E. Madhavan Nair vs The Deputy Commissioner, Administration, H.R. and C.E. and Others

G. Rajasuria, J.—This writ petition has been filed to direct the respondents 3 to 5 to assist the petitioner by all means to conduct the Mandala Kala Festival to be held from 26-12-2008 to 28-12-2008 in Sri Eswarakala Boothathan Thirukovil, Alapancode, Anducode, Kanyakumari District, by issuing a Writ of Mandamus.

Heard the learned Counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents 1 and 2. Mr. G.R.Swaminathan, the learned Counsel appearing for the third respondent and the learned Government Advocate appearing for the respondents 4 and 5.

The grievance of the petitioner as found set out in the affidavit accompanying the writ petition, is to the effect the petitioner is one of the hereditary trustees of Arulmighu Eswarakala Boothathan Thirukovil, Alapancode at Anducode; while so, the third respondent who is expected to co-operate with the hereditary trustees in the smooth functioning of the temple, has taken sides with some people of that locality and is trying to conduct Mandala Kala Pooja excluding the petitioner and similar other hereditary trustees like the petitioner.

The learned Counsel for the petitioner by inviting the attention of this Court to the proceedings of Deputy Commissioner, H.R & C.E Administration Department, dated 28.09.1981 in O.A. No. 36 of 1979, would develop his argument that the Deputy Commissioner himself recognised that relating to the said temple, there are hereditary trustees and in such a case, the outsiders cannot claim any right in conducting the festival with the help of the petitioner.

The learned Counsel for the petitioner further inviting the attention of this Court to a notice, would develop his argument that a few persons namely Sachidharan Nair, Suresh and Palrathinam calling themselves as the President, the Secretary and the Treasurer respectively of a festival committee, made publication as though a meeting was held on 21.11.2008 in the said temple premises in the presence of the H.R & C.E Department Officials and finally decided to conduct Mandala Pooja and such meeting is something not contemplated legally at all and accordingly, he prays for issuance of a direction by this Court.

Whereas the learned Counsel for the third respondent animadverting upon the allegations/averments in the affidavit as well as the submissions made by the learned Counsel for the petitioner, would develop his argument that the third respondent is the Executive Officer of the said temple; he is also the Fit Person appointed by the second respondent; he has been performing his duties as per law; he is not acting as a tool in the hands of any group of persons in that locality; the petitioner is having no locus standi to file this writ petition as from this petition, it could be seen that the petitioner is only the nephew of the alleged hereditary trustee; among the hereditary trustees, civil litigations emerged and one such suit was dismissed also; now if at all, the petitioner is having any right to assert, he has to file a suit to get his right declared as a hereditary trustee.

Heard the learned Additional Government Pleader for the respondents 1 and 2 who would advance the arguments on the same line as that of the learned Counsel for the third respondent.

In these factual circumstances, I am of the considered opinion that in this writ petition, this factual controversy between them cannot be settled. As has been correctly pointed out by the learned Counsel for the third respondent, the petitioner first of all, should establish his status as that of one of the hereditary trustees. Even though the learned Counsel for the petitioner invited the attention of this Court to the proceedings dated 28.09.1981 in O.A. No. 36 of 1979 by the second respondent, nonetheless as on date there is nothing to indicate that the petitioner is one of the hereditary trustees.

The learned Counsel for the petitioner would submit that actually there is no controversy among the hereditary trustees and they all stand united and they are willing to participate in the temple activities with the help of the third respondent and there is no necessity for a Fit Person to continue.

In view of the submission of the learned Counsel for the petitioner, I am of the considered view that it is high time for them to approach the Deputy Commissioner and put forth his plea in the appropriate format, whereupon the Deputy Commissioner as it has been done earlier, should look into the matter and pass suitable orders on merits.

The learned Counsel for the third respondent would cite the decision in Aviyur Mariamman Temple by Hereditary Trustee Parasuraman v. T.N.Sundaramoorthi Pillai and Anr. reported in 1981 M.L.J 392 and develop his argument that even the Deputy Commissioner cannot resolve the problem of the petitioner and the other hereditary trustees, because only the civil Court can decide the matter.

By giving this direction to the petitioner to approach the Deputy Commissioner, I do not in any way hold that the Deputy Commissioner is having jurisdiction to decide all the issues and claims involved here. The Deputy Commissioner after giving due opportunity of being heard to the petitioner could pass whatever orders which should be passed in the facts and circumstances of the case legally and as per the H.R & C.E. Act.

Relating to the contention of the learned Counsel for the petitioner that some three persons cited supra styled themselves as the President, the Secretary and the Treasurer of some Committee relating to the said temple, I would like to observe that the Executive Officer as the Fit Person is the independent person under the control of the second respondent and he is expected to conduct the festival of his own accord and he is liable to furnish the accounts to the appropriate authorities also. The petitioner is also at liberty to approach the Deputy Commissioner relating to the impugned notice referred to supra and its contents whereupon, the Deputy Commissioner shall call for explanation from the persons concerned as to the truth or falsity of such publication and deal with the matter. On receipt of a copy of this order, the petitioner shall resort to the measures suggested in this order.

The learned Counsel for the petitioner would make an extempore submission that already the representations dated 03.12.2007 and 27.11.2008 were made to the Joint Commissioner concerned. I hereby direct that the second respondent shall consider those representations immediately after giving due opportunity of being heard to the petitioner and in connection with that, the petitioner on receipt of a copy of this order, shall approach the second respondent immediately.

With the above direction, this writ petition is disposed of. Consequently, connected M.P. No. 1 of 2008 is closed. No costs.