. - 2 THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, KASARAGOD AT NILESHWAR, KASARAGOD DISTRICT, PIN-671 314. - 3 THE CHAIRMAN, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERAHIPPALAM P.O, KOZHIKODE-673 006. - 4 O.V.RAJAN, S/O.K.K.GOVINDAN NAMBIAR, PARIKKALAM, P.O.ULIKKAL, KANNUR DISTRICT, PIN-670705. - 5 HARIDAS P.K, S/O.KUNHIRAMAN NAIR, PALLIYATH HOUSE, ULIKKAL P.O, KANNUR DISTRICT, PIN-670 705. WP(C) No.41188 of 2022 2 6 M.M.SUBBAIAH, S/O.M.S.MADAIAH (LATE), MALETIRA, KEDAMALLORE P.O, KODAGU DISTRICT, KARNATAKA STATE, PIN-571 218. 7 P.A.PONNAPPA, S/O.APPACHU (LATE), PUGGERA, DEVANAGIRI POST, VIRAJPET, KODAGU DISTRICT, KARNATAKA STATE, PIN571 218. 8 MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERAHIPPALAM P.O, KOZHIKODE-673 006, REPRESENTED BY ITS SECRETARY. BY ADVS. LAKSHMINARAYANAN K SATHYASHREE PRIYA EASWARAN(k/00579C/1990) ## **OTHER PRESENT:** SRI R.LAKSHMI NARAYAN- STANDING COUNSEL - MALABAR DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No.41188 of 2022 3 ## **J U D G M E N T** ## Anil K.Narendran, J. The petitioner, who is a devotee of Sree Vayathur Kaliyar Temple, which is a controlled institution under the 8[th] respondent Malabar Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P2 order dated 30.11.2022 of the 2[nd] respondent Assistant Commissioner, Malabar Devaswom Board, Kasaragod, which is based on a decision taken by the Area Committee of Malabar Devaswom Board, Kasaragod Division, to appoint respondents 4 to 7 as non-hereditary trustees of the temple in question, for a period of two years with effect from 30.11.2022, thereby cancelling the appointment of the said respondents as non-hereditary trustees. The petitioner has also sought for an order directing the 1[st] respondent Commissioner to consider Ext.P3 representation dated 03.12.2022 and the 3[rd] respondent Chairman of Malabar Devaswom Board to consider Ext.P4 representation dated 03.12.2022. WP(C) No.41188 of 2022 4 2. On 19.12.2022, when this writ petition came up for admission, this Court admitted the matter on file. The learned Standing Counsel for Malabar Devaswom Board took notice for respondents 1 to 3 and 8. Urgent notice by speed post was ordered to respondents 4 to 7, returnable within four weeks. The learned Standing Counsel for Malabar Devaswom Board was directed to file counter affidavit. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for Malabar Devaswom Board for respondents 1 to 3 and 8 and also the learned counsel for respondents 4 to 7. 4. The grievance of the petitioner is against the appointment of respondents 4 to 7 as non-hereditary trustees of Sree Vayathur Kaliyar Temple, based on Ext.P2 order dated 30.11.2022 of the 2[nd] respondent. The said order is one issued based on the decision taken by the Area Committee of Malabar Devaswom Board, Kasaragod Division, in exercise of its statutory powers. Challenging Ext.P2 order, the petitioner has already WP(C) No.41188 of 2022 5 submitted Ext.P3 representation dated 03.12.2022, which is now pending consideration before the 1[st] respondent Commissioner. 5. The selection of non-hereditary trustees in the controlled institutions under Malabar Devaswom Board is governed by the law laid down by this Court in **K. Chathu Achan** ## **v. State of Kerala [ILR 2022 (4) Kerala 199]** . 6. In **K. Chathu Achan [ILR 2022 (4) Kerala 199]** in the context of notification issued by the Commissioner, Malabar Devaswom Board, in the matter of selection of non-hereditary trustees in temples which are controlled institutions under the Malabar Devaswom Board, this Court held that for appointment as non-hereditary trustee of the temple, the applicant should be a regular worshipper of the temple, who is prepared to actively work for the betterment of the temple. Persons who are busy with their employment, office bearers of political parties, active politicians or those indulging in active participation in the activities of a political party cannot aspire appointment as nonhereditary trustee of the temple. WP(C) No.41188 of 2022 6 7. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. 8. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. WP(C) No.41188 of 2022 7 9. The learned Standing Counsel for Malabar Devaswom Board would submit that Ext.P3 representation made by the petitioner against Ext.P2 order dated 30.11.2022 of the 2[nd] respondent, whereby respondents 4 to 7 were appointed as nonhereditary trustees of the temple in question for a period of two years with effect from 30.11.2022, is now pending before the 1[st] respondent Commissioner, Malabar Devaswom Board, who shall consider the same and pass orders thereon, with notice to both sides. 10. The learned counsel for the petitioner and also the learned counsel for respondents 4 to 7 would submit that the parties may be permitted to raise appropriate contentions before the 1[st] respondent Commissioner, by submitting written submissions. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of directing the 1[st] respondent to consider and take appropriate decision on Ext.P3 representation dated 03.12.2022 made by the petitioner WP(C) No.41188 of 2022 8 strictly in accordance with law, with notice to the petitioner and also to respondents 4 to 7, after affording them an opportunity of being heard, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. The petitioner and respondents 4 to 7 shall submit written submissions before the 1[st] respondent, raising appropriate legal and factual contentions, which shall be dealt with by the 1[st] respondent while taking a decision as directed above. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** jg WP(C) No.41188 of 2022 9 ## **APPENDIX OF WP(C) 41188/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SCHEME OF THE TEMPLE PUBLISHED IN THE KANNUR DISTRICT GAZETTE DATED 25.8.2005. Exhibit P2 TRUE COPY OF THE ORDER NO.A32503/2022(MDB) DATED 30.11.2022 ISSUED BY THE RESPONDENT NO.2. Exhibit P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE RESPONDENT NO.1 DATED 3.12.2022 . Exhibit P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE RESPONDENT NO.3 DATED 3.12.2022.