Lt. Col. Naveen P.N. v. Commissioner, 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 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945 ``` ## **`W.P.(C)NO.12187 OF 2023`** ## **`PETITIONER:`** ``` LT. COL. NAVEEN P.N., AGED 41 YEARS, ``` ``` S/O. LATE NAGASWAMY NAMBOOTHIRI, PERUMANGAT MANA, 288, MARANCHERY, PONNANI, MALAPPURAM DISTRICT, PIN - 679581 ``` ``` BY ADVS. ``` ``` N.M.MADHU C.S.RAJANI ``` ## **`RESPONDENTS:`** - **`1 THE COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPPALAM, KOZHIKODE, PIN - 673006`** - **`2 THE DEPUTY COMMISSIONER,`** ``` MALABAR DEVASWOM BOARD, D BLOCK, 3RD FLOOR, CIVIL STATION, KOZHIKODE, PIN - 673001 ``` - **`3 THE ASSISTANT COMMISSIONER,`** ``` MALABAR DEVASWOM BOARD, MINI CIVIL STATION, TIRUR, MALAPPURAM DISTRICT, PIN - 676101 ``` - **`4 VENUGOPALAN NAIR, PARAPPUR HOUSE, MARANCHERY P.O., MALAPPURAM DISTRICT, PIN - 679581`** - **`5 THE MALABAR DEVASWOM BOARD, REP.RESENTED BY ITS SECRETARY, HOUSEFED`** ``` COMPLEX, ERANHIPPALAM, KOZHIKODE, PIN - 673006 ``` ``` OTHER PRESENT: ``` ``` SRI. R. LAKSHMI NARAYAN, SC FOR MDB ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 W.P.(C)No.12187 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 respondents 1 to 3 to take a decision in the matter of his appointment as hereditary trustee of Kummil Lord Mahavishnu Temple, Maranchery, at the earliest, after affording him an opportunity of being heard. The petitioner has also sought for a writ of mandamus commanding respondents 1 to 3 not to take any decision regarding the affairs of Kummil Lord Mahavishnu Temple, Maranchery, other than day-to-day affairs, till the decision is taken on the appointment of hereditary trustee. 2. Going by the averments in the writ petition, the petitioner’s father Sri.Nagaswamy Namboothiri was the hereditary trustee of the temple. He died on 29.05.2021. The petitioner is the only surviving son of Late Nagaswamy Namboothiri. After the death of his father, the petitioner moved an application on 10.12.2021 before the 2[nd] respondent Deputy Commissioner. The said respondent, vide Ext.P1 letter dated 24.01.2022 directed the petitioner to 3 W.P.(C)No.12187 of 2023 produce copy of the order by which his father was appointed as the hereditary trustee; the document showing that the petitioner is the eldest member of the family; and the certificate issued by the concerned Village Officer stating that the petitioner is eligible for hereditary trusteeship. The petitioner duly replied the same by Ext.P2 reply dated 21.03.2022. Necessary documents were also produced along with Ext.P2. According to the petitioner, during the lifetime of his father he had sent Ext.P3 request to the 2[nd] respondent stating that due to old age and memory loss he wants to appoint the petitioner as the hereditary trustee. Thereafter, the 2[nd] respondent Deputy Commissioner published Ext.P4 notice dated 19.05.2022 about the proposal to appoint the petitioner as the hereditary trustee. On 02.06.2022, the 2[nd] respondent issued Ext.P5 notice fixing the date of hearing to 10.06.2022 regarding the matter of appointing the hereditary trustee. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel for Malabar Devaswom Board for respondents 1 to 3 and 5. Considering the nature of relief proposed to be granted, service of notice on the 4[th] 4 W.P.(C)No.12187 of 2023 respondent, who is a rival claimant, is dispensed with. 4. During the course of arguments, the learned counsel for the petitioner would confine the reliefs sought for in this writ petition as one for time bound disposal of the application dated 30.04.2022 referred to in Ext.P4 notice dated 19.05.2022 issued by the 2[nd] respondent Deputy Commissioner, Malabar Devaswom Board. 5. The learned Standing Counsel for Malabar Devaswom Board would submit that the 2[nd] respondent shall consider and pass appropriate orders on that application, within a time limit that may be fixed by this Court. 6. Having considered the submissions made at the Bar, this writ petition is disposed of, by directing the 2[nd] respondent Deputy Commissioner to take an appropriate decision on the request made by the petitioner in his application dated 30.04.2022, which is referred to in Ext.P4 notice dated 19.05.2022 of the 2[nd] respondent, strictly in accordance with law, with notice to the petitioner, the 4[th] respondent and other affected parties, if any, and after affording them an opportunity of being heard, as expeditiously as possible, at any rate, within a period of two 5 W.P.(C)No.12187 of 2023 months from the date of receipt of a certified copy of this judgment. 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 of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. 8. In **Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280]** the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed the principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the 6 W.P.(C)No.12187 of 2023 exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. 9. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. 10. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the 7 W.P.(C)No.12187 of 2023 statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. Therefore, the direction contained in this judgment to the 2[nd] respondent Deputy Commissioner to consider and take appropriate decision on the request made by the petitioner in his application dated 30.04.2022 referred to in Ext.P4 notice dated 19.05.2022 of the 2[nd] respondent is one directing the said respondent to act strictly in accordance with the statutory requirements. It is made clear that this Court has not expressed anything on the merits of the claim made by the petitioner in the application referred to in Ext.P4 notice. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** MIN 8 W.P.(C)No.12187 of 2023 ## **`APPENDIX OF WP(C) 12187/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE LETTER DATED 24.01.2022 ISSUED BY THE THIRD RESPONDENT ``` ``` Exhibit P2 ``` - **`TRUE COPY OF THE REPLY DATED 21.03.2022 SUBMITTED BY THE PETITIONER TO THE THIRD RESPONDENT`** - **`Exhibit P3 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER'S FATHER TO THE THIRD RESPONDENT`** ``` Exhibit P4 ``` ``` TRUE COPY OF THE NOTICE DATED 19.05.2022 ISSUED BY THE 2ND RESPONDENT ``` ``` Exhibit P5 TRUE COPY OF THE NOTICE DATED 02.06.2022 ISSUED BY THE 2ND RESPONDENT ``` ``` Exhibit P6 ``` ``` TRUE COPY OF THE COMPLAINT DATED 07.12.2022 SUBMITTED BY THE PETITIONER TO THE THIRD RESPONDENT ``` ``` Exhibit P7 ``` ``` TRUE COPY OF THE ADVANCE HEARING PETITION NO.A3-475/2022/MDB DATED 14.02.2023 BEFORE THE 2ND RESPONDENT ```