Divakar Shetty and others 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 ``` ``` TUESDAY, THE 24[TH] DAY OF JANUARY 2023/4TH MAGHA, 1944 ``` ``` WP(C) NO.36391 OF 2022 ``` ## **`PETITIONERS:`** - **`1 DIVAKAR SHETTY, AGED 60 YEARS, S/O.KUSUMA K. SHETTY, KODALGUTH HOUSE, KODAL MERKLA P.O., KASARGOD-671324.`** - **`2 KUNHANNA BHANDARI, S/O. LATE KINHANNA BHANDARI, AGED 73, KOLAR HOUSE, BADOOR VILLAGE, PERUMUDE P.O., KASARGOD-671324.`** - **`3 N.H. LAKSHMINARAYANA BHAT, S/O. N.H. KESHAVA BHAT, AGED 64, NERIYA HOUSE, DHARMATHADKKA P.O., KASARGOD -671324.`** - **`4 E. REVI SANKARA BHAT, S/O. LATE E. PADMANABA BHAT, AGED 60, EDAKKANA HOUSE, PERUMUDE P.O., KASARGOD-671324.`** ``` BY ADVS.T.KRISHNANUNNI (SR.) K.T.SHYAMKUMAR HARISH R. MENON ``` ``` K.N.ABHA A.G.PRASANTH K.S.SREEJA OASHIN LALAN ALEENA SEBASTIAN ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL SECRETARY, REVENUE (DEVASWOM) DEPARTMENT, THIRUVANANTHAPURAM-695 001.`** -2- W.P.(C)No.36391 of 2022 - **`2 MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM P.O., KOZHIKODE-673006 REPRESENTED BY ITS SECRETARY .`** - **`3 THE COMMISSIONER, THE MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM P.O., KOZHIKODE673006.`** - **`4 THE DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM P.O., KOZHIKODE673006.`** - **`5 THE ASSISTANT COMMISSIONER, OFFICE OF THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM P.O., KOZHIKODE673006.`** - **`6 MALABAR DEVASWOM BOARD (AREA COMMITTEE), REPRESENTED BY ASSISTANT COMMISSIONER NILESHWAR P.O., KASARGOD-671314.`** - **`7 RAMAKRISHNA BHANDARI, S/O:MAINDAPPA BHANDARI, AGED 72, BHANDARA KOTTAGE HOUSE, KUNDAL MERKALA P.O., KUNDAL MERKALA VILLAGE, (VIA) MANGALPADI, MANJESWARAM TALUK, KASARGOD-671 324.`** ``` BY ADVS.DEEPU THANKAN UMMUL FIDA ``` ``` R.UDAYA KUMAR ``` - **`C.IJLAL`** ``` NIMMY JOHNSON ``` ``` 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 24.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- W.P.(C)No.36391 of 2022 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 proceedings, i.e., O.A.No.12 of 2022 on the file of the 4[th] respondent Deputy Commissioner as illegal and wholly without jurisdiction and against Ext.P4 judgment of this Court dated 28.02.2020 in W.P.(C)No.19935 of 2018. O.A.No.12 of 2022 is one filed by the 7[th] respondent herein, invoking the provisions under Section 57(b) of the Madras Hindu Religious and Charitable Endowments Act, 1951, for appointing him as the hereditary trustee of Kambar Sree Durga Parameshwari Temple. According to the petitioner, the 4[th] respondent ought not to have entertained that original application, in view of Ext.P4 judgment of this Court dated 28.02.2020 in W.P.(C)No.19935 of 2018. By the said judgment, this Court quashed Ext.P3 order dated 25.08.2018 of the 1[st] respondent in a revision petition filed by the 7[th] respondent under Section 99(1) of the aforesaid Act, challenging Ext.P1 order dated 24.03.2015 of the 4[th] respondent in O.A.No.4 of 2014. The petitioners preferred -4- W.P.(C)No.36391 of 2022 Exts.P7, P7(a), P7(b) and P7(c) interlocutory applications, seeking an order to get themselves impleaded as additional respondents in O.A.No.12 of 2022. Those applications are even now pending consideration. 2. On 14.11.2022, when this writ petition came up for admission, the learned Government Pleader took notice for the 1[st] respondent and the learned Standing Counsel for Malabar Devaswom Board took notice for respondents 2 to 6. Notice by speed post was ordered to the 7[th] respondent. This Court granted an interim order to the effect that the proceedings pursuant to Ext.P5 shall not be concluded without orders from this Court. 3. Heard the learned Senior Counsel for the petitioners, the learned Senior Government Pleader for the 1[st] respondent, the learned Standing Counsel for Malabar Devaswom Board for respondents 2 to 6 and also the learned counsel for the 7[th] respondent. 4. The learned Senior Counsel for the petitioners would contend that the 4[th] respondent Deputy Commissioner is proceeding with O.A.No.12 of 2022 wholly without -5- W.P.(C)No.36391 of 2022 jurisdiction. The 4[th] respondent ought not to have entertained that original application, in view of Ext.P4 judgment of this Court dated 28.02.2020 in W.P.(C)No.19935 of 2018 and the bar under Section 62 of the Madras Hindu Religious and Charitable Endowments Act. Since the 4[th] respondent is proceeding with the matter absolutely without any jurisdiction, the proceedings in O.A.No.12 of 2022 is liable to be quashed by this Court in exercise of the extraordinary jurisdiction under Article 227 of the Constitution of India. The learned Senior Counsel would also point out the pendency of Ext.P7 series of interlocutory applications filed by the petitioners to get themselves impleaded as additional respondents in O.A.No.12 of 2022. 5. The learned Standing Counsel for Malabar Devaswom Board and also the learned counsel for the 7[th] respondent would contend that, if the petitioners have a case on the maintainability of O.A.No.12 of 2022, they will have to raise the question of maintainability before the 4[th] respondent Deputy Commissioner, instead of invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution -6- W.P.(C)No.36391 of 2022 of India. 6. In **Tiny @ Antony v. Jacky and others [(2014) 6 SCC 508]** the Apex Court held that, a petition under Article 226 or Article 227 of the Constitution of India can neither be entertained to decide the landlord-tenant dispute nor is it maintainable against a private individual to determine an intense dispute including the question whether one party is harassing the other party. The High Court under Article 227 has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them within the bounds of their authority but it was not the case of the 1[st] respondent that the order passed by the Munsiff Court was without any jurisdiction or was so exercised exceeding its jurisdiction. If a suit is not maintainable, it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under Articles 226 and 227 of the Constitution of India can be exercised to question a plaint. 7. Viewed in the light of the law laid down in the decision of the Apex Court referred to supra, the petitioners -7- W.P.(C)No.36391 of 2022 cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, to quash the proceedings in O.A.No.12 of 2022 on the file of the 4[th] respondent Deputy Commissioner. If the petitioners have a case that O.A.No.12 of 2022 is not maintainable before the 4[th] respondent, in view of Ext.P4 judgment of this Court dated 28.02.2020 in W.P.(C)No.19935 of 2018 and the bar under Section 62 of the Madras Hindu Religious and Charitable Endowments Act, it is for them to raise that contention before the said respondent, in an appropriate manner, after getting themselves impleaded as the additional respondents. In such circumstances, the petitioners are not entitled to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India to quash the proceedings in O.A.No.12 of 2022 pending before the 4[th] respondent Deputy Commissioner. 8. In the result, this writ petition is disposed of by directing the 4[th] respondent Deputy Commissioner to consider and pass appropriate orders on Ext.P7 series of interlocutory applications filed by the petitioners in O.A.No.12 of 2022 and -8- W.P.(C)No.36391 of 2022 take an appropriate decision thereon, before proceeding further with the said original application, with notice to the petitioners and also to the 7[th] respondent. In case, the 7[th] respondent is yet to file objections in Ext.P7 series of interlocutory applications, the same shall be filed within a period of two weeks from the date of receipt of a certified copy of this judgment. It is made clear that this Court has not expressed anything on the legal and factual contentions raised by the petitioners and the 7[th] respondent and it is for them to raise all such contentions before the 4[th] respondent at appropriate stage. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** AV/27/1 -9- W.P.(C)No.36391 of 2022 ## **`APPENDIX OF WP(C) 36391/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 A TRUE COPY OF THE ORDER DATED 24-3- 2015 IN OA NO.4/2014 APPOINTING 1ST PETITIONER HEREIN AS HEREDITARY TRUSTEE. Exhibit P2 A TRUE COPY OF THE ORDER DATED 25-11- 2015 IN OA NO.4/2015 ISSUED BY THE 3RD RESPONDENT. ``` ``` Exhibit P3 A TRUE COPY OF GO.(RT) NO: 1895 /2018/ RD DATED 28-5-2018. ``` ``` Exhibit P4 A TRUE COPY OF THE JUDGMENT IN WPC NO.19935/2018 DATED 28-2-2020. ``` ``` Exhibit P5 TRUE COPY OF THE PETITION DATED 26-4- 2022 PREFERRED BY 7TH RESPONDENT BEFORE 4TH RESPONDENT. ``` ``` Exhibit P6 A TRUE COPY OF THE NOTICE ISSUED BY THE 5TH RESPONDENT TO THE PETITIONERS HEREIN DATED 9-11-2022. ``` ``` Exhibit P7 A TRUE COPY OF THE IMPLEADING PETITIONS PREFERRED BY 1ST PETITIONER. ``` ``` Exhibit P7 A A TRUE COPY OF THE IMPLEADING PETITIONS PREFERRED BY 2ND PETITIONER. ``` ``` Exhibit P7 B A TRUE COPY OF THE IMPLEADING PETITIONS PREFERRED BY 3RD PETITIONER. ``` ``` Exhibit P7 C A TRUE COPY OF THE IMPLEADING PETITIONS PREFERRED BY 4TH PETITIONER. ```