W.P.(C) No.14130 of 2022, Kerala High Court

## **`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 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944 WP(C) NO. 14130 OF 2022 ``` ``` PETITIONERS: ``` - **`1 KUNNATH VASUMATHI,AGED 74 YEARS D/O KUTTIKRISHNA MENON, LAXMI VILAS, KADALUNDI VILLAGE, KADALUNDI PO KOZHIKODE-673301`** - **`2 SUBHADRA.K, AGED 73 YEARS D/O MADHAVA KURUP, EENJANANGADU VEEDU, KADALUNDI PO, KOZHIKODE673302`** - **`3 K.PARVATHIKKUTTY, AGED 71 YEARS, D/O MADHAVA KURUP, ALUVENGAL, "SRI PADMAM" PERUMANNA, KOZHIKODE-673008`** - **`4 K.SETHUMADHAVAN NAMBIAR, AGED 65 YEARS, S/O MADHAVA KURUP, KALLADA VEEDU, CHERUKUNNU (PUKIKKAL) MALAPURAM-673637`** - **`5 K.SASIDHARAN NAMBIAR, AGED 67 YEARS, S/O MADHAVA KURUP, KRISHNA KRIPA, VALLIKUNNU, TIRURANGADI TALUK, MALAPURAM DISTRICT-673314`** - **`6 KUNNATH ARAVINDAN, AGED 62 YEARS, S/O MADHAVA KURUP, KUNNATH HOUSE, KADALUNDI PO, KOZHIKODE-673301`** ## **`BY ADV M.KRISHNAKUMAR`** ## **`RESPONDENTS:`** - **`1 THE COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPPALAM, KOZHIKODE, KOZHIKODE-673006`** - **`2 THE DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD, CIVIL STATION, KOZHIKODE-673020`** -2- W.P.(C). No.14130 of 2022 - **`3 BALAKRISHNAN THAMBAN, MANEZHI HOUSE, EROOR PO, THRIPPUNITHURA, ERNAKULAM-682306`** - **`4 KUNNATH VASUDEVAN NAMBIAR, AGED 83 YEARS, KUNNATH HOUSE. KADALUNDI POKOZHIKODE-673301`** - **`5 KUNNATH VENUGOPALAN, AGED 74 YEARS, KUNNATH HOUSE, KADALUNDI PO-KOZHIKODE-673301`** - **`6 BHAKTHAVALSALAN CHAIRMAN, HANUMAN SENA BHARATH MOOPPANS BUILDING,THALI, PUTHIYAPALAM, KOZHIKODE-673002`** - **`7 P.T.S.UNNI, SRIVALSAM, MANARI ROAD, KALLAI-PO, KOZHIKODE-673003`** - **`8 SUSHANTH, SUJA NIVAS, KOTTAKADAVU, KADALUNDI, KOZHIKODE-673301`** - **`9 MURALEEDHARAN,(KOTA) ILLIKKAL PADIKKAL HOUSE, VALLIKUNNU PO, MALAPURAM-673314`** - **`10 UNNIKRISHNAN, PULIKKAL, KARUNAYIL HOUSE KADALUNDI PO-KOZHIKODE-673301`** - **`11 ANIL KUMAR.K., KOTTAYIL HOUSE, PEDIYATTUKUNNU, KADALUNDI PO, KOZHIKODE-673002`** - **`12 MOHANDAS.M, MARATHAYIL HOUSE, VALLIKUNNU, MALAPURAM-673314`** - **`13 PRABHAKARAN.V.N.,ERAMANGALAM, VALLIKUNNU PO, MALAPURAM-673314`** - **`14 MURALEEDHARAN, PARUTHIKADAN HOUSE, VALLIKUNNU PO, MALAPURAM-673314`** - **`15 SADASIVAN.T, TACHAT HOUSE, PAZHANCHANNUR. CHALIYAM PO, KOZHIKODE-673301`** - **`16 JAYAPRAKASH, KRISHNAGIRI, PEIYATTUKUNNU, KOZHIKODE-673302`** -3- W.P.(C). No.14130 of 2022 - **`*17 K.P.VASUDEVAN, KUDILPURAKKAL HOUSE, KADALUNDI PO, KOZHIKODE-673302`** ``` THE NAME OF R17 IS STRUCK OFF FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS AS PER ORDER DATED 15/07/2022 IN I.A.NO.3 OF 2022 ``` - **`18 VISHWANATHAN, KUNDAL HOUSE, KADALUNDI PO, KOZHIKODE-673302`** - **`19 VENUGOPALAN AMBALI AMBALI HOUSE, KADALUNDI PO, KOZHIKODE-673302`** - **`20 KUNNATH RAJAN, EENJANANGADU VEEDU, KADALUNDI PO, KOZHIKODE-673302`** - **`*21 P.V.GOPALAKRISHNAN MENON PUNNOLI VALAYANADU HOUSE, PULLIPARAMBU PO, MALAPURAM DISTRICT-673634`** ``` THE NAME OF R21 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 05/07/2022 IN I.A.NO.1 OF 2022 IN WP(C)NO.14130 OF 2022. ``` - **`22 PANAYAMADATHIL VASU NAYAR PANAYMADAM HOUSE, KADALUNDI PO, KOZHIKODE-673302`** - **`23 SWAMINATHAN`** - **`ONATHARA HOUSE, KADALUNDI PO, KOZHIKODE-673302`** ``` BY ADVS.V.T.MADHAVANUNNI ``` ``` V.V.SURENDRAN ``` ``` K.ABOOBACKER SIDHEEQUE ``` ``` P.A.HARISH ANUSREE.C ANAND V.S ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ``` ``` ADMISSION ON 15.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -4- W.P.(C). No.14130 of 2022 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioners, who are stated to be members of the Kunnath Tarward in Kadalundi, Kozhikode District, have filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that the prayers in Ext.P2 application dated 03.04.2018 submitted by the 7[th] respondent and Ext.P3 application submitted by the 8[th] respondent and others, numbered as O.A.No.3 of 2019 and pending before the 2[nd] respondent Deputy Commissioner, are not maintainable in law in the light of the law laid down by a learned Single Judge of this Court in **Thiruvachira SKP** **Committee v. Commissioner, HRC Endowments [1999 (2) KLT 590]** and subsequently by the Division Bench in **Gopinathan v. Raman [2004 (2) KLT 511]** and **Gangadharan Nair v. Commissioner, Malabar Devaswom Board [2013 (3) KLT 1017]** . The petitioners have also sought for a writ or order or direction to respondents 1 and 2 not to proceed with O.A.No.3 of 2019 or any other prayers relatable to the provisions contained in Sections 57, 58 and 61 of the Madras Hindu Religious and -5- ## W.P.(C). No.14130 of 2022 Charitable Endowments Act, 1951 in respect of Pediyattu Bhagavati Kavu Devaswom, unless and until the dispute on title left open by this Court in Ext.P1 judgment dated 15.01.2015 in L.A.A.No.448 of 2007 is resolved finally; a writ of mandamus commanding respondents 1 and 2 to ensure that the provisions contained in Order I Rule 8 of the Code of Civil Procedure, 1908 is strictly followed in the light of the specific provision contained in Section 95 of the Madras Hindu Religious and Charitable Endowments Act, 1951; a writ or order or direction to respondents 1 and 2 not to interfere in any manner in the affairs of Pediyattu Bhagavati Kavu Devaswom during the pendency of this writ petition; to set aside Ext.P8 order dated 17.02.2022 in I.A.No.24 of 2021 in O.A.No.3 of 2019 of the 2[nd] respondent Deputy Commissioner and allow Ext.P7 application filed by the petitioners seeking their impleadment as parties to O.A.No.3 of 2019 pending before the said respondent and; an ad interim order of stay of all further proceedings in Exts.P2 and P3 applications filed by respondents 7 and 8, which is numbered as O.A.No.3 of 2019. W.P.(C). No.14130 of 2022 -6- 2. On 19.04.2022, when this writ petition came up for admission, the learned counsel for the petitioners pressed for an interim order. This Court recorded the submission made by the learned Standing Counsel for Malabar Devaswom Board that final orders in O.A.No.3 of 2019, which is one filed by respondents 7 and 8 herein under Section 57 of the Act, with a prayer to the Malabar Devaswom Board to take over the administration of Pediyattu Bhagavati Temple under the Pediyattu Bhagavati Kavu Devaswom, will not be passed for a period of one month. 3. On 18.05.2022, when this matter came up for consideration, this Court issued notice on admission to respondents 3 to 23 by speed post. The learned Standing Counsel took notice on admission for respondents 1 and 2 and sought time to file statement. This Court granted an interim order restraining the 2[nd] respondent Deputy Commissioner from passing final orders in O.A.No.3 of 2019, for a period of one month. The said interim order, which was extended from time to time, is still in force. 4. On 31.05.2022, the learned Standing Counsel for Malabar Devaswom Board raised the question of **==> picture [18 x 8] intentionally omitted <==** W.P.(C). No.14130 of 2022 maintainability of this writ petition, in view of the statutory remedy available under Section 61 of the Act. The learned Standing Counsel pointed out that some of the reliefs sought for in this writ petition cannot be entertained in view of Ext.P4 decision of this Court dated 24.10.2018 in W.P.(C)No.34580 of 2018. 5. On 21.06.2022, when this writ petition came up for consideration, this Court passed the following order; “Paragraph 13 of the statement of facts and also the first relief sought for in this writ petition read thus; “13. The law on the point is settled by a learned single judge of the High Court of Kerala in **1999 (2) KLT 590** and subsequently by the Division Bench, **2004 (2) KLT 511 & 2013 (3) KLT 1017** wherein it is clearly declared that the 1[st] respondent/the Deputy Commissioner functioning under section 57 of the Madras HR & CE Act, 1951 has no power to consider any prayers in the nature contained in Exhibit P2 or Exhibit P3.” ## Relief: - “(i) Declare that the prayers in Exhibit P2 & Exhibit P3 applications filed by the respondents 7 and 8, numbered by the 2[nd] respondent/Deputy Commissioner as OA 3/2019, and pending before him is not maintainable in law in the light of the law declared by a learned Single Judge of the High W.P.(C). No.14130 of 2022 -8- Court of Kerala in **1999 (2) KLT 590** and subsequently by the Division Bench, in **2004 (2) KLT 511 & 2013 (3) KLT 1017** .” 2. In **Alikutty and another v. State of Kerala [ILR 2006 (4) Ker. 364]** a Division Bench of this Court held that, while citing decisions in a judgment, the names of parties should also be given. In the said decision, the Division Bench followed the decision of the Apex Court in **Municipal Council v. Joseph [AIR 1963 SC 1561]** . 3. The principle laid down in **Alikutty** (supra) would apply with equal force while citing decisions in all petitions, affidavits, memorandum of appeal and other proceedings presented before this Court. Therefore, while citing decisions in writ petitions, appeals, revisions, counter affidavits, reply affidavits, etc., presented before this Court, the names of parties should also be given, along with citation. 4. Await return of notice. 5. Interim order will stand extended by two weeks.” 6. Heard the learned counsel for the petitioners, the learned Standing Counsel for Malabar Devaswom Board for respondents 1 and 2, the learned counsel for the 3[rd] respondent, the learned counsel for respondents 8, 9, 11, 12, 16, 18 and 21 and also the learned counsel for the 20[th] respondent. W.P.(C). No.14130 of 2022 -9- 7. During the course of arguments, the learned counsel for the petitioners would confine the challenge made in this writ petition as one against Ext.P8 order, leaving open the legal and factual contentions raised in this writ petition, insofar as the other reliefs sought for are concerned. 8. Ext.P8 order, which is under challenge in this writ petition is one passed by the 2[nd] respondent Deputy Commissioner in I.A.No.24 of 2021, which is one filed by the writ petitioners seeking an order to get themselves impleaded as additional respondents in O.A.No.3 of 2019. A reading of Ext.P8 order would make it explicitly clear that the 2[nd] respondent rejected the said interlocutory application mainly on the ground that it is belated. The 2[nd] respondent has not adverted to the legal and factual contentions raised by the petitioners in support of the application for impleadment. From the submissions made by the learned counsel for the party respondents, we find that they have serious objections to the application for impleadment. However, none of them could file counter to the said application. W.P.(C). No.14130 of 2022 -10- 9. Since Ext.P8 order of the 2[nd] respondent Deputy Commissioner in I.A.No.24 of 2021 in O.A.No.3 of 2019 is not one passed after adverting to the legal and factual contention raised by the petitioners, this writ petition is disposed of by setting aside Ext.P8 order for the above reason, and by directing the 2[nd] respondent Deputy Commissioner to pass fresh orders in I.A.No.24 of 2021 in O.A.No.3 of 2019, after adverting to the legal and factual contentions raised by both sides. In case the party respondents herein are yet to file counter to the said interlocutory application, they shall file the same within a period of two weeks from the date of receipt of a certified copy of this judgment. The 2[nd] respondent shall pass a reasoned order in I.A.No.24 of 2021 in O.A.No.3 of 2019, as expeditiously as possible, at any rate, within a period of two weeks thereafter. 10. It is made clear that this Court has not expressed anything on the legal and factual contentions raised by both sides, which are left open to be raised before the appropriate forum, at the appropriate stage. The other reliefs sought for in this writ petition and also the contention of respondents 1 and 2 that some of the reliefs sought for in this writ petition **==> picture [24 x 8] intentionally omitted <==** W.P.(C). No.14130 of 2022 cannot be entertained in view of Ext.P4 decision of this Court dated 24.10.2018 in W.P.(C)No.34580 of 2018, are also left open. Both parties are directed to appear before the 2[nd] respondent Deputy Commissioner on **29.07.2022** . Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** AV -12- W.P.(C). No.14130 of 2022 ## **`APPENDIX OF WP(C) 14130/2022`** ``` PETITIONER EXHIBITS ``` - **`Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 15-012015 IN L.A.A.448/2007 OF THE HIGH COURT OF KERALA`** ``` Exhibit P2 TRUE COPY OF THE PETITION DATED 3-04- 2018 FILED BY THE 7TH RESPONDENT BEFORE THE DEPUTY COMMISSIONER ``` - **`Exhibit P3 TRUE COPY OF THE PETITION FILED BY THE 8TH THE RESPONDENT AND OTHERS BEFORE THE 2ND RESPONDENT, DEPUTY COMMISSIONER`** ``` Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 24-10- 2018 IN WP C NO.34580 OF 2018 ON THE FILE OF THE HIGH COURT OF KERALA ``` ``` Exhibit P5 ``` ``` TRUE COPY OF THE ORDER DATED 15-10- 2019 IN I.A.15/19 IN 0A.3/2019 ON THE FILE OF THE DEPUTY COMMISSIONER, THE 2ND RESPONDENT ``` - **`Exhibit P6 TRUE COPY OF THE ORDER DATED 5-02-2020 IN R.P.14/2019 & I.A.39/2019 ON THE FILE OF THE COMMISSIONER MALABAR DEVASWOM BOARD`** ``` Exhibit P7 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN IA 24/2021 IN 0.A.NO.3/2019 ON THE FILE OF THE DEPUTY COMMISSIONER, THE 2ND RESPONDENT ``` - **`Exhibit P8`** - **`TRUE COPY OF THE ORDER DATED 17-022022 IN IA 24/2021 IN O.A.NO.3/2019 ON THE FILE OF THE DEPUTY COMMISSIONER, THE 2ND RESPONDENT`**