Dismissed

P.M.Vijayan, v. the Commissioner, Malabar Devaswom Board

Kerala HC15 Nov 2021WP(C)/19640/2021

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the High Court held that ad interim injunctions are interlocutory orders not amenable to direct writ jurisdiction. The court remand the petitioner to file objections before the Additional Deputy Commissioner instead and extended the existing interim stay to facilitate this.

What did the court decide?

Directing the petitioner to file objection/counter in I.A.No.5 of 2021 within 10 days before the Additional Deputy Commissioner, and extending the interim stay pending such filing.

P.M.Vijayan, Vs the Commissioner, Malabar Devaswom… — Writ and Judicial Review | Kerala HC (2021)

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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MONDAY, THE 15^TH DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 WP(C) NO. 19640 OF 2021

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PETITIONER:

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P.M.VIJAYAN, AGED 84 YEARS S/O.KELAN, PARASSINI MADAPPURA SRI MUTHAPPAN, PARASSINI KADAV P.O., THALAPPARAMB TALUK, KANNOOR DISTRICT, PIN-670 563.

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BY ADVS. PRABHA R.MENON B.PRAMOD NAMITHA JYOTHISH

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RESPONDENTS:

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1 THE COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, MINI BYE PASS, ERANJIPALAM, KOZHIKODE, PIN-673 006.

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2 THE SENIOR SUPERINTENDENT (HOLDING THE CHARGE OF DEPUTY COMMISSIONER), MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, MINI BYE PASS, ERANJIPALAM, KOZHIKODE-673 006.

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3 THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, NEAR RAJAS HIGH SCHOOL, NEELESWARAM, KASARGOD DISTRICT-671 314.

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W.P.(C) No.19640 of 2021

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4 P.M.NARAYANAN, AGED 85 YEARS S/O.RAVUNNIMADAYAN, RESIDING AT CHADAYAN HOUSE, KEECHERI, ANCHAMPEEDIKA P.O., MATTAMMAL, KANNOOR TALUK, KANNOR DISTRICT, PIN-670 331.

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5 ADDL. R5: THE DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX ERANHIPPALAM P.O., KOZHIKODE - 673006. ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 15.11.2021 IN WPC NO. 19640/2021. BY ADVS. SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD M.RAMESH CHANDER (SR.) BALU TOM BONNY BENNY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.19640 of 2021

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J U D G M E N T

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Anil K. Narendran, J

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The petitioner, who is the respondent in O.A.No.7 of 2021 on the file of the Deputy Commissioner, Malabar Devaswom Board, Kozhikode, the additional 5^th respondent herein, a petition filed by the 4^th respondent herein under Section 47 and 57(e) of the Madras Hindu Religious and Charitable Endowments Act, 1951, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 ad interim order of injunction dated 14.09.2021 in I.A.No.5 of 2021 in O.A.No.7 of 2021 of the additional 5^th respondent, whereby the petitioner is restrained from taking charge as the Madayan (Trustee and General Manager) of Parassini Madappura Sree Muthapan Temple, until further orders. The further relief sought for is a declaration that the 2^nd respondent, Senior Superintendent does not have the jurisdiction to entertain O.A.No.7 of 2021 filed by the 4^th respondent and adjudicate the issues raised therein.

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On 20.09.2021, when this writ petition came up for

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admission, the learned Standing Counsel for Malabar

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W.P.(C) No.19640 of 2021

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Devaswom Board took notice on admission for respondents 1 to

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Urgent notice on admission by special messenger was ordered to 4^th respondent, returnable by 23.09.2021. This Court passed an interim order on 20.09.2021. The 2^nd and 3^rd paragraphs of that order read thus:

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“During the course of arguments, the specific stand taken by the learned counsel for the petitioner is that, the petitioner took charge as Trustee and General Manager of Sri Parassini Madappura on 04.09.2021 and the said fact has also been informed to the 1st respondent Commissioner and the 3rd respondent Assistant Commissioner, vide Exhibits P3 and P4 communications dated 04.09.2021.

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Having considered the materials on record and also the submissions made by the learned counsel for the petitioner and the learned Standing Counsel for Malabar Devaswom Board, we deem it appropriate to grant an interim stay of Exhibit P6 order dated 14.09.2021 of the 2nd respondent in I.A.No.5 of 2021 in O.A.No.7 of 2021, for a period of ten days”.

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On 23.09.2021, the 4^th respondent entered

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appearance through counsel and sought time to file counter affidavit. On 12.10.2021, this Court allowed I.A.No.1 of 2021

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filed by the 4^th respondent to accept Ext.R4(a) produced along

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W.P.(C) No.19640 of 2021

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with the counter affidavit, as an additional document. Interim order granted by this Court on 20.09.2021, which was extended from time to time, is still in force.

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On 25.10.2021, the learned Standing Counsel for Malabar Devaswom Board submitted that he has already filed a statement. By order dated 25.10.2021, it was made clear that any approval to the appointments made by the petitioner during the pendency of this writ petition shall be deferred for the time being, by the 1^st respondent Malabar Devaswom Board.

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The 4^th respondent has filed a counter affidavit dated 06.10.2021, raising various contentions. The learned Standing Counsel for the 1^st respondent has filed a statement, producing therewith Annexure R1(a) proceedings of the 1^st respondent, Commissioner, Malabar Devaswom Board whereby the 2^nd respondent Senior Superintendent was given full additional charge of the Deputy Commissioner.

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Heard the learned counsel for the petitioner, the learned Standing Counsel for Malabar Devaswom Board for respondents 1 to 3 and also the learned Senior Counsel for the

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W.P.(C) No.19640 of 2021

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4^th respondent.

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During the course of arguments, the learned counsel for the petitioner would confine the relief sought for in this writ petition to one challenging Ext.P6 ad interim injunction granted by the additional 5^th respondent in I.A.No 5 of 2021 in O.A.No.7 of 2021. The learned counsel would submit that in view of Annexure R1(a) order dated 13.4.2021 of the Devaswom Commissioner and Ext.R4(b) Government Order dated 06.05.2010, the petitioner is not pressing for the declaratory relief sought for in this writ petition.

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The learned counsel for the petitioner would contend that Ext.P6 ad interim injunction granted by the additional 5^th respondent is per se arbitrary, illegal and unsustainable. Since the petitioner had already taken charge on 04.09.2021, the additional 5^th respondent ought not to have issued such an order.

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The learned Standing Counsel for Malabar Devaswom Board and also the learned Senior Counsel for the 4^th respondent would contend that since Ext.P6 order is only an

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ad interim injunction granted by the additional 5^th respondent,

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W.P.(C) No.19640 of 2021

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the remedy open to the petitioner is to appear before that authority, file objection/counter and seek an order to modify or vacate the order of ad interim injunction. Instead, the petitioner has rushed to this Court, challenging Ext.P6 order, invoking the extra ordinary jurisdiction under Article 226 of the Constitution of India.

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Though the learned counsel for the petitioner and also the Senior Counsel for the 4^th respondent have raised various legal and factual contentions, touching the merits of the dispute now pending consideration before the additional 5^th respondent in O.A. No.7 of 2021, we do not propose to consider those contentions in this writ petition, since it is for the additional 5^th respondent to deal with those contentions in an appropriate manner.

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Since Ext.P6 order, which is under challenge in this writ petition is only an ad interim injunction granted by the additional 5^th respondent, it is for the petitioner to file objection/counter in I.A.No.5 of 2021 in O.A.No.7 of 2021 and thereafter seek an order to modify/vacate that order of ad interim injunction already granted. In that view of the matter,

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the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India.

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In order to challenge Ext.P6 order, the learned counsel for the petitioner would submit that the petitioner shall file objection/counter in I.A.No.5 of 2021 in O.A.No.7 of 2021 before the additional 5^th respondent, within ten days from today. The learned counsel would also submit that the interim order granted by this Court on 20.09.2021, which is still in force, may be extended further, so as to enable the petitioner to file objection/counter before the additional 5^th respondent and seek modification of Ext.P6 order.

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The learned Senior Counsel for the 4^th respondent would submit that the order of this Court dated 25.10.2021, whereby, it was ordered that any approval for the appointments made by the petitioner during the pendency of this writ petition shall be deferred, for the time being, by the 1^st respondent Malabar Devaswom Board, may be extended further.

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The learned Standing Counsel for Malabar Devaswom Board would submit that the legal and factual contentions raised by the petitioner and the 4^th respondent shall

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be dealt with appropriately by the additional 5^th respondent, while taking any decision in O.A.No.7 of 2021 or in any interlocutory application filed in that O.A.

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Having considered the submission made by the learned counsel on both sides, this writ petition is disposed of with the following directions:

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(i) Within 10 days from this date, the petitioner shall file objection/counter in I.A.No.5 of 2021 in O.A No.7 of 2021 pending before the additional 5^th respondent and he may also file an application seeking an order to modify or vacate Ext.P6 ad interim injunction.

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(ii) The 4^th respondent shall file an interlocutory application before the additional 5^th respondent seeking appropriate interim relief, in sofar as the appointments made by the petitioner, referred to in the order of this Court dated 25.10.2021 are concerned.

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(iii) The additional 5^th respondent shall consider the aforesaid objection/counter and also the interlocutory applications filed by the petitioner and the 4^th respondent and take an appropriate decision thereon, within a period of two

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weeks from the date of receipt of such applications.

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Till such orders are passed, the interim order granted in this writ petition dated 20.09.2021, in favour of the petitioner, and also the order dated 25.10.2021 granted in favour of the 4^th respondent, shall continue to be in force.

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It is made clear that this Court has not exposed any opinion on the merits of the legal and factual contentions raised by the petitioner and the 4^th respondent and all those contentions are left open to be raised before the additional 5^th respondent at appropriate stage.

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Sd/-

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ANIL K.NARENDRAN JUDGE

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Sd/P.G. AJITHKUMAR JUDGE

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W.P.(C) No.19640 of 2021

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PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE OBITUARY OF THE PREVIOUS MADAYAN OF PARASSINIMADAPPURA SRI.P.M.BALAKRISHNAN PUBLISHED IN MATHRUBHUMI DAILY DATED 08.09.2021. Exhibit P2 TRUE COPY OF THE REPORT PUBLISHED IN MATHRUBHUMI DAILY DATED 05.09.2021. Exhibit P3 TRUE COPY OF THE LETTER DATED 04.09.2021 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT. Exhibit P4 TRUE COPY OF THE LETTER DATED 04.09.2021 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT. Exhibit P5 TRUE COPY OF THE REPORT PUBLISHED IN MATHRUBHUMI DAILY DATED 06.09.2021. Exhibit P6 TRUE COPY OF THE ORDER DATED `14.09.2021 IN IA 5/2021 IN OA NO.7/2021 BY THE 2ND RESPONDENT. Exhibit P7 TRUE COPY OF THE OA NO.7/2021 FILED BY THE 4TH RESPONDENT. Exhibit P8 TRUE COPY OF THE AFFIDAVIT ACCOMPANYING IA 5/2021 IN OA NO.7/2021. Exhibit P9 TRUE COPY OF THE RP NO.,2/2020 FILED BY THE PETITIONER AND OTHERS BEFORE THE 1ST RESPONDENT. Exhibit P10 TRUE COPY OF THE REPORT DATED 24.09.2020 OF THE 3RD RESPONDENT. Exhibit P11 TRUE COPY OF THE ORDER DATED 27.904.2021 IN WP9C0 NO.6216/2021 OF THIS HON'BLE COURT. RESPONDENT EXHIBITS Exhibit R4(a) PHOTOSTAT COPY OF THE DITTAM OF PARASSINI MADAPPURA TEMPLE DATED 24.11.1986 Exhibit R1(a) THE PHOTOCOPY OF PROCEEDINGS NO.J13281/20/M.D.B. dated 13.04.2021 OF THE COMMISSIONER, MALABAR DEVASWOM BOARD

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Exhibit R1(b)

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TRUE COPY OF THE INFORMATION RECEIVED FROM THE REVENUE (DEVASWOM) DEPARTMENT ALONG WITH ORDER G.O.(RT) NO.1604/2021/RD DATED 06.05.2021

P.M.Vijayan, v. the Commissioner, Malabar Devaswom Board

Case brief

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What did the court decide?

P.M.Vijayan, v. the Commissioner, Malabar Devaswom Board

Case brief

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