Sree Chandanakavu Devaswom v. Malabar Devaswom Board

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G.AJITHKUMAR ``` ``` THURSDAY, THE 8[TH] DAY OF JUNE 2023 / 18TH JYAISHTA, 1945 ``` ``` W.P.(C)NO.16485OF 2023 ``` ## **`PETITIONER/S:`** ``` SRI CHANDANAKKAVU DEVASWOM, (A CONTROLLED INSTITUTION UNDER HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS ACT,1951) KURUMBATHOOR P.O., THIRUNAVAYA VIA, MALAPPURAM DISTRICT, 676 301, REPRESENTED BY ITS HEREDITARY TRUSTEE S.N.BHATTACHARYA, S/O LATE CHITRAN BHATTATHIRIPADU, AGED 87 YEARS, PAZHIYOTTU ILLAM KURUMBATHOOR P.O., THIRUNAVAYA VIA, MALAPPURAM DISTRICT,, PIN - 676301 ``` ## **`BY ADV BINOY VASUDEVAN`** ## **`RESPONDENTS:`** - **`1 MALABAR DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, BOARD OFFICE, HOUSE FED COMPLEX, ERANHIPALAM P.O., KOZHIKODE, PIN - 673006`** - **`2 THE COMMISSIONER, MALABAR DEVASWOM BOARD, BOARD OFFICE, HOUSE FED COMPLEX, ERANHIPALAM, KOZHIKODE, PIN – 673 006`** - **`3 THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, CIVIL STATION, TIRUR P.O., MALAPPURAM DISTRICT, PIN - 676101`** - **`4 BALAJI K., EXECUTIVE OFFICER, SRI SUKAPURAM DAKSHINAMOORTHY TEMPLE, SUKAPURAM P.O.,`** 2 W.P.(C)No.16485 of 2023 ## **`MALAPPURAM DISTRICT, PIN - 679576`** ``` 5 K.VENUGPALAN, EXECUTIVE OFFICER, SRI CHANDANAKKAVU BHAGAVATHY TEMPLE, KURUMBATHOOR P.O., THIRUNAVAYA VIA, MALAPPURAM, PIN - 676301 ``` ## **`OTHER PRESENT:`** ``` SRI.LAXMI NARAYANAN, SC FOR MALABAR DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.16485 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** Sree Chandanakavu Devaswom, the petitioner herein is a controlled institution under the Malabar Devaswom Board. The petitioner Devaswom, represented by the hereditary trustee, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2 order No.H7/3309/2022/MDB(2) dated 06.05.2023 of the 2[nd] respondent Commissioner, Malabar Devaswom Board, whereby one Balaji K., the 4[th] respondent herein, who is presently working as the Executive Officer of Sukapuram Sree Dhakshinamoorthy Temple, has been transferred as Executive Officer in Sree Chandanakavu Bhagavathy Temple and Muthumala Maha Ganapathy Temple, with a direction that both Devaswoms will bear 50% of the salary of the said respondent. Feeling aggrieved, the petitioner is before this Court in this writ petition, invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. The petitioner has also sought for a declaration that the appointment of the 4[th] respondent as the Executive Officer of the petitioner Devaswom, with a direction to disburse 50% of the salary from the account of the 4 W.P.(C)No.16485 of 2023 Devaswom, is illegal and against the directions contained in Ext.P1 judgment of this Court in W.P.(C)No.37401 of 2017, in which an earlier order of the 2[nd] respondent Commissioner dated 31.10.2017, making the petitioner Devaswom to satisfy 100% salary of the Executive Officer was under challenge. 2. On 24.05.2023, when this writ petition came up for admission, after arguing for some time, the learned counsel for the petitioner sought time to get instructions from the hereditary trustee of Sree Chandanakavu Devaswom as to whether the annual accounts of the Devaswom is being audited. 3. On 30.05.2023, when this writ petition came up for consideration, the learned counsel for the petitioner sought time to place on record the annual accounts of Sree Chandanakavu Devaswom, along with an application to accept additional documents. The learned Standing Counsel was directed to get instructions as to whether the statutory audit of the annual accounts of Sree Chandanakavu Devaswom for the previous years has already been completed. 4. Along with I.A.No.1 of 2023, the petitioner has placed on record Exts.P3 to P9 additional documents. The document marked as Ext.P3 is an order of the 2[nd] respondent 5 W.P.(C)No.16485 of 2023 Devaswom Commissioner, whereby Ext.P2 order is modified to a certain extent. The documents marked as Exts.P4 to P9 are the accounts of Sree Chandanakavu Devaswom for the year 2019-2022. 5. Heard the learned counsel for the petitioner and also the learned Standing Counsel for Malabar Devaswom Board for respondents 1 to 3. Considering the nature of relief proposed to be granted, service of notice on respondents 4 and 5 is dispensed with. 6. The learned Standing Counsel for Malabar Devaswom Board would raise the question of maintainability of this writ petition, in view of the statutory remedy available to the petitioner under Section 99 of the Madras Hindu Religious and Charitable Endowments Act, 1951, which provides for a revision before the Government against Ext.P2 order. The learned Standing Counsel would also point out the provisions under Sections 45 and 71 of the said Act. 7. 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 6 W.P.(C)No.16485 of 2023 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. 8. 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 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** , i.e., where the statutory 7 W.P.(C)No.16485 of 2023 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. 9. In **Thansingh Nathmal** 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 8 W.P.(C)No.16485 of 2023 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 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 9 W.P.(C)No.16485 of 2023 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. 10. In **Titaghur Paper Mill** a Three-Judge 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 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." 10 W.P.(C)No.16485 of 2023 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. ## 11. In **Balkrishna Ram v. Union of India [(2020) 2** **SCC 442]** one of the issues raised before the Apex Court was whether an appeal against an order of a single judge of a High Court deciding a case related to an Armed Forces personnel pending before the High Court is required to be transferred to the Armed Forces Tribunal or should be heard by the High Court. The Apex Court held that sub-section (1) of Section 14 of the Armed Forces Tribunal Act, 2007 clearly provides that the Armed Forces Tribunal will exercise powers of all Courts except the Supreme Court or High Court exercising jurisdiction under Article 226 and Article 227 of the Constitution of India. Section 34 is very carefully worded. It states that 'every suit', or 'other proceedings' pending before any Court including a 11 W.P.(C)No.16485 of 2023 High Court immediately before the establishment of the Tribunal shall stand transferred on that day to the Tribunal. The Legislature has clearly not vested the Armed Forces Tribunal with the power and jurisdiction of the High Court to be exercised under Article 226 of the Constitution. There can be no manner of doubt that the High Court can exercise its writ jurisdiction even in respect of orders passed by the Armed Forces Tribunal. Since an appeal lies to the Supreme Court against an order of the Armed Forces Tribunal, the High Court may not exercise their extraordinary writ jurisdiction because there is an efficacious alternative remedy available but that does not mean that the jurisdiction of the High Court is taken away. In a given circumstance, the High Court may and can exercise its extraordinary writ jurisdiction even against the orders of the High Court [sic: Armed Forces Tribunal]. 12. In **Balkrishna Ram** the Apex Court held that the principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The Writ Courts normally refrain from exercising their extraordinary power if the petitioner has an alternative 12 W.P.(C)No.16485 of 2023 efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted. At the same time, it is a well settled principle that such jurisdiction should not be exercised when there is an alternative remedy available - **Union of India v. T.R. Varma** **[AIR 1957 SC 882]** . The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the Armed Forces Tribunal. One must also remember that the alternative remedy must be efficacious and in case of a NonCommissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such 13 W.P.(C)No.16485 of 2023 jurisdiction because that would effectively mean that the Writ Court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in **L. Chandra Kumar v. Union of India [(1997) 3 SCC 262]** . 13. In the instant case, admittedly Ext.P2 order dated 06.05.2023 of the 2[nd] respondent Commissioner, which stands modified to certain extent by Ext.P3 order dated 26.05.2023 of the Devaswom Commissioner, can be challenged by invoking the statutory remedy of revision provided under Section 99 of the Act before the Government. In the light of the law laid down in the decisions referred to supra, this writ petition filed by the petitioner challenging Ext.P2 order of the 2[nd] respondent Commissioner is not legally maintainable, on the grounds raised in this writ petition, in view of the statutory remedy provided under Section 99 of the Act. 14. In the result, this writ petition fails on the ground of maintainability and the same is accordingly dismissed; however without prejudice to the right of the petitioner to challenge Ext.P2 order of the 2[nd] respondent Commissioner, as modified to certain extent in Ext.P3 order, by invoking the statutory remedy provided under Section 99 of the Act. 14 W.P.(C)No.16485 of 2023 In case the petitioner is not keeping regular accounts of all receipts and disbursements in the religious institution in question, as per the statutory requirements of Section 71 of the Act, it is for the concerned Deputy Commissioner to initiate appropriate proceedings against the hereditary trustee, under Section 45 of the Act. It is for the 2[nd] respondent Commissioner to take necessary steps to ensure statutory compliance of Section 71 of the Act, through the concerned Deputy Commissioner. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** MIN 15 W.P.(C)No.16485 of 2023 ## **`APPENDIX OF WP(C) 16485/2023`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 03-12- 2018 IN W.P.(C) NO.37401 OF 2017 ``` - **`EXHIBIT P2 TRUE COPY OF THE ORDER NO.H7/3309/2022/MDB(2) DATED 06-052023 ISSUED BY THE 2ND RESPONDENT`** - **`EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS NO.H71/2020/MDB DATED 26.05.2023 ISSUED BY THE COMMISSIONER, MALABAR DEVASWOM BOARD`** - **`EXHIBIT P4 TRUE COPY OF THE BALANCE SHEET OF THE PETITIONER DEVASWOM FOR THE YEAR 2017 DULY SIGNED BY THE EXECUTIVE OFFICER OF THE TEMPLE`** - **`EXHIBIT P5 TRUE COPY OF THE STATEMENT OF ACCOUNTS OF THE TEMPLE FOR THE YEAR 2018 IS PRODUCED HEREWITH AND MARKED AS EXHIBIT P5.`** - **`EXHIBIT P6 TRUE COPY OF THE STATEMENT OF ACCOUNTS FOR THE YEAR 2019`** - **`EXHIBIT P7 TRUE COPY OF THE STATEMENT OF ACCOUNTS FOR THE YEAR 2020`** - **`EXHIBIT P8 TRUE COPY OF THE STATEMENT OF ACCOUNTS FOR THE YEAR 2021`** - **`EXHIBIT P9 TRUE COPY OF THE STATEMENT OF ACCOUNTS FOR THE YEAR 2022`**