V.K.Krishnan Namboodiri vs The Government Of Kerala
2021 Latest Caselaw 4043 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                      WP(C).No.31479 OF 2018(H)


PETITIONER:

               V.K.KRISHNAN NAMBOODIRI
               AGED 46 YEARS
               S/O V.K. RAMAN NAMBOODIRI, KEEZHSANTHI, SREE
               THIRUMADHAKUNNU BHAGAVATHI TEMPLE, ANGADIPPURAM,
               RESIDING AT KARIPPATH SREENILAYAM, VALAMBUR P.O.,
               PATTIKKAD(VIA), MALAPPURAM DISTRICT,
               PIN CODE -679 325

               BY ADVS.
               SRI.T.RAMPRASAD UNNI
               SRI.S.M.PRASANTH
               SRI.G.RENJITH
               SMT.R.S.ASWINI SANKAR
               SRI.T.H.ARAVIND

RESPONDENTS:

      1        THE GOVERNMENT OF KERALA,
               REPRESENTED BY THE SECRETARY TO GOVERNMENT,
               DEPARTMENT OF REVENUE(DEVASWAM), GOVERNMENT OF
               KERALA, THIRUVANANTHAPURAM - 695 001

      2        THE MALABAR DEVASWOM BOARD,
               KOZHIKODE 673 001,
               REPRESENTED BY ITS COMMISSIONER

      3        THE COMMISSIONER
               MALABAR DEVASWOM BOARD, KOZHIKODE 673 001.

      4        THE DEPUTY COMMISSIONER,
               MALABAR DEVASWOM BOARD,
               KOZHIKODE 673 001.

      5        THE EXECUTIVE OFFICER,
               THIRUMANDHAMKUNNU BHAGAVATHI DEVASWOM,
               ANGADIPPURAM, MALAPPURAM DISTRICT, PIN 679 321.

      6        THE HEREDITARY TRUSTEE,
               THIRUMANDHAMKUNNU BHAGAVATHI DEVASWOM,
               ANGADIPPURAM, MALAPPURAM DISTRICT, PIN 679 321.
 WP(C).No.31479 OF 2018         2

      7      SRI. PRAVEEN NAMBOODIRI,
             MELSANTHI, SREE MOLLASTHANAM, THIRUMANDHAMKUNNU
             BHAGAVATHI DEVASWOM, ANGADIPPURAM, MALAPPURAM
             DISTRICT, PIN 679 321.

             R1 BY GOVERNMENT PLEADER
             R2-4 BY ADV. SRI.R.LAKSHMI NARAYAN, SC, MALABAR
             DEVASWOM BOARD
             R5 BY ADV. MAHESH V RAMAKRISHNAN
             R7 BY ADV. SRI.K.PRAMOD



             SRI. SUNIL KUMAR KURIAKOSE - GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.31479 OF 2018                   3

                                   JUDGMENT

The petitioner is stated to be working

as a 'Keezhsanthi' at "Sree

Thirumadhamkunnu Bhagavathy Temple",

Angadippuram, (hereinafter referred to as

the 'Temple' for short) and he stakes a

claim to be promoted as the "Melsanthi".

The petitioner's specific case is that the

post of "Melsanthi" of the Temple is a

non-hereditary one and therefore, that

eligible "Santhis" are to be considered for

promotion to the said post.

2. Shri.K.Ramkumar, learned Senior

Counsel, instructed by Shri.Ramparasad Unni

T., learned counsel appearing for the

petitioner, added to the above contentions

by saying that absolutely no record are

available to even indicate that the post of

"Melsanthi" of the Temple is a hereditary

one and therefore, that the action of the

respondents in having appointed the 7th

respondent - Shri.Praveen Namboodiri, to

the said post, merely because his father

had been the earlier "Melsanthi" cannot be

found correct in law and he asserted that

this is more so because, the Thanthri of

the temple - who is the highest Authority

with respect to all religious rites

therein - has limpidly opined that the

post of "Melsanthi" is not a hereditary

one, but ought to be filled up by persons

who are eligible, reckoning it to be non-

hereditary.

3. The learned Senior Counsel says

that, however, in spite of all these, the

Commissioner of the Malabar Devaswom Board

has issued Ext.P6 order finding that the

post is a hereditary one, solely because,

it has been so incorrectly recorded in the

earlier Schedules of Establishment. He then

submitted that this was followed by Ext.P10

order of the Government, approving it,

wherein - again, all that has been noticed

is the earlier Schedules of Establishment;

and that it is obvious from both these

orders, that no other documents in

substantiation had been evaluated by either

of the said Authorities. The learned Senior

Counsel, therefore, prayed that Exts.P6 and

P10 be set aside and that his client be

directed to be considered for promotion as

the "Melsanthi" of the Temple.

4. In response, Shri.R.Lakshminarayan,

learned Standing Counsel for the Malabar

Devaswom Board, submitted that Ext.P6 has

been validly issued by the Commissioner of

the Board since he is the competent

Authority as per the provisions of the

Madras Hindu Religious and Charitable

Endowments Act, 1951 (hereinafter referred

to as 'the Act' for short). He submitted

that it is indubitable from Ext.P6 that the

Commissioner had gone through all the

relevant documents, including the 'Dittam

of the Devaswom' and the Schedules of

Establishment since the year 1988, as also

all other imperative inputs.

5. The learned Standing Counsel

further submitted that as per the Schedules

of Establishment, which have been approved

as per Rule 10 under Section 100 (2)(y)of

the Act the post of "Sree Moolasthanam" of

the Temple is a hereditary one and that the

right of "Sree Moolasthanam Melsanthi" is

vested with the "Cherukunnath Manakkal

Tharawad". He added that these Schedules of

Establishment have never been challenged by

the petitioner at any point of time and

that he had not produced any evidence to

prove that the post of "Melsanthi" of the

Temple is non-hereditary. He concluded his

submissions by saying that since the

Commissioner has found that the post is

hereditary, only a member of the

"Cherukunnath Manakkal Tharawad" can be

appointed as the "Melsanthi" and therefore,

that the petitioner cannot stake claim for

being promoted, as has been prayed for in

this writ petition. He, thus prayed that

this writ petition be dismissed.

6.Shri.Mahesh V.Ramakrishnan, learned

Standing Counsel appearing for the 5th

respondent - Executive Officer of the

Temple, submitted that the petitioner's

allegations are more speculative than

factual, since it has always been

unequivocally accepted, through the

documents available with respect to the

Temple, that the position of its

"Melsanthi" is hereditary. He submitted

that this is luculent from the opinion of

the earlier Trustee of the Temple, which is

reflected in Ext.R5(e), that said position

is hereditary and never has been in the

past construed as being non-hereditary. He

submitted that in spite of this, the

petitioner is now attempting to unsettle

the Schedules of Establishment in an

indirect manner, though he has never tried

to do so directly and that this is

indubitable from the fact the he has never

invoked the jurisdiction of the Deputy

Commissioner under Section 57 of the Act,

if he had any objection to the approved

Schedules of Establishment.

7. I notice that a counter affidavit

has been filed on behalf of the 7th

respondent, wherein, the afore submissions

made on behalf of the Board and the

Executive Trustee has been adopted; and it

has been asserted that the "Melsanthi" of

the Temple has ever from the "Cherukunnath

Manakkal Tharawad". The 7th respondent

asserts that his father was the "Melsanthi"

earlier and that after his death, it was

handed over to his brother and therefore,

that he is now entitled to be appointed to

the said post, it being hereditary in

nature.

8. I have considered the afore

submissions and have also gone through the

materials available on record very

carefully.

9. The documentary inputs available

in this case reveal that the Schedules of

Establishment with respect to the Temple,

ever since the years 1988, have reckoned

the post of "Melsanthi" to be hereditary in

nature and the Commissioner of the Devaswom

- who is admittedly the competent Authority

to decide this finally under the Act -

records in Ext.P6 that this is so, even

going by the "Dittam" of the Devaswom. The

Commissioner has also found that all the

Schedules of Establishment have been

approved under the provisions of Rule 10

to Section 100(2)(y) of the Act and that

this has never been challenged by the

petitioner or anyone else until now. The

fact that the petitioner has not assailed

the schedules is virtually conceded, since

even his learned Senior Counsel,

Shri.K.Ramkumar, does not have a case that

there was any challenge mounted to such

orders at any point of time earlier.

10. That said, however, the contra

view of the "Thanthri" of the temple

compels me to order this writ petition, as

I will presently state, since his opinion,

as is available from Ext.P5, is that the

post of "Melsanthi" of the Temple is not

hereditary but non-hereditary. The position

of a Thanthri in a Temple cannot be

attenuated in any fashion, he being the

highest Authority with respect to its

spiritual rites and customs, and I am

therefore, certain that his opinion also

ought to have been considered by the

Commissioner before he could have arrived

at a decision, as has been recorded in

Ext.P6.

11. I hasten to add, I am not saying

that what has been found in Ext.P6 is

wrong, but only that the views of the

Thanthri also should have been adverted to,

before a conclusive decision could have

been taken, even though the Schedules of

Establishment may have recorded that the

post is hereditary in nature.

12. In the afore circumstances, I am

of the firm view that the matter requires

reconsideration at the hands of the

Commissioner - who is admittedly the

competent Authority - however, after

deliberation with the Thanthri of the

Temple, as well the Hereditary Trustee.

In the afore circumstances, I order

this writ petition and set aside Exts.P6

and P10 and direct the Commissioner of the

Malabar Devaswom Board to reconsider the

claim of the petitioner, after obtaining

the opinion of the Thanthri of the Temple,

as well as its Hereditary Trustees, thus

leading to a fresh order thereon, as

expeditiously as is possible, but not later

than two months from the date of receipt of

a copy of this judgment.

I make it clear that while the afore

exercise is completed, the Commissioner

will advert to every document available

with respect to the post in question and

shall record the opinion of the Thanthri

and that of the Trustees appropriately in

the order to be issued in terms of these

directions.

Needless to say, until the afore

exercise is completed the status quo with

respect to the post of a "Melsanthi" in the

Temple, as on date, will be maintained by

all parties and it will, thereafter, adhere

to the order to be issued by the

Commissioner.

Sd/-

DEVAN RAMACHANDRAN

JUDGE

MC/6.2.2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF LETTER DATED 20-10-2014 BY THE THANDIRI OF THE SREE THIRUMADHAMKUNNU DEVASWOM TO THE TRUSTEE

EXHIBIT P2 TRUE COPY OF REPRESENTATION DT. 09-10-2017 SUBMITTED BY THE PETITIONER BEFORE THE EXECUTIVE OFFICER OF THE SREE THIRUMADHAMKUNNU DEVASWOM

EXHIBIT P3 TRUE COPY OF JUDGMENT DT 10-11-2017 IN W.P(C) NO. 36105 OF 2017

EXHIBIT P4 TRUE COPY OF REPRESENTATION DT 20-11-2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

EXHIBIT P5 TRUE COPY OF ORDER NO. TBD 134/2007 DT. 28-

10-2007 BY THE TRUSTEE OF THE SREE THIRUMADHAMKUNNU DEVASWOM

EXHIBIT P6 TRUE COPY OF ORDER NO. J2-6485/2017/MDB DT.

20-01-2018 BY THE 2ND RESPONDENT

EXHIBIT P7 TRUE COPY OF REVISION PETITION DT. 01-03-

2018 SUBMITTED BY THE PETITIONER BEFORE R1

EXHIBIT P8 TRUE COPY OF JUDGMENT DT. 26-03-2018 IN W.P(C) NO. 6136 OF 2018

EXHIBIT P9 TRUE COPY OF ARGUMENT NOTE DT. 17-07-2018 SUBMITTED BY THE PETITIONER BEFORE R1

EXHIBIT P10 TRUE COPY OF ORDER NO. (MS) NO.

3246/2018/RD DT. 17-08-2018 ISSUED BY R1

RESPONDENT'S/S EXHIBITS:

EXHIBIT R7A TRUE COPY OF THE SCHEDULE OF ESTABLISHMENT DATED 29/09/1995 OF THE TEMPLE.

EXHIBIT R7B TRUE COPY OF THE SCHEDULE OF ESTABLISHMENT DATED 01/08/1998 OF THE TEMPLE.

EXHIBIT R7C TRUE COPY OF THE SCHEDULE OF ESTABLISHMENT DATED 01/07/2014 OF THE TEMPLE.

EXHIBIT R7D TRUE COPY OF THE ORDER OF APPOINTMENT DATED 25/11/2014 ISSUED BY THE 6TH RESPONDENT.

EXHIBIT R7E TRUE COPY OF THE LETTER DATED 11/12/2017 ISSUED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT.

EXHIBIT R7F TRUE COPY OF THE ORDER OF APPROVAL DATED 08/11/2018 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT R7G TRUE COPY OF THE CONSENT DEED DATED 04/12/2017 SINGED BY THE MEMBERS OF CHERUKUNNATH MANA.

EXHIBIT R7H TRUE COPY OF THE CERTIFICATE DATED 17/07/2011 ISSUED BY THE THANTHRI OF THE TEMPLE.

EXHIBIT R5A TRUE COPY OF THE LETTER DATED 11/08/1976 ISSUED BY C.M.PARAMESWARAN NAMBOOTHIRI (GRAND FATHER OF THE 7TH RESPONDENT) HEREIN.

EXHIBIT R5B TRUE COPY OF THE SCHEDULE OF ESTABLISHMENT DATED 01/01/1995 OF THE TEMPLE.

EXHIBIT R5C TRUE COPY OF THE SCHEDULE OF ESTABLISHMENT DATED 01/08/1998 OF THE TEMPLE.

EXHIBIT R5D TRUE COPY OF THE SCHEDULE OF ESTABLISHMENT OF THE TEMPLE.

EXHIBIT R5E TRUE COPY OF THE ORDER OF APPOINTMENT DATED 25/11/2014 ISSUED BY THE 6TH RESPONDENT.

EXHIBIT R5F TRUE COPY OF THE LETTER DATED 11/12/2017 ISSUED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT.

EXHIBIT R5G TRUE COPY OF THE ORDER OF APPROVAL DATED 08/11/2018 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT R5H TRUE COPY OF THE CONSENT DEED DATED 04/12/2017 SIGNED BY THE MEMBERS OF CHERUKUNNATH MANA.

EXHIBIT R5I TRUE COPY OF THE CERTIFICATE DATED 17/07/2011 ISSUED BY THE THANTHRI OF THE TEMPLE.