Dismissed

A.Sajeevan v. the Commissioner

Kerala HC4 Dec 2020WP(C)/25981/2020

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by temple members challenging the Malabar Devaswom Board's actions. The court held that seeking judicial intervention based on mere apprehension regarding a pending appeal lacks merit and interferes with the appellate authority's judicial independence. The petitioners were ordered to pay costs.

What did the court decide?

Writ petition dismissed with a cost of Rs.25,00/ to be paid to the Kerala Legal Services Authority.

A.Sajeevan Vs the Commissioner — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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THE HONOURABLE MR. JUSTICE K.HARIPAL

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FRIDAY, THE 04TH DAY OF DECEMBER 2020 / 13TH AGRAHAYANA, 1942

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WP(C).No.25981 OF 2020(W)

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PETITIONERS:

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1 A.SAJEEVAN,YADUKULAM, POYILOOR P O, KANNUR-670693

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2 O K VINOD IRUTHERALTAVITA VEEDU, POYILOOR P O, KANNUR-670693.

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3 O KUNJIKANNAN,ONDHATH HOUSE, POYILOOR P O,KANNUR -670693.

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4 VIJESH P PUSHKARAN PUVATHAMMAL HOUSE, POYILOOR P O, KANNUR -670693.

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5 SARATH CHANDRAN M MAROLI VEEDU, THAVAKKUNNU, POYILOOR P O, KANNUR -670693.

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6 V K PRAMOD,VAYALORUKARA VEEDU, POYILOOR P O,KANNUR -670693.

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7 SANTHOSH M S/O CHATHUKUTTY NAIR, SANTHOSH BHAVAN, THUVAKKUNNU, POYILOOR P O, KANNUR -670693.

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W.P.(C).25981/2020

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8 K P KRISHNAN KALLUPARAMBATHU VEEDU, PULLAYITHODU, POYILOOR P O, KANNUR -670693.

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9 MANOJ P C DEEPAM, PANOOR AMSOM, PANOOR P O, KANNUR-670692.

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BY ADVS.

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SRI.M.P.ASHOK KUMAR SMT.BINDU SREEDHAR SHRI.ASIF N

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RESPONDENTS:

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1 THE COMMISSIONER HR & CE DEPARTMENT, KOZHIKODE-673001.

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2 THE DEPUTY COMMISSIONER HR & CE (LAW) DEPARTMENT, KOZHIKODE-673001.

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3 NANU PRESIDENT, POYILOOR MUTHAPPAN MATAPPURA, ITHIYULLA PARAMBU VEEDU, POYILOOR P O, KANNUR-670693.

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4 P C CHINNAMMALU AMMA USHA BHAVAN,PANOOR P O, KANNUR-670692.

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5 P C SATHI S NAMBIAR DEEPAM, PANOOR AMSOM, PANOOR P O, KANNUR-670692.

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6 P C RAJALEKSHMI PATHMARAMAM, PANOOR AMSOM, PANOOR P O, KANNUR-670692.

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7 RAJENDRAN P C KEDARAM,CHORODE P O, VATAKARA, KOZHIKODE DISTRICT-673104.

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8 N PUSHKARAN POYILOOR SREE MUTHAPPAN MADAPURA, NELLIYULLATHIL VEEDU, POYILOOR P O, KANNUR -670693.

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9 K C CHANDRAN KUNDANCHALIL HOUSE, POYILOOR SREE MUTHAPPAN MADAPURA, KSHETHRA THANDEYEAN, POYILOOR P O, KANNUR-670693.

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10 V K PAVITHRAN VADAKKEYIL VEEDU, POYILOOR P O,KANNUR-670693.

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11 T P ANNANDAN THARAPPURATH HOUSE, POYILOOR P O, KANNUR-670693.

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12 O K RAMAKRISHNAN PANCHAVADI,POYILOOR P O, KANNUR-670693.

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SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).25981/2020

JUDGMENT

Ravikumar, J.

The petitioners are members of Chekkura Puthalathu Pothady Illam, which, according to them, owns and manages the Poyiloor Sri Muthappan Madapura in Thripprangottur Panchayath. It is contended that it is a family temple and therefore, not falling under the control and supervision of the Malabar Devaswom Board (MDB). It is also contended that at the instance of a ruling political party, Ext.P1 complaint was made before the first respondent to take over the Madappura and to conduct annual festival. On receipt of Ext.P1, the Devaswom Commissioner caused an enquiry and obtained Ext.P2 report from the Devaswom Divisional Inspector. Thereupon, Ext.P2 was placed before MDB and on its basis, Ext.P3 resolution was passed. It is contended that Ext.P3 reveals the policy decision of the Board to take over the temple and naturally, on its basis, as per Ext.P4, the Devaswom Commissioner directed the Deputy Commissioner to declare the Madapura as a religious institution under section 57(a) of

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the Hindu Religious & Charitable Endowments Act (Madras) (for brevity, 'HR & CE Act'). Thereafter, the Deputy Commissioner numbered Ext.P1 complaint as O.A.No.9/2018 under section 57 of the HR & CE Act. Meanwhile, the petitioners preferred an appeal against Ext.P2 before the Commissioner. It is the contention that without waiting for the outcome of the appeal, the Deputy Commissioner passed orders in O.A.No.9/2018. Ext.P5 is the order passed thereon. Aggrieved by Ext.P5, the petitioners filed Appeal No.3/2020 before the Commissioner. Thereafter, they rushed to this Court by filing W.P.(C) No.17684/2020 with the prayer to declare that the Deputy Commissioner got no authority to order appointment of an Executive Officer under section 57 (1) of the HR & CE Act. They also sought for a direction to respondents 1 and 2 therein or any other officer in the Board not to appoint any Executive Officer in Poyiloor Sri Muthappan Madapura. The said writ petition was disposed of as per Ext.P6 directing the first respondent to dispose of the appeal preferred by the petitioners, referred to therein as Ext.P6, within a period of three months from the date of receipt of copy of the judgment with

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notice to the parties. It was also observed thereunder that in case of difficulty in an early disposal of the appeal, it would be open to the appellate authority to take up the I.A filed in the appeal viz., I.A.No.6/2020 and pass orders thereon. The admitted position is that

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the appellate authority thereafter considered the appeal. However, before the appellate authority could pass orders in the appeal, the petitioners are again before this Court, by filing the captioned writ petition, seeking the following prayers:-

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i. Direct the respondents 1 and 2 or any other officer in the Malabar Devaswom Board not to enforce/execute the orders passed by the commissioner in Appeal 3 of 2020 or Exhibit P5 order till the expiry of the statutory time limit provided under section 62 of the HR & CE Act.

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ii. Declare that the statutory and constitutional right of the petitioners guaranteed under HR & CE Act and the Constitution of India cannot be defeated by the Malabar Devaswom Board or its officials by executing the orders in Appeal 3 of 2020 on the day of passing of the order by the 1^st respondent affirming Exhibit P5 order of the 2^nd respondent.

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iii. Issue a writ of mandamus or other appropriate writ or order commanding the 1^st respondent to serve a copy of the order if any passed in

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W.P.(C).25981/2020

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Appeal 3 of 2020 to the petitioners without any delay.

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Heard the learned counsel for the petitioners and the learned standing counsel appearing for MDB.

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When the matter was taken up for consideration on 1.12.2020, taking note of the nature of Ext.P6 judgment, the provisions under the HR & CE Act as also the nature of the pleadings and prayers in the writ petition, this Court put a pointed question to the petitioners as to how the writ petition could be maintained based on apprehension. We put such a question mainly because of the pleadings in paragraph 15 of the writ petition as also the nature of the reliefs sought for. Paragraph 15 of the writ petition reads thus:-

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“15.There is every possibility of taking over the Temple with police aid within 24 hrs of the passing of the order by the commissioner in Appeal 3 of 2020 without giving an opportunity to the petitioners to invoking their remedy either under the HR & CE or under the Constitution of India.”

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The tenor of the contentions in the writ petition would make

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it thus clear that the petitioners apprehend that an adverse order is

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likely to be passed in Appeal No.3 of 2020. That apart, the contentions would also reveal that the petitioners apprehend that immediately after passing such an order with a view to defeat the right of the petitioners to prefer a suit under section 62 of the HR & CE Act, the order would be implemented with police aid. Despite our careful scrutiny of the pleadings, we could not find any material whatsoever or even any pleading to support such an apprehension. It is taking into account the settled position of law in regard to the issue viz., whether a person could be permitted to invoke extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India based merely on an apprehension that we made observation regarding the nonmaintainability of the writ petition. Thereupon, the learned counsel sought time and accordingly, the case was posted to this day (04.12.2020). When the matter is taken up for consideration, the learned counsel for the petitioners, obviously on instruction from the petitioners, argued the matter on merits even after going through the binding decisions unfavourable to the petitioners. In the said circumstances, it would only be appropriate to consider the relevant

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provisions as also the binding decisions on the point. Section 62 of

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the HR & CE Act reads thus:-

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“ 62. Suits and appeals-- (1) Any party aggrieved by an order passed by the Commissioner--

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(i) under Section 61, sub-section (1) or sub-section (2), and relating to any of the matters specified in Section 57, Section 58 or Section 60; or

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(ii) under Section 57, Section 58 or Section 60 read with sub-section (1)(a), (2), or (4)(a) of Section 19 may, within ninety days from the date of the receipt of such order by him, institute a suit in the Court against such order; and the Court may modify or cancel such order, but it shall have no power to stay the Commissioner's order pending the disposal of the suit.

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(2)Any party aggrieved by a decree of the Court under sub-section (1) may, within ninety days from the date of the decree, appeal to the High Court.

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(3)(a) Any scheme for the administration of a religious institution settled or modified by the Court in a suit under sub-section (1) or on an appeal under subsection (2) or any scheme deemed under Section 103, clause (d), to have been settled or modified by the Court may, at any time, be modified or cancelled by the Court on an application made to it by the Commissioner, the trustee or any person having interest.

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(b)Any party aggrieved by an order of the Court under clause (a) may, within ninety days from the date of the order, appeal to the High Court.

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(Underline supplied)

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A scanning of the afore-extracted provisions would thus

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reveal that a party who is aggrieved by an order of the Commissioner in proceedings under sections 57, 58 or under section 60 read with sub-sections (1)(a), (2) or (4)(a) of section 19, may, within 90 days from the date of receipt of such order by him, could institute a suit in the Court against such order. It is relevant to note that 'right to file a suit' is provided under HR & CE Act only to a party aggrieved by an order passed by the Commissioner, as can be seen from Section 62(1) (ii) of the HR & CE Act. In the contextual situation, it is also relevant to refer to the decision of a Division Bench of this Court in Ramani

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Nessiar v. Commissioner, H.R & C.E Department [2008 (1) KLT

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595] . This Court held that despite the imposition of ban under section 62(1) of the HR & CE Act, the jurisdiction of the civil court regulated by Rules 1 and 2 of Order 39 of the Civil Procedure Code remain in tact. In other words, the civil court will have the power to pass any other order except stay of order of the Commissioner. However, admittedly, such a stage to institute a suit has not arisen in the case on

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hand as the matter is still pending with the Commissioner, the statutory appellate authority, as Appeal No. 3/2020. Still the petitioners have chosen to file this writ petition and pursue with the same despite our observation regarding the maintainability of the writ petition.

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In the contextual situation, it is also apposite to refer to a

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decision of a Division Bench of this Court in Narayanan Nair v.

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Vaikom Palliprathusserry Service Co-operative Bank [2003 (2) KLT 44] and the decision of the Hon'ble Apex Court in Manish S. Pardasani v. Inspector State Excise [2019 (2) SCC 660] . In the context of the contentions, it is only worthwhile to extract paragraphs 64 and 65 of the decision in Manish.S. Pardasani's case and they read thus:-

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“64.We find that the High Court while disposing of the Writ Petitions also passed the following writ/directions in Para 20 which reads as under:

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“20.Since an apprehension is expressed and a serious one by the petitioners, we direct that in the event the fourth respondent passes any orders adverse to the petitioners, then, such orders shall not take effect for a period of four weeks from the date they are communicated to

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the petitioners. Since we have set aside the fourth respondent’s interim order and for the present not expressed any opinion on the contentions raised before us, interest of justice demands that the sealing of the premises by the authorities should be set aside. Therefore, the Superintendent or other functionary is directed to remove the seal, lock and key placed on the premises forthwith. This order will ensure to the benefit of such of the petitioners whose licenses are subsisting and are not cancelled. The other licences, which are no longer in operation on account of their termination, the holders thereof cannot avail the benefit of this order. However, we do not express any opinion on the remedies that are available to them and they can avail them as observed and held in the above paragraphs.” (Emphasis Supplied)

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In our considered view, the High Court ought not to have issued directions of this nature. It was legally not permissible to do so. Indeed, the High Court by issuing such directions which are essentially passed in anticipation of the order being passed by an appellate authority, interfered with the judicial independence of an appellate authority in deciding the appeals in accordance with law.

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(Underline Supplied)

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A scanning of the afore-extracted paragraphs would reveal

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that the Hon'ble Apex Court deprecated the order passed by the High Court concerned and held that the High Court ought not have issued

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such directions which are essentially passed in anticipation of the

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order being passed by an appellate authority. Furthermore, it was held that the said action of the High Court amounts to interference with the judicial independence of an appellate authority in deciding the appeals in accordance with law. Evidently, the Apex Court held that issuance of such directions was not legally permissible, in such circumstances. In the decision of this Court in Narayanan Nai r's case (supra), the Division Bench held that mere apprehension that an order is likely to be passed against a party cannot be a sufficient or valid ground to seek for a direction not to implement an order which is yet to be passed.

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Bearing in mind the aforesaid provisions as also the decisions referred (supra), we will proceed to consider the merits of the question regarding the maintainability of this writ petition. We have already extracted the reliefs sought for in the writ petition. Paragraph 15 of the writ petition as also prayer No. (i) would reveal the petitioners' apprehension that an adverse order would be passed in the pending appeal before the appellate authority as Appeal No. 3/2020. That apart, they also apprehend that immediately on passing the said order, with the sole purpose of defeating their right to institute a suit

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challenging the order, the appellate authority would take steps to implement the order with police aid. What is the basis for the apprehension? The decision in Narayanan Nair 's case would make it clear that entertaining the writ petition on such apprehensions is absolutely impermissible. In this context, it is to be noted that the Apex Court, as per the said decision in Manish.S.Pardasani's case (supra), deprecated the practice of passing such orders in anticipation and held that passing such orders would amount to interference with the judicial independence of the appellate authority in deciding the appeals in accordance with law. We are at a loss to understand as to how this Court could presume that the appellate authority would pass an order adverse to the petitioners in an appeal pending before the appellate authority. We are of the view that even taking such presumption would be impermissible in law. Allegation of prejudice or bias against an officer empowered by a statute has to be established. In cases where an officer is authorised with a power, here to act as the appellate authority under Section 61 of the HR & CE Act, it has to be taken that as per the relevant provision in the law legislative trust has

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been bestowed on that officer/authority to act fairly and reasonably and in accordance with law. In such circumstances, prejudice or bias has to be established and there cannot be any legal presumption in that regard (See the decision of the Apex Court in State of Rajasthan v. Ram Chandra reported in (2005) 5 SCC 151). No doubt such allegation has to be raised specifically and then, has to be established. Here, there is absolute absence of any specific allegation of prejudice or bias supported by materials to establish them. Hence, we got no hesitation to hold that such contention relating prejudice or bias cannot be legally presumed. This Court cannot presume that without looking into the merits of the appeal, an order would be passed by the authority. That apart, the provisions under section 62 would reveal that the right to institute a suit under section 62 is available only to 'a person aggrieved'. There cannot be any doubt with respect to the position that a party could be described as a person aggrieved if only an order is passed against him or against his interests. Before issuance of any order in the appeal, no party could be an aggrieved party possessing the right to invoke the power under section 62 and to

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institute a suit as the right to institute a suit is available only against an order passed specifically mentioned under section 62. If an appellate order is passed in favour of the petitioners, there would not be any necessity for them to institute a suit. In such circumstances, pending Appeal No.3/2020, the petitioners got no cause of action to approach this Court describing himself as a person aggrieved. In the aforesaid circumstances and in the light of the decision of the Division Bench of this Court as also the decision of the Apex Court on the issue, referred (supra), the petitioners ought not have rushed to this Court when Appeal No. 3/2020 was pending before the appellate authority. It is to be noted that earlier, the petitioners approached this Court by filing W.P.(C) No.17684/2020. This Court disposed of the writ petition as per Ext.P6 judgment with a direction to the appellate authority to dispose of the appeal within the time stipulated therein. In such circumstances, the petitioners ought not have rushed to this Court again without waiting for the outcome of the appeal based on the apprehension that an order would be passed against them in the appeal and that apart, upon passing such an order it would be implemented, in

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haste, to defeat his right to institute a suit. As noticed hereinbefore, when the matter came up earlier, explaining the position, we adjourned the matter so as to enable the petitioners to take a decision prudently. As stated earlier, when this matter is taken up for consideration today, the matter was attempted to be argued on merits. Virtually, the invaluable time of the Court was consumed by making such a futile attempt even after being told that it is legally impermissible to entertain this writ petition. That part, the pleadings of the petitioners would got to show that they are fully aware of the legal position that even if an order is passed by the Commissioner in Appeal No.3/2020 against them, their remedy lies under section 62 of the HR & CE Act. Despite a careful scanning of the contentions raised in the writ petition as also the materials on record, we could not even find any justifiable reason to apprehend that the authorities would attempt to implement the order, within 24 hours, if the order in the appeal is against them, to defeat their rights and interests.

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The learned counsel for the official respondents submitted that the appeal was actually decided and order was passed and it was

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despatched. The learned counsel for the petitioners submitted that it is yet to be received. The petitioners themselves would state in the writ petition that they would be having 90 days time from the date of receipt of the order in the appeal for instituting suit. Even in such circumstances, a last ditch effort was made to compel us to pass an order to keep the said order in abeyance. Argument was advanced in this regard as well. In such circumstances, in the light of the decisions referred hereinbefore, the petitioners ought not have approached this Court especially, in the light of Ext.P6 judgment. Even after realising the settled position of law, invaluable time of the Court ought not have been consumed. When in a frivolous writ petition like this the invaluable time of the Court is consumed, we are of the view that this Court is justified in imposing cost. In such circumstances, this writ petition is dismissed with a cost of Rs.25,000/-. The said amount shall be paid to the Kerala Legal Services Authority within a period of three months from today. In case the petitioners did not pay the amount, within the above stipulated period, the Member Secretary, KeLSA shall take steps for realising the amount, in accordance with law. To

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enable such a course of action, in case of necessity, the Registry shall

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furnish a copy of the judgment to the Member Secretary, KeLSA.

Sd/-

C.T.RAVIKUMAR

JUDGE

Sd/-

K.HARIPAL

JUDGE

W.P.(C).25981/2020

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APPENDIX

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PETITIONERS'EXHIBITS:

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EXHIBIT P1 PHOTOCOPY OF COMPLAINT DT 20/12/2017 FILED BY STRANGERS BEFORE THE 1ST RESPONDENT. EXHIBIT P2 THE PHOTOCOPY OF THE ENQUIRY REPORT FILED BY DIVISIONAL INSPECTOR DT 07/02/2018. EXHIBIT P3 PHOTOCOPY OF THE MINUTES DT 20/02/2018 OF THE DEVASWOM BOARD OBTAINED UNDER RTI ACT. EXHIBIT P4 PHOTOCOPY OF THE ORDER DT 17/03/2018 ISSUED BY THE 1ST RESPONDENT COMMISSIONER. EXHIBIT P5 PHOTOCOPY OF THE ORDER DT 11/08/2020 PASSED BY THE DEPUTY COMMISSIONER. EXHIBIT P6 PHOTOCOPY OF THE JUDGMENT IN WPC NO.17684 OF 2020 DT 25/08/2020.

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spc/

A.Sajeevan v. the Commissioner

Case brief

What is this about?

What did the court decide?

A.Sajeevan v. the Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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