SAJEEVAN Vs. COMMISSIONER, HR AND CE DEPARTMENT

JUDGEMENT

(1.) The petitioners are members of Chekkura Puthalathu Pothady Illam, which, according to them, owns and manages the Poyiloor Sri Muthappan Madapura in Thripprangottur Panchayath. It is contended that it is a family temple and therefore, not falling under the control and supervision of the Malabar Devaswom Board (MDB). It is also contended that at the instance of a ruling political party, Ext.P1 complaint was made before the first respondent to take over the Madappura and to conduct annual festival. On receipt of Ext.P1, the Devaswom Commissioner caused an enquiry and obtained Ext.P2 report from the Devaswom Divisional Inspector. Thereupon, Ext.P2 was placed before MDB and on its basis, Ext.P3 resolution was passed. It is contended that Ext.P3 reveals the policy decision of the Board to take over the temple and naturally, on its basis, as per Ext.P4, the Devaswom Commissioner directed the Deputy Commissioner to declare the Madapura as a religious institution under section 57(a) of the Hindu Religious & Charitable Endowments Act (Madras) (for brevity, 'HR & CE Act'). Thereafter, the Deputy Commissioner numbered Ext.P1 complaint as O.A.No.9/2018 under section 57 of the HR & CE Act. Meanwhile, the petitioners preferred an appeal against Ext.P2 before the Commissioner. It is the contention that without waiting for the outcome of the appeal, the Deputy Commissioner passed orders in O.A.No.9/2018. Ext.P5 is the order passed thereon. Aggrieved by Ext.P5, the petitioners filed Appeal No.3/2020 before the Commissioner. Thereafter, they rushed to this Court by filing W.P.(C) No.17684/2020 with the prayer to declare that the Deputy Commissioner got no authority to order appointment of an Executive Officer under section 57 (1) of the HR & CE Act. They also sought for a direction to respondents 1 and 2 therein or any other officer in the Board not to appoint any Executive Officer in Poyiloor Sri Muthappan Madapura. The said writ petition was disposed of as per Ext.P6 directing the first respondent to dispose of the appeal preferred by the petitioners, referred to therein as Ext.P6, within a period of three months from the date of receipt of copy of the judgment with notice to the parties. It was also observed thereunder that in case of difficulty in an early disposal of the appeal, it would be open to the appellate authority to take up the I.A filed in the appeal viz., I.A.No.6/2020 and pass orders thereon. The admitted position is that the appellate authority thereafter considered the appeal. However, before the appellate authority could pass orders in the appeal, the petitioners are again before this Court, by filing the captioned writ petition, seeking the following prayers:- i. Direct the respondents 1 and 2 or any other officer in the Malabar Devaswom Board not to enforce/execute the orders passed by the commissioner in Appeal 3 of 2020 or Exhibit P5 order till the expiry of the statutory time limit provided under section 62 of the HR & CE Act. ii. Declare that the statutory and constitutional right of the petitioners guaranteed under HR & CE Act and the Constitution of India cannot be defeated by the Malabar Devaswom Board or its officials by executing the orders in Appeal 3 of 2020 on the day of passing of the order by the 1st respondent affirming Exhibit P5 order of the 2nd respondent. iii. Issue a writ of mandamus or other appropriate writ or order commanding the 1st respondent to serve a copy of the order if any passed in Appeal 3 of 2020 to the petitioners without any delay.

(2.) Heard the learned counsel for the petitioners and the learned standing counsel appearing for MDB.

(3.) When the matter was taken up for consideration on 1.12.2020, taking note of the nature of Ext.P6 judgment, the provisions under the HR & CE Act as also the nature of the pleadings and prayers in the writ petition, this Court put a pointed question to the petitioners as to how the writ petition could be maintained based on apprehension. We put such a question mainly because of the pleadings in paragraph 15 of the writ petition as also the nature of the reliefs sought for. Paragraph 15 of the writ petition reads thus:- "15.There is every possibility of taking over the Temple with police aid within 24 hrs of the passing of the order by the commissioner in Appeal 3 of 2020 without giving an opportunity to the petitioners to invoking their remedy either under the HR & CE or under the Constitution of India."