PAPPINSSERYVEETIL MEENAKSHI VARASIAR and PAPPINISSERYVEETTIL BHARATHI VARASIAR v. SRI V.V. UNNIKRISHNAVARIYAR, SREE KALARIVATHUKKAL BHAGAVATHI TEMPLE (Chirakkal Kovilakam Devaswom Group) 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 ``` ``` WEDNESDAY, THE 28[TH] DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944 ``` ## **`W.P.(C)NO.30616 OF 2022`** ## **`PETITIONERS:`** ``` 1 PAPPINSSERYVEETIL MEENAKSHI VARASIAR, AGED 95 YEARS, D/O LATE NARAYANA VARASIAR, NOW RESIDING AT "INDIRA NIVAS", NEAR KADALAYI SREEKRISHNA TEMPLE, CHIRAKKAL P.O., KANNUR, PIN - 670011 ``` ``` 2 PAPPINISSERYVEETTIL BHARATHI VARASIAR, AGED 68 YEARS, D/O PAPPINISSERIVEETIL MEENAKSHI VARASIAR, RESIDING AT "INDIRA NIVAS", NEAR KADALAYI SREEKRISHNA TEMPLE, CHIRAKKAL P.O.,KANNUR, PIN - 670011 ``` ``` BY ADVS. M.K.SUMOD ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) VIDYA M.K. THUSHARA.K ``` ## **`RESPONDENTS:`** ``` 1 SRI. V.V. UNNIKRISHNAVARIYAR, AGED 50 YEARS, S/O K. VARRIER, ``` W.P.(C)No.30616 of 2022 2 ``` RESIDING AT "VADAKKEVEEDU", SREE MORAZHA SIVA TEMPLE, MORAZHA P.O., KANNUR, PIN - 670331 ``` - **`2 SREE KALARIVATHUKKAL BHAGAVATHI TEMPLE, REPRESENTED BY ITS EXECUTIVE OFFICER, CHIRAKKAL KOVILAKAM DEVASWOM, CHIRAKKAL P.O.,KANNUR, PIN - 670011`** - **`3 MALABAR DEVASWOM BAORD, REPRESENTED BY ITS SECRETARY, HOUSEFED COMPLEX, P.O. ERANHIPPALAM, KOZHIKODE, PIN - 673006`** - **`4 P.M. MOHANAN NAMBEESAN, S/O NARAYANAN NAMBEESAN, AGE NOT KNOWN TO THE PETITIONER, RESIDING AT "HARISREE NIVAS", NANIYOOR NAMBRAM, MULLAKKODI P.O., KANNUR, PIN - 670602`** ``` BY ADV. R. LAKSHMI NARAYANAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C)No.30616 of 2022 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 order dated 11.06.2020 of the Deputy Commissioner, Malabar Devaswom Board in O.A.No.4 of 2019 and Ext.P7 order dated 13.07.2022 of the Devaswom Commissioner in A.P.No.4 of 2020. The petitioners have also sought for a declaration that the 2[nd ] petitioner is the hereditary pookazhakam of the Sreekalarivathukkal Bhagavathi Kshethram falling under the Chirakkal Kovilakam Devaswom Group, Kannur District; a writ of mandamus commanding the 2[nd] and 3[rd] respondents to correct their internal documents by restoring the pookazakam of the Sreekalarivathukkal Bhagavathi Kshethram falling under the Chirakkal Kovilakam Devaswam Group, Kannur District as hereditary; a writ of mandamus commanding the 2[nd] and 3[rd] respondents to reinstate the 2[nd] petitioner as pookazhakam of the Sreekalarivathukkal Bhagavathi Kshethram falling under the Chirakkal Kovilakam Devaswam Group, Kannur District; a writ of mandamus commanding the 2[nd] and 3[rd] respondents to pay all W.P.(C)No.30616 of 2022 4 the legally payable back wages and other benefits to the 2[nd] petitioner for the period she is kept out of service pursuant to Ext.P7 order. 2. On 27.09.2022, when this writ petition came up for admission, the learned Standing Counsel for Malabar Devaswom Board raised a question of maintainability of this writ petition, in view of the statutory remedy available under Section 62 of the Madras Hindu Religious and Charitable Endowments Act, 1951. 3. Heard the learned counsel for the petitioners and also the learned Standing Counsel for Malabar Devaswom Board for the 3[rd] respondent. Considering the nature of relief proposed to be granted, service of notice on respondents 1, 2 and 4 is dispensed with. 4. Section 62 of the Act, which deals with suits and appeals, reads thus; **“** 62. Suits and appeals.- (1) Any party aggrieved by an order passed by the Commissioner- (i) under Section 61, sub-section (1) or sub-section (2), and relating to any of the matters specified in section 57, Section 58 or Section 60; or (ii) under Section 57, Section 58 or Section 60 read with sub-section (1)(a), (2) or (4)(a) of Section 19 may, within ninety days from the date of the receipt of such order by W.P.(C)No.30616 of 2022 5 him, institute a suit in the Court against such order; and the Court may modify or cancel such order, but it shall power to stay the Commissioner's have no order pending the disposal of the suit. (2) Any party aggrieved by a decree of the Court under sub section (1) may, within ninety days from the date of the decree, appeal to the High Court. (3) (a) any scheme for the administration of a religious institution settled or modified by the court in a suit under sub-section (1) or on an appeal under sub-section (2) or any scheme deemed under section 103, clause (d), to have been settled or modified by the Court may, at any time be modified or cancelled by the Court on an application made to it by the Commissioner, the trustee or any person having interest. (b) Any party aggrieved by an order of the Court under clause (a) may, within ninety days from the date of the order, appeal to the High Court.” 5. The main relief sought for in this writ petition is a writ of certiorari to quash Exts.P6 and P7 orders. Ext.P6 is the order passed by the Deputy Commissioner of Malabar Devaswom Board in O.A.No.4 of 2019 dated 11.06.2020. Challenging that order, the petitioners filed A.P.No.4 of 2020 before the Devaswom Commissioner, which ended in dismissal by Ext.P7 order dated 13.07.2022. The statutory remedy open to the petitioner is to W.P.(C)No.30616 of 2022 6 challenge Ext.P7 order, by invoking the provisions under Section 62 of the Act by approaching the competent Civil Court. 6. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** , the Apex Court held that nonentertainment 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 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. 7. 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 W.P.(C)No.30616 of 2022 7 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 Das Agarwal's case (supra)** , 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 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. W.P.(C)No.30616 of 2022 8 8. In **Thansingh Nathmal's case (supra)** 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 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 W.P.(C)No.30616 of 2022 9 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 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. 9. In **Titaghur Paper Mills' case (supra)** a ThreeJudge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in **Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336]** at page 356 in the following passage: "There are three classes of cases in which a liability may W.P.(C)No.30616 of 2022 10 be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in that passage was approved by the House of Lords in **Neville v. London Express Newspaper Ltd.[1919 AC 368]** and has been reaffirmed by the Privy Council in **Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of State v. Mask and Co. [AIR** **1940 PC 105]** . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 10. In **Pavithran V. State of Kerala (2009 (4) KHC 4)** , a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final. 11. In view of the law laid down in the decisions referred to supra, conclusion is irresistible that, in order to challenge W.P.(C)No.30616 of 2022 11 Ext.P7 order, the petitioners have to invoke the statutory remedy provided under Section 62 of the Act. 12. In such circumstances, this original petition filed on 26.09.2022 is dismissed as not maintainable, without prejudice to the right of the petitioners to invoke the statutory remedy provided under Section 62 of the Act. The legal and factual contentions raised by the petitioners are left open to be raised before the appropriate forum at the appropriate stage. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** MIN