Dismissed

A.Damodaran Namboothiri v. Commissioner, Malabar Devaswom Board

Kerala HC25 Nov 2022WP(C)/9115/2021

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the writ petition challenging a show cause notice issued by the Deputy Commissioner of Kozhikode. The court ruled that interference at the notice stage is premature as factual adjudication is necessary, holding no warrant for interference.

What did the court decide?

The challenge against the Ext.P9 charge memo fails and is dismissed; petitioner directed to reply within two weeks.

A.Damodaran Namboothiri Vs Commissioner, Malabar Devaswom… — Property and Title | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN

¶4

¶5

THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

¶6

FRIDAY, THE 25TH DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA,

¶7

¶8

W.P.(C)NO.9115OF 2021

¶9

PETITIONER:

¶10

A.DAMODARAN NAMBOOTHIRI,
S/O. KRISHNAN NAMBOOTHIRI, ADIMANA ILLAM,
KELALOOR, MAMBARAM P.O., KANNUR DISTRICT.
BY ADV T.V.JAYAKUMAR NAMBOODIRI

¶11

RESPONDENTS:

¶12

1 COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSING BOARD COMPLEX, IRANJIPALAM, KOZHIKODE DISTRICT- 673006.

¶13

2 DEPUTY COMMISSIONER,

¶14

MALABAR DEVASWOM BOARD, KOZHIKODE-20.

¶15

3 EXECUTIVE OFFICER, SRI. KELALOOR MAHAVISHNU GANAPATHI KSHETHRAM, KELALOOR P.O., MAMBARAM, PIN- 670741.

¶16

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

¶17

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.11.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

¶18

¶19

W.P.(C)No.9115 of 2021

¶20

JUDGMENT

¶21

Anil K. Narendran, J.

¶22

The petitioner, who is one among the two hereditary trustees of Sri. Kelaloor Mahavishnu Ganapathi Kshethram, which is a controlled institution under the Malabar Devaswom Board, which is governed by a scheme framed under Section 58 of the Madras Hindu Religious and Charitable Endowments Act, 1951, which was approved on 28.09.1936, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P9 charge memo dated 15.03.2021 issued by the 2^nd respondent Deputy Commissioner, Kozhikode, whereby, the petitioner is directed to show cause within a period of 15 days as to whether proceedings under Section 45 of the said Act shall not be taken against him on the charges referred to in Ext.P9.

¶23

On 08.04.2021, when this writ petition came up for admission before the learned Single Judge, this Court admitted the matter on file and the learned Standing Counsel took notice for respondents 1 and 2. Notice by speed post was ordered to the 3^rd respondent. Further proceedings on the basis of Ext.P9 was directed to kept in abeyance for a period of three months.

¶24

¶25

W.P.(C)No.9115 of 2021

¶26

The said order, which was extended from time to time was in force till 10.01.2022.

¶27

The learned Standing Counsel for Malabar

¶28

Devaswom Board has filed a statement dated 08.11.2021 on behalf of the 1^st respondent. In the said statement, it is pointed out that at no stretch of imagination, it can be contended that Ext.P9 charge memo dated 15.03.2021, issued by the 2^nd respondent Deputy Commissioner is without any factual foundation.

¶29

Heard the learned counsel for the petitioner and also the learned Standing Counsel for Malabar Devaswom Board. 5. Though various contentions have been raised by the learned counsel for the petitioner and also the learned Standing Counsel for Malabar Devaswom Board, on the merits of the charges levelled against the petitioner in Ext.P9 charge memo, we do not propose to consider those contentions in this writ petition, since an adjudication of those factual issues is not possible in writ proceeding under Article 226 of the Constitution of India. Ext.P9 charge memo is one issued by the 2^nd respondent Deputy Commissioner, invoking his powers under Section 45 of the Madras Hindu Religious and Charitable

¶30

¶31

W.P.(C)No.9115 of 2021

¶32

Endowments Act, 1951.

¶33

6. In State of U.P v. Brahm Datt Sharma [(1987)

¶34

2 SCC 179] the Apex Court held that, when the show cause notice was issued under a statutory provision calling upon to show cause, the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford an opportunity of hearing and once cause is shown it is open to the authority to consider the matter in the light of the facts and submission placed before it and only thereafter a final decision in the matter could be taken. Therefore, interference by the Court before that would be premature.

¶35

In Seimens Ltd v. State of Maharashtra [(2006)

¶36

12 SCC 33] the Apex Court held that ordinarily, a writ court may not exercise its discretionary jurisdiction to entertain a writ petition questioning a notice to show cause unless the notice appears to have been without jurisdiction.

¶37

8. In Union of India v. Vicco Laboratories [(2007)

¶38

13 SCC 270] the Apex Court held that, normally, the writ court should not interfere at the stage of issuance of show cause

¶39

¶40

W.P.(C)No.9115 of 2021

¶41

notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the authorities concerned and satisfy the authorities concerned about the absence of case for proceeding against the person against whom the show cause notices have been issued. Abstinence from interference at the stage of issuance of show cause notice in order to relegate the parties to the proceedings before the authorities concerned is the normal rule. However, the said rule is not without exceptions. Where a show cause notice is issued either without jurisdiction or in an abuse of process of law, certainly, in that case, the writ court would not hesitate to interfere even at the stage of issuance of the show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. The mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out.

¶42

Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that no interference is warranted on Ext.P9 charge memo, in this writ

¶43

¶44

W.P.(C)No.9115 of 2021

¶45

petition filed under Article 226 of the Constitution of India, on the ground raised therein. It is for the petitioner to submit a proper reply to Ext.P9 charge memo, within a period of two weeks, which shall be considered by the 2^nd respondent, after affording the petitioner an opportunity of being heard. It would be open to the petitioner to challenge any further proceedings initiated pursuant to Ext.P9 charge memo, before the appropriate forum, raising appropriate contentions.

¶46

Subject to the above directions, the challenge made in this writ petition against Ext.P9 fails and the same is accordingly dismissed.

¶47

Sd/-

¶48

ANIL K. NARENDRAN, JUDGE

¶49

Sd/-

¶50

P.G. AJITHKUMAR, JUDGE

¶51

MIN

¶52

¶53

W.P.(C)No.9115 of 2021

¶54

APPENDIX OF WP(C) 9115/2021

¶55

PETITIONER EXHIBITS

¶56

`EXHIBIT P1`	`TRUE COPY OF COMMUNICATION DATED 14-` `06-2018`
`EXHIBIT P2`	`TRUE COPY OF THE SHOW CAUSE NOTICE` `DATED 25-04-2019`
`EXHIBIT P3`	`TRUE COPY OF REPLY DATED 2-05-2019`
`EXHIBIT P4`	`TRUE COPY OF THE CHARGE MEMO DATED 19-` `08-2019`
`EXHIBIT P5`	`TRUE COPY OF THE REPLY DATED 02-09-` `2019`
`EXHIBIT P6`	`TRUE COPY OF THE INTERIM ORDER DATED` `04-09-2019 IN W.P(C) NO. 24157/2019`
`EXHIBIT P7`	`COPY OF THE JUDGMENT IN W.P(C)` `24157/2019 DATED 30-10-2019`
`EXHIBIT P8`	`TRUE COPY OF THE ORDER DATED 13-01-` `2020 OF THE 1ST RESPONDENT.`
`EXHIBIT P9`	`TRUE COPY OF THE CHARGE MEMO DATED 15-` `03-2021`

A.Damodaran Namboothiri v. Commissioner, Malabar Devaswom Board

Case brief

What is this about?

What did the court decide?

A.Damodaran Namboothiri v. Commissioner, Malabar Devaswom Board

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Anitha S Vs Himoj M Prakash

Cochin Devaswom Board, Rep. by Its Secretary, Thrissur Vs Deputy Director, Local Fund Audit

Shine Shaji Vs Sari A.S. @ Saria A.S.

Rasiq Vs Nejmu

Happy Maxwell Vs Mazwell M. Chennur

Happy Maxwell Vs Maxwell C. Chennur