Kerala High Court
The Commissioner vs Secretary on 7 April, 2022
RP No.463/2019 1 / 12
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Thursday, the 7th day of April 2022 / 17th Chaithra, 1944
IA.NO.4/2022 IN RP NO. 463 OF 2019
WP(C) 37991/2018 OF HIGH COURT OF KERALA
PETITIONERS/RESPONDENTS 4 & 5:
1. CHOWALLUR SIVAKSHETHRA BHARANASAMITHI, CHOWALLUR DEVASOM,
KANDANASSERY P.O., THALAPILLY TALUK, THRISUR 680 102
2. SRI.K.RAMADAS, RESIDING AT FLAT NO.4H(1), SREEMADHAVAM, KOLADIPADI
SH49, THAIKKAD, GURUVAYUR-680 104, THE FORMER SECRETARY, CHOWALLOOR
SIVAKSHETHRA BHARANA SAMITHI, CHOWALLUR DEVASOM, KANDANASSERY P.O.,
THALAPPILLY TALUK, THRISUR 680 102
RESPONDENTS/REVIEW PETITIONERS & RESPONDENTS 1 TO 3:
1. THE COMMISSIONER, COCHIN DEVASWOM BOARD, THRISUR-680 001.
2. THE SECRETARY, COCHIN DEVASWOM BOARD, THRISUR-680 001
3. THE SECRETARY, CHOWALLUR SIVAKSHETRA PARIPALANA SAMITHI (REGD),
CHOWALLUR DEVASOM, KANDANASSERY P.O., THALAPPILLY TALUK, THRISUR 680
102.
4. THE SECRETARY, DEPARTMENT OF DEVASWOM, SECRETARIAT,
THIRUVANANTHAPURAM-695 001
5. CHOWALLUR SIVAKSHETHRA BHARANASAMITHI, CHOWALLUR , P.O.
KANDANASSERY, THRISUR DISTRICT-680 102, REPRESENTED BY ITS
SECRETARY.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to accept Annexures
R-5(c) and R-5 (d) documents on file in the above Review Petition, in the
interest of justice.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and this Court's orders dated
05.07.2019, 29.07.2019 & 19.12.2019 and upon hearing the arguments of
SRI.M.V.S.NAMPOOTHIRY, Advocate for the Petitioners in I.A./R4 & R5 in
WP(C), SRI.K.P.SUDHEER, STANDING COUNSEL for R1 in I.A./Petitioner in RP,
SENIOR GOVERNMENT PLEADER for R4 in I.A/R2 in RP, SREELAL N.WARRIER,
Advocate for R5 in I.A./R1 in RP and of SRI.P.RAMACHANDRAN, Advocate
Commissioner, the court passed the following:
RP No.463/2019 2 / 12
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
-----------------------------------------------------------------
I.A.No.4 of 2022, I.A.No.1 of 2022, I.A.No.1 of 2021
and Report No.4
in
R.P.No.463 of 2019 in W.P.(C)No.37991 of 2018
-------------------------------------------------------------
Dated this the 7th day of April, 2022
ORDER
Anil K. Narendran, J.
On 11.02.2022, when this matter came up
consideration, we have passed a detailed order. Paragraph 10
to 14 of that order reads thus;
"10. From the submissions made by the learned
counsel on both sides, we find that, despite
judgment/orders of this Court referred to
hereinbefore, the election to the Bharanasamithi of
Chowallur Siva Kshetram is yet to be conducted. The
conduct of election is governed by the provisions
under Chowallur Shiva Kshetra Bharana Scheme,
which is placed on record as Ext.P4 in W.P.
(C)No.37932 of 2018, which was disposed of by the
judgment dated 11.08.2021. The Judges Papers of
that writ petition is tagged along with the Judges
Papers in R.P.No.463 of 2019. Clause 9 of the said
scheme deals with membership. Clauses 11 and 12 of
the scheme deals with the conduct of election and the
procedure that has to be followed.
11. In this context, it is pertinent to note the
findings of this Court in Ext.P3 judgment dated
RP No.463/2019 3 / 12
R.P.No.463 of 2019 in W.P.(C)No.37991 of 2018
24.08.2017 in W.P.(C)No.24786 of 2017, as contained
in paragraphs 4 to 7, which read thus;
"4. A counter affidavit has been filed on behalf
of respondents 2 and 3 pointing that Exts.P2
and P11 were issued pursuant to different
complaints obtained from different corners. It is
stated that the said proceedings have not
infringed any of the rights of the petitioners.
The learned Standing Counsel points out that
the Ext.P1 is the Scheme under which the
administration of the Temple is governed. By
virtue of Clause 9, all major Hindus who are the
local inhabitants and believers in God are
eligible to get membership as per Clause 16.
Once an application form is filled up and signed
and submitted, also satisfying the requisite
fees; such Hindu is to be given the
membership; which shall not be denied because
of any personal enemity or ill will. As per Clause
20 of Ext.P1 Scheme, the decision taken by the
Executive Committee to enroll members or
deleting them is subject to scrutiny of the
General Body and if the view of the General
Body is adverse, it is open for the Cochin
Devaswom Board to intervene and take
appropriate decision which shall be final.
5. The crux of the complaint received as borne
by Ext.R3(a) and R3(d) is that, membership is
arbitrarily being denied for no legal or
sustainable reason and that no renewal of the
membership is also being given. This is
allegedly with a vested interest to see that
nobody else comes to the General Body and
management to the affairs is retained at the
hands of the petitioners forever. It is also
pointed out that the petitioners have been
continuing at the helm of the affairs for quite
long. On receipt of the complaints as above, a
copy of the same was forwarded to the
petitioners as evident from Ext.R3(e) for their
remarks. Ext.R3(f) is the reply submitted by
the petitioners on 11.07.2016. Similarly, the
first complaint received on 27.03.2016 raising
similar grievance was also forwarded to the
petitioners for their remarks and Ext.R3 (b) is
RP No.463/2019 4 / 12
R.P.No.463 of 2019 in W.P.(C)No.37991 of 2018
the reply dated 17.05.2016. The stand taken by
the petitioners is that, no new membership is
intended to be given which obviously runs
contrary to the relevant clause of Ext.P1
Scheme. That apart, several restrictive
conditions are imposed to secure membership
which is even beyond the logical limits and are
not liable to be acted upon; being contrary to
Ext.P1 Scheme and for conspicuous absence of
any such conditions to get membership, as
dealt with in Ext.P1 Scheme. It was in the said
circumstance, that Exts.P12 and P11 orders
were issued by the authorities of the
Devaswom and that no right of the petitioners
is infringed under any circumstance.
6. The learned Standing Counsel points out
that, before proceeding with steps in this
regard, the matter was referred to the
Controlling Inspector for enquiry and after a
detailed inquiry, Ext.P8 report was submitted by
the said Officer, who endorsed the correctness
of the allegations levelled against the
petitioners. The learned Standing Counsel also
points out that, by virtue of the mandate of
Clause 13 of Ext.P1 Scheme, it is possible for
the Board to opt 3 persons as members, which
power has not been exercised by the Board and
that the Board has only directed the petitioners
to issue membership to the eligible persons,
who applied in accordance with the
requirements specified in this regard; to
convene the General Body and to conduct the
election accordingly. It is to make the said
exercise transparent, that the service of an
Advocate has been required to be effected as
the Electoral Officer.
7. After considering all the facts and
circumstances, we are of the view that the
challenge raised by the petitioners against
Ext.P2 and P11 is not liable to be entertained.
The prejudice stated as caused to the petitioners
is not substantiated before this Court. Similarly,
no explanation is forthcoming as to how the
petitioners could say that no membership will be
issued as stated in Ext.R3(b) and R3(f), contrary
to the specific stipulations contained in Clauses
9, 16 and 20 of Ext.P1 Scheme. As it stands so,
RP No.463/2019 5 / 12
R.P.No.463 of 2019 in W.P.(C)No.37991 of 2018
we find that no interference is warranted with
Exts.P2 and P11 issued by the Cochin Devaswom
Board. The writ petition fails and the same is
dismissed accordingly."
The petitioners in W.P.(C)No.24786 of 2017 are none
other than Chowallur Siva Kshetra Bharanasamithi and
its Secretary. We also notice clause 14 of the scheme
of Chowallur Siva Kshetram, which is extracted
hereunder;
"14.(1)സമമിതമിയയ ടടെ ഭരണ കകാരര്യങ്ങളമില ഗുരുതരമകായ
ടതറയകളളകാ ടക്രെമളക്കേടെയകളളകാ കണകാല ആകകമിടല
വര്യവസസ്ഥകളക്കേള്ക്ക് അനുസൃതമകായമിളവണ
അളനന്വേഷണണം നടെതമി സമമിതമിടയ ഭരണതമില
നമിനണം നനീക്കേണം ടചെയയവകാനുണം പകരണം ളബകാരരമിനള്ക്ക്
യയ ക്തടമന ളതകാനന്ന മറകാടരടയങമിലയണം ഭരണണം
ഏലലമിക്കുവകാനുണം ഉള്ള അധമികകാരണം എപള്ക്ക്ളപകാഴയണം
ളദേവസന്വേണം ളബകാരരമില നമികമിപപ്തമകായമിരമിയയണം"
12. From the pleadings and materials on record and
also the submissions made by the learned counsel on
both sides, we find considerable force in the
submissions made by the learned counsel for Chowallur
Siva Kshetra Paripalana Samithi and also the learned
Standing Counsel for Cochin Devaswom Board that the
attempt of Chowallur Siva Kshetra Bharanasamithi and
its Secretary is to see that no new members are
inducted before the conduct of election.
13. Sri.M.V.S. Namboothiri, the learned counsel for
respondents 4 and 5, submits that the said
respondents have no such intention and they also want
to see that a proper election is conducted to the
Bharanasamithi, strictly in terms of the scheme
governing the administration of temple. The learned
RP No.463/2019 6 / 12
R.P.No.463 of 2019 in W.P.(C)No.37991 of 2018
counsel would submit that the Bharanasamithi and its
Secretary shall co-operate with the steps taken by the
learned Advocate Commissioner for the conduct of
election. The learned counsel seeks a short
adjournment to get necessary instructions from
respondents 4 and 5, in this regard.
14. List this matter for further consideration, on
25.02.2022, to decide as to the steps that have to be
taken to conduct election to the Bharanasamithi of
Chowallur Siva Kshetram. In the meantime,
respondents 4 and 5 shall not take any policy decision
in the management of Chowallur Siva Temple. In the
matter of opening of Bhandaram, accounting of
collection, etc., they shall scrupulously follow the
relevant circulars/directions issued by the Cochin
Devaswom Board."
2. Today, respondents 4 and 5 have filed I.A.No.4 of
2022, as 'benchmark', producing therewith Annexure R5(c)
form of membership application and Annexure R5(d)
application submitted by one of the devotees, as aditional
documents.
3. Heard the learned counsel on both sides and also
Sri. P. Ramachandran, the learned Advocate Commissioner.
4. Sri.P.Ramachandran, the learned Advocate
Commissioner, would submit that he may be relieved from
RP No.463/2019 7 / 12
R.P.No.463 of 2019 in W.P.(C)No.37991 of 2018
the duty to conduct election to the Bharanasamithi of
Chowallur Shiva Kshetram.
5. Having considered the submissions made by the
learned counsel on both sides and also the learned Advocate
Commissioner on the above aspect, we deem it appropriate
to relieve Sri.P.Ramachandran, the learned Advocate
Commissioner, from the duty to conduct election to the
Bharanasamithi of Chowallur Shiva Kshetram.
6. During the course of arguments, Adv. M.V.S.
Namboothiri, the learend counsel for respondents 4 and 5,
reiterated the submission made before this Court on
11.02.2022, that respondents 4 and 5 have no intention
to see that no new members are inducted before the conduct
of election to Chowallur Shiva Kshetra Bharanasamithi.
7. In paragraph 12 of the order dated 11.02.2022, we
found considerable force in the submission made the learned
counsel for Chowallur Shiva Kshetra Paripalana Samithi and
also the learned Standing Counsel for Cochin Devaswom
Board that the attempt of Chowallur Shiva Kshetra
Bharanasamithi and its Secretary is to see that no new
RP No.463/2019 8 / 12
R.P.No.463 of 2019 in W.P.(C)No.37991 of 2018
members are inducted before the conduct of election.
8. Having considered the submissions made by the
learned counsel on both sides, we find that before the
conduct of election to the Bharanasamithi of Chowallur Shiva
Kshetram, as per the provisions under Chowallur Shiva
Kshetra Bharana Scheme, which is placed on record as Ext.P4
in W.P.(C)No.37932 of 2018, a reasonable opportunity has to
be given to those who are having the eligibility criteria
prescribed in Clause 9 of the said Scheme for getting
membership. Similarly, a reasonable opportunity has to be
given to the existing members to clear their dues, if any, in
order to exercise their voting right in the election to the
Bharanasamithi.
9. The learned counsel for the 1st respondent
Chowallur Shiva Kshetra Paripalana Samithi would point out
that the elegibility criteria for membership in the
Bharanasamithi of Chowallur Shiva Kshetram should be in
accordance with the provisions under Clause 9 of the
Chowallur Shiva Kshetra Bharana Scheme. However, in
Annexure R5(c) form of membership application produced by
RP No.463/2019 9 / 12
R.P.No.463 of 2019 in W.P.(C)No.37991 of 2018
respondents 4 and 5, an additional eligibility criteria has been
prescribed, which is legally impermissible.
10. Insofar as the aforesaid submission made by the
learned counsel for the 1st respondent Chowallur Shiva
Kshetra Paripalana Samithi is concerned, we find that, the
eligibility criteria for membership has to be strictly in
accordance with the provisions under Clause 9 of the
Chowallur Shiva Kshetra Bharana Scheme and respondents 4
and 5 have absolutely no right or authority to insist for any
additional eligibility criteria for such membership. Therefore,
the form of application for membership should be one
prepared in accordance with the provisions under Clause 9 of
the Scheme.
11. For the purpose of conducting election to the
Bharanasamithi of Chowallur Shiva Kshetram, in accordance
with the provisions under Chowallur Shiva Kshetra Bharana
Scheme, we hereby appoint Sri.P.B. Subramanyan, a lawyer
of this Court as the Advocate Commissioner.
Sri.P.Ramachandran, the Advocate Commissioner, who is
relieved from the duty of conducting election to the
RP No.463/2019 10 / 12
R.P.No.463 of 2019 in W.P.(C)No.37991 of 2018
Bharanasamithi of Chowallur Shiva Kshetram shall hand over
the records to Sri.P.B. Subramanyan, the learned Advocate
Commissioner, within a period of one week from the date of
receipt of a copy of this order.
12. Sri.P.B. Subramanyan, the learned Advocate
Commissioner shall conduct election to the Bharanasamithi of
Chowallur Shiva Kshetram, strictly in accordance with the
provisions under Chowallur Shiva Kshetra Bharana Scheme,
after giving a reasonable opportunity to those who are having
the elegibility criteria in Clause 9 of the said Scheme for
getting membership and a reasonable opportunity to the
existing members to clear their dues, if any, in order to
exercise their voting right in the election to the
Bharanasamithi. The Advocate Commissioner shall ensure
that the eligibility criteria for membership is in accordance
with the provisions under Clause 9 of the Scheme and the
form of membership application is one in accordance with
the provisions under the said Scheme. The Advocate
Commissioner shall issue notification in the appropriate
manner for the conduct of election, specifying the time
RP No.463/2019 11 / 12
R.P.No.463 of 2019 in W.P.(C)No.37991 of 2018
scheduled for submitting application for membership, for
clearing the dues by the existing members, etc. The expenses
in this regard shall be met by the 4th respondent Chowallur
Shiva Kshetra Bharanasamithi. The initial remuneration of
the Advocate Commissioner is fixed as Rs.50,000/-. The 1 st
respondent Chowallur Shiva Kshetra Paripalana Samithi and
the 4th respondent Chowallur Shiva Kshetra Bharanasamithi
shall make a payment of Rs.25,000/- each to the Advocate
Commissioner, within a period of two weeks from the date of
receipt of a copy of this order, towards his initial
remuneration.
List on 07.06.2022.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
MIN
07-04-2022 /True Copy/ Assistant Registrar
RP No.463/2019 12 / 12
APPENDIX OF RP 463/2019
ANNEXURE R5 (c) TRUE COPY OF THE PRESCRIBED APPLICATION FORM FOR
MEMBERSHIP.
ANNEXURE R5 (d) TRUE COPY OF THE APPLICATION FORM FOR MEMBERSHIP
SUBMITTED BY ONE OF THE DEVOTEES.
