Ramakrishna Bhandari v Malabar Devaswom Board and others

W.P.C.No.27923 of 2023 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 25[TH] DAY OF AUGUST 2023 / 3RD BHADRA, 1945** **WP(C)NO.27923 OF 2023** ## **PETITIONER:** **RAMAKRISHNA BHANDARI, AGED 72 YEARS, S/O MEINDAPPA BHANDARI, KUDAL BHANDARA GUTHU HOUSE, HOUSE NO.IX/327, KUDAL MERKALA P.O (VILLAGE) MANJESHWAR TALUK, PIN – 671324.** **BY ADVS. UMMUL FIDA C.IJLAL** - **P.PARVATHY** - **R.UDAYA KUMAR** ## **RESPONDENTS:** - **1 MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM P.O., KOZHIKODE, PIN – 673006, REPRESENTED BY ITS SECRETARY.** - **2 THE DEPUTY COMMISSIONER, THE MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM P.O., KOZHIKODE, PIN – 673006.** - **3 KUNHANA BHANDARI, S/O LATE KINHANNA BHANDARI, AGED 73 YEARS, KOLAR HOUSE, BADOOR VILLAGE, PERUMUDE P.O., KASARGODE, PIN – 671324.** - **4 E. REVI SANKARA BHAT, S/O LATE E. PADMANABA BHAT, AGED 60 YEARS, EDAKKANA HOUSE, PERUMUDE P.O., KASARGODE, PIN – 671324.** - **5 N.H LAKSHIMARAYANA BHAT, S/O N.H. KESHAVA BHAT, AGED 64 YEARS, NERIYA HOUSE, DHARMATHADKKA P.O., KASARGODE, PIN – 671324.** - **6 DIVAKAR SHETTY, AGED 60 YEARS, S/O KUSUMA K. SHETTY, KODALGUTH HOUSE, KODAL MERKLA P.O., KASARGODE, PIN – 671324.** **BY ADVS. HARISH R.MENON** - **K.T.SHYAMKUMAR(K/574/1993) K.N.ABHA(K/281/1996) A.G.PRASANTH(K/525/2014) ALEENA SEBASTIAN(K/737/2022)** W.P.C.No.27923 of 2023 2 ## **MARY HEDWIG BABY(KAR(P)/4559/2022)** ## **OTHER PRESENT:** **SC FOR MALABAR DEVASWOM BOARD-SRI. LAKSHMI NARAYANAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.C.No.27923 of 2023 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the applicant in O.A.No.12 of 2022 filed before the Deputy Commissioner, Malabar Devaswom Board seeking appointment as the hereditary trustee of Kambar Shree Durgaparameswari Temple, Manjeshwaram, which is a Controlled Institution under the 1[st] respondent Malabar Devaswom Board. The petitioner has filed this writ petition, under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent Deputy Commissioner to take necessary action in O.A.No.12 of 2022 (Ext.P1) and pass appropriate orders within a time limit to be stipulated by this Court. The document marked as Ext.P7 is the judgment of this Court dated 24.01.2023 in W.P.(C)No.36391 of 2022, which was one filed by respondents 3 to 6 herein to quash the proceedings in O.A.No.12 of 2022 (Ext.P5 in that writ petition) as illegal, without jurisdiction and against the judgment dated 28.02.2020 of this Court in W.P.(C)No.19935 of 2018. Paragraphs 4 to 8 and also the last paragraph of the judgment dated 24.01.2023 in W.P. (C)No.36391 of 2022 read thus; ''4. The learned Senior Counsel for the petitioners would contend that the 4[th] respondent Deputy Commissioner is proceeding with O.A.No.12 of 2022 wholly without jurisdiction. The 4[th] respondent ought not to have W.P.C.No.27923 of 2023 4 entertained that original application, in view of Ext.P4 judgment of this Court dated 28.02.2020 in W.P. (C)No.19935 of 2018 and the bar under Section 62 of the Madras Hindu Religious and Charitable Endowments Act. Since the 4[th] respondent is proceeding with the matter absolutely without any jurisdiction, the proceedings in O.A.No.12 of 2022 is liable to be quashed by this Court in exercise of the extraordinary jurisdiction under Article 227 of the Constitution of India. The learned Senior Counsel would also point out the pendency of Ext.P7 series of interlocutory applications filed by the petitioners to get themselves impleaded as additional respondents in O.A.No.12 of 2022. 5. The learned Standing Counsel for Malabar Devaswom Board and also the learned counsel for the 7[th] respondent would contend that, if the petitioners have a case on the maintainability of O.A.No.12 of 2022, they will have to raise the question of maintainability before the 4[th] respondent Deputy Commissioner, instead of invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 6. In **Tiny @ Antony v. Jacky and others [(2014) 6 SCC 508]** the Apex Court held that a petition under Article 226 or Article 227 of the Constitution of India can neither be entertained to decide the landlord-tenant dispute nor is it maintainable against a private individual to determine an intense dispute including the question whether one party is harassing the other party. The High Court under Article 227 has the jurisdiction to ensure that all subordinate courts as well as statutory or quasijudicial tribunals, exercise the powers vested in them within the bounds of their authority but it was not the case of the 1st respondent that the order passed by the W.P.C.No.27923 of 2023 5 Munsiff Court was without any jurisdiction or was so exercised exceeding its jurisdiction. If a suit is not maintainable, it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under Articles 226 and 227 of the Constitution of India can be exercised to question a plaint. 7. Viewed in the light of the law laid down in the decision of the Apex Court referred to supra, the petitioners cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, to quash the proceedings in O.A.No.12 of 2022 on the file of the 4[th] respondent Deputy Commissioner. If the petitioners have a case that O.A.No.12 of 2022 is not maintainable before the 4[th] respondent, in view of Ext.P4 judgment of this Court dated 28.02.2020 in W.P.(C) No.19935 of 2018 and the bar under Section 62 of the Madras Hindu Religious and Charitable Endowments Act, it is for them to raise that contention before the said respondent, in an appropriate manner, after getting themselves impleaded as the additional respondents. In such circumstances, the petitioners are not entitled to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India to quash the proceedings in O.A.No.12 of 2022 pending before the 4th respondent Deputy Commissioner. 8. In the result, this writ petition is disposed of by directing the 4th respondent Deputy Commissioner to consider and pass appropriate orders on Ext.P7 series of interlocutory applications filed by the petitioners in O.A.No.12 of 2022 and take an appropriate decision thereon, before proceeding further with the said original application, with notice to the petitioners and also to the W.P.C.No.27923 of 2023 6 7th respondent. In case, the 7th respondent is yet to file objections in Ext.P7 series of interlocutory applications, the same shall be filed within a period of two weeks from the date of receipt of a certified copy of this judgment. It is made clear that this Court has not expressed anything on the legal and factual contentions raised by the petitioners and the 7th respondent and it is for them to raise all such contentions before the 4th respondent at appropriate stage.'' 2. On 23.08.2023, when this writ petition came up for admission, the learned Standing Counsel for Malabar Devaswom Board took notice on admission for respondents 1 and 2. Notice on admission by special messenger was ordered to respondents 3 to 6. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for Malabar Devaswom Board for respondents 1 and 2 and also the learned counsel for respondents 3 to 6. 4. In Ext.P7 judgment dated 24.01.2023 in W.P. (C)No.36391 of 2022 this Court made it clear that if respondents 3 to 6 herein (petitioners therein) have a case that O.A.No.12 of 2022 is not maintainable before the 4[th] respondent Deputy Commissioner, in view of the judgment of this Court dated 28.02.2020 in W.P.(C)No.19935 of 2018 and the bar under Section 62 of the Madras Hindu Religious and Charitable Endowments Act, it is for them to raise that contention before W.P.C.No.27923 of 2023 7 the said respondent, in an appropriate manner, after getting themselves impleaded as the additional respondents. 5. The learned counsel for the petitioner would submit that after Ext.P7 judgment of this Court, the respondents 3 to 6 have not chosen to file an application before the 2[nd] respondent Deputy Commissioner to raise the question of maintainability as a preliminary issue. 6. The learned counsel for respondents 3 to 6 would submit that the question of maintainability of O.A.No.12 of 2022 has been specifically raised in Ext.P9 counter statement filed by the said respondents before the 2[nd] respondent Deputy Commissioner. 7. Having considered the pleadings and materials on record and the submissions made at the Bar, we deem it appropriate to dispose of this writ petition with the following directions; (i) within two weeks from the date of receipt of a certified copy of this judgment, respondents 3 to 6 shall file an application before the 2[nd] respondent Deputy Commissioner to decide the question of maintainability of O.A.No.12 of 2022 as a preliminary issue; (ii) after affording a reasonable opportunity to the petitioner herein to file objections to that application, the 2[nd] respondent Deputy Commissioner shall decide the question of maintainability of O.A.No.12 of 2022, after adverting to the rival contentions, as expeditiously as W.P.C.No.27923 of 2023 8 possible, at any rate, within a period of two months; (iii) in case, the question of maintainability is found against respondents 3 to 6, the 2[nd] respondent Deputy Commissioner shall finally dispose of O.A.No.12 of 2022, as expeditiously as possible, at any rate, within a further period of three months. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** Dxy W.P.C.No.27923 of 2023 9 ## **APPENDIX OF WP(C) 27923/2023** **PETITIONER EXHIBITS** - **Exhibit P1 TRUE COPY OF THE APPLICATION DATED 26.04.2022 NUMBERED AS O.A NO 12 OF 2022 ON THE FILES OF THE 2ND RESPONDENT** - **Exhibit P2 TRUE COPY OF THE LETTER DATED 9.11.2022 ISSUED BY THE 2ND RESPONDENT TO RESPONDENTS 3 TO 6** - **Exhibit P3 TRUE COPY OF THE IMPLEADING PETITION DATED 25.08.2022 FILED BY THE 3RD RESPONDENT** - **Exhibit P4 TRUE COPY OF THE IMPLEADING PETITION DATED 25.08.2022 FILED BY THE 4TH RESPONDENT** - **Exhibit P5 TRUE COPY OF THE IMPLEADING PETITION DATED 25.08.2022 FILED BY THE 5TH RESPONDENT** - **Exhibit P6 TRUE COPY OF THE IMPLEADING PETITION DATED 14.07.2022 FILED BY THE 6TH RESPONDENT** **Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 24.01.2023 IN W.P(C) NO. 36391 OF 2022** **Exhibit P8 TRUE COPY OF THE ORDER DATED 20.04.2023 ISSUED BY THE 2ND RESPONDENT** **Exhibit P9 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENTS 3 TO 6 BEFORE THE 2ND RESPONDENT**