Kerala High Court

Padmanabhan Vazhankhat vs Malabar Devaswom Board on 7 July, 2023

W.P.(C.) NO.30039 OF 2022
                                1
          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                &
          THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
    FRIDAY, THE 7TH DAY OF JULY 2023 / 16TH ASHADHA, 1945
                   WP(C) NO. 30039 OF 2022
PETITIONER:

          PADMANABHAN VAZHANKHAT
          AGED 73 YEARS
          S/O. T.K.K. MANNADIYAR,
          KRISHNAPRIYA, JAYA NAGAR,
          CHANDRANAGAR P.O.,
          PALAKKAD-678007.

          BY ADVS.
          HARISH R. MENON
          K.N.ABHA
          A.G.PRASANTH
          K.S.SREEJA
          OASHIN LALAN
          ALEENA SEBASTIAN
          ROHITH R. KARTHA
          K.T.SHYAMKUMAR
          SREEVALSAKUMAR P.K.
RESPONDENT:

    1     MALABAR DEVASWOM BOARD
          HOUSEFED COMPLEX, ERANHIPALAM P.O.,
          KOZHIKODE-673006
          REPRESENTED BY ITS SECRETARY.

    2     THE COMMISSIONER,
          THE MALABAR DEVASWOM BOARD,
          HOUSEFED COMPLEX,
          ERANHIPALAM P.O.,
          KOZHIKODE-673006.

    3     THE DEPUTY COMMISSIONER,
          MALABAR DEVASWOM BOARD,
          HOUSEFED COMPLEX,
          ERANHIPALAM P.O.,
          KOZHIKODE-673006.

    4     THE ASSISTANT COMMISSIONER,
          OFFICE OF THE ASSISTANT COMMISSIONER,
 W.P.(C.) NO.30039 OF 2022
                              2
          MALABAR DEVASWOM BOARD,
          CIVIL STATION P.O.,
          PALAKKAD-678001.

    5     THE AREA COMMITTEE,
          MALABAR DEVASWOM BOARD,
          PALAKKAD DIVISION, CIVIL STATION P.O.,
          PALAKKAD-678001,
          REPRESENTED BY ITS CHAIRMAN.

    6     SREE PARUKANCHERY BHAGAVATHY TEMPLE,
          PALLATHERI POST, PALAKKAD-678001,
          REPRESENTED BY THE EXECUTIVE OFFICER.

    7     MULLATH SEETHALAKSHMI MENON,
          SITHARA HOUSE NO.61 ROAD NO.3 EAST, A.R.NAIR
          COLONY, KUNNATHURMEDU P.O.,
          PALAKKAD-678013.

    8     A. SAKUNTHALA AMMA,
          W/O. LATE PADMANABHAN P.,
          LAKSHMI KRIPA, NADATHARA,
          NALLAEPPILLI P.O., PALAKKAD -678553.

    9     M. SANKUNNI,
          AGED 72 YEARS
          S/O. P.R.K. NAIR, SARALAM,
          SASTHA NAGAR, T. COLONY,
          AKATHETHARA, PALAKKAD DISTRICT-648008.

   10     M. SARADA AMMA *(DIED, LEGAL REPRESENTATIVE IS
          IMPLEADED AS ADDL. RESPONDENT NO. 14 )
          MUTTAMPARAMBATH VEEDU,
          PALLATHERI P.O., PALAKKAD-678007.

          **ADDL. RESPONDENTS 11, 12 AND 13 ARE IMPLEADED

   11     NANDAKUMAR
          MOOLIYIL HOUSE, PALLATHERI,
          PALAKKAD DISTRICT-6780007

   12     KANNAN KUTTY
          MUTTANPARAMBATH HOUSE,
          PARUKKANCHERI, PALAKKAD-678007

   13     SADANANDHAN
          VAZHEKKATT HOUSE, PARUKKANCHERI, PALAKKAD DISTRICT-
          678007.

          **ADDITIONAL RESPONDENTS 11,12,AND 13 ARE IMPLEADED
          AS PER ORDER DATED 11/10/2022 IN I.A. NO.1 OF 2022
 W.P.(C.) NO.30039 OF 2022
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             IN W.P.C.30039/2022.

             ***ADDL. RESPONDENT NO. 14 IS IMPLEADED

     14      THANKAM AMMA @ KUNJAMMALU AMMA,
             AGED 90 YEARS
             MUTTAMPARAMBATH HOUSE,
             PALLATHERI P.O.,
             PALAKKAD-678007.

             ***ADDITIONAL RESPONDENT NO. 14 IS IMPLEADED AS PER
             ORDER DATED 07/07/2023 IN I.A.NO. 1 OF 2023

             R1 TO R5 BY SRI R.LAKSHMI NARAYAN,STANDING COUNSEL,
             MALABAR DEVASWOM BOARD
             R6 BY ADV.SRI.MAHESH V RAMAKRISHNAN
             R11 & R12 BY ADV. SRI. K.MOHANAKANNAN
             BY ADVS. H.PRAVEEN (KOTTARAKARA)
                      MARY HEDWIG BABY


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   07.07.2023,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C.) NO.30039 OF 2022
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                             JUDGMENT

Anil K. Narendran, J.

The petitioner, who has been appointed as hereditary trustee

of Pallatheri Parukkancheri Bhagavathy Temple, vide Ext.P4 order

dated 11.08.2022 of the 3rd respondent-Deputy Commissioner, has

filed this writ petition under Article 226 of the Constitution of India

seeking a writ of certiorari to quash the said order to the extent the

Manager of the said Temple is directed to submit an application,

invoking the provisions under sub-section (6) of Section 58 of the

Madras Hindu Religious and Charitable Endowments Act, 1951, for

modification of the scheme for the management of the said Temple.

Another relief sought for in this writ petition is for a declaration

that Ext.P4 order dated 11.08.2022 of the 3rd respondent-Deputy

Commissioner to the extent of directing the Manager of Pallatheri

Parukkancheri Bhagavathy Temple to file application under sub-

section (6) of Section 58 of the Act is without any jurisdiction.

2. On 11.10.2022, when this writ petition came up for

admission this Court admitted the matter on file. The learned

Standing Counsel for Malabar Devaswom Board took notice for

respondents 1 to 5. Urgent notice by speed post was ordered to

respondents 6 to 10 and also to additional respondents 11 to 13,

returnable within four weeks.

W.P.(C.) NO.30039 OF 2022

3. Heard the learned counsel for the petitioner, the learned

Standing Counsel for Malabar Devaswom Board for respondents 1

to 5, the learned counsel for the 6th respondent and also the

learned counsel for respondents 11 and 12. Despite service of

notice, none appears for respondent No.13 and additional 14th

respondent.

4. The issue that arises for consideration in this writ

petition is as to whether the direction contained in Ext.P4 order

dated 11.08.2022 of the 3rd respondent-Deputy Commissioner to

the extent of directing the Manager of Pallatheri Sree

Parukkancheri Bhagavathy Temple to submit an application under

sub-section (6) of Section 58 of the Act seeking modification of the

scheme for administration of the said Temple can be sustained in

law.

5. Section 58 of the Act deals with powers of Deputy

Commissioner to frame scheme, which reads thus;

"58. Power of Deputy Commissioner to frame scheme. - (1) When the Deputy Commissioner has reason to believe that in the interests of the proper administration of a religious institution, a scheme should be settled for the institution, or when not less than five persons having interest make an application in writing, stating that in the interests of the proper administration of a religious institution a scheme should be settled for it, the Deputy Commissioner shall consult in the prescribed manner the trustee and the persons having interest and the Area Committee, if any, having jurisdiction over the institution; and if, after such consultation, he is satisfied that it is necessary or desirable to do so, he shall, by order, frame a scheme of administration for the institution. (2) A scheme settled under sub-section (1) for a temple or for a specific endowment other than one attached to a math for may contain provision for-

W.P.(C.) NO.30039 OF 2022

(a) removing any existing trustee, whether hereditary or non-hereditary:

Provided that where provision is made in the scheme for the removal of a hereditary trustee, provision shall also be made therein for the appointment as trustee of the person next in succession who is qualified;

(b) appointing, or directing the appointment of, a paid executive officer, who shall be a person professing the Hindu religion on such salary and allowances as may be fixed, to be paid out of the funds of the institution; and defining the powers and duties of such officer:

Provided that in making any provision of the nature specified in clause (b) due regard shall be had to the claims of persons belonging to the religious denomination for whose benefit the institution is chiefly maintained.

(3) A scheme settled under sub-section (1) for a math or for a specific endowment attached to a math may contain provision for-

(a) associating one or more persons with the trustee or constituting a separate body for the purpose of participating or assisting in the whole or any part of the administration of the endowments of such math or of the specific endowment; provided that such person or persons or the members of such body shall be chosen from persons having interest in such math or endowment;

(b) appointing or directing the appointment of a paid executive officer, who shall be a person professing the Hindu religion, on such salary and allowances as may be fixed by the Deputy commissioner, to be paid out of the trust funds, and defining the powers and duties of such officer;

(c) defining the powers and duties of the trustee;

(4) The Deputy Commissioner may determine what the properties of the religious institution are and append to the scheme a schedule containing a list of such properties: Provided that such determination shall not affect the rights of persons who are the hostile possession of any of the said properties.

(5) Pending the framing of a scheme for a temple or for a specific endowment other than one attached to a math, the Deputy Commissioner may appoint a fit person to discharge all or any of the functions of the trustee thereof and define his powers and duties.

(6) The Deputy Commissioner may, at any time, after consulting the trustee and the persons having interest and the Area Committee, if any, having jurisdiction over the institution, by order, modify or cancel any scheme settled under sub-section (1) or a scheme settled by the Board under the Madras Hindu Religious Endowments Act, 1926.

W.P.(C.) NO.30039 OF 2022

(7) Every order of the Deputy Commissioner settling, modifying or cancelling a scheme under this section shall be published in the prescribed manner and on such publication shall, subject to the provisions of Sections 61 and 62, be binding on the trustee, the executive officer and all persons having interest. (8) The powers conferred by this section shall, in respect of maths, be exercised by the Commissioner or by a Deputy Commissioner to whom powers in this behalf have been delegated by the Commissioner under Section 10, sub-section (2)."

A reading of the said provision would make it clear that the Deputy

Commissioner may, at any time, after consulting the trustee and

the persons having interest and the Area Committee, if any, having

jurisdiction over the institution, by order, modify or cancel any

scheme settled under sub-section (1) or a scheme settled by the

Board under the Madras Hindu Religious and Charitable

Endowments Act, 1926. Therefore, the direction contained in

Ext.P4 order, whereby the Manager of the Temple has been directed

to file an application to modify the scheme is absolutely without

any authority of law.

6. During the course of arguments, it is pointed out by

respondents 11 and 12, that they have already moved an