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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN**
## **&**
**THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR**
**FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944 W.P.(C)NO.943 OF 2014**
## **PETITIONER/S:**
**E.M PARASWARAN SOMAYAJIPAD, AGED 69 YEARS, S/O.PARAMESWARAN NAMBOOTHIRI, THAVANOOR MANA, POST THAVANOOR, MALAPPURAM DISTRICT – 679 573.**
**BY ADVS. SRI.K.C.KIRAN SMT.MEENA.A. SMT.P.A.SHEEJA**
## **RESPONDENT/S:**
- **1 GURUVAYOOR DEVASWOM MANAGING COMMITTEE, REPRESENTED BY ITS CHAIRMAN, POST GURUVAYOOR, THRISSUR DISTRICT – 680 101.**
- **2 ADMINISTRATOR GURUVAYOOR DEVASWOM, POST GURUVAYOOR, THRISSUR DISTRICT 680101.**
## **OTHER PRESENT:**
**SRI T.KRISHNAN UNNI (SR) FOR PETITIONER SRI T.K.VIPINDAS - STANDING COUNSEL -GURUVAYUR DEVASWOM MANAGING COMMITTEE**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
## Anil K. Narendran, J.
The petitioner has filed this writ petition, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents, i.e., Guruvayur Devaswom Managing Committee and its Administrator, to pass orders granting the petitioner the benefit of _'Dwadasipanam'_ and permit him to take part in _'Vechunamaskaram'_ conducted at Guruvayur Sree Krishna Temple. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent Guruvayur Devaswom Managing Committee to consider and dispose of Ext.P5 representation dated 21.10.2007 and Ext.P8 representation dated 01.01.2014.
2. Going by the averments in the writ petition, the petitioner, who is a resident of Thavanoor in Malappuram District had conducted _'Somayagam'_ in 2007 March, near the premises of Panniyoor Varahamoorthy Temple. _'Somayagam'_ was performed with all traditional rituals and ceremonies. By the performance of _'Somayagam'_ the petitioner has become a ‘Somayajipad’. The ' _Agnihothram_ ' is retained in the house of the petitioner, since the same is to be kept and retained by
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‘ ’ _Somayajipad ,_ according to the religious practice followed from time immemorial _._ Since retaining _'Agnihothram'_ is an expensive affair, persons who have conducted _'Yagam'_ will be allowed to take part in ' _Vechunamaskaram_ ' conducted at Guruvayur Sree Krishna Temple on ‘ _Dwadasi_ ’ days and they will also be given _'Dwadasipanam'_ . This is the practice followed in Thriprayar Temple, which is under the Management of Cochin Devaswom Board. In the year 2007, the petitioner submitted representation before Guruvayur Devaswom Managing Committee and also Cochin Devaswom Board, with a request that he may be permitted to take part in the ‘ _Vechunamaskaram_ ’ and that he may be given _'Dwadasipanam'._ Even after repeated requests, no action was taken. In November, 2013, Thriprayar Devaswom accepted the request of the petitioner and permitted him to take part in ‘ _Vechunamaskaram'_ and granted 'D _wadasipanam_ '. The petitioner submitted representation dated 01.01.2014 before Guruvayur Devaswom Managing Committee detailing all the facts and requesting favourable orders at the earliest. Since no orders have been passed by Guruvayur Devaswom Managing Committee on the said representation, the petitioner has approached this Court in this writ petition seeking the aforesaid reliefs.
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3. A counter affidavit dated 06.04.2014 has been filed by the respondents, which is the one sworn to by the Administrator of Guruvayur Devaswom Managing Committee. Paragraphs 5 and 6 of that counter affidavit read thus:
“5. As per the custom and usage followed in the temple from time immemorial, only those Namboothiri's from the 'Perumanom', 'Sukupuram' and 'Irinjalakuda' Villages who had performed `Agnihothram alone are eligible to participate in the 'Vechunamskaram' performed in the Koothambalam of the temple on the 'Dwadasi’ day in the temple. The devotees undergoing 'Ekadasi Vritham' will offer their prayer at the Koothambalam of the temple and give Dakshina to the 'Agnihothris' present in the Koothambalam of the temple. The total amount received as Dakshina will be divided into four shares. Out of the four shares, one share will be allotted to the temple. The remaining three shares will be allotted to each of the three villages mentioned above. If there is more than one 'Agnihothri' from one village, the amount will be distributed among them.
6. The petitioner belongs to 'Panniyoor Village. As per the custom and usage followed in the temple, the Agnihothris from 'Panniyoor' Village are not eligible or entitled to participate in the 'Vechunamaskaram' ceremony performed in the temple on the ‘Dwadasi’ day in the temple. The managing committee cannot grant the request of the petitioner to permit him to take part in the 'Vechunamaskaram' in the temple since it is against the custom and usage followed in the temple.”
4. On 02.12.2015, when this writ petition came up for
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consideration, after hearing the arguments of the learned Senior Counsel for the petitioner and the learned Standing Counsel for Guruvayur Devaswom Managing Committee, a Division Bench of this Court passed the following order;
“The preliminary issue is as to the eligibility of the Namboothiri families of Panniyoor to be part of the ‘ _Vechunamaskaram_ ’ and the eligibility to collect a portion of ‘ _Dwadasipanam_ ’ which is given to ' _Somayajipads_ ' in relation to Guruvayur Devaswom. Though the learned Senior Counsel has indicated that the primary contentions would be referable to hostile discrimination on the face of the equality doctrine in the Constitution of India, having particular regard to the holistic systems which fall within the gaze of Article 25 of the Constitution of India, we are presently of the view that it would be worthwhile for the Guruvayur Devaswom to obtain the views of the Thanthri of the Guruvayur temple on the issue and place it before this Court, so that further consideration of the writ petition can be had with such erudite support, touching religious practices and rituals as well.”
5. In terms of the direction contained in the order dated
02.12.2015, the learned Standing Counsel for Guruvayur Devaswom Managing Committee has filed a statement dated 09.01.2016, on behalf of the respondents, producing therewith Annexure R1(a) letter dated 21.12.2015 of the Thanthri of Guruvayur Sree Krishna Temple. In paragraph 2 of that statement, it is stated that, as per the opinion of the present Thanthri, as per the custom and practice followed in the
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Guruvayur Sree Krishna Temple, from time immemorial ‘ _Somayajipads_ ’ from ‘Perumanom’, ‘Sukupuram’ and ‘Irinjalakuda’ villages alone had participated in the ‘ _Vachunamaskaram_ ’ ceremony on the ‘ _Dwadasi_ ’ day. There was no practice of permitting persons from Panniyoor Village for the ceremony in the temple on ‘ _Dwadesi_ ’ day, from time immemorial. The request was rejected by the predecessors of the present Thanthri. In Annexure R1(a) letter dated 21.12.2015, the present Thanthri concurred with the said opinion and informed the 2[nd] respondent Administrator that there is no need to change the custom followed in the temple. Paragraph 2 of Annexure R1(a) letter reads thus;
“പനന്നിയയൂർ ഗഗഗ്രാമതന്നിലല ആലരെയയയ തലന പയരെഗ്രാതന കഗ്രാലയ മയതൽ ഈ ചടങന്നിൽ പലങ്കെടയപന്നികഗ്രാറന്നില. അഗപകഗ് യ അവലരെ പലങ്കെടയപന്നിചയലകഗ്രാണയള ഒരെയ ആചഗ് യ നന്നിലവന്നിലന്നില.” 6. On 03.02.2016, when this writ petition came up for consideration, this Court recorded the stand taken by the Thanthri in Annexure R1(a) letter dated 21.12.2015. The order dated 03.02.2016 reads thus;
“Read order dated 02.12.2015. Thereafter, statement dated 09.01.2016 has been placed on record by the standing counsel for the Guruvayur Devaswom, placing therewith the letter dated 21.12.2015 issued by the Thanthri of the temple as Annexure RI (a). We have gone through Annexure R1(a) in which Bhrahmasree P.C.Narayanan Namboodiripad, the Thanthri of Guruvayur
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Temple has stated that the religious practices and rituals in connection with Guruvayur Temple, particularly relating to ‘ _Vechunamaskarain_ ’ and ‘ _Dwadasi dakshina samarppanam_ ’ are carried out by ' _Somayajipads_ ’ of the three villages of Peruvanam, Sukapuram and Irinjalakula and that such practice is one of ancient origin and continues to be so. It is pointed out by the Thanthri that the petitioner, who hails from Panniyoor Gramam, cannot seek right to participate because nobody from Panniyoor Gramam had ever been participating in the said rituals from time immemorial. We record this.”
7. Heard the learned Senior Counsel for the petitioner and the learned Standing Counsel for Guruvayur Devaswom Managing Committee for the respondents.
8. In this writ petition filed under Article 226 of the Constitution of India, the petitioner is seeking a writ of mandamus commanding Guruvayur Devaswom Managing Committee and its Administrator to pass orders granting the petitioner the benefit of _'Dwadasipanam'_ and permit him to take part in _'Vechunamaskaram'_ conducted at Guruvayur Sree Krishna Temple. In support of the said claim, the petitioner would place reliance on Exts.P1 to P3 leaflets of Panniyoor Somayagam conducted in the year 2007. The document marked as Ext.P4 is the relevant extract of a book kept for recording suggestions during the conduct of ‘Yagam’. The document marked as Ext.P7 is a communication dated 18.11.2013 of the
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Devaswom Manager, Thriprayar Devaswom on the issue regarding the denial of _'Dwadasipanam'_ to the petitioner. The further relief sought for is a writ of mandamus commanding the 1[st] respondent Guruvayur Devaswom Managing Committee to consider and dispose of Exts.P5 and P8 representations made by the petitioner.
9. The Guruvayur Devaswom Act, 1978, enacted by the State Legislature, which received the assent of the President on 18.03.1978, makes provision for the proper administration of the Guruvayur Devaswom. Section 3 of the Act deals with incorporation. As per sub-section (1) of Section 3, the administration, control and management of the Devaswom shall be vested in a Committee constituted in the manner hereinafter provided.
10. Section 10 of the Act deals with the duties of the Committee. As per clause (a) of Section 10, subject to the provisions of the Act and the Rules made thereunder, it shall be the duty of the Committee, subject to the custom and usage in the temple, to arrange for the proper performance of the rites and ceremonies in the temple and the subordinate temples attached thereto in accordance with the dittam or scale of expenditure fixed for the temple and the subordinate temples under Section 20 or, till the dittam or scale of expenditure is
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fixed under that Section, in accordance with the dittam or scale of expenditure fixed for the temple and the subordinate temples under Section 51 of the Madras Hindu Religious and Charitable Endowments Act, 1951; as per clause (b) of Section 10, to provide facilities for the proper performance of worship by the worshippers; as per clause (d) of Section 10, to ensure maintenance of order and discipline and proper hygienic conditions in the temple and the subordinate temples attached thereto and of proper standard of cleanliness and purity in the offerings made therein; and as per clause (g) of Section 10, to do all such things as may be incidental and conducive to the efficient management of the affairs of the Devaswom and the convenience of the worshippers.
11. Section 35 of the Act provides that, Thantri to be final authority in religious matters. As per sub-section (1) of Section 35, nothing in this Act shall be deemed to authorise the Committee or the Commissioner or the Government to interfere with the religious or spiritual matters pertaining to the Devaswom. As per sub-section (2) of Section 35, the decision of the Thantri of the temple on all religious, spiritual, ritual or ceremonial matters pertaining to the Devaswom shall be final, unless such decision violates any provision contained in any law for the time being in force.
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12. The role assigned to Guruvayur Devaswom Managing Committee constituted under Section 3 of the Guruvayur Devaswom Act, 1978, is that of a trustee in management of the properties vested in the deity. The Managing Committee is duty bound to scrupulously follow the stipulations contained in the Act of 1978. The Committee, being the trustee in management of Devaswom properties, is legally bound to perform its duties with utmost care and caution.
13. The specific stand taken in the counter affidavit filed by the respondents is that, as per the custom and usage followed in the temple from time immemorial, only those Namboothiri's from the 'Perumanom', 'Sukupuram' and 'Irinjalakuda' Villages who had performed `Agnihothram’ alone are eligible to participate in the 'Vechunamskaram' performed in the Koothambalam of Guruvayur Sree Krishna Temple on the 'Dwadasi’ day. The petitioner belongs to 'Panniyoor Village. As per the custom and usage followed in the temple, the Agnihothris from 'Panniyoor' Village are not eligible or entitled to participate in the 'Vechunamaskaram' ceremony performed in the temple on the ‘Dwadasi’ day. Therefore, the Managing Committee cannot consider the request of the petitioner to permit him to take part in 'Vechunamaskaram' in Guruvayur Sree Krishna Temple, since it is against the custom and usage
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followed in the temple.
14. The opinion of the Thanthri in Annexure R1(a) letter dated 21.12.2015, which is placed on record along with the statement dated 09.01.2016 filed on behalf of the respondents, is that as per the custom and practice followed in the Guruvayur Sree Krishna Temple, from time immemorial ‘ _Somayajipads_ ’ from ‘Perumanom’, ‘Sukupuram’ and ‘Irinjalakuda’ villages alone had participated in the ‘ _Vachunamaskaram_ ’ ceremony on the ‘ _Dwadasi_ ’ day. There was no practice of permitting persons from Panniyoor Village for the ceremony in the temple on ‘ _Dwadasi_ ’ day, from time immemorial.
15. 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.
16. In **P.R. Murlidharan v. Swami Dharmananda Theertha Padar [(2006) 4 SCC 501]** the Apex Court was 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
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‘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 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
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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.
17. 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. 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
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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 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
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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. 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.
18. 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
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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 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
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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 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
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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 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.
19. In the case on hand, the claim made by the petitioner, who belongs to 'Panniyoor Village, for granting him the benefit of _'Dwadasipanam'_ and permit him to take part in _'Vechunamaskaram'_ conducted at Guruvayur Sree Krishna Temple, is denied by the respondents by contending that, as per the custom and usage followed in the temple from time immemorial, only those Namboothiri's from the 'Perumanom', 'Sukupuram' and 'Irinjalakuda' Villages who had performed `Agnihothram’ alone are eligible to participate in the 'Vechunamskaram' performed in the Koothambalam of Guruvayur Sree Krishna Temple on the 'Dwadasi’ day. The opinion of Thanthri is placed on record as Annexure R1(a), along with the statement filed on behalf of the respondents, which is also against the claim made by the petitioner.
20. In a writ petition filed under Article 226 of the Constitution of India, this Court cannot adjudicate on the civil rights of the petitioner. The extraordinary jurisdiction of this
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Court under Article 226 of the Constitution of India is not intended to supersede the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions.
In the result, this writ petition fails on the ground of maintainability and the same is accordingly dismissed, leaving open the factual contentions raised by the petitioner. No order as to costs.
Sd/- **ANIL K. NARENDRAN, JUDGE**
Sd/- **P.G. AJITHKUMAR, JUDGE**
jg
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## **APPENDIX OF WP(C) 943/2014**
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE LEAFLET PUBLISHED IN CONNECTION WITH THE PERFORMANCE OF YAGAM DATED 10-022007
EXHIBIT P2 THE TRUE COPY OF THE LEAFLET PUBLISHED IN CONNECTION WITH THE PERFORMANCE OF YAGAM DATED 23-032007
EXHIBIT P3 THE TRUE COPY OF THE LEAFLET PUBLISHED IN CONNECTION WITH THE PERFORMANCE OF YAGAM DATED 23-032007
EXHIBIT P4 THE TRUE COPIES OF THE RELEVANT PAGES OF THE BOOK KEPT FOR RECORDING SUGGESTIONS DURING THE CONDUCT OF YAGAM
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 21-10-2007 ALONG WITH ANNEXURE
EXHIBIT P6 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE COCHIN DEVASWOM BOARD ALONG WITH ANNEXURE DATED 21-10-2007
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION FROM DEVAWOM MANAGER,THRIPRAYAR DATED 18-11-2013
EXHIBIT P8 THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS DATED 01-01-2014
RESPONDENT'S EXHIBITS
ANNEXURE R1 (a) – COPY OF THE LETTER OF THE THANTHRI OF THE TEMPLE DATED 21.12.2015