Nishanth K.K. v. State of Kerala and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945 WP(C) NO. 32870 OF 2023 ``` ## **`PETITIONER:`** ``` NISHANTH K.K. AGED 41 YEARS S/O NARAYANAN,BUS CONDUCTOR, RESIDING AT K.P.HOUSE, CHEDICHERI, PERUVALATH PARAMBU, P.O.IRIKKUR, TALIPARAMB, KANNUR., PIN - 670593 ``` ## **`BY ADV MAHESH V RAMAKRISHNAN`** ## **`RESPONDENTS:`** |**`1`**|**`STATE OF KERALA`**| |---|---| ||**`REP. BY ITS SECRETARY TO GOVERNMENT, REVENUE`**| ||**`(DEVASWOM DEPARTMENT, SECRETARIST,`**| ||**`THIRUVANANTHAPURAM -, PIN - 695001`**| |**`2`**|**`THE MALABAR DEVASWAM BOARD`**| ||**`REPRESENTED BY ITS SECRETARY, HOUSEFED COMPLEX,`**| ||**`P.O.ERANHIPALAM, KOZHIKODE -, PIN - 673006`**| |**`3`**|**`DEPUTY COMMISSIONER,`**| ||**`MALABAR DEVASWAM BOARD, HOUSEFED COMPLEX,`**| ||**`P.O.ERANHIPALAM, KOZHIKODE -, PIN - 673020`**| |**`4`**|**`KAROTH NARAYANAN,`**| ||**`S/O KUHAMBU, HEREDITARY TRUSTEE REPRESENTING KAROTH`**| ||**`TARAWARD, PARAPPOOL, P.O.ARIYIL, KANNUR -, PIN -`**| ||**`670143`**| |**`5`**|**`NEELANKOL NARAYANAN,`**| ||**`S/O KUNHIKANNAN, HEREDITARY TRUSTEE REPRESENTING`**| ||**`NEELANKOL TARAWARD, NALANTHADAM, P.O.ARIYIL, KANNUR`**| ||**`-, PIN - 670143`**| |**`6`**|**`ALATHINKAL NARAYANAN`**| ||**`S/O POKKAN, HEREDITARY TRUSTEE REPRESENTING`**| 2 W.P.(C) No.32870 of 2023 ``` ALATHINKAL TARAWARD, CHERA, MORAZHA, P.O.MOTTAMMAL, KANNUR -, PIN - 670331 ``` ``` 7KOOVODAN LAKSHMANAN, S/O CHAVINIYAN, HEREDITARY TRUSTEE REPRESENTING KOOVODANTARAWARD, NEAR MATTOOL VILLAGE OFFICE, P.O.MATTOOL, KANNUR -, PIN - 670302 ``` - **`8 THE PRESIDENT, PARAPPOOL SREE BHAGAVATHI TEMPLE COMMITTEE, PARAPPOOL, P.O.ARIYIL, KANNUR -, PIN - 670143`** - **`9 THE SECRETARY, PARAPPOOL SREE BHAGAVATHI TEMPLE COMMITTEE, PARAPPOOL, P.O.ARIYIL, KANNUR -, PIN - 670143`** ``` SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ; SRI R .LAKSHMI NARAYAN- STANDING COUNSEL- MALABAR DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 06.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C) No.32870 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is a devotee of Parappool Sree Bhagavathi Temple, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent Deputy Commissioner, Malabar Devaswom Board, to consider Ext.P2 petition dated 15.09.2023, which is one filed invoking the provision under Section 57(a) of the Madras Hindu Religious and Charitable Endowments Act, 1951, seeking a declaration that Parappool Sree Bhagavathi Temple is a religious institution, and pass appropriate orders, within a time frame to be fixed by this Court, after affording an opportunity of being heard to the petitioner and other parties. 2. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for the 1[st] respondent and also the learned Standing Counsel for Malabar Devaswom Board for respondents 2 and 3. 3. In this writ petition filed on 05.10.2023, the petitioner is seeking a writ of mandamus for time bound consideration of Ext.P2 petition dated 15.09.2023 made before the 3[rd] respondent, invoking the provision under Section 57(a) of the Act, for a declaration that Parappool Sree Bhagavathi Temple (Kavu) is a religious institution and to frame a scheme for proper administration. 4 W.P.(C) No.32870 of 2023 4. 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. Paragraph 15 of the said decision reads thus; " **15.** .......... There is abundant authority in favour of the proposition 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. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute to enforce its performance. (See Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer [1966 (1) SCR 120 : AIR 1966 SC 334], Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]. In the instant case, it has not been shown by respondent No. 1 that there is 5 W.P.(C) No.32870 of 2023 any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not ## 5. 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 that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the 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. Paragraphs 11 and 12 of the said decision read thus; " **11.** The principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal 6 W.P.(C) No.32870 of 2023 ## Remedies' by F. G. Ferris and F. G. Ferris, Jr. : **Note 187** .- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed. **Note 192** .- Mandamus is, subject to the 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. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. **Note 196** .- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well settled principles which have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not 7 W.P.(C) No.32870 of 2023 denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. **Note 206** .- .......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action. **12.** These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145 : AIR 1977 SC 2149]** , after referring to the earlier decisions in **Lekhraj Satramdas Lalvani v. N.M. Shah [AIR 1966 SC 334]** , **Dr. Rai Shivendra Bahadur v. Nalanda College [AIR 1962 SC 1210]** and **Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]** , this Court observed as follows in paragraph 15 of the reports: "15. .......... There is abundant authority in favour of the proposition 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 the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public 8 W.P.(C) No.32870 of 2023 duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. ......... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." Therefore, 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. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant bank to declare their account as NPA from 31[st] March, 2000 and apply RBI guidelines to their case." 6. The petitioner, who filed Ext.P2 petition dated 15.09.2023 before the 3[rd] respondent cannot invoke the writ jurisdiction of this Court on 05.10.2023, by filing the writ petition under Article 226 of the Constitution of India, for time bound consideration of Ext.P2 petition, since in the said petition the 2[nd] respondent Deputy Commissioner has 9 ## W.P.(C) No.32870 of 2023 to take a decision as to the status of the institution, i.e., whether the institution is a religious institution as defined in Clause (15) of Section 6 of the Madas Hindu Religious Institutions Act, 1951, after affording both sides an opportunity to substantiate their contentions. In that view of the matter, at this point of time, the petitioner cannot contend that there is failure on the part of the 3[rd] respondent in discharging the statutory obligation. 7. In view of the above legal position, the learned counsel for the petitioner seeks permission to withdraw this writ petition. In such circumstances, this writ petition is dismissed as withdrawn; however, without prejudice to the right of the petitioner to approach this Court again, if there is inordinate delay on the part of the 3[rd] respondent in the disposal of Ext.P2 petition. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **SOPHY THOMAS, JUDGE** Yd 10 W.P.(C) No.32870 of 2023 ## **`APPENDIX OF WP(C) 32870/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` ``` TRUE COPY OF THE RESURVEY AND SETTLEMENT REGISTER DATED NIL OF CHIRACKAL TALUK. ``` ``` Exhibit P2TRUE COPY OF THE PETITION DATED 15-09-2023 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. ```