P.M. Narayanan v. State of Kerala, 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 21[ST] DAY OF JUNE 2022 / 31ST JYAISHTA, 1944** ## **WP(C) NO. 19138 OF 2022** ## **PETITIONER:** **P.M.NARAYANAN, AGED 85 YEARS S/O. RAVUNNI MADAYAN, CHADAYAN HOUSE, P.O. KEECHERI, ANCHAMPEEDIKA, MOTTAMMAL, KANNUR - 670 702.** **BY ADVS.M.RAMESH CHANDER (SR.) BONNY BENNY GOVIND G. NAIR BEJOY JOSEPH P.J. BALU TOM** ## **RESPONDENTS:** - **1 THE COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSE FED COMPLEX, MINI BYPASS, ERANHIPALAM, KOZHIKODE - 673 006.** - **2 DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSE FED COMPLEX, MINI BYPASS, ERANHIPALAM, KOZHIKODE - 673 006.** **3 ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, NEAR RAJAS HIGH SCHOOL, NEELESWARAM, KASARAGOD DISTRICT - 671 314.** **4 SATHEESHAN P.M., S/O. MADHAVI, PARASSINI MADAPPURA, PARASSINI KADAVU P.O., THALIPARAMBA TALUK, KANNUR DISTRICT - 670 563.** W.P.(C). No. 19138 of 2022 -2- **5 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT (DEVASWOM), REVENUE DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** **SRI S.RAJMOHAN- SR GOVERNMENT PLEADER ; SRI R.LAKSHMI NARAYAN – SC, MALABAR DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- W.P.(C). No. 19138 of 2022 ## **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 the 5[th] respondent State to appoint an officer, not below the rank of a Deputy Collector, to manage the collections in Parassini Madappura Sree Muthappan Temple and to audit the same and keep it in an account in a Nationalised Bank, till appeal Nos.1, 2, 3 and 4 of 2022, pending before the 1[st] respondent Commissioner, Malabar Devaswom Board, are disposed of. 2. Heard the learned counsel for the petitioner and also the learned Standing Counsel for Malabar Devaswom Board representing respondents 1 to 3 and also the learned Senior Government Pleader for the 5[th] respondent. Considering the nature of relief proposed to be granted, service of notice on the 4[th] respondent is dispensed with. 3. Parassini Madappura Sree Muthappan Temple situated at Anthoor Village in Kannur District is a temple under the supervisory control of Malabar Devaswom Board, which is governed by the provisions under the Hindu Religious -4- W.P.(C). No. 19138 of 2022 and Charitable Endowments Act, 1951. The said temple is a religious institution included in the list published by the 1[st] respondent Commissioner, Malabar Devaswom Board, under Section 38 of the said Act. The petitioner filed O.A.No.7 of 2021 before the 2[nd] respondent Deputy Commissioner, Malabar Devaswom Board, Kozhikode, invoking the provisions under Section 57(e) of the Act, challenging the appointment of Sri.P.M.Vijayan as the Madayan (Trustee & General Manager) of the temple. In O.A.No.7 of 2021, the petitioner filed various interlocutory applications as I.A.Nos.5 of 2021, 15 of 2021 and 16 of 2021. Sri.P.M.Vijayan filed I.A.No.17 of 2021 to vacate the ex parte order granted in favour of the petitioner in I.A.No.5 of 2021. By Ext.P2 common order dated 14.12.2021, the 2[nd] respondent Deputy Commissioner dismissed I.A.Nos.5 of 2021, 15 of 2021 and 16 of 2021 filed by the petitioner and allowed I.A.No.17 of 2021 filed by Sri.P.M.Vijayan. The aforesaid common order was one passed by the 2[nd] respondent pursuant to the direction contained in Ext.P1 judgment of this Court dated 15.11.2021 in W.P. (C)No.19640 of 2021. -5- W.P.(C). No. 19138 of 2022 4. Challenging the order dated 14.12.2021 in I.A.No.5 of 2021 in O.A.No.7 of 2021, the petitioner filed an appeal under Section 61(1) of the Act before the 1[st] respondent Commissioner, which is numbered as A.P.No.1 of 2022. That appeal was filed on 24.12.2021. After the filing of the appeal, P.M.Vijayan, the sole respondent in that appeal died on 28.12.2021. On 09.02.2022, the petitioner filed an interlocutory application in A.P.No.1 of 2022 seeking an order to implead Sri.Satheeshan P.M., the 4[th] respondent herein, as supplemental respondent No.2 in that appeal. 5. The petitioner had earlier approached this Court in W.P.(C)No.6353 of 2022, which was disposed of by Ext.P3 judgment dated 25.02.2022. Paragraphs 5 to 9 of that judgment read thus; “5. The petitioner filed Ext.P4 application in A.P.No.1 of 2022, seeking an order to implead Sri.Satheeshan P.M. as the supplemental 2[nd] respondent, since the sole respondent in that appeal, namely, Sri.P.M.Vijayan died on 28.12.2021. 6. The learned Standing Counsel for Malabar Devaswom Board would submit that the 1[st] respondent Commissioner shall consider Ext.P4 interlocutory application in Ext.P3 appeal, with notice to the 4[th] -6- W.P.(C). No. 19138 of 2022 respondent herein and thereafter the 1[st] respondent shall also consider other interlocutory applications filed in Ext.P3 appeal. 7. Having considered the submissions made by the learned Senior Counsel for the petitioner and also the learned Standing Counsel for Malabar Devaswom Board, we deem it appropriate to dispose of this writ petition with the following directions; 1. The 1[st] respondent Commissioner shall consider and pass appropriate orders on Ext.P4 application for impleadment made in Ext.P3 appeal, within a period of three weeks from the date of production of a certified copy of this judgment, after affording a reasonable opportunity to the 4[th] respondent herein, who is sought to be impleaded as supplemental respondent No.2 in that appeal, to file objections, if any. 2. After passing orders on Ext.P4 application for impleadment, the 1[st] respondent Commissioner shall pass appropriate orders on other interlocutory applications filed in Ext.P3 appeal, as expeditiously as possible, at any rate, within a further period of three weeks, after affording the person impleaded as supplemental respondent No.2 in that appeal a reasonable opportunity to file counter/objection. 8. It is made clear that this Court has not expressed anything on the merits of Ext.P4 interlocutory application or other interlocutory applications filed along with Ext.P3 appeal. -7- W.P.(C). No. 19138 of 2022 9. The relief sought for in this writ petition for time bound disposal of Ext.P3 appeal is left open. The petitioner is at liberty to approach this Court for time bound disposal of Ext.P3 appeal, in case, there is inordinate delay on its final disposal by the 1[st] respondent Commissioner.” 6. The learned Standing Counsel for Malabar Devaswom Board would point out that the order of the 1[st] respondent Commissioner appointing a Special Officer to advice/assist Madayan, by invoking the provisions under Section 20 of the Madras Hindu Religious and Charitable Endowments Act, 1951 was under challenge in W.P. (C)Nos.26237 of 2005 and 15998 of 2005 filed by the Madayan (Chief Priest), hereditary trustee and the General Manager and the said writ petitions were disposed of by the common judgment dated 04.09.2008, wherein this Court observed that the appointment of a Special Officer does not any way interfere with the powers of the trustee and that, the Commissioner rightly ordered sealing of all hundials and accounting of all income and expenditure and that is the only way to prevent pilferage of temple funds. Confirming the order of the Commissioner in HRJ3/1806/01 dated 24.08.2005 -8- W.P.(C). No. 19138 of 2022 appointing Special Officer to Sree Parassinikkadavu Muthappan Temple, this Court directed appointment of another representative by whatever designation, so that the income and expenditure are accounted and arrangements are made for proper and fair management till finalisation of the scheme. The learned Standing Counsel would submit that the said arrangement is still continuing and therefore, there is no basis for the grievance of the petitioner, which is highlighted in this writ petition. 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. The learned counsel for the petitioner could not -9- W.P.(C). No. 19138 of 2022 point out the authority of the State to interfere with the administration and management of Parassini Madappura Sree Muthappan Temple. Therefore, in the absence of any statutory duty, the petitioner cannot seek a writ of mandamus commanding the 5[th] respondent State to appoint an officer, not below the rank of a Deputy Collector, to manage the collections in Parassini Madappura Sree Muthappan Temple and to audit the same and keep it in an account in a Nationalised Bank, till appeal Nos.1, 2, 3 and 4 of 2022, pending before the 1[st] respondent Commissioner, Malabar Devaswom Board, are disposed of. 9. On the pendency of interlocutory applications, namely, I.A.Nos.1, 2, 3, 10 11 and 12 of 2022 in Appeal No.1 of 2022, the learned Standing Counsel would submit that those interlocutory applications now stand posted to 06.07.2022. The 1[st] respondent shall pass appropriate orders on those applicatons within one week from the next posting date. 10. In such circumstances, this writ petition is disposed of by directing the 1[st] respondent to pass appropriate orders -10- W.P.(C). No. 19138 of 2022 on I.A.Nos.1, 2, 3, 10 11 and 12 of 2022 in Appeal No.1 of 2022, as expeditiously as possible, at any rate, within a period of one week from 06.07.2022. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV/24/6 -11- W.P.(C). No. 19138 of 2022 ## **APPENDIX OF WP(C) 19138/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 PHOTOCOPY OF THE JUDGMENT IN WPC 19640/21 DATED 15.11.2021.** **Exhibit P2 PHOTOCOPY OF THE ORDER OF THE DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD, KOZHIKODE IN IA NO.5/21, IA NO.15/21, IA NO.16/21 & IA NO.17/21 IN OA NO.7/21 DATED 14.12.2021.** **Exhibit P3 PHOTOCOPY OF THE JUDGMENT IN WPC 6353/22 DATED 25.02.2022.**