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2003 DIGILAW 699 (KER)

Radhakrishna Kurup v. Cochin Devaswom Board

2003-11-13

C.KURIAKOSE, K.S.RADHAKRISHNAN

body2003
Judgment :- Radhakrishnan, J. The question that has come up for consideration in this case is whether parties could reagitate the question of maintainability of a petition filed under sec.89 (1) of the Travancore Cochin Hindu Religious Institutions Act before the District Judge, when a Division Bench of this court has already rendered a finding that it is maintainable before the District Judge and relegated the parties to that remedy? 2. O.P. No.34 of 1998 was an application preferred by the petitioner herein under section 89(1) of the Travancore Cochin Hindu Religious Institutions Act challenging the order of the Cochin Devaswom Board removing him from the post of trustee of Valiyalakkal Group ‘Devaswom and appointing the second respondent as the trustee. The said appointment was reported to this court and this court as per order dated 18.7.1997 in C.D.B. No 33 of 1993 approved the appointment of the petitioner as trustee of Valiyalakkal Group Devaswom. One Mr. Chandran moved this court challenging the approval granted by the Devoswom Board. This court took note of the fact that approval was granted without taking into account all the aspects of the matter. Consequently this court directed the Devaswom Board to consider the question afresh with regard to the approval granted by the Board of the appointment of the petitioner as trustee. Later the Board passed an order dated 15.1.1998 by which petitioner was removed from the office of the trustee of the Devaswom Board. Petitioner then approached this court by filling O.P.No. 1193 of 1998 challenging the said order and appointment of the second respondent as trustee. 3. The second respondent raised a preliminary objection before the Division Bench, viz., that the original petition is not maintainable and the petitioner has to move the District Court under Sec.89(1) of the Act. Petitioner then approached this court by filling O.P.No. 1193 of 1998 challenging the said order and appointment of the second respondent as trustee. 3. The second respondent raised a preliminary objection before the Division Bench, viz., that the original petition is not maintainable and the petitioner has to move the District Court under Sec.89(1) of the Act. The Division Bench minuted in the judgment as follows: “A preliminary objection was taken by the learned counsel appearing for the contesting respondents that the Original Petition filed by the Petitioner is not maintainable and that the remedy is to move the district Court within 90 days of the date of communication of order of removal and apply to the said court to modify or cancel the order of the Board and subject to the decision of the Court the order of the Board shall be final.” The Division Bench examined the preliminary objection raised by the respondents as to the maintainability of the petition and held as follows: “Therefore as rightly pointed out by the learned counsel appearing for the contesting respondent the remedy to the writ petitioner is to move the district court under Sec.29 sub-clause (1) to modify or cancel the order of the Board removing him from the trusteeship…Since as provided under Section 89(1) the petitioner is given the right to approach the district court by applying to the said court to modify or cancel the order of the Board ordering removal from his trusteeship……….Since it is not a suit as provided under section 124 of the Act, we are of the view that the petitioner need not give any notice. Even assuming that such a notice is necessary under section 124 of the Act, we are of the view that such a notice shall be waived and dispensed with in view of the urgency of the situation expressed by the petitioner herein, since he was asked to hand over charge to the other trustee named in the order impugned in the writ petition at once. Since we dispose of the original petition on the preliminary issue we refrain from expressing out opinion on the merits of the rival claim. Since we dispose of the original petition on the preliminary issue we refrain from expressing out opinion on the merits of the rival claim. It is open to the parties to appear before the district court as and when they were called upon to appear before the said court and contest the matter on merits.” The preliminary objection raised by the counsel for the contesting respondent was therefore upheld by the Division Bench and held as follows: “Since we permit the petitioner to move the district court under Section 89(1) the impugned order dated 15.1.1998 under Ext.P7 is stayed for a period of ten days from today. The petitioner shall approach the district court under section 89(1) of Act if he so desires.” The preliminary objection raised by the Devaswom Board and the second respondent that this court has no jurisdiction to entertain the writ petition was accepted and this court held that it was open to the petitioner to approach the District Court under Sec.89 (1) of he Travancore Cochin Hindu Religious Institutions Act. The District Judge, however, allowed the parties to raise the same preliminary objection which was raised before the Division Bench of this court and held that such a petition is not maintainable before the District Judge. The District Judge held as follows: “In the course of arguments both sides conceded that the question of maintainability of O.P.can itself be considered now. Accordingly as agreed by both sides, it was decided that IA. 459/98 and the question of maintainability of O.P.34/98 can be considered now on the basis of the data presently available.” Learned District Judge accordingly raised the issue, viz., “Whether this court has jurisdiction to grant the relief’s claimed in the petition.” And held as follows: “The section does not clothe a non hereditary trustee, office-holder or servant removed from such office, the right to move the District Court under Section 89(1’. Such persons may have to resort to other remedies available to them under law. At any rate, the special remedy provided under Sec.89(1) is only for a hereditary trustee removed from office by invocation of the powers under Sec.39(1). By no stretch of imagination can it be said that the petitioner, a non hereditary trustee admittedly, has the right to move this court under sec.89(1). At any rate, the special remedy provided under Sec.89(1) is only for a hereditary trustee removed from office by invocation of the powers under Sec.39(1). By no stretch of imagination can it be said that the petitioner, a non hereditary trustee admittedly, has the right to move this court under sec.89(1). This court, having not been moved by a hereditary trustee and having been moved by the petitioner a non hereditary trustee does not have the power and the jurisdiction to entertain this application under sec.89(1).” Further, learned Judge held as follows: “This petition is hence not maintainable for the further reason that the petition is not filed by a person who is removed from the trusteeship invoking the powers under Sec.89(1). The proper person having not moved the court and the persons who has moved the court having no grievance contemplated under sec.89 this petition has to be held to be not maintainable. ………..I am of the opinion that the Honorable High Court has not come to any finding on the question of maintainability of this petition before this Court This court is, therefore, at liberty to come to appropriate conclusion on the question of maintainability.” We cannot appreciate the course adopted by the learned District Judge. Writ petition filed by the petitioner was not entertained by the Division Bench. Second respondent raised a preliminary objection that the remedy open to the petitioner was to move the District Court under Sec.89(1) of the Act. Preliminary objection raised before the District Judge was also raised before the Division Bench of this court and the Division Bench held that the remedy open to the petitioner was to move the District Court under Sec.89(1) of the Act. When the Division Bench of this Court has declared the position, whether it is right or wrong, the District Judge is bound to entertain the petition. Parties cannot reagitate the same issue before the District Judge which has already been decided by a Division Bench of this Court. If the petitioner is aggrieved, the proper remedy open to him was to move the Division Bench and got it reviewed. 4. Petitioner has got a further case that the District Judge has also committed an error while holding that the petition is not maintainable. The District Judge has proceeded as if petitioner is not a member of the family and therefore is a non hereditary trustee. 4. Petitioner has got a further case that the District Judge has also committed an error while holding that the petition is not maintainable. The District Judge has proceeded as if petitioner is not a member of the family and therefore is a non hereditary trustee. Non hereditary trustee cannot maitain a petition under Sec.89(1) of the Act, District Judge noticed. Counsel submitted that the status of the petitioner who is a member of the Maliyakkal family could be decided only after examining the witnesses. Counsel submitted, that the mode of succession of the office of trustee of Valiyalukkal ‘Group Devaswom is regulated by usage. Earlier the Division Bench of this Court also approved the appointment of the petitioner as trustee in CDP 33/93. When the Division Bench directed the District Court to consider the matter on merits, the District Judge is not justified in holding that the petition is not maintainable. 5. We are of the view, when the Division Bench of this court has held that the remedy open to the petitioner is to move the District Court and directed the District Court to decide the matter on merits, the District Judge has committed a grave error in permitting the parties to reagitate the question of maintainability and render a finding that the case is not maintainable. The very idea of judicial corrective rests on the foundations of discipline and respect for the decisions and directions of the superior court. Unless subordinate courts do obey and pay regard to the directions of the High Court there would be confusion in the administration of law and respect for law would irretrievably suffer. Presiding officers of the subordinate courts are bound to respect and give effect to orders passed by the High Court. 6. The Andhra Pradesh High Court in Narappa Reddy v. State (AIR 1967 A.P. 219) held that there was a clear duty on the part of Subordinate Judges to obey orders of superior courts. The court held. Presiding officers of the subordinate courts are bound to respect and give effect to orders passed by the High Court. 6. The Andhra Pradesh High Court in Narappa Reddy v. State (AIR 1967 A.P. 219) held that there was a clear duty on the part of Subordinate Judges to obey orders of superior courts. The court held. “Unless subordinate courts do obey and pay regard to the directions of the High Court there would be confusion in the administration of law and respect for law would irretrievably suffer.” Reliance may also be placed on the decision of the Allabhabad High Court in Kanti Devi v. Sarju Prasad (1997 ALL HC 4042) and also on the decision of the apex court in State v. D. Rudra (AIR 1969 S.C.189). We have in the facts and circumstances of this case no hesitation to hold that the learned District Judge has committed a grave error in permitting the parties to reagitate the question of maintainability which has already been decided by a Division Bench of this court and held that such a petition is maintainable before the District Court and directed him to decide the matter on merits. 7. We are of the view, if the contesting respondent has got any complaint with regard to the maintainability of the petition, the proper remedy open to him was to move the Division Bench and get the earlier order reviewed and not to reagitate the matter over and again before the learned Judge. Learned District Judge is also not justified in examining the question of maintainability over and again when that point has already been declared by a Division Bench of this court. We have therefore no hesitation to set aside the order of the District Judge and direct the District Judge to hear the original Petition on merits.