Loading...

Sree Guhanandapuram Devaswam vs C.N.Shanmughan on 15 November, 2010

Kerala High Court
Sree Guhanandapuram Devaswam vs C.N.Shanmughan on 15 November, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 6683 of 2008(U)


1. SREE GUHANANDAPURAM DEVASWAM,
                      ...  Petitioner
2. M.NATARAJAN, SECRETARY,
3. P.VIJAYAN, TREASURER,
4. S.JAYARAJAN, AGED 25 YEARS,
5. MANILAL.R., AGED 35 YEARS,
6. T.THANKARAJ, AGED 37 YEARS,

                        Vs



1. C.N.SHANMUGHAN, AGED 31,
                       ...       Respondent

2. LEKSHMANAN, AGED 76, S/O.RAMAN,

3. GOPINATHAN, AGED 70, S/O.GOVINDAN,

4. DAYANANDAN, AGED 56, S/O.MADHAVAN,

5. VASANTHA RAJAN, AGED 41,

6. DHARMAPALAN, AGED 64, S/O.NARAYANAN,

7. ARAVINDHAKSHAN, AGED 63, S/O.GOPALAN,

8. SHAJI BABU, AGED 43, S/O.KARUNAKARAN,

9. MADHU, AGED 34, S/O.MURALEEDHARAN,

10. KOCHU PILLAI, AGED 75,

11. GANGEYAN, AGED 60, S/O.KARTHIKEYAN,

12. KARTHIKEYAN, AGED 65, S/O.KRISHNAN,

13. NEELAMBARAN, AGED 57, S/O.JANARDHANAN,

14. THEKKUMBHAGAM SERVICE CO-OPERATIVE

15. RAJAN PILLAI, AGED ABOUR 50,

16. RAMA RAJU, AGED 40, S/O.SIVANANDAN,

17. SHAH NARAYANAN, S/O.NARAYANAN,

18. THE ADMINISTRATOR,

                For Petitioner  :SRI.A.K.ALEX

                For Respondent  :SRI.M.V.THAMBAN

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :15/11/2010

 O R D E R
                      HARUN-UL-RASHID, J.
                       ------------------------
                W.P.(C).Nos.6683 & 16183 Of 2008
                        ----------------------
           Dated this the 15th day of November, 2010.

                          J U D G M E N T

W.P.(C).No.6683/2008

The plaintiffs in O.S.No.327/2003 on the file of the Sub

Court, Kollam are the petitioners. The writ petition is filed under

Article 227 of the Constitution of India challenging Ext.P9 interim

order. Respondents 1 to 13 and 16 are the defendants in the

said suit. 17th respondent is one of the plaintiffs and 18th

respondents is the administrative committee of Sree

Guhanandapuram Devaswom, hereinafter referred to as the

Devaswom.

2. Ext.P1 is the copy of the plaint. First plaintiff is the

Devaswom represented by the Secretary. According to the

plaint, plaintiffs 2, 3 and 4 are the President, Secretary and

Treasurer of the Devaswom respectively. Suit was filed for a

declaration that the election of the plaintiffs and the 16th

defendant to their respective offices are in accordance with the

provisions of the constitution of the Devaswom and for

consequential injunction restraining the defendants 1 to 13 from

W.P.(C).Nos.6683 & 16183 Of 2008

::2::

disrupting the plaintiffs in any manner in the discharge of their

duties as the office bearers and managing committee members of

the Devaswom and in conducting the rituals of the temple and

the administration of the school and also to restrain the

defendants 14 & 15 from interfering with the transfer of

S.B.A/c.No.2749 made on 26.12.2003 in the joint names of

plaintiffs 2 to 4. It is averred in the plaint that the General Body

of the Devaswom was convened on 21.7.2002, that the General

Body elected the second plaintiff as the President, 3rd , 4th and 6th

plaintiffs as Secretary, Treasurer and School Manager

respectively and defendants 2 to 9 as members of the managing

committee. From the members of the managing committee the

second defendant was elected as Vice President and the 3rd

defendant as Joint Secretary. It is also averred in the plaint that

the president and three members of the managing committee

who are the first defendant and defendants 2, 4 & 9 have failed

to discharge their duties as office bearers and managing

committee members of the Devaswom and therefore the General

Body which met on 25.12.2002 removed the said persons from

W.P.(C).Nos.6683 & 16183 Of 2008

::3::

the office by passing a non-confidence motion. The same body

on the same day elected the 2nd plaintiff as the temporary

President and unanimously decided to conduct a bye-election to

the vacancies. The contesting defendants filed written

statements, denied the plaint averments and prayed for dismissal

of the suit.

3. The bye-laws of the Devaswom has been approved

and registered as per the decision of the General Body Meeting

of the Devaswom held on 18.7.1958. As per the bye-law the

administrative committee is the authority to manage the affairs

of the Devaswom. The administrative committee consists of 13

members elected from the members of the Devaswom. The

President, Secretary, Treasurer and School Manager are elected

by the General Body. The period of the administrative committee

is for 2 years.

4. Both sides admitted that the last election was

conducted on 21.7.2002. The term of the committee expired

after 2 years. The present suit is filed for a declaration that the

election of the plaintiffs and the 16th defendant to their respective

W.P.(C).Nos.6683 & 16183 Of 2008

::4::

offices are in accordance with the provisions of the constitution of

the Devaswom. By passage of time, the main relief of

declaration sought for in the suit has become academic. Now, 6

years have passed after the expiry of the term.

5. This Court had occasion to consider the legality of an

interim order passed in the suit. In the year 2006, one

Ramabhadran filed a petition dated 25.8.2006 to the Sub

Divisional Magistrate requesting to conduct the election to the

administrative committee. He later filed W.P.(C).No.26796/2006

before this Court. Finding that there was no administrative

committee for the Devaswom for the past several years, this

Court by judgment dated 30.1.2007 directed the Sub Court, to

appoint an advocate commissioner and to conduct election.

Ext.R1(b) is the copy of the judgment in W.P.(C).No.26796/2006.

6. This Court directed the Sub Court, Kollam to dispose of

O.S.No.327/2003 and two connected suits after joint trial. This

Court also directed the sub Court, Kollam to make arrangements

for the conduct of election to the managing committee in

accordance with the bye-laws by appointing a suitable person as

W.P.(C).Nos.6683 & 16183 Of 2008

::5::

commissioner. This Court directed that the commissioner shall

function in accordance with the bye-laws of the Devaswom and

as per the directions if any to be published by time to time by the

Sub Court. There is a further direction to the commissioner to

conduct the election under the supervision of the court, as

expeditiously as possible and, to the learned Sub Judge to

prescribe time limit. This Court also issued other consequential

directions. Immediately after the expiry of the period of the

committee the learned Sub Judge appointed a commissioner.

7. Besides O.S.No.327/2003, two other connected suits

are also pending namely, O.S.Nos.693/2003 & 791/2002. The

connected suits are filed for injunction simplicitor. During 2004,

the Sub Inspector of Police, Thekkumbhagam submitted a report

stating that there is a dispute between the parties regarding the

administration of the temple and Higher Secondary School and

reported that there is occurrence of breach of peace in the area.

On the basis of the report, the Sub Divisional Magistrate, Kollam

appointed Deputy Thahsildar, Krunagappally as receiver of the

temple and the Higher Secondary School which is also under the

W.P.(C).Nos.6683 & 16183 Of 2008

::6::

management of the Devaswom. Receiver was appointed by the

Sub Divisional Magistrate since there was no managing

committee to administer the affairs of the temple and the school.

As per the order of the Sub Divisional Magistrate the receiver was

appointed ‘until the decree or order of a competent court

determining the rights of the parties or their claim to possession

shall have been obtained’.

8. Pursuant to direction issued by this Court in Ext.R1(b)

judgment in W.P.(C).No.26796/2006 an advocate commissioner

was appointed to conduct the election. Subsequently, the

learned Sub Judge issued a common order in I.A.No.1297/2007 &

1373/2007 dated 5.7.2007 directing the commissioner to prepare

voters’ list of the Devaswom. The commissioner prepared a draft

voters’ list and final voters’ list. As many as 93 persons lodged

objections to the draft voters list. The commissioner considered

the objections after affording an opportunity of being heard to

the objectors. It is reported in the final report dated 1.8.2007,

91 objectors appeared in person. It is further pointed out that

though the entries in Ext.A1 is seen transferred to Ext.A1(b),

W.P.(C).Nos.6683 & 16183 Of 2008

::7::

those entries are not seen in Ext.A1(b) and there are many

corrections and over writings in the corresponding pages of

Ext.A1. It is further reported that entries in Ext.B1 with regard

to Ext.B3 book is not seen in Ext.A1(b) which is alleged to be the

volume No.3 membership register of the 1st plaintiff Devaswom.

The commissioner reported that after perusing the records it was

found that Ext.A1(b) is not trustworthy and reliable register.

Therefore the commissioner has removed all members found

enrolled as per Ext.A1(b) register from the final voters’ list and

he prepared the final voters’ list based on Ext.A1, A1(a), B1 and

the statement of account published by the 1st plaintiff Devaswom

till the year 2002. The petitioners herein seriously objected the

report of the commissioner which was accepted by the learned

Sub Judge. According to him the plaintiffs in the suit were not

given an opportunity to substantiate their serious objections

raised against finalisation of the final voters’ list. The learned

counsel submitted that as per clause 17 of the bye-law, marked

Ext.P2, both ladies and gents have the right to become the

members of the Devaswom. Learned counsel further submitted

W.P.(C).Nos.6683 & 16183 Of 2008

::8::

that the commissioner illegally removed names of 17 female

members from the voters list stating that going by the custom

the ladies are not entitled to become members of the Devaswom.

In fact, the report to that extent is ex-facie incorrect. This Court

in Ext.R1(b) judgment specifically directed the commissioner to

conduct election in accordance with the bye-law. Therefore the

court has a duty to see that the election shall be conducted in

accordance with the bye-law of the Devaswom. Whether the

custom prevailing in the Devaswom that no ladies can become

members of the Devaswom, even if it is true, is a matter to be

examined by the court only during trial after taking evidence.

The commissioner cannot jump into such contentions and delete

the names of female members from the voters’ list for the sole

reason that it is against the custom. Moreover, the commissioner

has not collected any evidence which will go to show that the

custom does not permit the ladies to become members of the

Devaswom. This Court directed to conduct the election as an

interim measure pending suit. So, the commissioner has a duty

to conduct election in accordance with the bye-law. In fact, both

W.P.(C).Nos.6683 & 16183 Of 2008

::9::

men and women are entitled to become members of the

Devaswom. The commissioner in fact went wrong in taking a

decision as referred above. I do not propose to examine the

correctness of the report of the commissioner in deleting the

names of members including 17 female members since it was not

necessary to do so in view of the directions which I propose to

issue in this writ petition.

9. Both sides admitted that there was an election on

21.7.2002. According to the bye-law, the period expired after

two years. It is also a fact that in 2004 the Sub Divisional

Magistrate appointed a receiver to administer the affairs of the

Devaswom finding that there was no elected committee to

manage the affairs of the temple and School. This Court in 2007

directed the learned Sub Judge to pass orders for the conduct of

election. In fact pursuant thereto, the court below had initiated

proceedings for conducting election. Unfortunately, for the last

few years, election could not be conducted in spite of the

direction issued by this Court in 2007. The result is that

approximately for the last 4 years, no committee is in existence.

W.P.(C).Nos.6683 & 16183 Of 2008

::10::

Moreover, the suit filed in 2003 and other connected suits are

pending final disposal before the court below and no committee

was there to administer the affairs of the Devaswom.

10. In the said circumstances, this Court is of the view

that appropriate direction befitting in the circumstances is to

direct the Sub Court to dispose of the suit at an early date. Due

to passage of time no purpose will be served by directing the

court below to expedite the proceedings for conduct of the

election since suits were pending for the last several years. Ends

of justice demands disposal of the suits instead of keeping it

pending for some more years. The court below shall dispose of

the suits within a period of four months from the date of receipt

of a copy of this judgment. Since the affairs of the Devaswom

are still run by a receiver and not by an elected committee, the

court below while disposing of the suit shall issue appropriate

time bound directions for the conduct of the election to the

committee by a commissioner, pass other appropriate directions

for the timely and smooth conduct of election. The election shall

be conducted under the supervision and directions of the court

W.P.(C).Nos.6683 & 16183 Of 2008

::11::

below. The court below shall continue to supervise the affairs of

the Devaswom till the elected committee assumes charge.

W.P.(C).No.16183/2008

This connected writ petition is filed by third parties to the

suit. They are 24 in number. They filed Ext.P1 petition seeking

to implead them as additional defendants in the suit. The

defendants in the suit filed Ext.P2 objection seriously opposing

the prayer. The plaintiff in the suit supported the impleading

petition. The court below passed Ext.P3 order dismissing the

impleading petition finding that there is no merit. The court

came to the conclusion that the petitioners in the impleading

petition were claiming to be members of the Devaswom are not

actual members, that the petitioners are not duly admitted

members, that the suit is defended for the benefit of all of them

and that without them being in the party array all the issues

arising in the suit can be effectively disposed of. Hence they are

not impleaded in the suit. I have perused Ext.P3 order. Plaintiffs

in the suit are supporting the petitioners. The contentions of the

W.P.(C).Nos.6683 & 16183 Of 2008

::12::

plaintiffs and the petitioners in the impleading petition are almost

same. Therefore the court below was right in holding that all the

issues arising in the suit can be effectively and rightly agitated

without them being made parties. The plaintiffs in the suit have

taken up all the contentions of the petitioners. The court below

also found that Exts.A1 to A28 receipts are bogus and forged

receipts as contended by the contesting defendants. The

conclusions arrived at by the court below is based on materials.

This Court find no valid grounds to interfere with the impugned

order in a petition filed under Article 227 of the Constitution of

India. It is further made clear that the contentions raised by the

impleading petitioners can be raised and agitated by the plaintiffs

in the suit.

Accordingly, W.P.(C).No.6683/2008 is disposed of and W.P.

(C).No.16183/2008 stands dismissed.

HARUN-UL-RASHID,
Judge.

bkn/-

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information