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