IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 WP(C).No. 6683 of 2008(U) ------------------------------------- [OS.NO.327/2003 OF SUB COURT,KOLLAM] .................... PETITIONERS/PLAINTIFFS 1,2,3,4,7 TO 8/COUNTER PETITIONERS 1 TO 4, 7 & 8: ----------------------------------------------------------------------------------------------------------------- 1. SREE GUHANANDAPURAM DEVASWAM, REPRESENTED BY ITS SECRETARY, M.NATARAJAN, DEVASWAM OFFICE, SUBRAMONIAN TEMPLE COMPOUND, NADUVATHU CHERRI, THEKKUMBHAGAM VILLAGE, PIN -691 584. 2. M.NATARAJAN, SECRETARY, SRI.GUHANANDAPURAM DEVASWAM, AGED 57, S/O.MADHAVAN PANICKER, RESIDING AT KUTTATHU VADAKKATHIL, NADUVATHU CHERRI, CHAVARA THEKKUMBHAGAM VILLAGE, PIN -691 584. 3. P.VIJAYAN, TREASURER, SREE GUHANANDAPURAM DEVASWAM, AGED 59, S/O.PAPPU, VIJAYAVILASAM, NADUVATHU CHERRI, CHAVARA SOUTH VILLAGE, PIN -691 584. 4. S.JAYARAJAN, AGED 25 YEARS, S/O.SUKUMARAN, SUKUMARA MANDHIRAM, NADUVATHU CHERRI, CHAVARA SOUTH VILLAGE, PIN -691 584. 5. MANILAL.R., AGED 35 YEARS, S/O.RAVEENDRAN, RESIDING AT THAZHETHODIL, NADUVATHU CHERRI, CHAVARA SOUTH VILLAGE, PIN -691 584. 6. T.THANKARAJ, AGED 37 YEARS, S/O.THANKAPPAN, PRESIDENT , SREE GUHANANDAPURAM DEVASWAM, NADUVATHU CHERRI, CHAVARA SOUTH VILLAGE, NOW AT C/O.HAJI AND COMPANY, I.P.L DALAVOI SITE, TELLADAM, TAMILNADU, PIN- 691 584. BY ADVS. SRI.A.K.ALEX, SRI.K.P.SURESH KUMAR. W.P.(C). NO.6683/2008-U: RESPONDENTS/PETITIONERS 1 TO 9 & COUNTER PETITIONERS 6 & 9 TO 15/ DEFENDANTS 1 TO 15 AND PLAINTIFF NO.6: ---------------------------------------------------------------------------------------------------------- 1. C.N.SHANMUGHAN, AGED 31, S/O.NARAYANAN, RESIDING AT SHANMUGHA NIVAS, NADUVATHU CHERRI, CHAVARA THEKKUMBHAGAM VILLAGE, CHAVARA SOUTH VILLAGE, PIN -691 584. 2. LEKSHMANAN, AGED 76, S/O.RAMAN, RESIDING AT VADAKKEYATTATHU VEEDU, NADUVATHU CHERRI, CHAVARA SOUTH VILLAGE, PIN -691 584. 3. GOPINATHAN, AGED 70, S/O.GOVINDAN, RESIDING AT GODANA VILASAM, NADUVATHU CHERRI, CHAVARA SOUTH VILLAGE, PIN- 691 584. 4. DAYANANDAN, AGED 56, S/O.MADHAVAN, RESIDING AT MELOOTTU VADAKKATHIL, NADUVATHU CHERRI, CHAVARA, THEKKUMBHAGAM VILLAGE, PIN- 691 584. 5. VASANTHA RAJAN, AGED 41, S/O.DAMODHARAN, RESIDING AT SAVITHRI NIVAS, NADUVATHU CHERRI, CHAVARA, THEKKUMBHAGAM VILLAGE, PIN – 691 584. 6. DHARMAPALAN, AGED 64, S/O.NARAYANAN, RESIDING AT PREETHA BHAVAN, NADUVATHU CHERRI, CHAVARA THEKKUMBHAGAM VILLAGE, PIN -691 584. 7. ARAVINDHAKSHAN, AGED 63, S/O.GOPALAN, RESIDING AT SATHI MANDIRAM, NADUVATHU CHERRI, CHAVARA, THEKKUMBHAGAM VILLAGE, PIN- 691 584. 8. SHAJI BABU, AGED 43, S/O.KARUNAKARAN, RESIDING AT SHYLAJA MANDIRAM, NADUVATHU CHERRI, CHAVARA, THEKKUMBHAGAM VILLAGE, PIN- 691 584. 9. MADHU, AGED 34, S/O.MURALEEDHARAN, PUTHUMANA VEEDU, NADUVATHU CHERRI, CHAVARA, THEKKUMBHAGAM VILLAGE, PIN- 691 584. 10. KOCHU PILLAI, AGED 75, S/O.PARAMESWARAN, VISWA BHAVAN, NADUVATHU CHERRI, THEKKUMBHAGAM VILLAGE, PIN- 691 584. 11. GANGEYAN, AGED 60, S/O.KARTHIKEYAN, KAVILAYIL, NADUVATHU CHERRI, THEKKUMBHAGAM VILLAGE, PIN- 691 584. W.P.(C). NO.6683/2008-U: *12. KARTHIKEYAN, AGED 65, S/O.KRISHNAN, ULAKKATTU VEEDU, NADUVATHU CHERRI, CHAVARA, THEKKUMBHAGAM VILLAGE, PIN- 691 584. *EXPIRED. DELETED FROM PARTY ARRAY AS PER ORDER DATED 4/3/08. 13. NEELAMBARAN, AGED 57, S/O.JANARDHANAN, PADIYANAYIL VEEDU, NADUVATHU CHERRI, CHAVARA, THEKKUMBHAGAM VILLAGE, PIN -691 584. **14. THEKKUMBHAGAM SERVICE CO-OPERATIVE BANK LTD. NO.1731, NADUVATHU CHERRI, CHAVARA, THEKKUMBHAGAM VILLAGE, REPRESENTED BY ITS SECRETARY, PIN- 691 584. **15. RAJAN PILLAI, AGED ABOUR 50, ADVOCATE BY PROFESSION, PRESIDENT, THEKKUMBHAGAM SERVICE CO-OPERATIVE BANK LTD., NO.1731, RESIDING AT KRISHNAVILASAM BANGLOW, VADAKKUMBHAGAM, CHAVARA SOUTH P.O., PIN -691 584. **16. RAMA RAJU, AGED 40, S/O.SIVANANDAN, RESIDING AT RAJ BHAVAN, NADUVATHU CHERRI, CHAVARA SOUTH VILLAGE, PIN- 691 584. **17. SHAH NARAYANAN, S/O.NARAYANAN, KUMBITHODIL VEEDU, NADUVATHU CHERRI, CHAVARA SOUTH VILLAGE, PIN- 691 584. **18. THE ADMINISTRATOR, SREE GUHANANDAPURAM DEVASWAM , DEVASWAM OFFICE, NADUVATHU CHEERI, THEKKUMBHAGAM VILLAGE, CHAVARA, KARUNAGAPALLY TALUK. **RESPONDENTS 14 TO 18 ARE DELETED FROM THE PARTY ARRAY VIDE ORDER DTD. 30/09/10 IN I.A. NO.3379/08. R1 TO R4, R6 TO R11 & R13 BY ADV. SRI.M.V.THAMBAN, R5 BY ADV. SRI.S.SUDHEESHKAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2010,ALONG WITH W.P.(C). NO. 16183/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.6683/2008-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. 327/03 OF THE SUB COURT, KOLLAM. EXT.P.2: COPY OF THE CONSTITUTION OF SREE GUHANANDAPURAM DEVASWAM. EXT.P.3: COPY OF THE MINUTE'S BOOK CONTAINING MINUTES FROM 13/07/2002 TO 01/11/2002. EXT.P.4: COPY OF THE MINUTE'S BOOK CONTAINING MINUTES FROM 25/12/2002 TO 01/01/2004. EXT.P.5: COPY OF THE RECEIPTS DTD. 20/02/2003, 21/02/2003, 22/02/2003, 24/02/2003, 27/02/2003, 01/03/2003 ISSUED BY PETITIONERS 2 AND 6 SHOWING THE RECEIPT OF MEMBERSHIP FEE. EXT.P.6: COPY OF THE FINAL LIST SUBMITTED BY THE COMMISSIONER. EXT.P.7: COPY OF THE OBJECTION DTD. 08/03/2007 FILED BY THE P.2. TO THE REPORT AND VOTER LIST OF COMMISSIONER. EXT.P.8: COPY OF THE JUDGMENT DTD. 02/11/2007 PASSED BY THIS HONOURABLE COURT IN W.P.(C).32579/07. EXT.P.9: COPY OF THE ORDER OF THE LEARNED SUB JUDGE, KOLLAM DTD. 22/01/2008 IN I.A. 4407/07 IN O.S. 327/03. EXT.P.10: COPY OF THE FINAL VOTERS LIST PUBLISHED BY COMMISSIONER ON 06/02/2008 IN O.S. 327/2003 OF THE SUB COURT, KOLLAM. EXT.P.11: COPY OF THE MEMBERSHIP REGISTER SHOWING MEMBERSHIP NOS. 1 TO 47. EXT.P.11.A: COPY OF THE MEMBERSHIP REGISTER SHOWING MEMBERSHIP NOS. 48 TO 81. EXT.P.11.B: COPY OF THE MEMBERSHIP REGISTER SHOWING MEMBERSHIP NOS. 82 TO 113. EXT.P.11.C: COPY OF THE MEMBERSHIP REGISTER FOR MEMBERSHIP NOS. 114 TO 155. EXT.P.11.D: COPY OF THE MEMBERSHIP REGISTER FOR MEMBERSHIP NOS. 156 TO 194. EXT.P.11.E: COPY OF THE MEMBERSHIP REGISTER FOR MEMBERSHIP NOS. 195 TO 252. EXT.P.12.F: COPY OF THE REGISTER FOR MEMBERSHIP NOS. 253 TO 300. EXT.P.11.G: COPY OF THE MEMBERSHIP REGISTER FOR MEMBERSHIP NOS. 301 TO 348. W.P.(C). NO.6683/2008-U: EXT.P.11.H: COPY OF THE MEMBERSHIP REGISTER FOR MEMBERSHIP NOS. 349 TO 414. EXT.P.11.I: COPY OF THE MEMBERSHIP REGISTER FOR MEMBERSHIP NOS. 415 TO 464. EXT.P.11.J: COPY OF THE MEMBERSHIP REGISTER FOR MEMBERSHIP NOS. 465 TO 550. EXT.P.11.K: COPY OF THE MEMBERSHIP REGISTER FOR MEMBERSHIP NOS. 551 TO 607. EXT.P.12: COPY OF THE FINAL VOTERS LIST PUBLISHED BY ADVOCATE COMMISSIONER IN WHICH PETITIONERS HAVE SHOWN THE PERSONS WHO ARE IN DEFAULT OF MONTHLY MEMBERSHIP FEE AND PERSONS WHO LOST MEMBERSHIP. EXT.P.13: COPY OF THE ORDER PASSED BY THE LEARNED SUB JUDGE, KOLLAM ON 10/12/2007 IN I.A. 5014/07 IN O.S. 327/03. EXT.P.14: COPY OF THE ORDER PASSED BY THE LEARNED SUB JUDGE, KOLLAM ON 10/12/2007 IN I.A. 5015/07 IN O.S. 327/03. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE ORDER I.A. NO. 163/03 OF THE MUNSIFF COURT, KARUNAGAPPALLY DTD. 10/12/2003. EXT.R1.B: COPY OF THE JUDGMENT DTD. 30/01/07 IN W.P.(C).NO.26796/06 OF THIS HONOURABLE COURT. EXT.R1.C: COPY OF THE JUDGMENT DTD. IN W.P.(C). NO.27688/07 OF THIS HONOURABLE COURT. EXT.R1.D: COPY OF THE PETITION IN I.A. NO.1297/07 OF THE SUB COURT, KOLLAM. EXT.R1.E: COPY OF THE PETITION IN I.A. NO. 1373/07 OF THE SUB COURT, KOLLAM. EXT.R1.F: COPY OF THE ORDER IN I.A. NO. 1297/07 AND I.A. NO. 1373/07 F THE SUB COURT, KOLLAM DTD. 05/07/07. EXT.R1.G: COPY OF THE JUDGMENT DTD. IN W.P.(C). NO. 32579/07 OF THIS HONOURABLE COURT. EXT.R1.H: COPY OF THE ORDER IN I.A. NO. 4407/07 OF THE SUB COURT, KOLLAM DTD. 18/01/08. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID, J. ------------------------ W.P.(C).Nos.6683 & 16183 Of 2008 ---------------------- Dated this the 15th day of November, 2010. J U D G M E N T W.P.(C).No.6683/2008 The plaintiffs in O.S.No.327/2003 on the file of the Sub Court, Kollam are the petitioners. The writ petition is filed under Article 227 of the Constitution of India challenging Ext.P9 interim order. Respondents 1 to 13 and 16 are the defendants in the said suit. 17th respondent is one of the plaintiffs and 18th respondents is the administrative committee of Sree Guhanandapuram Devaswom, hereinafter referred to as the Devaswom. 2. Ext.P1 is the copy of the plaint. First plaintiff is the Devaswom represented by the Secretary. According to the plaint, plaintiffs 2, 3 and 4 are the President, Secretary and Treasurer of the Devaswom respectively. Suit was filed for a declaration that the election of the plaintiffs and the 16th defendant to their respective offices are in accordance with the provisions of the constitution of the Devaswom and for consequential injunction restraining the defendants 1 to 13 from W.P.(C).Nos.6683 & 16183 Of 2008 ::2:: disrupting the plaintiffs in any manner in the discharge of their duties as the office bearers and managing committee members of the Devaswom and in conducting the rituals of the temple and the administration of the school and also to restrain the defendants 14 & 15 from interfering with the transfer of S.B.A/c.No.2749 made on 26.12.2003 in the joint names of plaintiffs 2 to 4. It is averred in the plaint that the General Body of the Devaswom was convened on 21.7.2002, that the General Body elected the second plaintiff as the President, 3rd , 4th and 6th plaintiffs as Secretary, Treasurer and School Manager respectively and defendants 2 to 9 as members of the managing committee. From the members of the managing committee the second defendant was elected as Vice President and the 3rd defendant as Joint Secretary. It is also averred in the plaint that the president and three members of the managing committee who are the first defendant and defendants 2, 4 & 9 have failed to discharge their duties as office bearers and managing committee members of the Devaswom and therefore the General Body which met on 25.12.2002 removed the said persons from W.P.(C).Nos.6683 & 16183 Of 2008 ::3:: the office by passing a non-confidence motion. The same body on the same day elected the 2nd plaintiff as the temporary President and unanimously decided to conduct a bye-election to the vacancies. The contesting defendants filed written statements, denied the plaint averments and prayed for dismissal of the suit. 3. The bye-laws of the Devaswom has been approved and registered as per the decision of the General Body Meeting of the Devaswom held on 18.7.1958. As per the bye-law the administrative committee is the authority to manage the affairs of the Devaswom. The administrative committee consists of 13 members elected from the members of the Devaswom. The President, Secretary, Treasurer and School Manager are elected by the General Body. The period of the administrative committee is for 2 years. 4. Both sides admitted that the last election was conducted on 21.7.2002. The term of the committee expired after 2 years. The present suit is filed for a declaration that the election of the plaintiffs and the 16th defendant to their respective W.P.(C).Nos.6683 & 16183 Of 2008 ::4:: offices are in accordance with the provisions of the constitution of the Devaswom. By passage of time, the main relief of declaration sought for in the suit has become academic. Now, 6 years have passed after the expiry of the term. 5. This Court had occasion to consider the legality of an interim order passed in the suit. In the year 2006, one Ramabhadran filed a petition dated 25.8.2006 to the Sub Divisional Magistrate requesting to conduct the election to the administrative committee. He later filed W.P.(C).No.26796/2006 before this Court. Finding that there was no administrative committee for the Devaswom for the past several years, this Court by judgment dated 30.1.2007 directed the Sub Court, to appoint an advocate commissioner and to conduct election. Ext.R1(b) is the copy of the judgment in W.P.(C).No.26796/2006. 6. This Court directed the Sub Court, Kollam to dispose of O.S.No.327/2003 and two connected suits after joint trial. This Court also directed the sub Court, Kollam to make arrangements for the conduct of election to the managing committee in accordance with the bye-laws by appointing a suitable person as W.P.(C).Nos.6683 & 16183 Of 2008 ::5:: commissioner. This Court directed that the commissioner shall function in accordance with the bye-laws of the Devaswom and as per the directions if any to be published by time to time by the Sub Court. There is a further direction to the commissioner to conduct the election under the supervision of the court, as expeditiously as possible and, to the learned Sub Judge to prescribe time limit. This Court also issued other consequential directions. Immediately after the expiry of the period of the committee the learned Sub Judge appointed a commissioner. 7. Besides O.S.No.327/2003, two other connected suits are also pending namely, O.S.Nos.693/2003 & 791/2002. The connected suits are filed for injunction simplicitor. During 2004, the Sub Inspector of Police, Thekkumbhagam submitted a report stating that there is a dispute between the parties regarding the administration of the temple and Higher Secondary School and reported that there is occurrence of breach of peace in the area. On the basis of the report, the Sub Divisional Magistrate, Kollam appointed Deputy Thahsildar, Krunagappally as receiver of the temple and the Higher Secondary School which is also under the W.P.(C).Nos.6683 & 16183 Of 2008 ::6:: management of the Devaswom. Receiver was appointed by the Sub Divisional Magistrate since there was no managing committee to administer the affairs of the temple and the school. As per the order of the Sub Divisional Magistrate the receiver was appointed 'until the decree or order of a competent court determining the rights of the parties or their claim to possession shall have been obtained'. 8. Pursuant to direction issued by this Court in Ext.R1(b) judgment in W.P.(C).No.26796/2006 an advocate commissioner was appointed to conduct the election. Subsequently, the learned Sub Judge issued a common order in I.A.No.1297/2007 & 1373/2007 dated 5.7.2007 directing the commissioner to prepare voters' list of the Devaswom. The commissioner prepared a draft voters' list and final voters' list. As many as 93 persons lodged objections to the draft voters list. The commissioner considered the objections after affording an opportunity of being heard to the objectors. It is reported in the final report dated 1.8.2007, 91 objectors appeared in person. It is further pointed out that though the entries in Ext.A1 is seen transferred to Ext.A1(b), W.P.(C).Nos.6683 & 16183 Of 2008 ::7:: those entries are not seen in Ext.A1(b) and there are many corrections and over writings in the corresponding pages of Ext.A1. It is further reported that entries in Ext.B1 with regard to Ext.B3 book is not seen in Ext.A1(b) which is alleged to be the volume No.3 membership register of the 1st plaintiff Devaswom. The commissioner reported that after perusing the records it was found that Ext.A1(b) is not trustworthy and reliable register. Therefore the commissioner has removed all members found enrolled as per Ext.A1(b) register from the final voters' list and he prepared the final voters' list based on Ext.A1, A1(a), B1 and the statement of account published by the 1st plaintiff Devaswom till the year 2002. The petitioners herein seriously objected the report of the commissioner which was accepted by the learned Sub Judge. According to him the plaintiffs in the suit were not given an opportunity to substantiate their serious objections raised against finalisation of the final voters' list. The learned counsel submitted that as per clause 17 of the bye-law, marked Ext.P2, both ladies and gents have the right to become the members of the Devaswom. Learned counsel further submitted W.P.(C).Nos.6683 & 16183 Of 2008 ::8:: that the commissioner illegally removed names of 17 female members from the voters list stating that going by the custom the ladies are not entitled to become members of the Devaswom. In fact, the report to that extent is ex-facie incorrect. This Court in Ext.R1(b) judgment specifically directed the commissioner to conduct election in accordance with the bye-law. Therefore the court has a duty to see that the election shall be conducted in accordance with the bye-law of the Devaswom. Whether the custom prevailing in the Devaswom that no ladies can become members of the Devaswom, even if it is true, is a matter to be examined by the court only during trial after taking evidence. The commissioner cannot jump into such contentions and delete the names of female members from the voters' list for the sole reason that it is against the custom. Moreover, the commissioner has not collected any evidence which will go to show that the custom does not permit the ladies to become members of the Devaswom. This Court directed to conduct the election as an interim measure pending suit. So, the commissioner has a duty to conduct election in accordance with the bye-law. In fact, both W.P.(C).Nos.6683 & 16183 Of 2008 ::9:: men and women are entitled to become members of the Devaswom. The commissioner in fact went wrong in taking a decision as referred above. I do not propose to examine the correctness of the report of the commissioner in deleting the names of members including 17 female members since it was not necessary to do so in view of the directions which I propose to issue in this writ petition. 9. Both sides admitted that there was an election on 21.7.2002. According to the bye-law, the period expired after two years. It is also a fact that in 2004 the Sub Divisional Magistrate appointed a receiver to administer the affairs of the Devaswom finding that there was no elected committee to manage the affairs of the temple and School. This Court in 2007 directed the learned Sub Judge to pass orders for the conduct of election. In fact pursuant thereto, the court below had initiated proceedings for conducting election. Unfortunately, for the last few years, election could not be conducted in spite of the direction issued by this Court in 2007. The result is that approximately for the last 4 years, no committee is in existence. W.P.(C).Nos.6683 & 16183 Of 2008 ::10:: Moreover, the suit filed in 2003 and other connected suits are pending final disposal before the court below and no committee was there to administer the affairs of the Devaswom. 10. In the said circumstances, this Court is of the view that appropriate direction befitting in the circumstances is to direct the Sub Court to dispose of the suit at an early date. Due to passage of time no purpose will be served by directing the court below to expedite the proceedings for conduct of the election since suits were pending for the last several years. Ends of justice demands disposal of the suits instead of keeping it pending for some more years. The court below shall dispose of the suits within a period of four months from the date of receipt of a copy of this judgment. Since the affairs of the Devaswom are still run by a receiver and not by an elected committee, the court below while disposing of the suit shall issue appropriate time bound directions for the conduct of the election to the committee by a commissioner, pass other appropriate directions for the timely and smooth conduct of election. The election shall be conducted under the supervision and directions of the court W.P.(C).Nos.6683 & 16183 Of 2008 ::11:: below. The court below shall continue to supervise the affairs of the Devaswom till the elected committee assumes charge. W.P.(C).No.16183/2008 This connected writ petition is filed by third parties to the suit. They are 24 in number. They filed Ext.P1 petition seeking to implead them as additional defendants in the suit. The defendants in the suit filed Ext.P2 objection seriously opposing the prayer. The plaintiff in the suit supported the impleading petition. The court below passed Ext.P3 order dismissing the impleading petition finding that there is no merit. The court came to the conclusion that the petitioners in the impleading petition were claiming to be members of the Devaswom are not actual members, that the petitioners are not duly admitted members, that the suit is defended for the benefit of all of them and that without them being in the party array all the issues arising in the suit can be effectively disposed of. Hence they are not impleaded in the suit. I have perused Ext.P3 order. Plaintiffs in the suit are supporting the petitioners. The contentions of the W.P.(C).Nos.6683 & 16183 Of 2008 ::12:: plaintiffs and the petitioners in the impleading petition are almost same. Therefore the court below was right in holding that all the issues arising in the suit can be effectively and rightly agitated without them being made parties. The plaintiffs in the suit have taken up all the contentions of the petitioners. The court below also found that Exts.A1 to A28 receipts are bogus and forged receipts as contended by the contesting defendants. The conclusions arrived at by the court below is based on materials. This Court find no valid grounds to interfere with the impugned order in a petition filed under Article 227 of the Constitution of India. It is further made clear that the contentions raised by the impleading petitioners can be raised and agitated by the plaintiffs in the suit. Accordingly, W.P.(C).No.6683/2008 is disposed of and W.P. (C).No.16183/2008 stands dismissed. HARUN-UL-RASHID, Judge. bkn/-