IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930 WP(C).No. 13278 of 2008(E) -------------------------- CMA.93/2006 OF I ADDL. DISTRICT COURT, TRIVANDRUM OS.241/2003 OF PRL.SUB COURT,TRIVANDRUM .................... PETITIONERS: ------------ 1. V.KESAVAN POTTI,S/O.VASUDEVAN POTTI, AGED 55 YEARS PRESIDENT, ANATHANCADU RESIDENT'S ASSOCIATION, TC 37/417 (1), KOOPAKKARA MADOM STREET, FORT, THIRUVANANTHAPURAM. 2. ANANTHANCADU RESIDENTS'S ASSOCIATION, REPRESENTED BY ITS PRESIDENT V KESAVAN POTTI, TC 37/417 (1), KOOPAKKARA MADOM STREET, FORT, THIRUVANANTHAPURAM. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENTS: ------------- 1. SRI SREENIVASAN EMBRAN, TC 37/408, KOOPAKKARA MADOM STREET, FORT, THIRUVANANTHAPURAM. 2. ANANTHANCADU SREE NAGARAJA TEMPLE TRUST, FORT, THIRUVANANTHAPURAM. 3. SREE ANANTHANCADU NAGARAJA TEMPLE TRUST (NAGARAJA DEITY), REPRESENTED BY THE FIRST APPELLANT. 4. SREE ANANTHANCADU NAGARAJA TEMPLE (MAHALEKSHMY DEITY), REPRESENTED BY THE FIRST APPELLANT. 5. S.SURENDRAN NAIR, TC 37/14040,. SREEBHA, KOOPAKKARA MADOM STREET, FORT, THIRUVANANTHAPURAM. (...2/-) :: 2 :: 6. THE RECEIVER EX-OFFICIO-JUNIOR SUPERINTENDENT (LA) TALUK OFFICE, THIRUVANANTHAPUPRAM, ANANTHANCADU SREE NAGARAJA TEMPLE, FORT, THIRUVANANTHAPURAM. BY ADV. SRI.P.K.VIJAYAMOHANAN FOR R2-4 SRI.ALAN PAPALI FOR R1-4 SMT.DHANYA P.ASHOKAN FOR R2-4 SRI.NISHIL.P.S. FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Petitioners’ Exhibits: Exhibit-P1:- True copy of the order dated 5.4.1999 in Crl. M.C. No.719/1999 Exhibit-P2:- True copy of the order dated 22.3.2005 in IA 2465/2003 in OS 241/2003 on the file of the Prl. Sub Judge, Thiruvananthapuram. Exhibit-P3:- True copy of the judgment dted 11.4.2008 in CMA 93/2006 on the file of 1st Addl. District Judge, Thiruvananthapuram. //True Copy// P.A. To Judge M. SASIDHARAN NAMBIAR, J. ----------------------------------------------- W.P.(C) .No. 13278 of 2008 ------------------------------------------- Dated this the 10th day of June, 2008 JUDGMENT Petitioners are defendants 1 and 3 in C.M.A. 93 of 2006 on the file of Sub Court, Thiruvananthapuram and they are defendants 1 and 3 in O.S. 241 of 2003. The suit was originally instituted before Munsiff Court, Thiruvananthapuram and now stands transferred to Second Additional District Court, Thiruvananthapuram. C.M.A. 93 of 2006 was filed challenging dismissal of I.A. 2465 of 2003, an application for appointment of a receiver. It was disallowed by the trial court under Ext.P2 order. Learned Additional District Judge set aside Ext.P2 order and appointed official receiver under Ext.P3 order. Fourth respondent was functioning as a receiver till then, consequent to his appointment in a proceedings under Section 145 of Code of Civil Procedure in M.C.176 of 1997 on the file of Sub Divisional Magistrate Court, Thiruvananthapuram. The dispute was in respect of the right to manage Ananthankadu Nagaraja temple and WPC13278/08 2 Mahalakshmi temple situate on the northern side of Sree Padmanabhaswami Temple. When the dispute led to breach of peace necessitating initiation of proceedings, on the report filed by the Circle Inspector of Police, Fort Police Station dated 25.9.1997, Sub Divisional Magistrate passed a preliminary order on 27.5.1997 and also took possession of the property and appointed fourth respondent, the Junior Superintendent of Taluk Office, Thiruvananthapuram as receiver. That order was challenged before this court in Crl.M.C.719 of 1999. Under Ext.P1 order this court found that there is reasonable cause for initiating proceedings under Section 145 of Code of Criminal Procedure and directed that receiver so appointed shall continue till final orders are passed or till a receiver is appointed by a competent Civil Court in which case order has to be passed as provided under sub-section (2) of Section 146 of Code of Criminal Procedure. It is thereafter O.S.241 of 2003 was instituted seeking a declaration that first respondent is entitled to hold and possess the herriditory office of priest of the Ananthankadu Nagaraja temple and Mahalakshmi temple situate in the plaint schedule property. It is in that suit a petition was WPC13278/08 3 filed to appoint a receiver on the allegation that fourth respondent is not properly managing the affairs of the temple or the properties. Petitioners in turn have filed a suit before Second Additional District Court, Thiruvananthapuram which is pending as O.P.1100 of 2003. The learned Sub Judge refused the prayer under Ext.P2 order. The learned District Judge under Ext.P3 order held that the report submitted by the commissioner establish that the allegation of improper management of the property raised by the petitioner is correct and in such circumstances, appointed a receiver as sought for. Learned District Judge directed the official receiver to take charge as a receiver of the plaint schedule property. It is that order which is challenged in this petition filed under Article 227 of the Constitution of India. 2. Learned counsel appearing for petitioners and first respondent, who contested the writ petition, were heard. 3. The argument of the learned counsel appearing for petitioners is that fourth respondent is functioning as the receiver as appointed in the proceedings initiated under Section 145 of Code of Criminal Procedure and that appointment was WPC13278/08 4 confirmed by this court in Ext.P1 and learned Sub Judge did not appoint a receiver, and in such circumstances learned District Judge should not have appointed official receiver as the receiver under Ext.P3 order and therefore the order is to be quashed. Learned counsel also argued that when a scheme suit is pending and no receiver was appointed there is no justifiable reason for appointment of the official receiver as a receiver under Ext.P3 order and therefore the order is to be set aside. 4. Learned counsel appearing for first respondent argued that learned District Judge had given valid reasons to change fourth respondent from the receiver and to appoint official receiver as the receiver. It was also argued that report submitted by commissioner establish that there is mismanagement and misappropriation of the income and in such circumstances there is no reason to interfere with Ext.P3 order. 5. On hearing the learned counsel appearing for both sides I do not find any illegality, irregularity or impropriety or any other reason warranting interference in the discretion exercised by the learned Additional District Judge. The fourth respondent, Junior Superintendent of Land Acquisition, Taluk WPC13278/08 5 Office was appointed the receiver considering the exigencies prevailing at the time when the Sub Divisional Magistrate found that dispute with regard to the management of the temple and properties would lead to law and order problem and breach of peace in the locality. Fourth respondent was appointed to the limited extent of maintaining the property till the condition prevailing for initiation of proceedings under Section 145 of Code of Criminal Procedure prevail. What was found by this court under Ext.P1 order was only that Sub Divisional Magistrate was justified in initiating proceedings under Section 145 and also taking possession of the property during the pendency of the proceedings. It was specifically provided that the receiver so appointed is to continue till the final order is pased in the proceedings initiated under Section 145 of Code of Criminal Procedure or till a receiver is appointed by a competent Civil Court. Therefore, Ext.P1 order will not prevent the Civil Court from appointing a receiver. Ultimately the question as to who is to manage the temple is to be taken not by the authorities provided under Code of Criminal Procedure but by the Civil Court. It is for that purpose respondents instituted a scheme WPC13278/08 6 suit and sought for declaration of the right to manage the temple and the properties. What was found by the District Court under Ext.P3 order was that fourth respondent, a government servant, a Junior Superintendent of the Taluk Office, is not properly managing the temple and the properties. Considering the official duties of the Junior Superintendent it cannot be expected that he could devote his full time and attention for the maintenance of the property and the management of the temple. It is in such circumstances learned District Judge found that it is necessary to entrust the management with the official receiver instead of continuing the management by fourth respondent. I do not find any reason to interfere with that order. Writ petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-