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Judgment
Murali Purushothaman, J
This writ petition is filed by Sree Mattannur Mahadeva Kshetra Samithi, a society registered under the Societies Registration Act challenging
Ext.P12 order passed by the Commissioner, Malabar Devaswom Board (MDB) transferring O.A No.18/2007 pending before the Deputy
Commissioner to his own file in exercise of powers under section 19(1)(a) of the Madras Hindu Religious and Charitable Endowments Act, 1951 (for
short,' the MHR & CE Act').
Sree Mattannur Mahadeva Kshethram (Temple), Mattannur, Kannur District in the erstwhile Malabar area originally belonged to Pullery Illam. The
Karanavathy (Ooralan) of the family, late Mahadevi Antharjanam vide Deed No.333 of 1972 of SRO Mattannur, transferred the temple along with its
properties to the petitioner society on condition that the temple and the temple properties shall not be alienated or transferred. While so,
O.A.No.18/2007 was initiated before the Deputy Commissioner, MDB under section 57(a) of the MHR & CE Act at the instance of respondents 4
and 5 to enquire and decide as to whether the temple is a religious institution. The Senior Superintendent in charge of the post of Deputy
Commissioner in the Hindu Religious and Charitable Endowments (HR & CE) Department vide Ext.P3 order dated 7.7.2010 decided the dispute in
the said original application and declared that the temple is a religious institution. Exhibit P3 order was challenged before the Court of the Subordinate
Judge, Thalassery as O.S No.418/2010 contending that the Senior Superintendent in charge of the Deputy Commissioner has no authority to pass
Ext.P3 order. The petitioner also preferred a statutory appeal before the Commissioner, HR & CE Department against Ext.P3 order as A.P.
No.9/2010 invoking the provisions under section 61 of the MHR & CE Act. The Commissioner dismissed A.P. No. 9/2010 by Ext.P4 order dated
25.1.2011 confirming Ext.P3 order. Against Ext.P4 order, the petitioner filed O.S No.114/2011 before the Court of Subordinate Judge, Thalassery.
Both O.S No.418/2010 and O.S No.114/2011 were tried jointly and the Court by Ext. P5 judgment dated 21.12.2013 declared Ext.P3 as an order
passed without authority as the Senior Superintendent in charge of the post of Deputy Commissioner is not a person authorized by the authority
competent under section 19(4) of the MHR & CE Act to exercise the powers of Deputy Commissioner under section 57 (a) and set aside the same
and consequently, declared Ext.P4 order of the Commissioner also as illegal and void. The Deputy Commissioner, MDB, Kozhikode was directed to
consider O.A. No.18/2007 afresh and to dispose the same on merits after giving opportunity to both parties to adduce fresh evidence, if any.
About 7 years after the matter was remanded to the Deputy Commissioner and while the matter was pending before the Deputy Commissioner, the
Commissioner issued Ext.P9 order dated 21.1.2020 in exercise of powers under section 19(1) of the MHR & CE Act withdrawing to his file the
proceedings in O.A No.18/2007 pending before the Deputy Commissioner and re-numbering it as O.A. No.1 of 2020. Exhibit P9 order of the
Commissioner was challenged by the petitioner before this Court in W.P.(C)No.20997/2020 contending that the same has been issued in violation of
Ext. P5 judgment of the Sub Court. The said writ petition was disposed of by this Court by Ext.P10 judgment dated 7.1.2021 directing the
Commissioner to dispose of the objections of the petitioner. Accordingly, the petitioner filed Ext.P11 objection before the Commissioner contending
that Ext.P9 order has been passed in violation of the directions contained in Ext.P5 judgment of the Sub Court. The Commissioner, by Ext.P12 order
dated 24.2.2021 dismissed Ext.P11 objection of the petitioner holding that he has the authority to transfer the proceedings pending before the Deputy
Commissioner. The writ petition is filed with prayer to quash Ext.P12 as it is passed in violation of Ext. P5 judgment and for direction to the Deputy
Commissioner to decide O.A No.18/2007 afresh and to declare that Ext.P5 judgment is binding on the Commissioner and he cannot supersede Ext.P5
judgment by invoking powers under section 19(1) (a) of the MHR & CE Act.
The main contention raised by the petitioner is that in view of Ext.P5 judgment of the Sub Court, Thalassery, directing the Deputy Commissioner,
MDB, Kozhikode to consider and dispose of O.A No.18/2007 afresh, the Commissioner cannot withdraw the original application pending before the
Deputy Commissioner to his own file and only the Deputy Commissioner, MDB, Kozhikode can consider O.A No.18/2007 and dispose of the matter.
The petitioner further contends that O.A. No.18/2007 pending before the Deputy Commissioner is a 'suit' and not a 'proceeding' as mentioned under
section 19(1)(a) of the MHR & CE Act and as such, only a 'proceeding' can be withdrawn and therefore, Ext.P9 order transferring the proceeding in
O.A No.18/2007 pending before the Deputy Commissioner to his own file is not legally sustainable. It is the also case of the petitioner that since the
proceedings before the Deputy Commissioner has been withdrawn to the file of the Commissioner, the petitioner lost the right of filing an appeal under
section 61 of the MHR & CE Act and also the remedy of filing a suit before the civil court under section 62 of the Act.
Heard Sri.M.P.Ashok Kumar, the learned counsel for the petitioner and Sri.Lakshmi Narayan, the learned standing counsel for the Malabar
Devawom Board.
Sri.M.P.Ashok Kumar submitted that Ext.P12 order of the Commissioner is per se illegal and is in total violation of Ext.P5 judgment of the Sub
Court. It is contended by the learned counsel that as per Ext. P5 judgment, only the Deputy Commissioner can consider and dispose of O.A
No.18/2007 and the Commissioner, by exercising powers under Section 19 (1) (a), cannot overrule the judgment of the Sub Court. The learned
standing counsel for MDB resisted the writ petition as not maintainable on the ground of availability of alternative remedy to the petitioner under
section 19 (5) of the MHR & CE Act. Sri.Lakshmi Narayan also submitted that the power of the Commissioner under Section 19 (1) (a) cannot be
foreclosed by Ext.P5 judgment and that Ext. P9 order was passed considering the long pendency of the matter before the Deputy Commissioner and
that when the decision is taken by the Commissioner, the aggrieved party has a remedy to file suit under section 62 of the MHR & CE Act.
Before dealing with the merits of the matter, it is apposite to refer to Sections 19(1)(a) & (b) and 57(a) of the MHR &CE Act which are extracted
below:
“19. Other powers of Commissioner in relation to Deputy and Assistant Commissioners and Area Committee.-- (1) The Commissioner shall
have power at any stage--
(a) to transfer any proceeding pending before a Deputy or an Assistant Commissioner to his own file and dispose of it himself, or
(b) to transfer it to another Deputy or Assistant Commissioner for disposal.
Deputy Commissioner to decide certain disputes and matters.-- Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall
have power to inquire into and decide the following disputes and matters--
(a) whether an institution is a religious institution;â€
Going by the provisions under section 57 (a) of MHR & CE Act, it is for the Deputy Commissioner to decide the dispute as to whether an institution
is a religious institution, subject to the rights of suit or appeal. Though by Ext.P3, an order was passed declaring that the temple in question is a
religious institution which was confirmed by Ext.P4 order of the Commissioner, the Sub Court by Ext.P5 judgment, found that Ext.P3 is an order
passed by an officer without authority and therefore, void. Consequently, Ext.P4 order passed in appeal was also set aside. In Ext.P5 judgment, the
Deputy Commissioner, MDB, Kozhikode was directed to consider O.A No.18/2007 afresh and to dispose of the same on merits after giving
opportunity to both parties to adduce evidence, if any. The contention of the petitioner that in view of the direction in Ext.P5 judgment, only the Deputy
Commissioner, MDB, Kozhikode has authority to consider and dispose of O.A 18/2007 is without any basis. The dispute raised in O.A 18/2007 is as to
whether the temple in question is a religious institution or not. Section 57 (a) of the MHR & CE Act empowers the Deputy Commissioner to decide
the question as to whether an institution is a religious institution or not. Section 19(1)(a) of the MHR & CE Act provides for the powers of the
Commissioner in relation to Deputy Commissioners and Assistant Commissioners and provides that the Commissioner shall have the power at any
stage to transfer any proceedings pending before a Deputy Commissioner or Assistant Commissioner to his own file and dispose of it himself. Once
such a power is exercised by the Commissioner, the Commissioner is competent to decide the dispute under section 57 (a) himself. The judgment of
the Sub Court does not restrain or prohibit the Commissioner from exercising the powers under section 19(1)(a) of the MHR & CE Act and the
direction cannot be construed as one to the Deputy Commissioner himself to dispose of the original application. In Ext.P5 judgment, the Sub Court had
no occasion to consider the legality of the order of the Commissioner exercising powers under section 19(1) (a) of the MHR & CE Act as Ext.P9
order was passed subsequent thereto. As we have found, once the Commissioner exercises the powers under section 19(1)(a) of the MHR & CE Act
and transfers to himself the proceedings pending before the Deputy Commissioner, he becomes the competent authority to consider the dispute raised
under section 57 (a) of the MHR & CE Act. The exercise of powers by the Commissioner under section 19(1)(a) of the MHR & CE Act transferring
O.A 18/2007 pending before the Deputy Commissioner to his own file for the purpose of disposal of the same himself, cannot be said to be in defiance
of the directions in Ext.P5 judgment of the Sub Court.
In Ext.P9 order transferring O.A 18/2007 pending before the Deputy Commissioner to his file, the Commissioner has stated that the file in respect
of O.A 18/2007 is pending in the office of the Deputy Commissioner for several years and for expeditious disposal of the matter he is satisfied that the
proceedings pending before the Deputy Commissioner has to be transferred to his file. The reason for withdrawing the proceedings from the Deputy
Commissioner is also explained in Ext. P12 order rejecting Ext. P11 objection of the writ petitioner against the transfer of file. It is pointed out that,
after the matter was remanded to the Deputy Commissioner in the year 2013, 'the matter was kept as lethargic state in the office of the Deputy
Commissioner' and on being moved by the petitioner in O.A 18/2007, the Commissioner has passed Ext.P9 order exercising powers under section
19(1)(a) of the MHR & CE Act to transfer the proceedings to his file. Here, it is also worth to note the provisions under section 19 (2) of the MHR &
CE Act which provides that if the Commissioner is satisfied that a Deputy Commissioner or an Assistant Commissioner has failed to exercise any
power or discharge any duty which he ought to have exercised or discharged, the Commissioner may himself exercise such power or discharge such
duty. Taking note of the delay in the disposal of O.A 18/2007, this Court in Ext. P10 Judgment in the earlier round of litigation (to which one of us,
Ravikumar J., was a member) observed as follows:-
“But, we are constrained to note studied indifference on the part of the petitioner in giving a finality to the proceedings. Everything had started way back in
2007, when the Ext.P1 representation was given, followed by proceedings under the Act. During the course, at least thrice the petitioner had approached this
Court raising one contention or the other. At times he had moved the Government also and obtained stay of the proceedings. All these would lead to an inference
that the petitioner is trying to put spokes in the free flow of the proceedings. Even though the Ext.P5 judgment was delivered on 21.12.2013, proceedings before
the 3rd respondent did not advance further. After a lapse of nearly seven years and remaining dormant all the time, when the 2nd respondent took up the matter,
the petitioner has hurriedly approached this Court, happily enjoying the inaction on the part of the 3rd respondentâ€.
Apart from the same, we find from Ext. P12 order that, by the time the petitioner had approached the 2nd respondent Commissioner with Ext. P11
objection, nearly 20 sittings were over after the transfer of the original application to the file of the Commissioner. Obviously, the delay is engineered
by the writ petitioner. There is inordinate delay in the disposal of the dispute by the Deputy Commissioner. The reason stated by the 2nd respondent in
Exts.P9 and P12 order is that it is for expeditious disposal of the matter on merits the original application has been withdrawn by the Commissioner to
his own file. We do not find anything wrong in the action of the 2nd respondent Commissioner in exercising powers under section 19(1)(a) of the
MHR & CE Act to transfer the proceedings pending before the Deputy Commissioner to his file. The Commissioner has acted justifiably and
exercised his powers within the mandate of law.
The contention of the petitioner that, by withdrawing the original application from the Deputy Commissioner and disposing of the same by the
Commissioner, the petitioner's right to statutory appeal is foreclosed is also without any basis as the petitioner or any other aggrieved party, as the case
may be, is not without any remedy, as section 62(1) (i) and (ii) of the MHR & CE Act provides that any party aggrieved by an order passed by the
Commissioner under section 57 or order passed by the Commissioner relating to any matters specified in section 57 can institute a suit in the Court
against such order.
The other contention of Sri.M.P.Ashok Kumar is that O.A 18/2007 pending before the Deputy Commissioner is a 'suit' and not a 'proceeding' and
therefore, the same cannot be withdrawn to the file of the Commissioner exercising powers under section 19 (1) (a). Section 62 of the MHR & CE
Act enables an aggrieved party to institute a suit in the 'Court' as defined under section 6 (6) (ii) as against an order passed by the Commissioner
under section 57 or order passed by the Commissioner relating to any matters specified in section 57 of the MHR & CE Act. The word 'suit' referred
to in sections 57, 61 and 62 of the MHR & CE Act is suit which is filed in 'Court' as defined under section 6 (6) (ii) of the MHR & CE Act and not
before the Commissioner or Deputy Commissioner appointed by the Government under section 8 C (1) or (4) of the said Act. Section 95 of the MHR
& CE Act provides for the procedure for inquiry under Chapter V including the inquiry under section 57 with the prescription that the provisions of
Civil Procedure Code as may be applicable in the trial of suit, would apply for the inquiry. In Ganesan v. Commissioner, Tamil Nadu Hindu
Religious and Charitable Endowments Board (2019 (2) KLT 925: 2019 (7) SCC 108: AIR 2019 SC 2343: 2019 KHC 6530), the Apex Court had
occasion to consider whether the Commissioner while hearing an appeal under section 69 of the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959 is a 'Court' and whether S.29(2) of Limitation Act would apply to such authorities. Referring to sections 6 (7), 69 and 70 of the
Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (corresponding to sections 6 (6), 61 and 62 respectively of the MHR & CE Act),
the Apex Court held that the mere fact that a statutory authority is empowered to follow the procedure as nearly may be in accordance with
procedure under C.P.C. to the trial of suits or hearing of appeals, the statutory authority shall not become a Court and held that the Commissioner is
not a Court within the meaning of section 6 (7) the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. The O.A 18/2007, pending
before the Deputy Commissioner, a statutory authority as distinct from a Court, is a not a 'suit'. The word 'proceeding' in section 19(1)(a) of the MHR
& CE Act refers to the 'dispute' under section 57 of the Act pending before the Deputy Commissioner in the form of an original application. Since
provision for suits and orders against which it can be instituted are specifically provided in the MHR & CE Act, the word 'suit' does not include
'proceeding'. Since a suit invoking the provisions of section 62 can be filed only against an 'order' passed by the Deputy Commissioner/Commissioner
under section 57 or by the Commissioner under section 61, no question of transfer of any proceedings 'pending' before the Deputy Commissioner
arises. Further, if the original application before the Deputy Commissioner under section 57(a) is to be treated as a suit, then there is no meaning in
providing a provision for filing a suit in section 62 of the MHR & CE Act against the order passed by the Deputy Commissioner/ Commissioner under
section 57. The original application, viz., O.A 18/2007 is therefore a 'proceeding' under section 57 of the MHR & CE Act pending before the Deputy
Commissioner which can be withdrawn to the file of the Commissioner in exercise of powers under section 19(1)(a) of the MHR & CE Act. The
contention that O.A 18/2007 is a 'suit' and not a 'proceeding' before the Deputy Commissioner and therefore, the same cannot be withdrawn to the file
of the Commissioner is without any merit.
There is no merit in the writ petition and accordingly, it is dismissed.