Kerala High Court
The Executive Officer vs The Deputy Superintendent Of Police on 9 April, 2019
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 09TH DAY OF APRIL, 2019 / 19TH CHAITHRA, 1941
WP(C).No. 35142 of 2018
PETITIONER:
THE EXECUTIVE OFFICER
CHATHANKANDARKAVU TEMPLE, VARODE, OTTAPALAM,PALAKKAD
DISTRICT.
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.T.V.NEEMA
RESPONDENTS:
1 THE DEPUTY SUPERINTENDENT OF POLICE
SHORNUR, PALAKKAD,- 679121
2 THE CIRCLE INSPECTOR OF POLICE
OTTAPALAM-679 101
3 THE COMMISSIONER
MALABAR DEVASWOM BOARD, HOUSFED COMPLEX, ERANJIPALAM,
KOZHIKODE-673 006
4 THE ASSISTANT COMMISSIONER
MALABAR DEVASWOM BOARD, PALAKKAD-678 001
5 PRASAD.V.,
S/O. GOPALAN EZHUTHASSAN, VETTIKATTUTHODI HOUSE,
CHUNANGAD P.O., OTTAPALAM TALUK,
PALAKKAD DISTRICT-679 101
WP(C) NO.35142 OF 2018
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6 ADDL. R6 KRISHNAN NAMBOODIRIPAD
AGED 93 YEARS, S/O. NEELAKANDAN NAMBOODIRIPAD,
KANJIYOOR MANA, CHUNANGAD P.O., AMABALAPPARA-II
VILLAGE, OTTAPALAM, PALAKKAD-679511, REPRESENTED BY
HIS POWER OF ATTORNEY HOLDER AJITH K.K. AGED 49
YEARS, S/O. K.M. NAMBOOTHIRIPPAD, ANIMA, SHORNUR,
PALAKKAD-679121.
(ADDITIONAL R6 IS IMPLEADED AS PER ORDER DATED
12/02/2019 IN IA NO.3/2019)
BY ADVS.
SRI.P.B.KRISHNAN
SRI.R.KRISHNA RAJ
SMT.E.S.SONI
SRI.MANU VYASAN PETER
SRI.P.B.SUBRAMANYAN
SRI.P.M.NEELAKANDAN
SRI.SABU GEORGE
OTHER PRESENT:
R1 TO R4 BY SR.GP SRI.P.P.THAJUDEEN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 01..04..2019, THE COURT ON 09..04..2019 DELIVERED THE
FOLLOWING:
WP(C) NO.35142 OF 2018
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WP(C).NO. 35142 OF 2018
JUDGMENT
N.ANIL KUMAR,J:
Dedicated to Goddess Durga, Chathankandarkavu temple (hereinafter referred to as 'the temple') is situated at Ottappalam, Palakkad District. The main deity of the temple is Goddess Durga.
2. The temple was declared as a public religious institution coming under the Hindu Religious and Charitable Endowment Act (hereinafter referred to as 'the HR&CE Act') by the Deputy Commissioner as per the order in O.A.No.3/2016. Subsequently, the Assistant Commissioner, Palakkad appointed an Executive Officer for the administration of the temple as per A5/1161/17/M.D.B/K.Dis. dated 24.5.2017 as disclosed from Ext.P2, which led to Ext.P1 Government Order declaring the temple as a public religious institution coming under the HR&CE Act. In compliance of Ext.P1, the fourth respondent appointed the petitioner as the Executive Officer to take over the administration of the temple.
WP(C) NO.35142 OF 2018 :-4-:
3. In this context, it is relevant to note that before declaring the temple as public temple as per Ext.P1, admittedly, the 'Chathankandarkadavu Kshethra Bharana Samithi' was in administration of the temple. Almost all the Devaswom land except a small extent, where the temple and its property is situated, were lost consequent to the Kerala Land Reforms Act and the income of the temple was diminished to a great extent. A 'Kshethra Bharana Samithi' was engaged for the day to day rituals of the temple. The fifth respondent was the Secretary of the Samithi. Right from the very beginning, he has been contending that the temple along with its properties originally belonged to the 'Meppadi Manackal Neelakandan Nampoothiri' by virtue of partition Deed No.1232/1968 and the temple is owned and administered by the members of the family as 'Ooralan' by virtue of the conditions prescribed in the above said document. According to the fifth respondent, a Temple Advisory Committee was formed by the 'Ooralan' of the temple for the purpose of assisting him in the management of the affairs of the temple. Thus, it is asserted that WP(C) NO.35142 OF 2018 :-5-:
the functioning and administration of the temple will in no way come within the definition of the temples that can be acquired and possessed by the Malabar Devaswom Board. On going through Ext.P1, it is clear that all the contentions raised by the 5th respondent was considered by the Government and issued Ext.P1 declaring the temple as a public religious institution coming under the HR&CE Act.
4. As indicated earlier, there was total non-co- operation in the matter of taking over the administration of the temple on the part of the fifth respondent and his men. Resultantly, the 4th respondent passed an order directing the petitioenr to take over the administration of the temple in the presence of the Village Officer and Divisional Inspector, Malabar Devaswom Board as per Ext.P3. In compliance of Ext.P3, the Village Officer requested the Tahsildar to extend his help to take over the administration as per Ext.P4. Exts.P5 to P9 would indicate that in compliance of Exts.P3 and P4, the petitioner has assumed control over the administration of the temple on 22.5.2018.
WP(C) NO.35142 OF 2018 :-6-:
5. The learned counsel for the petitioner contends that the petitioner and the employees of the temple are entitled to get police protection for implementing the lawful orders passed by the authorities under the HR&CE Act pointing out that Exts.P8 and P9 would show highhanded action at the instance of the fifth respondent which has gone to the extent of removing the sign board placed in front of the Kalayanamandapam attached to the temple which forms part of the temple.
6. Fifth respondent and additional sixth respondent filed separate counter affidavit contending that the Chathankandarkavu temple is a private temple of Kanjiyoor Mana and the affairs of the temple were being managed by the father of the additional respondent No.6 Sri.Neelakandan Namboothiripad. In the family partition deed No.1232 of 1968, the temple and its properties set apart to the temple were included in Scheduled No.1 and the temple was set apart to the share of Sakha of the additional respondent No.6. It is asserted that additional respondent No.6 is the owner as also the 'Ooralan' of the temple and its WP(C) NO.35142 OF 2018 :-7-:
assets. It is contended that an attempt was made by the Deputy Commissioner of the HR&CE Department to declare the temple as a religious institution under Section 57(a) of the HR&CE Act. However, the proceeding was dropped by Ext.R6(c), finding that there is no ground to declare the temple as a religious institution. It is the common contention of fifth and additional sixth respondents that the declaration made in OA.No. 3/2016 purporting to be under Section 57(a) of the HR&CE Act was taken behind the back of the party respondents and the same was questioned before this Court in Ext.R6(d). Thereafter, additional respondent No.6 filed Ext.R6(e) suit as O.S.No.57/2018 before the Sub Court, Ottappalam seeking the relief of declaration and injunction. In the said case, additional 6 th respondent filed Ext.R6(g) I.A.No.1249 of 2018 seeking an order of temporary injunction restraining the Malabar Devaswom Board and its officers from interfering with the right of the additional 6 th respondent to manage the temple.
7. Ext.R6(d) judgment of this Court would show WP(C) NO.35142 OF 2018 :-8-:
that the additional sixth respondent challenged the competency of the third respondent to appoint an Executive Officer to take over the administration of the temple. It was withdrawn. Thereafter, he filed Ext.R5(a) suit before the Sub Court, Ottappalm for declaration and consequential injunction restraining the Malabar Devaswom Board and its officials from interfering with the administration of the temple till the disposal of the suit. However, the trial court has not issued any interim injunction as prayed for so far. In the mean while, the Malabar Devaswom Board has published notification for appointment of non- hereditary trustees. The additional sixth respondent has filed Ext.P14 injunction application restraining the Malabar Devaswom Board from interfering with the administration of the temple and also from appointing trustees for the administration of the temple. The Sub Court, Ottappalam passed Ext.P15 order restraining the appointment of trustees in the temple till the disposal of IA 1249/2018.
8. Fifth respondent admitted in the counter affidavit that additional sixth respondent filed WP(C) WP(C) NO.35142 OF 2018 :-9-:
No.16738/2018 before this Court. According to the fifth respondent, when the above writ petition was taken up for hearing, this Court had expressed an opinion that the remedy available to the Ooralan of the temple is to establish his right before the civil court and thereupon, he has approached the civil court and filed Ext.R5(a) suit as O.S.No.57/2018 for a decree of declaration that the temple and its properties will not come under the HR&CE Act and therefore, the take over is illegal. It is further contended that the present attempt of the petitioner is to take over the possession of the Kalyanamandapam and its properties functioning under a registered trust. Going by Ext.R5(a) suit, the plaint schedule property is an area of 0.2210 hectare of land and temple and the pond therein comprised in Sy.No.89/5 and 89/6 Re.Sy.Nos.219/2 and 219/3 of Chunangad Village. According to the fifth respondent, the trust has approached the civil court by filing O.S.No.289/2018 restraining the officers of the Devaswom Board to enter into the properties of the trust including Kalayanamandapam and taking over the WP(C) NO.35142 OF 2018 :-10-:
possession of the same on the strength of Ext.P1. The main grievance is that the entire proceedings were initiated by the Malabar Devaswom Board based on a complaint filed by four active workers of the Communist Party of India as part of their political agenda to capture the administration of the temple. On the other hand, the learned counsel for the additional sixth respondent contends that the temple is not listed under Section 38 of the HR&CE Act and there is no notice under Section 39 or 63 of the Act and an order under Section 57(c) does not empower the Board to appoint an Executive Officer.
9. Exts.P1 to P3 would inter alia show that the administration of the temple was taken over by the Malabar Devaswom Board pursuant to Ext.P1 order issued by the Government. The petitioner is currently officiating as Executive Officer of the temple. Ext.P1 order passed by the Government taking over the administration of the temple was challenged before this Court but later withdrawn. The additional sixth respondent filed Ext.R6(e) suit before the Sub Court, Ottappalam challenging Ext.P1 order issued by WP(C) NO.35142 OF 2018 :-11-:
the Government. In paragraph 3 of Ext.R6(e) suit, the addl.respondent No.6 stated that the temple does not satisfy the requirements of a public temple as contemplated under the Scheme of HR&CE Act. Hence Ext.P1 is sought to be set aside on the above ground. On going through the entire facts and circumstances of the case, we are of the view that the parties are governed under Ext.P1 order issued by the Government. Unless and until Ext.P1 is set aside in a process known to law, the parties are bound to comply with the order without any change whatsoever. The question as to whether Ext.P1 has been passed in accordance with the Scheme of the Act or not, is a matter for adjudication as and when the question touching the validity of Ext.P1 arises for consideration. Additional sixth respondent has chosen to challenge Ext.P1 before the civil court in accordance with law. The matter is now pending before the civil court for adjudication. O.S.No.289/2018 is also pending before the Munsiff's Court, Ottappalam claiming that the kalayanamandapam attached to the temple is owned by the trust. The party respondents have opted to sort WP(C) NO.35142 OF 2018 :-12-:
out the issues between the parties through the civil court. Under the circumstances, the contentions that the temple is not listed under Section 38 of the HR&CE Act and that no notice under Section 39 or 63 under the HR&CE Act or an order under Section 57(c)of the HR&CE Act does not empower the Board to appoint an Executive Officer are all matters within the purview of the civil court for adjudication. Ext.P1 is not challenged before this Court. Hence the petitioner, who is the administrative head of the temple, is entitled to ensure that the function of the temple is properly done. Considering the nature of the pleadings raised and also the submissions made across the bar, this Court granted an interim order on 2.11.2018 directing the respondents 1 and 2 to ensure that law and order is ensured in accordance with Ext.P10 request to the first respondent to give adequate police protection to the petitioner and the employees of the temple pending disposal of the writ petition. In view of the discussion made hereinabove, we find it appropriate to make the interim order absolute. It is ordered accordingly.
WP(C) NO.35142 OF 2018 :-13-:
10. It is clarified that we have not decided the circumstances leading to Ext.P1 order issued by the Government or the validity thereof in this proceedings. Parties are at liberty to challenge Ext.P1 before the competent forum in accordance with law. All the points touching the validity of Ext.P1 are left open for consideration. Without prejudice to the rights and liberties of the party respondents to challenge Ext.P1 in accordance with law, the writ petition stands disposed of as indicated hereinabove.
Sd/-
P.R.RAMACHANDRA MENON, JUDGE Sd/-
N.ANIL KUMAR, JUDGE MBS/ WP(C) NO.35142 OF 2018 :-14-:
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE GO (MS) 499/2018/REV.
DATED 15-2-2018 EXHIBIT P2 TRUE COPY OF HE ORDER OF THE 4TH RESPONDENT NO.H7-17/2017/MDB DATED 27- 2-2018 EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT NO.A5-1161/2017/M.D.B (K.DIS) DATED 6-4-2018 EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS OF THE VILLAGE OFFICER, AMBALAPARA DATED 4-5- 2018 EXHIBIT P5 TRUE COPY OF THE CHARGE LIST WITH INVENTORY DATED 22.5.2018 EXHIBIT P6 TRUE COPY OF THE ACKNOWLEDGEMENT OF RECEIPT OF KEY DATED 16-7-2018 WITH LETTER EXHIBIT P7 TRUE COPY OF THE COMMUNICATION NO.A5/1161/2017/M.D.B. DATED 1-6-2018 BY THE ASSISTANT COMMISSIONER EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT 25-9-2018 EXHIBIT P9 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT 25-9-2018 EXHIBIT P10 TRUE COPY OF HE LETTER SENT BY THE 4TH RESPONDENT TO THE 1ST RESPONDENT DATED 25-9-2018 WITH ACKNOWLEDGEMENT RECEIPT EXHIBIT P11 TRUE COPY OF THE I.A.NO.1249/2018 IN O.S.57/2018 DATED 29.8.2018.
EXHIBIT P12 TRUE COPY OF THE OBJECTION FILED BY THE MALABAR DEVASWOM BOARD IN IA.1249/2018 DATED 26.9.2018 IN O.S.57/2018. WP(C) NO.35142 OF 2018 :-15-:
EXHIBIT P13 TRUE COPY OF THE OBJECTION FILED BY THE EXECUTIVE OFFICER IN IA.1249/2018 DATED 27.9.2018.
EXHIBIT P14 TRUE COPY OF THE AFFIDAVIT DATED 22.9.2018 IN SUPPORT OF I.A.1412/2018.
EXHIBIT P15 TRUE COPY OF THE ORDER IN IA.1412/2018 IN OS.57/2018 DATED 21.12.2018 PASSED BY THE SUB COURT, OTTAPALAM.
RESPONDENTS' EXHIBITS:
EXHIBIT R5 (a) COPY OF THE PLAINT IN O.S.NO.57/2018. EXHIBIT R5 (b) COPY OF THE TRUST DEED DATED 8.2.1985. EXHIBIT R6 (a) A TRUE COPY OF THE POWER OF ATTORNEY DATED 18.5.2018.
EXHIBIT R6 (b) A TRUE COPY OF THE NOTICE DATED 4.7.2002 IN O.A.NO.13 OF 2002.
EXHIBIT R6 (c) A TRUE COPY OF THE ORDER DATED 13.1.2003 IN O.A.NO.13 OF 2002.
EXHIBIT R6 (d) A TRUE COPY OF THE JUDGMENT DATED 28.5.2018 IN WPC.NO.16738 OF 2018 BEFORE THIS HON'BLE COURT.
EXHIBIT R6 (e) A TRUE COPY OF THE PLAINT DATED NIL AUGUST, 2018 IN O.S.NO.57 OF 2018 ON THE FILE OF THE SUB COURT, OTTAPPALAM.
EXHIBIT R6 (f) A TRUE COPY OF THE ORDER DATED 21.12.2018 IN IA.NO.1412 OF 2018 IN O.A.NO.57 OF 2018 ON THE FILE OF THE SUB COURT, OTTAPPALAM.
EXHIBIT R6 (g) A TRUE COPY OF I.A.NO.1249 OF 2018 IN O.S.NO.57 OF 2018 ON THE FILE OF THE SUB COURT, OTTAPPALAM.