P. Sreedharan Nambeeshan & Para Nambi Family v. State of Kerala & Others

**PETITIONER(S)** **-------------** - **1 P.SREEDHARAN NAMBEESHAN, S/O.DEVAKIBRAHMANIAMMA,HEREDITARY TRUSTEE, TRIPURANTHAKA DEVASWOM, SREESADAN, NAMBISSAN COLONY, DOWN HILL PO,MALAPPURAM,PIN 676519 2 PARA NAMBI FAMILY, REPRESENTED BY P.SREEDHARAN NAMBEESHAN, S/O.DEVAKI BRAHMANI AMMA, HEREDITARY TRUSTEE, TRIPURANTHAKA DEVASWOM, SREESADAN, NAMBISSAN COLONY, DOWN HILL PO, MALAPPURAM,PIN 676519** **BY ADVS.SMT.SREEDEVI KYLASANATH SRI.ACHUTH KYLAS SRI.R.MAHESH MENON SRI.KDEAGO JOHN** ## **RESPONDENT(S):** **--------------** **1. STATE OF KERALA,** - **REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001** **2. THE SECRETARY,** - **DEVASWOM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001** **3. MALABAR DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, CIVIL STATION, KOZHIKODE,PIN 673001** **4. THE COMMISSIONER,** - **MALABAR DEVASWOM BOARD, CIVIL STATION, KOZHIKODE, PIN 673001** **5. THE COMMISSIONER,** - **H.R. & C.E DEPARTMENT, ENDOWMENT BOARD, CIVIL STATION, KOZHIKODE 673001** **WP(C).No. 13658 of 2018 (F)** **---------------------------** ## **6. THE DEPUTY COMMISSIONER,** **H.R.& C.E DEPARTMENT, CIVIL STATION,KOZHIKODE 673001** **R1,R2 & R5,R6 BY SENIOR GOVERNMENT PLEADER SRI.T.K.ANANTHAKRISHNAN R3,R4 BY SRI.R.LAKSHMI NARAYAN, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.V.** **WP(C).No. 13658 of 2018 (F) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 A TRUE COPY OF THE SETTLEMENT DEED NO. 2400/1914 DATED NIL EXHIBIT P2 TRUE COPY OF THE SCHEME FOR SREE THRIPURANTHAKA TEMPLE DATED 29.08.2002 EXHIBIT P3 A TRUE COPY OF THE COMMUNICATION DATED 05.01.1971 ISSUED BY THE THEN HEREDITARY TRUSTEE TO THE 3RD RESPONDENT REQUESTING FOR THE STATUTORY RECOGNITION OF THE COMMITTEE CONSTITUTED FOR THE MANAGEMENT OF THE DEVASWOM AND TO RELEASE THE FUND FOR THE MANAGEMENT OF THE DEVASWOM EXHIBIT P4 TRUE COPY OF THE ORDER DATED 03.11.2015 APPOINTING PETITIONER AS HEREDITARY TRUSTEE EXHIBIT P5 TRUE COPY OF THE UNDERTAKING DATED 04.12.2017 EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES OF THE KERALA SECRETARIAT OFFICE MANUAL** **RESPONDENTS EXHIBITS: NIL --------------------** **/TRUE COPY/** **K.V. P.S.TO JUDGE 18.06.2018** ## **P.R.RAMACHANDRA MENON &** ## **DEVAN RAMACHANDRAN, JJ.** ============================ W.P.(C) No.13658 of 2018 ============================ Dated this the 28[th] day of May, 2018 ## **JUDGMENT** ## **Ramachandra Menon, J.** The first petitioner who is a member of the second petitioner family and the Hereditary Trustee of Sree Tripuranthaka Devaswom is before this Court, joining hands with another representative of the family as the second petitioner, seeking the following prayers: “i. By invoking the power of judicial review vested in this Hon'ble Court under Article 226 of Constitution of India, declare that the provision of Madras Hindu Religious and Charitable Endowment Act, 1951 (Madras Act XIX of 1951) and rules framed under, Madras Hindu Religious and Charitable Endowment Amendments Act 2008 and the Madras Hindu Religious and Charitable Endowment (Amendments) Act, 2014 as unconstitutional and hence struck off. ii. To issue a writ of certiorari or any other writ order directing the respondents herein to produce the records, all relating orders, notifications, circulars etc., and actions taken there under, and quash the same. iii. To declare that the petitioners are entitled to get the Sree Thripuranthaka Devaswom Temples and property restored to the family of Para Nambi in Malappuram. iv. To declare that the Para Nambi family represented by the petitioner has full title and vested rights to manage the affairs of Devaswom including this temple and Devaswom. W.P.(C) No.13658 of 2018 2 v. To declare that the principles and directions laid down by this Honourable Court in T.G.Mohandas v. State of Kerala & others, W.P.(C) No.33301 of 2015 judgment is also to be made applicable in the case of Malabar Devaswom Board as well.” 2. Heard the learned counsel for the petitioners as well as the learned standing counsel for the Devaswom, besides the learned Government Pleader appearing on behalf of the official respondents. 3. Going by the pleadings and prayers, it is seen that the main heartburn of the petitioners is with regard to the rights and liberties being exercised by the Devaswom in respect of the affairs of the Temple, in turn seeking to declare that they are entitled to get the Sree Thripuranthaka Devaswom Temple and the property restored to the family of Para Nambi in Malappuram and that the said family represented by the first petitioner has the full title and vested right to manage the affairs of the Temple, besides seeking to declare that the observation made by this Court in **T.G.Mohandas v. State of Kerala & others** rendered recently is to be made applicable to the case in hand. The case has got a long history, in so far as various litigations have been pursued by the first petitioner, who is stated as the hereditary trustee of the Temple. 4. The sequence of events reveals that Ext.P1 settlement W.P.(C) No.13658 of 2018 3 was entered in the year 1914 with regard to the property and the Temple, which came to be vested with the first petitioner in the due course. Earlier, the then Karanavar of the Temple who was managing the affairs of the temple and who was the hereditary trustee, sent communication dated 05.01.1971 requesting to take over the Temple and the administration by the Devaswom, as he was finding it extremely difficult to run the same due to various constraints, particularly involving financial constraints. The situation was taken note of by the devotees and the general public at large. Consequently, a meeting was convened, which led to the requisition made to the authorities of the Devaswom to take over the Temple. The temple was taken over by the Devaswom in conformity with the relevant provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951. It is pointed out by the petitioners that in the year 2002, pursuant to the proceedings in O.A.No.13/2002, Ext.P2 Scheme was formulated and the administration was being carried out accordingly. As per clause 2 of Ext.P2 Scheme, the administration of the temple has to be carried out by the Hereditary Trustee and the Non-Hereditary Trustees appointed by the Devaswom. The selection and appointment of the Non- W.P.(C) No.13658 of 2018 4 Hereditary Trustees were challenged by the aggrieved parties by filing W.P.(C) No.6718/2004 along with the connected cases which were finalised as per the common judgment dated 27.10.2005. Taking note of the particular facts and circumstances, the selection made by the Devaswom Board was interdicted and appropriate directions were given to have it conducted afresh. Though the same was sought to be challenged by approaching the Apex Court and an order of status quo was obtained, the proceedings were subsequently withdrawn. 5. The predecessor in interest of the petitioners approached this Court again, by filing W.P.(C)No.36545/2005, with respect to the appointment of Non-Hereditary Trustees. The petitioner herein had moved this Court by filing W.P.(C)No.10691/2014 seeking for a direction to appoint the petitioner as the 'fit person' of the Hereditary Trustee of the Thripuranthaka Devaswom and on finalization of the matter, the petitioner was appointed as the 'fit person' and was continuing as such. Subsequently, W.P.(C) No.7484/15 was filed for allowing the petitioner to continue as a 'fit person', until it was revoked by the then Hereditary Trustee. The said matter was disposed of, directing the Devaswom to pass appropriate orders after affording an opportunity of hearing to W.P.(C) No.13658 of 2018 5 the parties concerned. The litigation continued by way of W.P. (C) No.3525/15 challenging the selection and appointment of the Non-Hereditary Trustees. The matter was disposed of with liberty to approach the statutory authority. Thereafter, the petitioner turned up by filing W.P.(C) No.41190/2016 seeking to engage a 'full time security guard', which was disposed of by directing the Devaswom to pass appropriate orders. Some stringent observations were also made, for mulcting the liability upon the office bearers/authorities, if any inaction leading to possible mishap happened in the meanwhile. Another petition was moved by the petitioner by filing W.P.(C)No.27860/17 with regard to the appointment of a 'full time Executive Officer' and the said matter was also closed, based on the submission made across the Bar. The next case in the series is W.P.(C) No.35800/17, seeking a direction not to appoint any politicians or businessmen as Non-Hereditary Trustees, wherein interference was declined by this Court, holding that the prayers were premature. The petitioner was not prepared to leave it and he approached this Court again by filing W.P.(C) No.1705/18, almost with similar prayers in connection with the subsequent events. The main contention was with reference to lack of W.P.(C) No.13658 of 2018 6 consultation with the Hereditary Trustee. The stand of the Devaswom was that no such consultation is ever intended under the Statute and that reliance sought to be placed on Section 39(2) of the Act was not applicable, since it was in connection with the appointment of Non-Hereditary Trustees when there was a failure on the part of Hereditary Trustee in managing the affairs of the Temple and the subsequent filling up of the vacancy, if at all any, under Section 39(5) of the Act. The said matter was disposed of by this Court, particularly making a reference to the course of action available in view of the judgment dated 27.10.2005 in W.P.(C) No.6718/2004 and connected cases. This Court directed the persons who were already identified by the Devaswom to be placed for consideration and to have the matter finalised after considering the objections, if any, in response to the same. 6. Incidentally, it was brought to the notice of this Court that some of the observations made in the said judgment, particularly in paragraph 12, were stated as detrimental to the interests of the Devaswom and hence the same was sought to be reviewed by filing R.P.No.227/2008. The R.P. came up for consideration before this Court on 27.03.2018, which was W.P.(C) No.13658 of 2018 7 disposed of as per the order passed on the said date making the position clear as to the scope of the judgment in W.P.(C) No.1705/2018. It was accordingly, that the matter was considered by the Assistant Commissioner, Malabar Devaswom Board, who passed an order holding that the objection raised by the petitioner was without substance, in turn passing final order as to the selection and appointment of the Non-Hereditary Trustees. This presumably made the petitioner to approach this Court again, challenging the vires of the Statute mainly contending that the Temple was taken over by the Devaswom without complying with the formalities and that the power invoked was not liable to be given effect to; the provisions as to it being ultra vires to the Constitution. It was also contended that the then Karanavar, who was the hereditary trustee of the temple, did not have any power to surrender the properties belonging to the Deveswom, by virtue of which, the family belonging to the Temple has been put to extreme loss and difficulties, besides infringement of the constitutional Mandate. 7. In spite of detailed hearing, the petitioners could not substantiate the grounds sought to be raised in support of the relief sought for. As mentioned earlier, the 1[st] petitioner has W.P.(C) No.13658 of 2018 8 been filing various proceedings at different points of time, based on the very same provision of law now under challenge and was the beneficiary at some point of time, though he has lost it at some other point. Apart from the fact that the pleadings have not been substantiated to the satisfaction of this Court, the Statute by itself has stood the test of time and the petitioner is no more justified in raising any contention challenging the vires of the Statute. What made the same unconstitutional, is not established and the petitioner has virtually conceded that the property was taken over by the Devaswom Board pursuant to the requisition made by the then Hereditary Trustee and pursuant to the outcome of the meeting of the devotees and the general public in the particular circumstances, finding it difficult to meet the day to day needs of the Temple because of financial stringency. There was absolutely no element of coercion or compulsion from the part of the Devaswom in taking over the Temple more than 45 years ago. As such, the present attempt of the petitioner to seek for a declaration and mandamus to have the property restored to the petitioners' family is something which cannot be legally or factually sustained. We find that the attempt made by the petitioners virtually amounts to an abuse of W.P.(C) No.13658 of 2018 9 the process and is liable to be dismissed. 8. When the petitioners contend that the then Karanavan or the Hereditary Trustee did not have any power to surrender the property or to make any requisition to the Board to take over the Temple, detrimental to the rights and interests of the other members of the family, it becomes a matter of civil dispute and the appropriate remedy, if at all any, lies elsewhere. That apart, one of the main reliefs sought for is for issuance of a writ of certiorari, which being rather vague and obscure, cannot be granted by this Court under any circumstance. We find it appropriate to allert the petitioners about the serious consequences in pursuing such litigations without proper basis. We dismiss the writ petition reluctantly and refrain from awarding any cost, for the time being. ## Sd/- **P.R.RAMACHANDRA MENON JUDGE** stu ## Sd/- **DEVAN RAMACHANDRAN JUDGE**