IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 WP(C).No. 28088 of 2008(R) --------------------------------------- PETITIONER(S): ---------------------- K.M. SHANKARANARAYANA BHAT, S/O. LATE K.K. SHANKARANARAYANA SHARMA, KUNTIKANA MUTTA, P.O. KUNTIKANA, NIRCHAL VILLAGE, KASARAGOD DISTRICT. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SRI.NEELAKANDAN P.M RESPONDENT(S): ------------------------- 1. THE ASSISTANT COMMISSIONER, H & C.R (ADMN.) DEPARTMENT, KASARAGOD. 2. THE SUPERINTNEDNET OF POLICE, KASARAGOD. 3. THE SUB INSPECTOR OF POLICE, KASARAGOD. 4. KHANDIGE SRIKRISHNA BHAT, S/O. NARAYANA BHAT, KERA HOUSE, P.O. NIRCHAL, NIRCHAL VILLAGE, KASARAGOD TALUK. 5. KULAMARVA SHANKARANARAYANA BHAT, S/O. VENKAPPA BHAT, KULAMARVA HOUSE, NIRCHAL VILLAGE, P.O. KUNTIKANA, KASARAGOD TALUK. W.P.(C) NO.28088/2008 6. PAJILA JAYAPRAKASH, S/O. SHANKARA BHAT, PAJILA HOUSE, NEKRAJE VILLAGE, P.O. NEKRAJE, KASARAGODE TALUK. 7. MAHALINGA BHAT, S/O. SHANKARANARAYANA BHAT, KULAMARVA, YELKANA, NIRCHAL VILLAGE, P.O. KUNTIKANA, KASARAGOD TALUK. 8. N.S. VENKATAKRISHNA, S/O. SHAM BHAT, SHANKARAMOOLE HOUSE, NIRCHAL VILLAGE, P.O. KUNTIKANA, KASARAGOD TALUK. 9. JAGADISHA, S/O. B.G. RAMA BHAT, GOLITHADKA HOUSE, ENMAKAJE VILLAGE, P.O PERLA, KASARAGOD TALUK. 10. VYASA PRASAD, KERALA HOUSE, NIRCHAL VILLAGE, P.O. NIRCHAL, KASARAGOD TALUK. 11. MAHABALESWARA BHAT, S/O. PARAMESHWARA BHAT, GUDDEMANE HOUSE, P.O. KUNTIKANA, NIRCHAL VILLAGE, KASARAGOD TALUK. 12. ASHOKA RAO, S/O. SUBRAYAN, MOLEYAR HOUSE, BELA, BELA VILLAGE, P.O. BELA, KASARAGOD TALUK. 13. VISHNU PRAKASHA, BANARI HOUSE, P.O. PALLATHADKA, KASARAGOD TALUK. ADV. SRI.M.GOPIKRISHNAN NAMBIAR FOR R4-12 SRI.P.SHRIHARI FOR R4-12 SMT.P.VANI FOR R4-12 SR. GOVERNMENT PLEADER SRI.BENJAMIN PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.28088/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER IN OA. NO.6/78 ON THE FILE FO THE DY.COMMISSIONER HR & CE (ADMN). DEPT., CALICUT DT. 7.11.81. P2:- COPY OF THE PROCEEDINGS NO.A2-3467/2008 OF THE ASSISTANT COMMISSIONER HR&CE (ADMN DEPARTMENT, NILESHWAR DT. 28.8.08. P3:- COPY OF THE NOTICE ISSUED BY THE PETITIONER TO RESPONDENTS R TO 6 DT. 1.9.08. P4:- COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE ASST. COMMISSIONER, HR & CE. NILESHWAR. DT. 6.9.2008. P5:- COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE SUPDT. OF POLICE ,KASARAGOD. DT. 6.9.08. P6:- COPY OF THE FIR. DT. 6.9.08. P7:- COPY OF THE COMMUNICATION NO.A2-3726/08 ISSUED BY THE ASSISTANT COMMISSIONER HR&CE., (ADMN) DEPT., KASARAGOD. DT. 10.9.08. RESPONDENT'S EXHIBITS R4(A):- COPY OF THE AGREEMENT DT. 5.2.83. R4(A1):- COPY OF THE ENGLISH TRANSLATION OF EXT.R4(A). R4(B):- COPY OF THE TRUST DEED DT. 2.9.93. R4(C):- COPY OF THE MINUTES OF THE PROCEEDINGS OF THE GENERAL BODY OF THE TRUST HELD ON 28.12.97 (PAGE 14 TO 17 OIF THE MINUTES BOOK). R4(C):- COPY OF THE ENGLISH TRANSLATION OF EXT.R4(C). R4(D):- COPY OF THE MINUTES OF THE PROCEEDINGS OF THE GENERAL BODY OF THE TRUST HELD ON 14.3.04 (PAGE 47 TO 49 OF THE MINUTES BOOK). R4(D1):- COPY OF THE ENGLISH TRANSLATION OF EXT.R4(D). R4(E):- COPY OF THE MINUTES OF THE PROCEEDINGS OF THE GENERAL BODY OF THE TRUST HELD ON 18.3.07. R4(E1):- COPY OF THE ENGLISH TRANSLATION OF EXT.R4(E). /TRUE COPY/ P.A. TO JUDGE tss K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------------------- W.P.(C)No.28088 OF 2008 R ----------------------------------------------------- DATED THIS THE 16th DAY OF OCTOBER, 2008 J U D G M E N T Balakrishnan Nair, J. The petitioner is the hereditary trustee of Sree Kuntikana Shankaranarayana Temple, Kasaragod. He is known as 'Muktheswar' (Administrator). His father has been recognised as the hereditary trustee of the said temple by the Deputy Commissioner for Hindu Religious and Charitable Endowments (Administration) Department, Calicut, by Exhibit P1 dated 7.11.1981. It is an order issued under Section 57(b) of the Madras Hindu Religious and Charitable Endowments Act. On the death of his father, the petitioner was recognised as the hereditary trustee, as per Exhibit P2 proceedings dated 28.8.2008. But, when the petitioner took over the administration, respondents 4 to 13 tried to cause obstruction to the same. So, he caused to issue Exhibit P3 lawyer notice to some of them. The petitioner submits, the said respondents trespassed into the temple premises on 5.9.2008, obstructed the petitioner, threatened him and committed waste there. So, he preferred Exhibit P5 representation before the W.P.(C)No.28088/08 -2- Superintendent of Police, Kasaragod. The police have registered Exhibit P6 first information report against the miscreants. While so, the petitioner moved the Assistant Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, Kasaragod, the first respondent herein. The said respondent by Exhibit P7 communication requested the Superintendent of Police, Kasaragod, the 2nd respondent herein to extend necessary police protection to the petitioner to function as the hereditary trustee of the temple. But, the police are not taking any effective action or extending any protection to him, so as to enable him to administer the temple. Therefore, this Writ Petition is filed, seeking appropriate directions to respondents 2 and 3, to implement or enforce Exhibit P7. Consequential reliefs are also sought. 2. Respondents 4 to 12 have filed a counter affidavit. According to them, the hereditary trustee of this temple does not have the usual general power of such trustees in other temples. The trustee has shared most of his powers with a committee formed by the local people. An agreement was entered into between the local people and the hereditary trustee in 1896, concerning the administration of the temple. The parties to that agreement are no more. Later, in the W.P.(C)No.28088/08 -3- presence of His Holiness Shreemad Jagadguru Shankaracharya Shreemad Raghavendra Bharathi Swamiji of Ramachandrapura Mutt, Theerthahalli, Exhibit R4(A) agreement was entered into on 5.2.1983, concerning the administration of the temple. It was followed by the formation of a Trust under Exhibit R4(B) trust deed dated 2.9.1983. The petitioner's father was a party to that trust deed. It is also pointed out that the petitioner is one of the witnesses to that trust deed. They have also produced Exhibit R4(C) to R4(E) minutes of the meetings of the said Trust. The petitioner had participated in those meetings and many decisions concerning the administration of the temple, including purchase of property, had been taken in them. The respondents further contend that Exhibit P2 order was passed without notice to anyone. A reading of Exhibit P2 would show that a petition was filed before the Assistant Commissioner on 28.8.2008 and on the vary same day, the order was passed. They also submit that Exhibit P7 communication has been issued to the Superintendent of Police by the first respondent, behind their back. None of the provisions of the Hindu Religious and Charitable Endowments Act authorises the first respondent to issue that communication. The petitioner's father as the hereditary trustee had parted with most of his powers in favour of the W.P.(C)No.28088/08 -4- Trust. So, even assuming, Exhibit P2 is valid, the petitioner has succeeded as the Muktheswar only with limited powers. Therefore, his attempt to exclude the members of the Trust from the administration of the temple on the strength of Exhibit P2 is ill-conceived. The contesting respondents also submitted that they came to know of Exhibits P2 and P7 only on receipt of notice in this Writ Petition and they have also invoked the statutory remedy available to them against Exhibit P2. 3. The petitioner has filed a reply affidavit, dealing with the averments in the counter affidavit. According to him, Exhibit R4(A) is superseded by Exhibit R4(B) and in view of the statutory provisions, Exhibit R4(B) cannot have any efficacy. The members of the Trust cannot act as trustees in the face of the provisions contained in the statute. 4. The learned Government Pleader, upon instructions, submitted that, on the information lodged by the petitioner, the police have registered Exhibit P6 crime. The dispute between the parties is concerning the opening of the 'hundi' and the amount collected in it. At present there is no law and order problem warranting interference by the police. Since the petitioner declined to perform poojas in the W.P.(C)No.28088/08 -5- temple, another person is functioning as the priest of the temple, it is submitted. 5. The learned counsel for the petitioner took us through the relevant provisions of the statute. Section 56 authorises the first respondent to take a decision, if there is any dispute regarding the hereditary trustee. In exercise of that power, Exhibit P2 has been issued. If anybody has got any objection, they have remedies under Section 61 of the Act. The petitioner's right to manage the temple and exercise all the powers of the hereditary trustee has to be upheld, in the absence of any challenge to Exhibit P2. If anybody has got objection, they have to move the appellate authority under Section 61 of the Act and thereafter the civil court. Since, his right is undisputed, the first respondent has rightly addressed the police and the police are bound to act as requested in Exhibit P7, it is submitted. 6. The learned counsel for the contesting respondents submitted that Exhibit P2 will confer powers on the petitioner to function as the Muktheswar, subject to the provisions of Exhibit R4(B) trust deed. Till the death of his father, father was exercising only those powers, subject to the provisions of that trust deed. On the death of his father, the petitioner cannot succeed something which his father did W.P.(C)No.28088/08 -6- not enjoy. Further, it is submitted that the present dispute is a civil dispute, which cannot be resolved by the police. The remedy of the petitioner lies elsewhere, it is submitted. 7. In this jurisdiction, we are concerned only with the failure of duty of the police. In this Writ Petition for issuing a writ of mandamus against the police, we cannot adjudicate on the rights of parties and then ask the police to act based on our finding in that dispute. Then this will become a police protection suit, for entertaining which we have no jurisdiction under Article 226 of the Constitution of India. Our powers are limited to issuing the writs mentioned in that Article. Our powers in this jurisdiction are co-terminus with the failure of duty of police. If the police is shown to have failed to perform their duty under any statute, we will remedy that. If, after perusing the papers submitted by the petitioner, the police have a duty to protect and support him to administer the temple to the exclusion of the contesting respondents, then we may be justified in issuing a writ of mandamus as prayed for by the petitioner. But, we are of the view that the police do not have any such power and it will be dangerous to concede any such power to the police. It is one of the essential principles of rule of law that dispute between the parties have to be decided by W.P.(C)No.28088/08 -7- independent courts, which cannot be influenced by the executive or the parties to the dispute. Further, the petitioner has got an efficacious remedy of moving the civil court. He can get an injunction against the contesting respondents, if the claim regarding his right to administer the temple to the exclusion of the said respondents, is valid. That court can address the police also to enforce its orders, if found necessary. In this civil dispute, we are of the definite view that the police cannot be asked to involve themselves in favour of one side or the other. We are not expressing any opinion on the merits of the rival contentions, as the same may prejudice one side or the other, when the matter is taken up before the competent court. In view of the above position, the Writ Petition is dismissed without prejudice to the contentions of both sides and the right of the petitioner to move other forums for appropriate reliefs. This judgment will not affect the powers of the police to take action, if any cognizable offence is reported by either side. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. dsn