Sree Mattannur Mahadeva Kshetra Samithi v. Malabar Devaswom Board and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943 WP(C) NO. 6997 OF 2021** ## **PETITIONER:** ## **SREE MATTANNUR MAHADEVA KSHETRA SAMITHI** **INDIRA NAGAR, MATTANNUR, THALASSERY TALUK, KANNUR- 670 702, REPRESENTED BY ITS PRESIDENT-PAVITHRAN N., KOUSTHUBHAM, VAYANTHODE P.O., MATTANNUR, KANNUR - 670 702.** **BY ADVS.** **M.P.ASHOK KUMAR SMT.BINDU SREEDHAR SHRI.ASIF N** ## **RESPONDENT/S:** - **1 THE MALABAR DEVASWOM BOARD REPRESENTED BY THE COMMISSIONER, KOZHIKODE - 673 001.** - **2 THE COMMISSIONER MALABAR DEVASWOM BOARD, KOZHIKODE - 673 001.** - **3 THE DEPUTY COMMISSIONER MALABAR DEVASWOM BOARD, KOZHIKODE - 673 001.** - **4 M.P.BHASKARAN, S/O.GOPALAN, KOLARI AMSAM, PORORA DESAM, TELLICHERY TALUK, KANNUR - 670 702.** - **5 KAIPANCHERY CHANDRAN,KOLARI AMSOM, PORORA DESAM, TELLICHERY TALUK, KANNUR - 670 702.** - **6 PARAMESWARAN NAMBOODIRI,SREEMANGALAM P.O., KOODALI, THALASSERY TALUK, KANNUR - 670 592. LAKSHMI NARAYAN, SC, MDB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).6997/2021 2 **“C.R.”** ## **JUDGMENT** _Murali Purushothaman, J._ This writ petition is filed by Sree Mattannur Mahadeva Kshetra Samithi, a society registered under the Societies Registration Act challenging Ext.P12 order passed by the Commissioner, Malabar Devaswom Board (MDB) transferring O.A No.18/2007 pending before the Deputy Commissioner to his own file in exercise of powers under section 19(1)(a) of the Madras Hindu Religious and Charitable Endowments Act, 1951 (for short,' the MHR & CE Act'). 2. Sree Mattannur Mahadeva Kshethram (Temple), Mattannur, Kannur District in the erstwhile Malabar area originally belonged to Pullery Illam. The Karanavathy (Ooralan) of the family, late Mahadevi Antharjanam _vide_ Deed No.333 of 1972 of SRO Mattannur, transferred the temple along with its properties to the petitioner society on condition that the temple and the temple properties shall not be alienated or transferred. While so, O.A.No.18/2007 was initiated before the Deputy Commissioner, MDB under section 57(a) of the MHR & CE Act at the W.P.(C).6997/2021 3 instance of respondents 4 and 5 to enquire and decide as to whether the temple is a religious institution. The Senior Superintendent in charge of the post of Deputy Commissioner in the Hindu Religious and Charitable Endowments (HR & CE) Department _vide_ Ext.P3 order dated 7.7.2010 decided the dispute in the said original application and declared that the temple is a religious institution. Exhibit P3 order was challenged before the Court of the Subordinate Judge, Thalassery as O.S No.418/2010 contending that the Senior Superintendent in charge of the Deputy Commissioner has no authority to pass Ext.P3 order. The petitioner also preferred a statutory appeal before the Commissioner, HR & CE Department against Ext.P3 order as A.P. No.9/2010 invoking the provisions under section 61 of the MHR & CE Act. The Commissioner dismissed A.P. No. 9/2010 by Ext.P4 order dated 25.1.2011 confirming Ext.P3 order. Against Ext.P4 order, the petitioner filed O.S No.114/2011 before the Court of Subordinate Judge, Thalassery. Both O.S No.418/2010 and O.S No.114/2011 were tried jointly and the Court by Ext. P5 judgment dated 21.12.2013 declared Ext.P3 as an order passed W.P.(C).6997/2021 4 without authority as the Senior Superintendent in charge of the post of Deputy Commissioner is not a person authorized by the authority competent under section 19(4) of the MHR & CE Act to exercise the powers of Deputy Commissioner under section 57 (a) and set aside the same and consequently, declared Ext.P4 order of the Commissioner also as illegal and void. The Deputy Commissioner, MDB, Kozhikode was directed to consider O.A. No.18/2007 afresh and to dispose the same on merits after giving opportunity to both parties to adduce fresh evidence, if any. 3. About 7 years after the matter was remanded to the Deputy Commissioner and while the matter was pending before the Deputy Commissioner, the Commissioner issued Ext.P9 order dated 21.1.2020 in exercise of powers under section 19(1) of the MHR & CE Act withdrawing to his file the proceedings in O.A No.18/2007 pending before the Deputy Commissioner and re-numbering it as O.A. No.1 of 2020. Exhibit P9 order of the Commissioner was challenged by the petitioner before this Court in W.P.(C)No.20997/2020 contending that the W.P.(C).6997/2021 5 same has been issued in violation of Ext. P5 judgment of the Sub Court. The said writ petition was disposed of by this Court by Ext.P10 judgment dated 7.1.2021 directing the Commissioner to dispose of the objections of the petitioner. Accordingly, the petitioner filed Ext.P11 objection before the Commissioner contending that Ext.P9 order has been passed in violation of the directions contained in Ext.P5 judgment of the Sub Court. The Commissioner, by Ext.P12 order dated 24.2.2021 dismissed Ext.P11 objection of the petitioner holding that he has the authority to transfer the proceedings pending before the Deputy Commissioner. The writ petition is filed with prayer to quash Ext.P12 as it is passed in violation of Ext. P5 judgment and for direction to the Deputy Commissioner to decide O.A No.18/2007 afresh and to declare that Ext.P5 judgment is binding on the Commissioner and he cannot supersede Ext.P5 judgment by invoking powers under section 19(1) (a) of the MHR & CE Act. 4. The main contention raised by the petitioner is that in view of Ext.P5 judgment of the Sub Court, Thalassery, directing the Deputy W.P.(C).6997/2021 6 Commissioner, MDB, Kozhikode to consider and dispose of O.A No.18/2007 afresh, the Commissioner cannot withdraw the original application pending before the Deputy Commissioner to his own file and only the Deputy Commissioner, MDB, Kozhikode can consider O.A No.18/2007 and dispose of the matter. The petitioner further contends that O.A. No.18/2007 pending before the Deputy Commissioner is a 'suit' and not a 'proceeding' as mentioned under section 19(1)(a) of the MHR & CE Act and as such, only a 'proceeding' can be withdrawn and therefore, Ext.P9 order transferring the proceeding in O.A No.18/2007 pending before the Deputy Commissioner to his own file is not legally sustainable. It is the also case of the petitioner that since the proceedings before the Deputy Commissioner has been withdrawn to the file of the Commissioner, the petitioner lost the right of filing an appeal under section 61 of the MHR & CE Act and also the remedy of filing a suit before the civil court under section 62 of the Act. 5. Heard Sri.M.P.Ashok Kumar, the learned counsel for the petitioner and Sri.Lakshmi Narayan, the learned standing counsel for the W.P.(C).6997/2021 7 Malabar Devawom Board. 6. Sri.M.P.Ashok Kumar submitted that Ext.P12 order of the Commissioner is _per se_ illegal and is in total violation of Ext.P5 judgment of the Sub Court. It is contended by the learned counsel that as per Ext. P5 judgment, only the Deputy Commissioner can consider and dispose of O.A No.18/2007 and the Commissioner, by exercising powers under Section 19 (1) (a), cannot overrule the judgment of the Sub Court. The learned standing counsel for MDB resisted the writ petition as not maintainable on the ground of availability of alternative remedy to the petitioner under section 19 (5) of the MHR & CE Act. Sri.Lakshmi Narayan also submitted that the power of the Commissioner under Section 19 (1) (a) cannot be foreclosed by Ext.P5 judgment and that Ext. P9 order was passed considering the long pendency of the matter before the Deputy Commissioner and that when the decision is taken by the Commissioner, the aggrieved party has a remedy to file suit under section 62 of the MHR & CE Act. 7. Before dealing with the merits of the matter, it is apposite to W.P.(C).6997/2021 8 refer to Sections 19(1)(a) & (b) and 57(a) of the MHR &CE Act which are extracted below: ## “ _**19. Other powers of Commissioner in relation to Deputy and Assistant Commissioners and Area**_ _**Committee.--** (1) The Commissioner shall have power at any stage--_ - _(a) to transfer any proceeding pending before a_ - _Deputy or an Assistant Commissioner to his own file and dispose of it himself, or_ - (b) _to transfer it to another Deputy or Assistant Commissioner for disposal._ ## _**57. Deputy Commissioner to decide certain disputes**_ _**and matters.--** Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following disputes and matters--_ _(a) whether an institution is a religious institution;”_ 8. Going by the provisions under section 57 (a) of MHR & CE Act, it is for the Deputy Commissioner to decide the dispute as to whether an institution is a religious institution, subject to the rights of suit W.P.(C).6997/2021 9 or appeal. Though by Ext.P3, an order was passed declaring that the temple in question is a religious institution which was confirmed by Ext.P4 order of the Commissioner, the Sub Court by Ext.P5 judgment, found that Ext.P3 is an order passed by an officer without authority and therefore, void. Consequently, Ext.P4 order passed in appeal was also set aside. In Ext.P5 judgment, the Deputy Commissioner, MDB, Kozhikode was directed to consider O.A No.18/2007 afresh and to dispose of the same on merits after giving opportunity to both parties to adduce evidence, if any. The contention of the petitioner that in view of the direction in Ext.P5 judgment, only the Deputy Commissioner, MDB, Kozhikode has authority to consider and dispose of O.A 18/2007 is without any basis. The dispute raised in O.A 18/2007 is as to whether the temple in question is a religious institution or not. Section 57 (a) of the MHR & CE Act empowers the Deputy Commissioner to decide the question as to whether an institution is a religious institution or not. Section 19(1)(a) of the MHR & CE Act provides for the powers of the Commissioner in relation to Deputy Commissioners and Assistant W.P.(C).6997/2021 10 Commissioners and provides that the Commissioner shall have the power at any stage to transfer any proceedings pending before a Deputy Commissioner or Assistant Commissioner to his own file and dispose of it himself. Once such a power is exercised by the Commissioner, the Commissioner is competent to decide the dispute under section 57 (a) himself. The judgment of the Sub Court does not restrain or prohibit the Commissioner from exercising the powers under section 19(1)(a) of the MHR & CE Act and the direction cannot be construed as one to the Deputy Commissioner himself to dispose of the original application. In Ext.P5 judgment, the Sub Court had no occasion to consider the legality of the order of the Commissioner exercising powers under section 19(1) (a) of the MHR & CE Act as Ext.P9 order was passed subsequent thereto. As we have found, once the Commissioner exercises the powers under section 19(1)(a) of the MHR & CE Act and transfers to himself the proceedings pending before the Deputy Commissioner, he becomes the competent authority to consider the dispute raised under section 57 (a) of the MHR & CE Act. The exercise of powers by the Commissioner under W.P.(C).6997/2021 11 section 19(1)(a) of the MHR & CE Act transferring O.A 18/2007 pending before the Deputy Commissioner to his own file for the purpose of disposal of the same himself, cannot be said to be in defiance of the directions in Ext.P5 judgment of the Sub Court. 9. In Ext.P9 order transferring O.A 18/2007 pending before the Deputy Commissioner to his file, the Commissioner has stated that the file in respect of O.A 18/2007 is pending in the office of the Deputy Commissioner for several years and for expeditious disposal of the matter he is satisfied that the proceedings pending before the Deputy Commissioner has to be transferred to his file. The reason for withdrawing the proceedings from the Deputy Commissioner is also explained in Ext. P12 order rejecting Ext. P11 objection of the writ petitioner against the transfer of file. It is pointed out that, after the matter was remanded to the Deputy Commissioner in the year 2013, 'the matter was kept as lethargic state in the office of the Deputy Commissioner' and on being moved by the petitioner in O.A 18/2007, the Commissioner has passed Ext.P9 order exercising powers under section 19(1)(a) of the W.P.(C).6997/2021 12 MHR & CE Act to transfer the proceedings to his file. Here, it is also worth to note the provisions under section 19 (2) of the MHR & CE Act which provides that if the Commissioner is satisfied that a Deputy Commissioner or an Assistant Commissioner has failed to exercise any power or discharge any duty which he ought to have exercised or discharged, the Commissioner may himself exercise such power or discharge such duty. Taking note of the delay in the disposal of O.A 18/2007, this Court in Ext. P10 Judgment in the earlier round of litigation (to which one of us, Ravikumar J., was a member) observed as follows:- _“But, we are constrained to note studied indifference on the part of the petitioner in giving a finality to the proceedings. Everything had started way back in 2007, when the Ext.P1 representation was given, followed by proceedings under the Act. During the course, at least thrice the petitioner had approached this Court raising one contention or the other. At times he had moved the Government also and obtained stay of the proceedings. All these would lead to an inference that the petitioner is trying to put spokes in the free flow of the proceedings. Even though the Ext.P5 judgment was delivered on 21.12.2013, proceedings before the 3rd respondent did not advance further. After a lapse of nearly seven years and remaining dormant all the time, when the 2nd respondent took up the matter, the petitioner has hurriedly approached this Court, happily enjoying the inaction on the part of the 3rd . respondent”_ W.P.(C).6997/2021 13 10. Apart from the same, we find from Ext. P12 order that, by the time the petitioner had approached the 2[nd] respondent Commissioner with Ext. P11 objection, nearly 20 sittings were over after the transfer of the original application to the file of the Commissioner. Obviously, the delay is engineered by the writ petitioner. There is inordinate delay in the disposal of the dispute by the Deputy Commissioner. The reason stated by the 2[nd] respondent in Exts.P9 and P12 order is that it is for expeditious disposal of the matter on merits the original application has been withdrawn by the Commissioner to his own file. We do not find anything wrong in the action of the 2[nd] respondent Commissioner in exercising powers under section 19(1)(a) of the MHR & CE Act to transfer the proceedings pending before the Deputy Commissioner to his file. The Commissioner has acted justifiably and exercised his powers within the mandate of law. 11. The contention of the petitioner that, by withdrawing the original application from the Deputy Commissioner and disposing of the same by the Commissioner, the petitioner's right to statutory appeal is W.P.(C).6997/2021 14 foreclosed is also without any basis as the petitioner or any other aggrieved party, as the case may be, is not without any remedy, as section 62(1) (i) and (ii) of the MHR & CE Act provides that any party aggrieved by an order passed by the Commissioner under section 57 or order passed by the Commissioner relating to any matters specified in section 57 can institute a suit in the Court against such order. 12. The other contention of Sri.M.P.Ashok Kumar is that O.A 18/2007 pending before the Deputy Commissioner is a 'suit' and not a 'proceeding' and therefore, the same cannot be withdrawn to the file of the Commissioner exercising powers under section 19 (1) (a). Section 62 of the MHR & CE Act enables an aggrieved party to institute a suit in the 'Court' as defined under section 6 (6) (ii) as against an order passed by the Commissioner under section 57 or order passed by the Commissioner relating to any matters specified in section 57 of the MHR & CE Act. The word 'suit' referred to in sections 57, 61 and 62 of the MHR & CE Act is suit which is filed in 'Court' as defined under section 6 (6) (ii) of the MHR & CE Act and not before the Commissioner or Deputy W.P.(C).6997/2021 15 Commissioner appointed by the Government under section 8 C (1) or (4) of the said Act. Section 95 of the MHR & CE Act provides for the procedure for inquiry under Chapter V including the inquiry under section 57 with the prescription that the provisions of Civil Procedure Code as may be applicable in the trial of suit, would apply for the inquiry. In _**Ganesan v. Commissioner, Tamil Nadu Hindu Religious and Charitable Endowments Board**_ **(2019 (2) KLT 925: 2019 (7) SCC 108: AIR 2019 SC 2343: 2019 KHC 6530)** , the Apex Court had occasion to consider whether the Commissioner while hearing an appeal under section 69 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 is a 'Court' and whether S.29(2) of Limitation Act would apply to such authorities. Referring to sections 6 (7), 69 and 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (corresponding to sections 6 (6), 61 and 62 respectively of the MHR & CE Act), the Apex Court held that the mere fact that a statutory authority is empowered to follow the procedure as nearly may be in accordance with procedure under C.P.C. to the trial of suits or hearing of W.P.(C).6997/2021 16 appeals, the statutory authority shall not become a Court and held that the Commissioner is not a Court within the meaning of section 6 (7) the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. The O.A 18/2007, pending before the Deputy Commissioner, a statutory authority as distinct from a Court, is a not a 'suit'. The word 'proceeding' in section 19(1)(a) of the MHR & CE Act refers to the 'dispute' under section 57 of the Act pending before the Deputy Commissioner in the form of an original application. Since provision for suits and orders against which it can be instituted are specifically provided in the MHR & CE Act, the word 'suit' does not include 'proceeding'. Since a suit invoking the provisions of section 62 can be filed only against an 'order' passed by the Deputy Commissioner/Commissioner under section 57 or by the Commissioner under section 61, no question of transfer of any proceedings 'pending' before the Deputy Commissioner arises. Further, if the original application before the Deputy Commissioner under section 57(a) is to be treated as a suit, then there is no meaning in providing a provision for filing a suit in section 62 of the MHR & CE Act against the W.P.(C).6997/2021 17 order passed by the Deputy Commissioner/ Commissioner under section 57. The original application, viz., O.A 18/2007 is therefore a 'proceeding' under section 57 of the MHR & CE Act pending before the Deputy Commissioner which can be withdrawn to the file of the Commissioner in exercise of powers under section 19(1)(a) of the MHR & CE Act. The contention that O.A 18/2007 is a 'suit' and not a 'proceeding' before the Deputy Commissioner and therefore, the same cannot be withdrawn to the file of the Commissioner is without any merit. There is no merit in the writ petition and accordingly, it is dismissed. **C.T.RAVIKUMAR, JUDGE** Sd/- ## **MURALI PURUSHOTHAMAN, JUDGE** W.P.(C).6997/2021 18 ## **APPENDIX OF WP(C) 6997/2021** **PETITIONER ANNEXURE** **EXHIBIT P1 PHOTOCOPY OF THE REPRESENTATION DT. 27/04/2007 FILED BY 4TH RESPONDENT BEFORE THE MINISTER FOR DEVASWOM.** **EXHIBIT P2 PHOTOCOPY OF REPORT OF THE ASSISTANT COMMISSIONER DT. 17/07/2007.** **EXHIBIT P3 PHOTOCOPY OF THE ORDER DT. 07/07/2010 PASSED BY THE SENIOR SUPERINTENDENT-IN-CHARGE OF DEPUTY COMMISSIONER.** **EXHIBIT P4 PHOTOCOPY OF THE ORDER DT. 25/01/2011 IN AP 9 OF 2010 PASSED BY THE 2ND RESPONDENT COMMISSIONER.** **EXHIBIT P5 PHOTOCOPY OF THE COMMON JUDGMENT DT. 21/12/2013 IN OS NO.418 OF 2010 AND OS NO.114 OF 2011 SUB COURT, THALASSERY.** **EXHIBIT P6 PHOTOCOPY OF THE ORDER DT. 14/06/2019 PASSED BY THE 2ND RESPONDENT COMMISSIONER. EXHIBIT P7 PHOTOCOPY OF JUDGMENT DT. 29/07/2019 IN WP(C) 16838 OF 2019 PASSED BY THIS HON'BLE COURT. EXHIBIT P8 PHOTOCOPY OF THE NOTICE DT. 29/07/2020 IN OA 1 OF 2020 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P9 PHOTOCOPY OF THE ORDER NO.J2/3299/2020 DT. 21/01/2020 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN WP(C) 20997 OF 2020 DT. 07/01/2021. EXHIBIT P11 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DT. 02/02/2021. EXHIBIT P12 TRUE COPY OF THE ORDER DT. 24/02/2021 IN IA 2 OF 2021 IN OA 1 OF 2020 ISSUED BY THE 2ND RESPONDENT COMMISSIONER.** **spc/**