KIZHAKKINIYAKATH PARAMESWARAN MOOSAD and others v. Principal Secretary to Government, Revenue (Devaswom) Department, Government Secretariat, Thiruvananthapuram 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 MONDAY, THE 22[ND] DAY OF MAY 2023/1ST JYAISHTA, 1945 WP(C) NO.6400 OF 2022** ## **PETITIONERS:** 1 KIZHAKKINIYAKATH PARAMESWARAN MOOSAD, AGED 67 YEARS, S/O.NEELAKANDAN MOOSAD, THRIKKANDIYUR, TIRUR, MALAPPURAM DISTRICT, PIN-676101. 2 PADINJATTIYAKATH NARAYANAN MOOSAD, AGED 55 YEARS, S/O.SANKARAN MOOSAD, THRIKKANDIYUR, TIRUR, MALAPPURAM DISTRICT, PIN-676101. 3 THEKKINIYAKATH NARAYANAN MOOSAD, AGED 62 YEARS, S/O.RAMAN MOOSAD, THRIKKANDIYUR, TIRUR, MALAPPURAM, PIN-676101. 4 THATTARAMBATH SANTHOSH, AGED 44 YEARS, S/O.THE LATE RAMAN MOOSAD, THRIKKANDIYUR, TIRUR, MALAPPURAM, PIN-676101. BY ADVS. T.KRISHNANUNNI (SR.) MEENA.A. VINOD RAVINDRANATH K.C.KIRAN M.R.MINI M.DEVESH ASHWIN SATHYANATH ANISH ANTONY ANATHAZHATH THAREEQ ANVER K. 2 W.P.(C) No.6400 of 2022 ## **RESPONDENTS:** 1 PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE-673006. 3 ZAMORIN RAJA OF CALICUT, POST CHALAPPURAM, CALICUT-673002. 4 THE EXECUTIVE OFFICER, THRIKKANDIYUR DEVASWOM, THRIKKANDIYUR POST, TIRUR, MALAPPURAM-676104. BY ADVS. SRI.M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA SRI S.RAJMOHAN , SR GOVERNMENT PLEADER SRI R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON 20.03.2023, THE COURT ON 22.05.2023, DELIVERED THE FOLLOWING: 3 W.P.(C) No.6400 of 2022 ## **J U D G M E N T** ## P.G.Ajithkumar, J. The petitioners seek a writ of certiorari quashing Ext. P12 order to the extent it restricts the post of ‘Thrikkovil’ at Thrikkandiyur Siva Temple, Tirur Taluk of Malappuram District to one. 2. The petitioners claim that they are the seniormost members of four Moosad families; namely, Thattarambath, Kizhakkiniyakath, Padinjattiniyakath and Thekkiniyakath, and they have hereditary rights for ‘Thrikkovil’ duty in Thrikkandiyur Siva Temple. It is their claim that their hereditary right has its origin in antiquity and the right has been enjoyed by the seniormost member of each family without any interruption. However, the trustee of the temple, respondent No.3 un-necessarily interfered and an order to the effect that there would be only one post of ‘Thrikkovil’ and the duties shall be performed by the members of the said families in turn was issued in 1998. 3. The Commissioner, HR & CE Department ordered as per Ext.P2 dated 18.11.1999, that there existed four 4 W.P.(C) No.6400 of 2022 hereditary posts of ‘‘Thrikkovil’ in Thrikkandiyur Siva Temple. However, the 3[rd] respondent and also the 4[th] respondent did not honour the said order and they did not allow all four to perform their duties. In the meanwhile, the senior most member of the Thattarambath family, who was performing the 'Thrikkovil' duty, died and the 4[th] petitioner was befallen with the said right, but, he was not allowed to perform the duties stating one or the other reasons by respondents No. 3 and 4. There arose litigations and in terms of the directions of this Court as per Ext.P9 judgment dated 07.08.2017 in W.P.(C) No.16859 of 2017, the 2[nd] respondent considered the dispute concerning the ‘Thrikkovil’ in Thrikkandiyur Siva Temple. The order of the second respondent in that regard dated 06.08.2018 is Ext.P10. It was ordered that there was only one post of ‘Thrikkovil’ in Thrikkandiyur Siva Temple. 4. The petitioners challenged Ext.P10 order before this court by filing W.P.(C)No.30420 of 2018. This Court, as per Ext.P11 judgment dated 26.11.2019, relegated the dispute to the Government in the light of Section 99 of the Hindu Religious and Charitable Endowments Act, 1951. 5 W.P.(C) No.6400 of 2022 Accordingly, the matter was considered by the Government in R.P No.32 of 2020 and the claim of the petitioners was rejected as per Ext.P12 order dated 21.12.2021. The said order is challenged by the petitioners in this writ petition stating that the said order is whimsical and the findings in Ext.P2 order should not have varied without any change in circumstances. It is alleged that Ext.P12 order was passed without proper application of mind and in disregard of Ext. P5 judgment of this Court. 5. This writ petition was admitted on 25.02.2022. The learned Senior Government Pleader took notice for the 1[st] respondent. The learned Standing Counsel for the Malabar Devaswom Board took notice for the 2[nd] respondent. Respondent Nos. 3 and 4 entered appearance pursuant to the notice. 6. The 1[st] respondent filed a counter affidavit justifying Ext.P12 order. The learned Senior Government Pleader filed a memo dated 13/06/2022 producing therewith a copy of G.O.(MS)No.415/96/RD Thiruvananthapuram dated 06.08.1996 issued by Revenue (Dewasom) Department. 6 W.P.(C) No.6400 of 2022 7. Heard the learned Senior Counsel appeared on behalf of the petitioners, the learned Senior Government Pleader, the learned Standing Counsel for the Malabar Devaswom Board and the learned counsel appearing for respondents No.3 and 4. 8. The dispute in this writ petition is in a narrow compass; whether there exists four posts of “Thrikkovil” in Thrikkandiyur Siva Temple, or there is only one post. The learned senior counsel appearing for the petitioners would submit that the existence of four posts of 'Thrikkovil' is beyond dispute and the view taken by the respondents No. 3 and 4 is only that the four posts have to be reduced to one post. Existence of such four posts of 'Thrikkovil' is a fact recognised in Ext.P1 which is the covenant dated 05.02.1847 based on which the 3[rd] respondent was entrusted with the trusteeship of the temple. That fact was admitted before the 2[nd] respondent based on which Ext.P2 order was issued. The learned Senior Counsel submitted that in the said circumstances there is no reason for the 2[nd] respondent to issue Ext.P10 order restricting the number of posts of 7 W.P.(C) No.6400 of 2022 'Thrikkovil' to one. When the order contained in Ext.P2 is that there were four posts of 'Thrikkovil' in Trikkandiyur Siva temple, the 2nd respondent should not have varied the same. The Government Order dated 06.08.1996 deals with a situation where there is only one post, whereas more families enjoy hereditary right. In such a case the number of posts is restricted to one and members of families are allowed to perform the duty in turn. It is submitted that this is not such a case and respondent Nos. 1 or 2 should not have denied the petitioners their hereditary right in the temple which has been recognised since time immemorial. 9. The learned Senior Government Pleader would submit that considering the volume of work at Thrikkandiyur Siva temple and the income being derived from the temple there is absolutely no need to maintain 4 posts of 'Thrikkovil'. In the light of specific directions in the Government Order dated 06.08.1996 to reduce the number of posts where more families than one hold the hereditary right to one post, it is necessary to fix the number of the post of 'Thrikkovil' at Trikkandiyur Siva temple to one. The learned Senior 8 W.P.(C) No.6400 of 2022 Government Pleader accordingly would submit that there is no reason to interfere with Ext.P12 order. 10. It is submitted by the learned Standing Counsel for the Malabar Devaswom Board that the duties of 'Thrikkovil' are so trivial that employing four persons, especially when the temple has a separate “kalvara” is quite unjustified. It is further submitted that from Ext.P1, it cannot be seen that there existed four hereditary posts of 'Thrikkovil' at Thrikkandiyur Siva Temple, and the petitioners’ clamour for four posts of 'Thrikkovil' is without the support of any evidence or factual foundation. It is true that when the 3[rd] respondent was entrusted with the trusteeship of the temple as per Ext.P1 a specific stipulation was incorporated in it that existing 'karaima rights' should be protected. Clause 6 in Ext.P1 contained such a stipulation. It however does not contain that there are four posts of 'Thrikkovil' as karaima. Therefore, the petitioners cannot rely on Ext.P1 to contend that there exist four posts of 'Thrikkovil' in the temple. 11. The observation in Ext.P2 order is that existence of four posts of 'Thrikkovil' in the Temple as on 17.10.1998 was 9 W.P.(C) No.6400 of 2022 admitted by the 3[rd] respondent and what the 3[rd] respondent contended was that the number of posts was reduced to one. The petitioners would contend that when there is such an admission on the part of the 3[rd] respondent, no more material or evidence is required to establish that the number of posts that existed was four and not one. The respondents do not admit now that there existed four posts of 'Thrikkovil' at Thrikkandiyur Siva temple at any point of time. If so, the observation in Ext.P2 order that there were admissions by respondent No.3 by itself would not invest a vested right to the petitioners entailing them to claim that the number of posts is four. The 2[nd] respondent in Ext.P10, after adverting to the facts borne by records concluded that the hereditary right to perform 'Thrikkovil' duty in Thrikkandiyur Siva temple was being performed by senior-most members of the four families in rotation and four independent posts of 'Thrikkovil' duty were not in existence. Of course, the 2[nd] respondent further relied on the Government Order dated 06.08.1996, to order that there could be only one post of 'Thrikkovil' in the temple. When such a finding on fact was entered into by the 2[nd] 10 W.P.(C) No.6400 of 2022 respondent in Ext.P10, the so-called admission referred to in Ext.P2 is not enough to find that question in favour of the petitioners. On that disputed question of fact of existence or not of four posts of 'Thrikkovil' in Thrikkandiyur Temple the 2[nd] respondent entered a finding in Ext. P10 that the post available is one only. We do not find from the available materials any patent error in that finding. This Court cannot sit in appeal on that finding on facts in this writ proceedings under Article 226 of the Constitution of India. 12. The 2[nd] respondent after holding that the hereditary post of 'Thrikkovil' existed in Thrikkandiyur Siva Temple was only one, proceeded to direct that the senior most members of the four Moosad Families namely Thattarambath, Kizhakkiniyakath, Padinjattiniyakath and Thekkiniyakath have to perform the duties in turn. The 1[st] respondent after considering the matter in detail held in Ext.P12 that Ext.P10 order did not require any interference. Clause V in Government Order dated 06.08.1996 was also relied on. In Clause V of the Government Order dated 06.08.1996 in the case of several persons functioning in one post due to 11 W.P.(C) No.6400 of 2022 hereditary protection, the post will be limited to one and salary will be apportioned between the individuals based on the number of days they work. 13. The Apex Court in **Syed Yakoob v. K. S. Radhakrishnan and others [AIR 1964 SC 477]** held that jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. 14. The aforesaid proposition of law has been reiterated in **M/s. Pepsico India Holding Private Limited v. Krishna Kant Pandey, 2015 (4) SCC 270** . Regarding the scope of Article 226 of the Constitution of India in the matter of interfering with the finding of the Tribunal the Apex Court held that under Article 226 the power of interference may extend to quashing an impugned order on the ground of a 12 W.P.(C) No.6400 of 2022 mistake apparent on the face of the record. 15. We found above that either Ext.P10 or Ext.P12 order is perverse or illegal and does not evince a mistake apparent on the face of the record. In the light of the law laid down in the aforesaid decisions, a writ of certiorari quashing Ext.P12 order is therefore, not liable to be issued. Accordingly, this writ petition is dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** Dxy 13 W.P.(C) No.6400 of 2022 ## **APPENDIX OF WP(C) 6400/2022** PETITIONERS' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE COVENANT FROM EAST INDIA COMPANY DATED 05.02.1847. EXHIBIT P2 TRUE COPY OF ORDER DATED 18.11.1999 OF THE COMMISSIONER HR & CE DEPARTMENT, KOZHIKODE. EXHIBIT P3 TRUE COPY OF ORDER DATED 06.01.2003 IN O.A.NO.17/1999 OF THE DEPUTY COMMISSIONER HR & CE DEPARTMENT. EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED 20.11.2010 BEFORE THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF ORDER DATED 27.04.2011 IN RP 16/2007 PASSED BY THE 2ND RESPONDENT. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 29.06.2016 IN WPC NO.13378/2011 PASSED BY THIS HON'BLE COURT. EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WPC NO.18348/2016 DATED 29.06.2016. EXHIBIT P8 TRUE COPY OF ORDER DATED 18.07.2016 BY THE 3RD RESPONDENT. EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 07.08.2017 IN WPC NO.16859/2017. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 06.08.2018 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 26.11.2019 IN WPC 30420/2018. EXHIBIT P12 TRUE COPY OF THE ORDER DATED 21.12.2021 IN RP.32/2020 FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.