R.P. Nos. 897 of 2016 & 214 of 2017 in W.P.(C).No.18850 of 2016

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 5TH DAY OF JUNE 2017/15TH JYAISHTA, 1939 RP.No. 897 of 2016 () IN WP(C).18850/2016 ------------------------------------------- AGAINST THE JUDGMENT IN WP(C) 18850/2016 DATED 19-08-2016 REVIEW PETITIONERS/PETITIONERS: -------------------------------- 1. DR.A.HARINARAYANAN CHAIRMAN, SREE PARTHASARADHI KSHETHRA RAKSH SAMITHY, MAMIYOOR, GURUVAYOR AND CHAIRMAN AND THE SAI SANJEEVANI CHARITABLE TRUST, REG NO 154/IV/04, ATHIKKAL BUILDINGS, GURUVAYUR, RESIDING AT THIKKAL HOUSE, MAMIYOOR, GURUVAYUR 670 101. 2. PRASAD KAKKASSERY, GENERAL SECRETARY DISTRICT COMMITTEE, HINDU IYKYAVEDI, THRISSUR BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH RESPONDENTS/RESPONDENTS: ---------------------- 1. THE MALABAR DEVASWOM BOARD MALABAR DEVASWOM BOARD, KOZHIKODE 673 004 2. THE COMMISSIONER OF MALABAR DEVASWOM BOARD KOZHIKODE 673 004. 3. THE DEPUTY COMMISSIONER OF MALABAR DEVASWOM BOARD KOZHIKODE 673 004 4. SRI VIJAYAN KALLANGARA, THIRUVENIKIDAN GURUVAYUR 680 101. 5. SRI. SANKARANARAYANAN - MELSANTHI, SREE PARTHASARADHI TEMPLE, GURUVAYUR 680 101 6. SREE PARTHASARADHI TEMPLE EMPLOYEES UNION REPRESENTED BY ITS SECRETARY SHRI UNNI VARANNATT, GURUVAYUR 680 101 7. SRI. SREEKUMAR LOWER DIVISION CLERK,SREE PARTHASARADHI TEMPLE, GURUVAYUR 680 101 8. THE PRESIDENT SREE PARTHASARADHI KSHETHRA BHARANA SANGHAM, GURUVAYUR 680 101 9. THE SECRETARY - SREE PARTHASARADHI KSHETHRA BHARANA SANGHAM, GURUVAYUR 680 101 RP.No. 897 of 2016 2 - 10.SRI PANTHALATH RAJAN - CONVENOR, ASHTAMIROHINI AGHOSHA SAMITHI, PARTHASARADHI TEMPLE, GURUVAYUR 680 101 - 11.SRI, SREEKUMAR, KESAVA KRIPA PUTHAMBALLY P.O, MAMMIYOOR 680 101 - 12.THE SECRETARY - PYTHRIKAM, DHINAVARTHAAKKU SAMEEPAM, GURUVAYUR 680 101 - 13.SHRI ARAVINDAN PALLATH - PRESIDENT NSS KARAYOGAM, MAMMIYOOR, GURUVAYUR 680 101 - 14.SHRI K.P UIDAYAN COUNCILLOR 28TH WARD, GURUVAYUR, MUNICIPALITY, GURUVAYUR 680 101 15. SHRI K.T. SIVARAMAN CONVENOR, HINDU PARLIAMENT, GURUVAYUR PALAKKAVIL P.O, VADAKKEKKAD, THRISSUR DISTRICT PIN 679 562 16.SHRI M. RAJAGOPALAN PRESIDENT, MAMMIYOOR AYYA BHAKTHA SANGHAM, MAMMIYOOR, GURUVAYUR 680 101 17. SMT. C. MUKAMI AMMA PRESIDENT, NSS KARAYOGAM, THIRUVENKITAM, GURUVAYUR 680 101. 18. SRI. K. HARIHARAN PARTHASARADHI KSHETRA ULSAVAGHOSHA COMMITTEE, GURUVAYUR 680 101 19. SRI MOHANAN.M MAMALAKKUTTU HOUSE, KARAKKADU P.O, GURUVAYUR 680 101 20. SRI. SANESH PACHUNGAL THAIKKADU, GURUVAYUR 680 101 21. SRI YADULAL LAL BHAVAN, THIRUVENKITAM, GURUVAYUR 680 101 22. SRI RATHEESH KAPPATHAYAL, THIRUVENKITAM, GURUVAYUR 680 101 23. SRI. MANJUNATH, VALIYIL THIRUVENKITAM, GURUVAYUR 680 101 24. SRI. VIPIN, PALIYATH THIRUVENKITAM, GURUVAYUR 680 101 25. SRI KANNAN AKAMPADI, THIRUVENKITAM, GURUVAYUR 680 101 26. SRI. SUDHEER CHEKKANAD HOUSE, THIRUVENKITAM, GURUVAYUR 680 101 27. SRI AJITH KUMAR T.S THYPARAMBIL, MAMMIYOOR, GURUVAYUR 680 101 28. SHRI ABILASH A.K AAYINGAPARAMBIL, NENMENI P.O, GURUVAYUR 680 101 RP.No. 897 of 2016 3 29. SUMESH C.L CHENNANKAM, GURUVAYUR 680 101 BY GOVERNMENT PLEADER G SUDHAKARA PRASAD BY SRI.K.MOHANAKANNAN BY SRI.M.MANOJKUMAR (CHELAKKADAN) BY SRI.MAHESH V.RAMAKRISHNAN, SC, MALABAR DEVASWOM BO THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 05-062017, ALONG WITH RP NO.214/2017 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **A.M.SHAFFIQUE & ANU SIVARAMAN, JJ.** ## **= = = = = = = = = = = = = = = = = = = = R.P.Nos.897 of 2016 & 214 of 2017 In** ## **W.P.(C).No.18850 of 2016** **= = = = = = = = = = = = = = = = = = = = Dated this the 5[th] day of June, 2017** ## **O R D E R** ## **Anu Sivaraman, J.** - 1.These review petitions are filed against the judgment in W.P.C No.18850 of 2016 dated 19.08.2016. R.P.No.897 of 2016 is filed by the writ petitioners, while R.P.No.214 of 2017 is filed by respondents 8 and 9 in the writ petition. W.P.(C).No.18850 of 2016 was filed by the Chairman, Sree Parthasaradhi Kshethra Raksha Samithy, Mammiyoor and General Secretary, District Committee, Hindu Ikyavedi, Thrissur. The President and the Secretary, of Sree Parthasaradhi Kshethra Bharana Sangham, Guruvayur were respondents 8 and 9 in the writ petition. - 2.The writ petition was filed challenging Exhibit P7 order passed by the Commissioner, Malabar Devaswom Board in Appeal No.7 of 2012. It was the contention of the petitioners that the temple was being administered by the Guruvayur Sree R.P.Nos.897/16 & 214/17 2 Parthasaradhi Kshethra Bharana Sangham. It was stated that O.A.Nos.8 and 12 of 2010 had been filed by Employees' Union of the temple seeking to frame a scheme and to bring the temple under the Malabar Devaswom Board. It was submitted that objections were preferred by respondents 8 and 9 as well as the writ petitioners. The applications were originally rejected by Exhibit P5 order. It was stated that though appeals had to be preferred within one month from the date of of the order, appeals were preferred only in April 2012 without any application for condonation of delay. Exhibit P6 was produced as copy of Appeal No.7/2012. The challenge was against Exhibit P7 order, on the ground that the same is without jurisdiction, lacked application of mind and was violative of Articles 25 and 26 of the Constitution of India. 3.A counter affidavit had been filed on behalf of the respondents 6, 7, 27 and 29 contending that the petitioners have an effective alternative remedy of filing a suit before the Sub Court under Section 62(ii) of the Madras Hindu Religious and R.P.Nos.897/16 & 214/17 3 Charitable Endowments Act (hereinafter referred to as the Act). It was further contended that the issue of the public nature of the temple had been proved before the Deputy Commissioner and the Commissioner which had led to the passing of Exhibit P7 order. It was further stated that though Exhibit P5 order was dated 27.2.2012 it was communicated only on 13.03.2012 which fact was clearly mentioned in Exhibit P6 appeal and the appeal preferred on 24.03.2012 was well within time. 4.This Court had by the judgment under review upheld the findings in Exhibit P7 to the effect that the temple is a public temple and as also a direction to the Deputy Commissioner to frame a scheme for the administration of temple. However, it was found that it is impermissible and unnecessary for the Commissioner to have ordered that the temple would be administered by a single trustee appointed by the Area Committee till the scheme is framed. This was in view of the findings in Exhibit P7 order itself as to the proper conduct of R.P.Nos.897/16 & 214/17 4 the temple affairs by the Bharana Sangham. This Court in the judgment directed that while framing the scheme the Deputy Commissioner has to see whether there ought to be any modifications in the bye laws of Bharana Sangham. Once a final scheme is framed, that would operate as a scheme under the provisions of the HR&CE Act. Till such time, the Bharana Sangham was permitted to continue in administration of the temple. - 5.It is submitted that an SLP was preferred against the judgment under review. The SLP had been admitted on 30.01.2017 and an order of status quo was directed to be maintained till return of notice on 20.02.2017 However, on 20.02.2017 on appearance of parties, the order admitting the SLP was recalled and the SLP was dismissed. - 6.Thereafter it is submitted that Exhibit P10(b) scheme was framed and notified. Pursuant thereto, an Executive Officer was appointed and he assumed charge of the administration of R.P.Nos.897/16 & 214/17 5 the temple on 26.4.2017. This is under challenge in the W.P. (C).No.15601 of 2017. 7. We have heard the learned Senior Counsel appearing for the petitioners in both these review petitions as well as the Standing Counsel for the Malabar Devaswom Board and the counsel appearing for the contesting respondents. - 8.These review petitions are preferred on the specific contention that the argument raised in the writ petition that the appeals preferred by the contesting respondents before the Commissioner of Malabar Devaswom Board were incompetent, had not been dealt with in the judgment under review. This was the specific point on which the writ petition had been filed. The respondents had preferred counter affidavits specifically contending that the appeals had been preferred within time, as was evident from Exhibit P6 appeal produced by the writ petitioners themselves. R.P.Nos.897/16 & 214/17 6 9.Section 61(1) of the Act specifically provides for an appeal from an order of the Deputy Commissioner within one month from the date of publication of the order or the receipt thereof by the party concerned, as the case may be. It was specifically pleaded that copy of the order was served only on 13.03.2012 and that the appeal dated 24.03.2012 which was admittedly filed in April 2012 was well within time. Exhibit P6 appeal produced in the writ petition clearly shows the date of the service of the order as 13.03.2012. The appeal is seen dated 24.3.2012. In the absence of any specific pleading to the contrary in the writ petition, there was no error apparent on the face of the record in the judgment under review in so far the appeals were found to be maintainable. - 10.The learned Senior Counsel for the petitioner in R.P. No.214/2017 contended that the maintainability of the suit under Section 62 is itself doubtful, since the suit is provided for under Section 62 only as against an order passed by the Commissioner under Section 61 sub-section (1) or (2) and R.P.Nos.897/16 & 214/17 7 relating to any of the matters specified in Sections 57, 58 or 60. Section 62(1)(i) and (ii) of the Act provides for a suit against any order passed by the Commissioner under Section 61(1) and relating to any of the matters specified under Sections 57, 58 or 60 or under the provisions of Sections 57,58 or 60 read with sub-section (1) (a), 2, 4 of Section 19. In the above circumstances, it is clear that a suit would be maintainable as against Exhibit P7 which is clearly one passed by the Commissioner in exercise of powers in relation to matters under Sections 57 and 58 of the Act . - 11.The learned counsel appearing for the Malabar Devaswom Board would submit that pursuant to the directions contained in the impugned judgment, all the parties were duly heard and a scheme had been framed in accordance with Section 58 of the Act and it had been duly notified as Exhibit P10(b) on 25.4.2017. Pursuant to the notification of the Scheme, an Executive Officer had taken charge of the affairs of the temple on 26.04.2017. It is further contended that the issue of R.P.Nos.897/16 & 214/17 8 maintainability of Appeal No.7/12 before the Commissioner had been considered and found against the review petitioners and there is no ground made out for review of the judgment. - 12.We have considered the contentions advanced. The legal ground raised in R.P.No.897 of 2016 is to the effect that the issue of incompetence of the appeal preferred by the contesting respondents had not been considered while rendering the judgment under review. 13. In view of the specific contentions in the counter affidavit and the dates as shown in Exhibit P6 appeal itself, we are of the opinion that the appeal was clearly maintainable in view of the provisions of Section 61 of the Act. The very fact that the sustainability of the orders passed by the Commissioner and the modifications necessary thereto had been considered by the Division Bench would clearly show that the Bench had decided that the appeals preferred before the Commissioner were competent. We find no reason to entertain R.P.No.897 of R.P.Nos.897/16 & 214/17 9 2016, the same is accordingly dismissed. 14. The grounds raised in R.P.No.214 of 2017 are two fold. It is stated that this Court omitted to consider the maintainability of the appeal. It is further contented that since a suit under Section 62 had already been filed by the review petitioner against Exhibit P7 order, this Court ought not to have commented on the findings contained in Exhibit P7 to the effect that the temple is a public temple. We have already found that the issue of maintainability had evidently been considered by the judgment under review. As regards the findings in Exhibit P7, no pleadings had been placed on record before the Bench considering W.P.(C).No.18850 of 2016 to the effect that a suit had been filed as against Exhibit P7 order. Nothing has been stated in the judgment under review as to the rights of the parties to approach the civil court either. - 15.The learned Senior Counsel placed reliance on the decisions reported in **Radhakanta Deb v. Commissioner of Hindu** R.P.Nos.897/16 & 214/17 10 **Religious Endowments, Orissa** [AIR 1981 SC 798]; **Parasamaya Kolerinatha Madam v. Natesa Ahari** [2011(4) KLT SN45] and **Gopinathan v. Raman** [2004 (2) KLT 511]. These decisions are with regard to the requirements to be satisfied for a finding whether a temple is a place of public religious worship. These are issues to be canvassed before the civil court in the suit and there is no occasion for this Court to consider the said contentions in this review petition. This Court in **Gopinathan's case** (supra) held that the power of the Commissioner to decide whether a temple is a public religious institution is subject to the suit or appeal provided in the Act. 16. We find that the judgment under review held that the finding in Exhibit P7 that the temple is a public temple cannot be found fault with and the direction to the Deputy Commissioner to frame a scheme is sustainable. This finding cannot, however, affect the rights of the parties in a properly instituted suit under Section 62 of the Act, even in a case where the filing of the R.P.Nos.897/16 & 214/17 11 suit had not been brought to the notice of this Court. We are of the view that the parties are free to take all available contentions before the civil court in exercise of their statutory remedy under Section 62(1)(ii) of the Act. 17. In the result, these review petitions are disposed of directing that the parties shall be free to take all contentions which shall be considered untrammelled by any findings on merits contained in the judgment under review. Sd/- **A.M.Shaffique, Judge** sd/- **Anu Sivaraman, Judge** sj