Koothali Sree Kammoth Mahavishnu Kshethra Samithy v. Malabar Devaswom Board

## **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 25[TH] DAY OF AUGUST 2023 / 3RD BHADRA, 1945** **W.P.(C) NO. 27737 OF 2023** ## **PETITIONER:** **KOOTHALI SREE KAMMOTH MAHAVISHNU KSHETHRA SAMITHY, AGED 60 YEARS, REG.NO.26/86, PO.KOOTHALI, KOZHIKODE DISTRICT, REPRESENTED BY ITS PRESIDENT, PIN – 673525.** **BY ADVS.** **R.PARTHASARATHY B.KRISHNAN** ## **RESPONDENTS:** - **1 THE MALABAR DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, HOUSEFED COMLEX, ERANHIPPALAM, KOZHIKODE, PIN – 673006.** - **2 THE CHAIRMAN, AREA COMMITTEE (ASSISTANT COMMISSIONER) MALABAR DEVASWOM BOARD, CIVIL STATION, KOZHIKODE , PIN – 673020.** - **3 THE COMMISSIONER MALABAR DEVASWOM BOARD, CIVIL STATION, KOZHIKODE, PIN – 673020.** - **4 THE DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD, CIVIL STATION, KOZHIKODE, PIN – 673020.** - **5 THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, D BLOCK (3RD FLOOR), CIVIL STATION, KOZHIKODE, PIN – 673020.** - **6 SRI. M. MOHANAKRISHNAN, S/O. SANKARAKURUP, KANNOTHU HOUSE, THANDORAPPARA P.O., KOZHIKODE, PIN – 673525.** - **7 SRI. PRAKASAN C.P., S/O. KUNHIKANNAN, CHEMBODAN POYIL HOUSE, KOOTHALI P.O., KOZHIKODE, PIN – 673525.** 2 W.P.(C) No.27737 of 2023 - **8 SMT. MOLY O.T., D/O. NARAYANAN NAMBIAR, NAVANEETHAM - CHERIYAVAZHAYIL VEEDU, KOOTHALI P.O., KOZHIKODE, PIN – 673525.** - **9 SRI. N.K. BALAKRISHNAN, S/O. NARAYANA KURUP, VALAPPIL VEEDU, KOOTHALI P.O., KOZHIKODE, PIN – 673525.** - **10 SRI. KRISHNANKUTTY, S/O. ARIPPAN, THUNDIKKAL VEEDU, P.O. KOOTHALI, KOZHIKODE, PIN – 673525.** - **R1 TO R5 BY LAKSHMI NARAYANAN, SC MALABAR DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 W.P.(C) No.27737 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner is the President of Sree Kammoth Mahavishnu Kshethra Samithy. The Temple originally belonged to Koothali Moopil Nair. The Temple vested with the Government by escheat following death of the owner leaving no heirs. The then Hindu Religious and Charitable Endowments Board framed a scheme for the management of the Temple. But the petitioner Samithy, which is a society registered under the Societies Registration Act, 1860 challenged the said scheme and as per the judgment in A.S.No.537 of 1996 dated 21.02.2014, this Court directed to frame a new scheme. Accordingly, the Deputy Commissioner of the Malabar Devaswom Board framed a new scheme, a copy of which is produced as Ext.P2. The scheme envisages that a representative of the Samithy shall be one among the 5 members of the Board of Trustees of the Temple. As per the letter dated 30.01.2023, the Samithy nominated Sri.Sreedharan, Mangottil House, Koothali P.O., Perambra to 4 W.P.(C) No.27737 of 2023 be its representative in the Board of Trustees. But the 2[nd] respondent-Area Committee as per Ext.P4 decision dated 20.06.2023 refused to appoint him as a member of the Board of Trustees. Ext.P5 is the order constituting the new Trustee Board. A representation was submitted by the petitioner to review the said order. But, it was not entertained. In the said circumstances, the petitioner has filed this Writ Petition under Article 226 of the Constitution of India seeking a writ of certiorari quashing Exts.P4 and P5 and a writ of mandamus directing respondent Nos.2 and 5 to appoint Sri.Sreedharan as a Member of the Board of Trustees of Sree Kammoth Mahavishnu Temple, Koothali. 2. The learned Standing Counsel for the Malabar Devaswom Board took notice for respondent Nos.1 to 5. Adv.Sandeep Ankarath entered appearance for respondent Nos.6 to 10. 3. Heard the learned counsel appearing for the petitioner, the learned Standing Counsel for Malabar Devaswom Board and the learned counsel for respondent Nos.6 to 10. 5 W.P.(C) No.27737 of 2023 4. Ext.P1 is a copy of the judgment of this court dated 21.02.2014 in A.S.No.537 of 1996. This Court set aside the decree passed by the Sub Court, Koyilandy in O.S.No.99 of 1993 and directed the Commissioner of the Malabar Devaswom Board to frame a fresh scheme for the administration of Sree Kammoth Mahavishnu Temple. The Deputy Commissioner, Malabar Devaswom Board in O.A.No.8 of 2015 framed a scheme in obedience to the direction of this Court in Ext.P1 judgment. Ext.P2 produced by the petitioner is a copy of the said scheme. Clause (3) in Ext.P2 is relating to the constitution of a five member board of non-hereditary trustees for the administration of the Temple. An officer not below the rank of a Deputy Tahsildar nominated by the District Collector shall also be a member of the Board of Trustees. Clause (3) provides for inclusion of a representative of the petitioner Samithy in the Board to be constituted by the Deputy Commissioner. It is stipulated that only the representative of the Samithy having the required qualification alone would be considered for appointment. 6 W.P.(C) No.27737 of 2023 5. The learned counsel appearing for the petitioner would submit that in the light of the said clause, the representative of the petitioner, Sri.Sreedharan, should have been appointed as one of the non-hereditary trustees. But the Area Committee, the 2nd respondent, in total disregard of the said provision excluded the representative of the petitioner Samithy. Ext.P4 is a copy of the decision of the Area Committee in that regard. Consequent to Ext.P4 the Assistant Commissioner, Malabar Devaswom Board issued Ext.P5 order appointing five non-hereditary trustees, excluding Sri.Sreedharan. 6. The learned Standing Counsel for the Malabar Devaswom Board would submit that going by the provisions of clause (3) in Ext.P2 inclusion of a representative of the petitioner-Samithy is not mandatory. It is also submitted that the petitioner has to espouse that question before the Commissioner invoking the provisions under Section 18 of the Hindu Religious and Charitable Endowments Act, 1951 (for short “HR&CE Act”). 7 W.P.(C) No.27737 of 2023 7. It is the specific case of the petitioner that the Board of Trustees so far constituted had a representative of the petitioner as a member and now the petitioner’s representative is excluded illegally. The said contention of the petitioner is relating to the correctness and legality of Ext.P5 order. Section 18 of the HR&CE Act reads,- “18. Power of Commissioner to call for records and pass orders.- (1) The Commissioner may call for and examine the record of any Deputy or Assistant Commissioner, of any Area Committee, or of any trustee not being the trustee of a math or of a specific endowment attached to a math, in respect of any proceeding under this Act (not being a proceeding in respect of which a suit or an appeal to a Court is provided by this Act), to satisfy himself as to the regularity of such proceeding, or the correctness, legality or propriety of any decision or order passed therein. (2) If any such decision or order has been passed by any Deputy or Assistant Commissioner, or by the trustee of any religious institution other than one included in the list published under section 38, and it appears to the Commissioner that the decision or order should be modified, annulled, reversed or remitted for reconsideration, he may pass orders accordingly. 8 W.P.(C) No.27737 of 2023 - (3) (a) If any such decision or order has been passed any Area Committee or by the trustee of any religious institution included in the list published under section 38, the Commissioner may, if he thinks fit remit the matter together with his observations in regard thereto, to the Committee or trustee for reconsideration of the decision or order and report to the Commissioner within a time to be specified by him in this behalf. (b) On receipt of, and after considering, such report, it shall be open to the Commissioner to modify, annual or reverse the decision or order, or the decision or order as revised after such reconsideration, as the case may be. - (c) If the report is not received by the Commissioner within the time specified or such further time as may be granted by him, the Commissioner may modify, annual or reverse the decision or order of the Area Committee or trustee, as the case may be. (4) The Commissioner shall not pass any order prejudicial to any party under sub-section (2) or clause (b) or clause (c) of sub-section (3), without hearing him or giving him a reasonable opportunity of being heard. (5) The Commissioner may stay the execution of any decision or order of the nature referred to in subsection (1), pending the exercise of his powers under sub-section (2) or sub-section (3) in respect thereof.” 9 W.P.(C) No.27737 of 2023 8. On the basis of the decision of the Area Committee contained in Ext.P4, the Assistant Commissioner had issued Ext.P5 order. The grievance of the petitioner is that it has a right to get its representative included in the Board of Trustees as flown from clause (3) in Ext. P2, but the Area Committee declined that right. A statutory remedy as provided in Section 18(1) of the HR&CE Act is available to the petitioner to redress that grievance. 9. In **Commissioner of Income Tax v. Chhabil Dass Agarwal [(2014) 1 SCC 603]** the Apex Court held that non-entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the 10 W.P.(C) No.27737 of 2023 petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 10. In **Authorised Officer, State Bank of Travancore v. Mathew K.C. [(2018) 3 SCC 85]** the Apex Court reiterated that the discretionary jurisdiction under Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well-defined exceptions as observed in **Chaabil Dass Agarwal** , i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure or has resorted to invoke the provisions which are repealed, or when an order has been 11 ## W.P.(C) No.27737 of 2023 passed in total violation of the principles of natural justice. After referring to the law laid down in **Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419]** and **Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433]** the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 11. In **Thansingh Nathmal** a Constitution Bench of the Apex Court held that the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to 12 W.P.(C) No.27737 of 2023 do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does not, therefore, act as a Court of appeal against the decision of a Court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by 13 ## W.P.(C) No.27737 of 2023 entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed and will leave the party applying to it to seek resort to the machinery so set up. 12. In **M/s Magadh Sugar and Energy Limited v. State of Bihar, 2021 (5) KLT 667(SC)** the Apex Court held considered in extenso the question, could a High Court exercise its writ jurisdiction under Art.226 of the Constitution if an effective and efficacious alternate remedy is available? After considering the authorities on the point, laid down the following principles of law: “(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well; (ii) The High Court has the discretion not to entertain a Writ Petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person; (iii) Exceptions to the rule of alternate remedy arise where,- (a) the Writ Petition has been filed for the 14 W.P.(C) No.27737 of 2023 enforcement of a fundamental right protected by Part III of the Constitution; - (b) there has been a violation of the principles of natural justice; - (c) the order or proceedings are wholly without jurisdiction; or - (d) the vires of a legislation is challenged; (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law; (v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Art.226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and (vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a Writ Petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with." (emphasis supplied) 15 W.P.(C) No.27737 of 2023 13. In this case the petitioner has a statutory remedy. In order to decide the question involved herein, findings on disputed facts are to be arrived at. The petitioner, therefore, may approach the Commissioner, Malabar Devaswom Board by filing an application under Section 18(1) of the HR&CE Act. In view of the law laid down in the aforesaid decisions, we are of the view that since the petitioner has an efficacious alternative remedy provided by the law, this writ petition is not liable to be entertained. 14. The Writ Petition is accordingly disposed of directing the petitioner to approach the Commissioner, Malabar Devaswom Board to redress his grievance. If the petitioner files an application under Section 18(1) of the HR&CE Act, the 3[rd] respondentCommissioner shall take a decision on it within a period of one month following the procedure prescribed in Section 18 of the HR&CE Act. The contentions of the parties, both legal and factual, are left open. ## **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 16 W.P.(C) No.27737 of 2023 ## **APPENDIX OF WP(C) 27737/2023** ## **PETITIONER EXHIBITS** **EXHIBIT-P1 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT IN A.S. 537/1996 DATED 21.02.2014** **EXHIBIT-P2** **TRUE COPY OF ORDER ALONG WITH SCHEME FRAMED IN O.A. 08/2015 BEFORE THE DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD KOZHIKODE DATED 12.02.2016.** **EXHIBIT-P3** **TRUE COPY OF THE LETTER DATED 30.01.2023 NOMINATING SRI. SREEDHARAN, MANGOTTIL HOUSE, KOOTHALI P.O., PERAMBRA, KOZHIKODE DISTRICT** **EXHIBIT-P4 TRUE COPY OF THE DECISION OF THE KOZHIKODE AREA COMMITTEE DATED 20.06.2023. EXHIBIT-P5 TRUE COPY OF ORDER DATED 27.06.2023 SIGNED BY 5TH RESPONDENT. EXHIBIT-P6 TRUE COPY OF LETTER DATED 05.07.2023 FROM THE PETITIONER TO THE 2ND RESPONDENT**