IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 WP(C).No. 35614 of 2009(V) -------------------------- PETITIONER(S): --------------- V.KRISHNAN, S/O.VELAYUDHAN CHETTY AGED 70 YEARS, VALATHUR HOUSE, P.O.CHEERAL, SULTAN BATHERI, WYNAD DISTRICT. BY ADV. SRI.M.KRISHNAKUMAR SMT.PRABHA R.MENON RESPONDENT(S): --------------- 1. THE MALABAR DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, CIVIL STATION, KOZHIKODE. 2. THE COMMISSIONER MALABAR DEVASWOM BOARD, HOUSE FED COMPLEX, ERANHIPPALAM, KOZHIKODE. ADV. SRI.K.MOHANAKANNAN,SC,MALABAR DEVASWOM FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- WP(C) No. 35614 of 2009 --------------------------------------- Dated, this the 23rd day of December, 2009 J U D G M E N T P.R.Ramachandra Menon, J. The petitioner has approached this Court mainly with the following prayers. 1. Issue a Writ of Mandamus or any other appropriate writ order of direction commanding the respondents 1 and 2 to take a decision with respect to the administration and management of the Bathery Sri.Maha Ganapathy temple under the provisions of the HR & CE Act, 1951, as directed in Ext.P2 judgment expeditiously. 2. Issue a Writ of Mandamus or any other appropriate writ order or direction commanding the respondents 1 and 2 to complete the proceedings evidenced by Ext.P1 expeditiously. 2. It is stated that the petitioner was employed as a UD Clerk in the Sree Maha Ganapathi Temple of Sulthan Batheri from 1980 to 2003. It is contended that the petitioner was entitled to get retirement benefits and on taking up the matter before the State of Kerala, it was forwarded to the first respondent Devaswom for appropriate action; pursuant to which the second respondent issued Ext.P1 communication dated 01.02.2007 to the petitioner stating that the matter is under active WP(C) No. 35614 of 2009 2 consideration and that the delay was only because of the interim order of stay as to the taking over of the Temple by the statutory authorities (pursuant to the interim order of stay granted by this Court dated 27.11.2006) in WP(C) 31406/2006. The case of the petitioner is that the delay is causing extreme hardships and prejudice in enabling the petitioner to get the retirement benefits and that the respondents are liable to be compelled to take a decision with respect to the administration and management of the Batheri Sree Maha Ganapati Temple under the provisions of HR & CE Act, 1951 'as directed' in Ext.P2 judgment. 3. Learned counsel for the petitioner submits with specific reference to the paragraph 6 of the Writ Petition that the petitioner is likely to get the relief, only if the respondents 1 and 2 take prompt steps to take over the Temple and that the delay has caused extreme hardship and loss to the petitioner. Learned counsel submits that, it is accordingly that a direction has been sought for, to issue a Writ of Mandamus to the respondents 1 and 2 to take decision with respect to the administration and management of the Temple under the provisions of HR & CE Act “as directed in Ext.P2 judgment”. 4. Coming to the scope of Ext.P2 judgment, the Writ Petition was filed by the Bathery Maha Ganapati Kshethra Samiti represented by the President, challenging the proposed action of the Devaswom authorities to WP(C) No. 35614 of 2009 3 take over the administration and management of the Temple. It was the contention of the petitioner therein that the Temple was a 'private temple' and that neither the HR & CE Act nor the Board could exercise any control and supervision over the Temple. 5. As obvious from Ext.P2 judgment, the petitioner herein was got impleaded as the additional 3rd respondent in the said Writ Petition leading to Ext.P2 judgment. As taken note of by this Court in Ext.P2 judgment (paragraph 6), the contention of the petitioner/additional 3rd respondent was mainly that, the Samiti could not maintain the Writ Petition and that the Temple was a 'public one'; thus seeking to dismiss the Writ Petition. After considering the facts and figures, this Court vide Ext.P2 judgment held that the contention of the Samiti that the Temple was a private temple or that the Board has no authority over the same was not acceptable. It was also observed that even though the contribution made by the Samiti cannot be overlooked, it cannot be said that the Samiti has got any vested right to resist the action taken by the HR & CE Board and that the Samiti can continue in the administration and management of the Temple. However, observing that it will be in the fitness of things that before taking decision under the provisions of the HR & CE Act, notice be issued to the Samiti and their objections be heard in the matter, interference was declined and the Writ Petition was dismissed. WP(C) No. 35614 of 2009 4 6. From the above, it is very much evident that no positive direction was given by this Court vide Ext.P2 judgment to do any particular Act. To put it more clear, there was no direction to take over the administration and management of the Temple by the Board invoking the power under the HR & CE Act or to have it considered and finalised within a specified time, but for observing that the petitioner Samiti though was having no right to resist such action, was to be given notice to be heard before finalizing such steps. This being the position, the idea and understanding of the petitioner seeking to issue a Writ of Mandamus to the respondents 1 and 2 to pursue the action “as directed in Ext.P2 judgment” is thoroughly wrong and misconceived; for the obvious reason that there is no direction in Ext.P2 judgment to pursue or finalise any action. 7. However, there is a second prayer for the petitioner seeking for a direction to the respondents to finalise the proceedings referred to in Ext.P1. As stated hereinbefore, the specific case of the petitioner is that he will be entitled to get the benefit in respect of the service of more than two decades rendered in the Temple, only if the respondents take prompt steps to take over the Temple. It was on taking up the grievance as above, that the matter was forwarded by the Government for consideration of the Board as revealed from Ext.P1 itself, sent by the second respondent to the petitioner, pointing out that the delay is only because of the interim order WP(C) No. 35614 of 2009 5 dated 27.11.2006 passed by this Court in WP(C) 31406/2006 restraining the steps with regard to the taking over of the Temple. But it is seen from the observations made by this Court in paragraph 10 and 11 of Ext.P2 judgment that the above Writ Petition [WP(C) 31406/2006] is already over and that the judgment rendered therein in fact leaves upon the right of HR & CE Board to follow up such procedure as are necessary. This being the position, the interim order referred in Ext.P1 no longer survives and the respondents are free to proceed with further steps, ofcourse subject to the observations and stipulations made by this Court in Ext.P2 judgment. As it stands so, the petitioners are free to pursue the remedy by filing an exhaustive representation before the second respondent and if any such petition is filed within one month from today, the same shall be considered and finalised as expeditiously as possible, at any rate within three months thereafter. The Writ Petition is disposed of accordingly. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc