K. Vitala Shetty v. Malabar Devaswom Board & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023/ 4TH PHALGUNA, 1944 ``` ## **`W.P.(C)NO.6086 OF 2023`** ## **`PETITIONER:`** ``` K. VITALA SHETTY, AGED 60 YEARS S/O.LATE MADAN SHETTY, AGED ABOUT 60 YEARS, KUDAL BHANDARAR GUTHU HOUSE, KUDAL MERKALA POST & VILLAGE VIA MANGALPADY KASARAGOD, KERALA, PIN - 671324 ``` ``` BY ADVS. UMMUL FIDA C.IJLAL ``` ``` R.UDAYA KUMAR NIMMY JOHNSON RESHMA.P. ``` ## **`RESPONDENTS:`** - **`1 MALABAR DEVASWOM BOARD HOUSEFED COMPLEX, ERANHIPALAM P.O., KOZHIKODE-673006, REPRESENTED BY ITS SECRETARY.`** - **`2 MALABAR DEVASWOM BOARD (AREA COMMITTEE), REPRESENTED BY ASSISTANT COMMISSIONER, NILESHWAR P.O., KASARGOD - 671314`** - **`3 THE ASSISTANT COMMISSIONER OFFICE OF THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM P.O., KOZHIKODE-., PIN - 673006`** - **`4 YAJAMAN BADOOR KUNHANNA BHANDARI, MANAGING TRUSTEE, SRI. DURGAPARAMESHWARI TEMPLE,`** ``` 2 ``` W.P.(C) No.6086 of 2023 ``` KAMBAR, KUDAL MERKALA. KASARAGOD, PIN - 671321 ``` ``` SRI R.LAKSHMI NARAYAN- STANDING COUNSEL - MALABAR DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` W.P.(C) No.6086 of 2023 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 2[nd] respondent Area Committee (Kasargod) of Malabar Devaswom Board to take necessary action on Ext.P3 representation dated 15.02.2023 made by the petitioner; and a writ of mandamus commanding the 4[th] respondent, who is the Managing Trustee of Sree Durga Parameshwari Temple, not to circulate notices with respect to the Annual Festival of that Temple, pending decision by the 2[nd] respondent Area Committee on Ext.P3 representation. 2. Going by the averments in the writ petition, the predecessors of the petitioner were the hereditary trustees of Sree Durga Parameshwari Temple in Manjeswar Village in Kasargod District. The Annual Festival of the temple, which always played a key role in bonding the people of Kudal and Badoor villages, is scheduled to commence in the first week of March, 2023. According to the petitioner, as per the ancestral rituals, the arrival of 'Bhandara' (sacred ornaments and divine weapons) of Sree Jatadhari Daiva from Bhandara Guttu with a grand procession will take place during the Annual Festival, which has its own ``` 4 ``` W.P.(C) No.6086 of 2023 significance as part of the rituals of the festival. Hundreds of devotees will participate in this procession. The petitioner submitted Ext.P1 representation dated 12.02.2023 before the 4[th] respondent Managing Trustee of Sree Durga Parameshwari Temple to mention the arrival of 'Bhandara' of Sri Jatadhari Daiva from Bhandara Guttu in the invitation of the Annual Festival, as mentioned in the invitation of Annual Festivals until 2015. However, without considering the request made by the petitioner in Ext.P1, the temple management printed Ext.P2 invitation of the Annual Festival without mentioning Bhandara Guttu. The petitioner preferred Ext.P3 representation dated 15.02.2023 before the 2[nd] respondent Area Committee (Kasargod) of Malabar Devaswom Board to issue a direction to the 4[th] respondent Managing Trustee by instructing him to withhold Ext.P2 invitation and print new invitation for the Annual Festival mentioning the arrival of Bhandara of Sri Jatadhari Daiva from Bhandara Guttu to the temple. Immediately thereafter, the petitioner has filed this writ petition before this Court seeking the aforesaid reliefs. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel for Malabar Devaswom Board for respondents 1 to 3. ``` 5 ``` W.P.(C) No.6086 of 2023 4. From the materials on record and also the submissions made by the learned counsel for the petitioner and also the learned Standing Counsel for Malabar Devaswom Board, we notice that the temple in question is a controlled institution under the Malabar Devaswom Board, which is managed by a Managing Committee, in which the 4[th] respondent is the hereditary Trustee. The request made by the petitioner in Ext.P3 representation is for directing the 4[th] respondent Managing Trustee to print new invitation for Annual Festival of the temple by mentioning arrival of Bhandara of Sri Jatadhari Daiva from Bhandara Guttu. According to the petitioner, the arrival of Bhandara from Bhandara Guttu was mentioned in the invitation of Annual Festivals until 2015. 5. Section 57 of the Madras Hindu Religious and Charitable Endowments Act 1951, deals with the power of the Deputy Commissioner to decide certain disputes and matters. As per Section 57, subject to the rights of suit or appeal provided under Sections 61 and 62, the Deputy Commissioner shall have the power to enquire into and decide the disputes and matters enumerated in clauses (a) to (g) of Section 57. Clause (e) of Section 57 reads thus: ``` 6 ``` W.P.(C) No.6086 of 2023 “(e) whether any person is entitled by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what the established usage of a religious institution is in regard to any other matter.” 6. If the petitioner has a case that the request made in Ext.P3 representation falls within the scope of clause (e) of Section 57 of the Madras Hindu Religious and Charitable Endowments Act 1951, he has to approach the concerned Deputy Devaswom Commissioner with a proper application under Section 57 of the Act. The 2[nd] respondent Area Committee (Kasargod) of Malabar Devaswom Board has absolutely no jurisdiction to decide on such a dispute and in such circumstances, the petitioner cannot seek a writ of mandamus commanding the 2[nd] respondent to take necessary action on Ext.P3 representation, within a time limit to be stipulated by this Court. 7. In **Bihar Eastern Gangetic Fishermen** **Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145]** a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance ``` 7 ``` W.P.(C) No.6086 of 2023 of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. 8. Moreover, no mandamus can be issued against the 4[th] respondent, who is only a Managing Trustee of a temple, which is a controlled institution under the 1[st] respondent Malabar Devaswom Board. At any rate, adjudication of disputed question of facts falls outside the purview of writ jurisdiction under Article 226 of the Constitution of India. In the result, this writ petition fails on the ground of maintainability and the same is accordingly dismissed, however without prejudice to the legal right, if any, of the petitioner to approach the competent Forum for redressal of his grievances. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** PV ``` 8 ``` W.P.(C) No.6086 of 2023 ## **`APPENDIX OF WP(C) 6086/2023`** ``` PETITIONER EXHIBITS Exhibit P-1 A TRUE COPY OF THE REPRESENTATION ALONG WITH THE TRANSLATION DATED 12/02/2023 GIVEN TO THE FOURTH RESPONDENT Exhibit P-2 A TRUE COPY OF THE ANNUAL FESTIVAL NOTIFICATION OF THE SREE DURGA PARAMESHWARI TEMPLE KAMBAR Exhibit P-3 A TRUE COPY OF THE REPRESENTATION DATED 15/02/2023 SUBMITTED BEFORE THE SECOND RESPONDENT ```