IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(C).No. 37390 of 2009(P) ---------------------------------- PETITIONER(S): ------------------- AMBATTUKAVU BHAGAVATHY KSHETHRA SAMITHY, REGISTER NO.206/93, REPRESENTED BY ITS SECRETARY, P.C.BABU, RESIDING AT AISHWARYA, AMBATTUKAVU, THAIKKATTUKARA P.O., ALUVA, ERNAKULAM DISTRICT. BY ADVS. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SMT.N.SHOBHA SRI.K.SHRIHARI RAO RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEVASWOM DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANDANCODE, TRIVANDRUM. 3. THE COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANDANCODE, TRIVANDRUM. 4. M.G.RADHAKRISHNAN, MANKAYIL HOUSE, AMBATTUKAVU, CHOORNIKARA, THAIKKATTUKARA P.O., ALUVA, ERNAKULAM DISTRICT. 5. AYYAPPANKUTTY, KUMBALAMPARAMBIL HOUSE, AMBATTUKAVU, CHOORNIKKARA, THAIKKATUKARA P.O., ALUVA, ERNAKULAM DISTRICT. ...........2/-.... ...2... 6. SURESH BABU, MUNDETHU PARAMBU, CHOORNIKKARA, THAIKKATTUKARA P.O., ALUVA, ERNAKULAM DISTRICT. * ADDL.R7 IMPLEADED 7. P. SADANANDAN, S/O. PADMANABHAN K.K., AGED 56 YEARS, RESIDING AT MATTATHUPADINJATTATHIL, KESAVASADANAM, CHENGAMANAD, ALUVA-683 578, AS STATE SECRETARY, KERALA KSHETHRA SAMRAKSHANA SAMITHI, MEKHALA OFFICE, PATHIRAKATTUKAVU KSHETHRAM, KALAMASSERY. * IS IMPLEADED AS ADDL.R7 VIDE ORDER DATED 18/02/2010 IN IA. 2413/2010. * ADDL. R8 IMPLEADED 8. VISWA HINDU PARISHAD, HINDU SAMSKARIKA KENDRA, PAVAKULAM TEMPLE COMPLEX, KALOOR, KOCHI - 17. REP. BY ITS JOINT GENERAL SECRETARY. * IS IMPLEADED AS ADDL. R8 AS PER ORDER DATED 11/03/2010 IN IA. 3252/2010. R1 BY GOVT.PLEADER SRIX. LAKSHMI NARAYANAN R2 & R3 BY ADV. SRI.K.N.VENUGOPALA PANICKER, SC, TDB R4 & R6 BY ADV.SRI.C.A. JOY SRI.KRISHNAKUMAR MANGOT, SC FOR OMBUDSMA R7 BY ADVS.SRI.KRISHNADAS P. NAIR SMT.K.L.SREEKALA R8 BY ADV. SRI.M.P.ASHOK KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2010, ALONG WITH WPC NO. 6943 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ WP(C).No. 37390/2009(P) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE TRUST DEED DATED 11/08/1993 OF THE PETITIONER SAMITHY. P2: COPY OF THE JUDGMENT DATED 06/04/2006 IN WPC NO.706/2005 OF THIS HON'BLE COURT. P3: COPY OF THE JUDGMENT DATED 20/06/2007 IN WPC NO.18932/07 OF THIS HON'BLE COURT. P4: COPY OF THE LETTER 11/09/2007 OF THE DUPUTY COMMISSIONER (INSPECTION) OF THE 2ND RESPONDENT. P5: COPY OF THE LETTER DATED 15/05/2008 FROM THE HON'BLE OMBUDSMAN. P6: COPY TO THE HON'BLE OMBUDSMAN. P7: COPY OF THE STATEMENT DATED 02/06/08 FILED BEFORE THE HON'BLE OMBUDSMAN. P8: COPY OF THE OPERATIVE PORTION OF THE AUDIT REPORT. P9: COPY OF THE STATEMENT DATED 21/06/2008 OF THE PETITIONER BEFORE THE HON'BLE OMBUDSMAN. P10: COPY OF THE PROCEEDING IN R.O.C. NO.8829/03/LAND DATED 16/08/2007 OF THE 2ND RESPONDENT. P11: COPY OF THE PROCEEDINGS IN R.O.C NO.633/07/ASI/L DATED 28/06/2008 OF THE 2ND RESPONDENT. P12: COPY OF THE LETTER DATED 28/06/2008 OF THE 3RD RESPONDENT TO THE HON'BLE OMBUDSMAN. P13: COPY OF THE LETTER DATED 27/08/2008 OF THE 3RD RESPONDENT. P14: COPY OF THE PRELIMINARY NOTIFICATION DATED 22/12/2008 OF THE 3RD RESPONDENT. P15: COPY OF THE OBJECTION DATED 25/03/2009 OF THE PETITIONER. P16: COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. .......2/-.... ...2... WP(C).No. 37390/2009(P) P17: COPY OF THE JUDGMENT DATED 01/04/2009 IN WPC NO.1688/09 OF THIS HON'BLE COURT. P18: COPY OF THE FINAL NOTIFICATION DATED 08/10/2009 ISSUED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS: R5(a):COPY OF THE INTERIM ORDER DATED 20/01/2005 ISSUED BY THIS HON'BLE COURT. R5(b):COPY OF THE PROCEEDING OF THE 2ND RESPONDENT DATED 28/06/2008. R5(c):COPY OF THE PROCEEDINGS OF THE OMBUDSMAN IN THE COMPLAINT NO.J-92/08 DATED 10/07/2008. R5(d):COPY OF THE GUSSET NOTIFICATION DATED 17/02/2009. R5(e):COPY OF THE ABOVE SAID NOTICE DATED 23/07/2008 ADDRESSED TO 4TH RESPONDENT. R7(a):COPY OF THE OBJECTION FILED BEFORE THE 3RD RESPONDENT DATED 24/05/2009. /TRUE COPY/ P.S. TO JUDGE SVS/ Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.37390 of 2009-P = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of September, 2010. Judgment “CR” Thottathil B.Radhakrishnan, J. 1.This writ petition is filed challenging proceedings leading to Ext.P18, an order issued by the Devaswom Commissioner. 2.Ext.P14 notification was issued by the Devaswom Commissioner under Section 37(1) of the Travancore-Cochin Hindu Religious Institutions Act, 1950, hereinafter referred to as the “Act”. That was a preliminary notification calling for objections to the tentative decision to pass an order of assumption of the Ambattukavu Bhagavathy Temple, Thaikkattukara, Aluva West Village. WPC37390/09 -: 2 :- Objections were filed. Therefore, a decision as to whether the management of the institution has to be assumed or not had to be taken by the competent authority, namely, the Devaswom Commissioner. He, however, issued the impugned Ext.P18 in purported exercise of powers under Sections 41 and 42(1) of the Act. In terms of Section 41, the Commissioner has proceeded to dissolve the committee functioning by virtue of Trust Deed No.205/1993 and removed the committee in purported exercise of that power. The Administrative Officer of the Travavancore Devaswom Board in Aluva was appointed under Section 42(1) as the Administrative Officer. The Deputy Devaswom Commissioner was directed to constitute a new temple advisory committee in the temple. This is on the basis that there is a purported dissolution of the committee in office. The Administrative Officer, Aluva was directed to take charge of the temple within 15 days from the date of notification, i.e., Ext.P18. The writ petition is filed challenging the decision WPC37390/09 -: 3 :- contained in Ext.P18 notification. 3.When proceedings are taken under Section 37 and an order of assumption passed on any grounds mentioned under Section 37(1), any person aggrieved by it has a right to suit before the competent district court in terms of Section 37 (4) of the Act. That is a statutory right. The right is to file a suit before a court. This means that the legislative provision is one for adjudication by the competent court. The exercise of that statutory power by the court would result in a judicial decision. Therefore, the right to sue under Section 37(4) is very valuable. Not only that, even in terms of that provision, the order of assumption will become final subject to the result of the suit. This means that in the normal course of proceedings and procedures, it is only through a suit under Section 37(4) could a decision for assumption under Section 37(1) be impeached. This right to have redressal through the judicial process cannot be nipped or crippled WPC37390/09 -: 4 :- by the issuance of a notification, as if it were a composite one, under Sections 37, 41 and 42. 4.The impugned Ext.P18 notification has been published. In terms thereof, the Administrative Officer has taken charge. If it were a decision under Section 37(1), any person aggrieved has a right to sue under section 37(4) because the impugned Ext.P18 order results in a decision as to assumption of management. In this premise, all that needs to be ensured is that the right, if any, of the writ petitioner to challenge before the district court, the decision as to assumption of management, has to be appropriately protected. 5.The procedure before the district court is not, in any manner, regulated by any other provisions of the Act. What is provided for under Section 37 (4) of the Act is a suit. This means that the district court will be well within authority to pass such interlocutory orders as may be found necessary in relation to the affairs of the WPC37390/09 -: 5 :- temple, having regard to the totality of the facts and circumstances, during the pendency of any suit that may be filed. 6.For the foregoing reasons, we order that Ext.P18 will be treated as an order issued under Section 37(1)(e) of the Act and the order therein that the present committee functioning by virtue of the Trust Deed shall stand dissolved and removed under Section 41 would stand stayed. The direction in Ext.P18 to the Deputy Devaswom Commissioner, Vaikom to constitute a new temple advisory committee is also stayed. The Administrative Officer, Aluva will continue to be provisionally in charge of the temple under the control of the Devaswom Commissioner for the purpose of affairs of the temple following Ext.P18 for the time being. 7.Following this, the district court before which any suit may be filed against Ext.P18 will be at liberty to treat Ext.P18 as only an order under WPC37390/09 -: 6 :- Section 37(1)(e) of the Act, decide on the contentions of the rival parties and also consider any application for interlocutory relief. Any direction issued herein would not stand in the way of the district court passing such final orders or interlocutory orders, as may be found just and necessary, having regard to the totality of the facts and circumstances of the case, in accordance with law. It is also ordered that the period of pendency of this writ petition from 22.12.2009, the date of its presentation, till the date of issuance of certified copy of this judgment will be considered by the district court for exclusion as regards the limitation. 8.Any temple advisory committee, if constituted as per the orders already issued by this Court, was obviously intended to be only temporary, having regard to the fact that they were interim orders and such committees, if they have already assumed charge, will stand dissolved by the force of this judgment. We further direct that the directions WPC37390/09 -: 7 :- issued herein above regarding the management, in the absence of any suit, will continue only for one month from now. If no suit is filed within that time, the parties will be governed by Ext.P18. This writ petition is ordered accordingly. Issue certified copy to all parties on payment of due fee. Communicate to Ombudsman. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/3009