U. Sukumar Shetty v. Deputy Commissioner for Hindu Religious and Charitable Endowments, Kozhikode; Assistant Commissioner, Hindu Religious and Charitable Endowments, Kanjangad, Kasaragod; Addl. 3 Executive Officer Shri Udyavara Daivagalu Temple, Kasaragod

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 2ND DAY OF NOVEMBER 2017/ 11TH KARTHIKA, 1939** **WP(C).No. 34879 of 2007 (B) ----------------------------** **PETITIONER:** **-------------** **U.SUKUMAR SHETTY, UDYAWARGUTHUU HOUSE, MANJESHWARA, KASARGOD TALUK, KERALA STATE.** **BY ADV. SRI.G.SREEKUMAR (CHELUR)** **RESPONDENTS:** **--------------** **1. THE DEPUTY COMMISSIONER FOR HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS, KOZHIKODE. 2. THE ASSISTANT COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS, KANJANGAD, KASARAGOD.** **ADDL. 3. THE EXECUTIVE OFFICER SHRI UDYAVARA DAIVAGALU TEMPLE KASRAGOD 671 121.** **ADDL R3 IS IMPLEADED AS PER ORDER DT. 2.11.2017 IN IA NO. 15218/2017.** **R,R1,2 BY ADV. SRI.K.MOHANAKANNAN,SC,MALABAR DEVASWOM R,R1-2 BY ADV. SRI.N.MANOJ KUMAR,SC,MALABAR DEVASWOM R1 & 2 BY ADV. SRI.K.R.SUNIL, SC, MALABAR DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WPC 34879/2007** ## **PETITIONER'S EXTS:** **P1: COPY OF REPRESENTATION ADDRESSED BY THE PETITIONER TO THE ASSISTANT COMMISSIONER DATED 2.6.1992** ## **P1 A: COPY OF REPRESENTATION DT. 14.7.1992.** **P2: COPY OF PLAINT IN OS NO. 32/2004 ON THE FILES OF SUB COURT, KASARAGOD.** **P3: COPY OF ORDER IN OS NO. 32/2004 OF THE SUB COURT, KASARAGOD.** **P4: COPY OF AFFIDAVIT FILED BY THE ASSISTANT COMMISSIONER BEFORE THE SUB COURT, KASARAGOD IN OS NO. 32/2004.** **P5: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DT. 20.11.2004.** **P6 & P6A: COPY OF GOVERNMENT YADASTH OF THE YEAR 1859 AND ITS TRUE ENGLISH TANSLATION.** **P7: COPY OF THE ORDER PASSED BY THE ASSISTANT COMMISSIONER.** **P8: COPY OF GO RT 2198/01/RD DTD. 24.9.2001.** **P9: COPY OF THE REPRESENTATION SUBMITTED B Y THE PETITIONER BEFORE THE 1ST RESPONDENT DT. 17.7.2006.** **P10: COPY OF IA 11/2007 IN OA 2/07 FILED BEFORE THE 1ST RESPONDENT BY THE PETITIONER.** **P11: COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT ON EXT.P10.** **P12: COPY OF THE AFFIDAVIT SWORN BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.** **P13: COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DTD. 17.4.2007.** **P14: COPY OF THE MINUTES OF THE MEETING OF THE COMMITTEE DATED 27.6.2010.** **P14(A) COPY OF TRANSLATION OF EXT.P14.** **P15: COPY OF INFORMATION PROVIDED BY THE EXECUTIVE OFFICER OF UDYAWARA SRI DAIVAGALU TEMPLE DATED 15.4.2011.** **P16: TRUE PHOTOGRAPHS.** ## **RESPONDETNS EXTS: NIL** **KS.** ## **TRUE COPY** **P.S. TO JUDGE** ## **P.R. RAMACHANDRA MENON & SHIRCY V, JJ.** .............................................................................. **W.P(C)No.34879 of 2007** ......................................................................... **Dated this the 2[nd] November, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The petitioner has approached this Court challenging Ext.P7 order passed by the second respondent and Ext.P13 order passed by the first respondent, simultaneously seeking for a direction to the respondents to restore the management of the Shrine'-'Sree Udyavara Daivagalu Temple' to the family of the petitioner. The dispute is with regard to the proclaimed right of the petitioner's family to function as Hereditary Trustee of the said Temple situated in Kasaragod. 2. Heard Mr. Sreekumar Chelur, the learned counsel appearing for the petitioner as well as the learned Government Pleader. 3. The sum and substance of the grievance projected in the writ petition is that the aforesaid Temple was being managed WPC 34879/2007 2 by the family of the petitioner from time immemorial. It is contended that one of the Hereditary Trustees by name Manju Bhandari @ Sankara , being illiterate, was not in a position to discharge the duty of the Trustee effectively and as such, the maternal uncle of the petitioner by name Kochanna Rai was appointed as a Temporary Trustee. According to the petitioner, it was only an arrangement under Section 47 of the Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as HR & CE Act ), i.e. to be effective only pending duration of the alleged disability of the Hereditary Trustee. But, even after the death of Manju Bhandari, the aforesaid person by name Kochanna Rai was continuing in officiation as 'temporary trustee', contrary to the statutory provisions and detrimental to the rights and interests of other Hereditary Trustees. The petitioner further contends that his maternal uncle Kochanna Rai indulged in gross mismanagement of the Temple, which was brought to the notice of the second respondent-Assistant Commissioner by way of various representations including Exts.P1 and P1(a); simultaneously seeking for restoration of the WPC 34879/2007 3 hereditary rights of the family of the petitioner. It is stated that no action was being taken by the respondent Devaswom and the Devaswom had taken over the affairs of the Temple by appointing a Non-Hereditary Trustee. Even after the death of Kochanna Rai, the right of the family of the petitioner, to be the Hereditary Trustee, was not restored and the affairs were being continued by appointing Non-Hereditary Trustees under the premise that Kochanna Rai himself was a Non-Hereditary Trustee. Finally, since the attempt made by the petitioner did not evoke any positive response, he joined hands with other members of the family and instituted O.S.No.32 of 2004 before the civil court (Sub Court, Kasaragod) for a declaration that the petitioner is the Hereditary Trustee and for other consequential reliefs, as borne by Ext.P2. 4. On appearance, the defendants in the suit contended that the remedy of the plaintiffs, if at all any, was to invoke the jurisdiction of the competent authority under Section 57(b) of the Act and hence that the suit was not maintainable. It is stated that an I.A. was filed by the plaintiffs to direct the WPC 34879/2007 4 respondents/defendants to produce the relevant file and in reply, Ext.P4 affidavit was filed by the Asst.Commissioner (second respondent herein) to the effect that the file containing the proceedings of the removal of the last Hereditary Trustee - 'Manju Bhandari' and appointment of Kochanna Rai, was destroyed. It was accordingly, that the suit was dismissed by the Sub Court, Kasaragod , as borne by Ext.P3 verdict. Pursuant to the dismissal of the suit, the petitioner preferred Ext.P5 petition under Section 57(b) before the first respondent, also producing a copy of the 'Government Yadasth' of the year 1859, to show that the petitioner's family was managing the Temple, as borne by Ext.P6/P6(a)[English translation]. Since no action was taken pursuant to Ext.P5, the petitioner was constrained to approach this Court by filing W.P(C)No.8904 of 2004, which was disposed of directing the second respondent to pass appropriate orders on Ext.P5. Accordingly, the matter was considered by the second respondent, who passed Ext.P7 order holding that, on perusal of the available documents, it was revealed that there was no Hereditary Trustee as defined under Section 6(9) of the Act, WPC 34879/2007 5 which according to the petitioner was not correct. However, the second respondent observed that as per Section 57(b) of the HR & CE Act, the Deputy Commissioner had the power and authority to deal with the matter, whereas the Asst. Commissioner had no such authority in this regard. It was accordingly, that interference was declined as per Ext.P7, without prejudice to the rights of the petitioner to move the Dy.Commissioner in terms of Section 57(b) of the HR & CE Act. Immediately, the petitioner moved the first respondent by filing a proper petition under Section 57(b) of the HR & CE Act. 5. In the meanwhile, a Revision Petition ( involving the affairs of the above Temple, under Section 99 of the HR & CE Act) came to be filed by one Mr. P. Raghavan before the Government of Kerala, which was finally heard by the Government, wherein Ext.P8 order was passed on 29.09.2001. The petitioner seeks to rely on some observations therein, to the effect that it was a Temple managed by Hereditary Trustee. After considering the rival submissions, the competent authority under the Government observed that the appointing authority had not WPC 34879/2007 6 considered the natural justice and morality in the appointment and that the Asst.Commissioner or the Area Committee had not complied with Section 43 of the HR & CE Act . It was accordingly, that the order of appointment dated 17.06.1998 of the Asst.Commissioner, HR & CE , Kasaragod (at Kanhangad) was set aside and the Asst. Commissioner was directed to call for fresh applications for appointment of Trustees and appointment one, from among the most suitable, qualified, eligible and experienced persons, after conducting proper scrutiny of the applications and interview. The Government also found that there was no need to interfere with the order passed by the Commissioner in R.P.7/98, which was upheld and the Revision Petition filed by Mr. Raghavan was dismissed, confining the interdiction only with regard to the order dated 17.06.1998, passed by the Asst.Commissioner, Kasaragod. The said order however does in no way declare any right of the petitioner or members of his family to be the Hereditary Trustees of the Temple, as the issue considered was with regard to appointment of Non-Hereditary Trustees. WPC 34879/2007 7 6. As mentioned above, the petitioner had filed Ext.P9 proceedings under Section 57(b) of the Act before the first respondent and thereafter approached this Court by filing W.P. (C)No.982 of 2007, which came to be disposed of, directing the first respondent to pass appropriate orders on Ext.P9. It is stated that some documents were sought to be produced by filing Ext.P10 I.A.No.11/07, which was allowed by the first respondent as per Ext.P11 order, despite which the documents were not produced, but for filing Ext.P12 affidavit by the second respondent. Finally, the first respondent passed Ext.P13 order on 14.04.2007, dismissing Ext.P9, which made the petitioner to approach this Court by filing the above writ petition. 7. During the pendency of the proceedings before this Court, the petitioner filed I.A. No.12286/2011, producing some additional documents as Exts.P14, P14(a) and P15. Ext.P14 is a copy of the minutes of the meeting of the Villagers connected to the Udyavara Mada Shrine, Manjeshwar, held on 27.06.2010; whereas Ext.P14(a) is its verbatim Translation in English, as certified by the learned counsel. Ext.P15 is a piece of information WPC 34879/2007 8 provided by the Executive Officer of Udyavara Sri Daivagalu Temple (dated 15.4.2011). The aforesaid documents have been produced by the petitioner with an attempt to substantiate that there were Hereditary Trustees in respect of the Temple. The nature and constitution of the Committee and the credibility of the contents of the said proceedings cannot be ascertained by this Court with reference to Exts.P14/P14(a), as it is not a public document. In respect of Ext.P15, the certifying authority, who issued the same on 15.4.2011, has not mentioned anything therein as to whether he had perused any documents to verify the position as to the existence of any Hereditary Trustee in the Temple and as to the circumstances in relation to the relevant period, particularly 1990-92. As such, the said documents also cannot be safely relied on by this Court to hold that the petitioner's fore-fathers were Hereditary Trustees in the Temple. 8. Coming to Ext.P13 order passed by the Deputy Commissioner in terms of S.57 (b) of the HR & CE Act, the factual position, as pleaded, has been taken note of. The 2[nd] respondent has specifically denied all the averments and WPC 34879/2007 9 allegations including the fact that the Temple was never managed by the family of the petitioner and further that the maternal uncle of the petitioner, by name Kochanna Rai, was appointed only as a Non-Hereditary Trustee. It is further pointed out that, even after the death of Kochanna Rai, no Hereditary Trustee continued to be appointed for more than 17 years and there was no claim from the part of the petitioner or any other member of the family with reference to any Hereditary Trusteeship in the Temple. It is further brought to our notice that the petitioner himself had applied for appointment as a NonHereditary Trustee in the Temple, which according to the petitioner was well within his rights and that there is no hurdle in applying for appointment as a Non-Hereditary Trustee by a member of the family, who is having Hereditary Trustee rights. It is also pointed out by the learned counsel for the petitioner that, his claim is only to establish the rights of the family and nothing else. This Court finds it difficult to accept the said proposition in so far as the specific prayer raised by the petitioner in the proceedings is to declare his right as a Hereditary Trustee WPC 34879/2007 10 and it is not in dispute that he himself had made an application for appointing him as a Non-Hereditary Trustee on 24.5.1992, when applications were called for in this regard. It was accordingly, that the merit of the case was analysed, appreciated and decided by the 1[st] respondent, who passed Ext.P13 order holding that no materials were produced before the authority to hold that the petitioner was having any right to be a Hereditary Trustee, in turn dismissing Ext.P9 petition. From the facts narrated above and the materials on record, we find it difficult to interdict Ext.P13 order passed by the 1[st] respondent, so as to pass any declaration enabling the petitioner to exercise the Hereditary Trustee ship right of the Temple. 9. Another more important question that arises for consideration before this Court, is as to the maintainability of the writ petition, challenging the validity of Ext.P13. Obviously, Ext.P13 is an order passed by the 1[st] respondent on Ext.P9 petition preferred in terms of Section 57(b) of the H.R.&C.E.Act. A specific remedy is provided under the Statute, if at all any person is aggrieved of such order passed under Section 57(b); WPC 34879/2007 11 as provided under Section 61 of the HR & CE Act, by filing an appeal before the Commissioner. Such an appeal has to be filed within a period of 'one month'. There is no case for the petitioner that he had availed such remedy before the Commissioner within time. It may be true that alternate remedy is not a bar for filing a writ petition before this Court and to have the matter dealt with in exercise of discretionary jurisdiction under Article 226 of the Constitution of India. But when a Statute specifically stipulates a time limit to file an appeal, the same cannot be widened by this Court causing the matter to be entertained under Article 226 of the Constitution of India. No such power is vested even with the Apex Court under Article 142 of the Constitution as made clear in the recent judgment reported in **Suryachakra Power Corporation Ltd. v. Electricity Department represented by its Superintending Engineer, Port Blair and Others [ (2016)16 SCC 152].** 10. Obviously the Writ Petition was filed only on 22.11.2007, challenging Ext.P13 order passed on 17.4.2007, i.e. 'seven months' after the expiry of the time limit for filing the WPC 34879/2007 12 appeal. The petitioner having failed to avail the statutory remedy within the stipulated time, he cannot be heard to say that he is having a right to be considered, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. We hold that the writ petition itself is not maintainable as well. It stands dismissed accordingly. **Sd/-** **P.R. RAMACHANDRA MENON, JUDGE** **Sd/SHIRCY V., JUDGE** lk/ks True copy P.S. (Hr.Gr.)To Judge WPC 34879/2007 13 34879 of 2007