Kerala High Court
C.Gopinathan vs State Of Kerala on 12 April, 2024
Author: Anil K. Narendran
Bench: Anil K. Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
W.P.(C)NO.6396 OF 2024
PETITIONER:
C.GOPINATHAN
AGED 60 YEARS
S/O.KUTTIKRISHNAN NAIR, PARAKKULANGARA THIRUTHITHODI
(H),VILAYUR P.O., PALAKKAD, PIN - 679309
BY ADV RESMI A.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 MALABAR DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY, HOUSEFED COMPLEX, ERANHIPALAM
P.O., KOZHIKODE, PIN - 673006
3 THE COMMISSIONER
MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM P.O.,
KOZHIKODE, PIN - 673006
4 THE ASSISTANT COMMISSIONER
MALABAR DEVASWOM BOARD, MALAPPURAM DIVISION, CIVIL STATION,
TIRUR, PIN - 676101
5 DIVISION INSPECTOR
MALABAR DEVASWOM BOARD, OFFICE OF THE
INSPECTOR,PERINTHALMANNA DIVISION, ANGADIPPURAM, PIN -
679321
6 THE AREA COMMITTEE
MALABAR DEVASWOM BOARD, MALAPPURAM DIVISION, TIRUR,
MALAPPURAM DISTRICT, REPRESENTED BY ITS CHAIRMAN, PIN -
678101
2
W.P.(C)No.6396 of 2024
7 THE EXECUTIVE OFFICER
KARIPPAMANNA SIVA TEMPLE, KARINGANAD, VILAYUR P.O.,
PALAKKAD, PIN - 679309
8 HARIDAS. P @ BABY
AGED 63 YEARS
S/O. PARAMESWARAN NAIR , KRISHNALAYAM HOUSE, VILAYUR P.O.,
PALAKKAD DISTRICT, PIN - 679309
9 RAMACHANDRAN P.V.
AGED 62 YEARS
S/O. MADHAVAN, PADINJARE VALAPPIL HOUSE, VILAYUR P.O.,
PALAKKAD DISTRICT, PIN - 679309
10 ANIL KUMAR P.
AGED 48 YEARS
S/O. MUNDAN, POOKKADATHU (H), VILAYUR P.O., PALAKKAD
DISTRICT, PIN - 679309
11 ADDL.R11. C.M.CHITHRABHANU NAMBOOTHIRI
AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER
CHUMARAKANDATHU MANA,THATHANAMPULLY P.O., PALAKKAD DISTRICT
- 679337
12 ADDL.R12. RAJESH NAMBOOTHIRI C.M.
AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER
PANAMPATTA MANAKKAL, VILAYOOR P.O., PALAKKAD - 679309 [ARE
IMPLEADED AS PER ORDER DATED 27.02.2024 IN I.A.1/2024 IN
WP(C) 6396/2024]
BY ADV R.RANJANIE
OTHER PRESENT:
SRI S.RAJMOHAN - SR. GOVERNMENT PLEADER ;
SR COUNSEL SRI R.LAKSHMI NARAYAN ALONG WITH SMT R.RANJANIE
- STANDING COUNSEL - MALABAR DEVASWOM BOARD
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
W.P.(C)No.6396 of 2024
JUDGMENT
Anil K. Narendran, J.
The petitioner, who is a devotee of Lord Shiva of Sree
Karippamanna Siva Temple, which is a controlled institution under
the Malabar Devaswom Board, has filed this writ petition under
Article 226 of the Constitution of India, seeking a writ of certiorari
to quash Ext.P1 order dated 01.11.2023 of the 4th respondent
Assistant Commissioner, Malappuram Division, whereby
respondents 8 to 10 have been appointed as non-hereditary
trustees in the Trustee Board of that temple for a period of two
years, based on Decision No.11 dated 25.09.2023 of the 6th
respondent Area Committee, Malappuram Division. The petitioner
has also sought for a writ of mandamus commanding the 3 rd
respondent Commissioner, Malabar Devaswom Board to consider
and take appropriate action on Ext.P11 complaint dated
18.01.2024 made by the petitioner.
2. According to the petitioner, respondents 8 to 10 are
active politicians in the locality and the 9th respondent is involved
in several criminal cases. Therefore, they are disqualified to be
appointed as non-hereditary trustees of Karippamanna Sree Siva
Temple. A Trustee Board consisting of non-hereditary trustees was
constituted for the first time in Karippamanna Sree Siva Temple,
as per the proceedings dated 01.11.2023 of the 4th respondent
Assistant Commissioner, without considering the complaints made
by the devotees.
3. On 20.02.2024, when this matter came up for
admission, the learned Standing Counsel for Malabar Devaswom
Board was directed to get the details of the hereditary trustees of
Sree Karippamanna Siva Temple and whether the temple is
governed by an approved scheme for its administration.
4. On 23.02.2024, the learned Standing Counsel for
Malabar Devaswom Board submitted that there are two hereditary
trustees for Karippamanna Siva Temple. There is no approved
scheme for the administration of the temple. For the last several
years, the Board of Trustees of the temple consists of two
hereditary trustees and three non-hereditary trustees. The
learned counsel for the petitioner sought time to file an application
to implead the hereditary trustees of the temple.
5. On 27.02.2024, the learned counsel for the petitioner
pointed out that though it is stated in the writ petition that the
appointment of non-hereditary trustees by the 6th respondent
Area Committee is by exercising its powers under Section 39(5)
of the Madras Hindu Religious and Charitable Endowments Act,
1951, the non-hereditary trustees are appointed for the first time,
invoking the provisions under Section 39(2) of that Act. The
learned Standing Counsel for Malabar Devaswom Board, on
instructions, submitted that the appointment of non-hereditary
trustees invoking Section 39(2) of the Act was based on a request
made by the 7th respondent Executive Officer, since the hereditary
trustees are not interested in the management of the temple.
6. By the order dated 27.02.2024 in I.A.No.1 of 2024, the
hereditary trustees of the temple were impleaded as additional
respondents 11 and 12. The learned Senior Government Pleader
took notice on admission for the 1st respondent and the learned
Standing Counsel for Malabar Devaswom Board for respondents 2
to 6. Urgent notice on admission by special messenger was
ordered to respondents 7 to 10 and also to additional respondents
11 and 12, returnable by 29.02.2024.
7. On 25.03.2024, the 4th respondent filed a counter
affidavit. Paragraphs 3 to 8 of the said counter read thus;
"3. Though Hereditary Trusteeship of the temple is vested
with Chumaram Kandathu Mana, none of the eligible family
members are coming forward to claim the hereditary
trusteeship by approaching the Deputy Commissioner for
getting approval. The Trustee family is not showing any
interest in the administration of the temple since long. In
pursuance of request from the Executive Officer of the
Karippamanna Siva Temple, to constitute a Board of Trustees,
by including 3 Non-Hereditary Trustees, a notification was
issued, inviting application to the 3 non-hereditary vacancies
in the Trustee Board, on 30.08.2022 and the last date
prescribed for receipt of applications was on 14.10.2022. It
is submitted that the three applications were received within
the prescribed time and other three applications including
that of the writ petitioner were received only on 03.11.2022.
Hence those applications which were received after the cut
of date were rejected.
4. The temple is a controlled institution under the
supervisory jurisdiction of the Malabar Devaswom Board.
The grievance highlighted in the writ petition is that the
respondent Nos.8 to 10 are active politicians in the locality
and 9th respondent is having several criminal cases charged
against him, hence they are disqualified to be appointed as
Non Hereditary Trustee of Sree Karippamanna Sree Siva
Temple. It is contended in the writ petition that the Board of
Trustees inclusive of Non Hereditary Trustees was
constituted for the first time as per the proceedings dated
01.11.2023, by the 4th respondent without considering the
complaints submitted by the devotees.
5. It is also contended that the said appointment is as per
order of the 6th respondent in accordance with the provisions
of Section 41 read with Section 39(5) of the HR & CE Act. It
is also contended in the writ petition that, before the
Constitution of the Board, the committee of devotees were
managing the affairs such as festivals in the said temple.
Ext.P1 would show that the appointment of Non Hereditary
Trustees were made on the strength of the decision of the
Area Committee, Malappuram, dated 25.09.2023, in
pursuance of the notification dated 30.08.2022, issued for
inviting application to the post of 3 Non Hereditary Trustees
in the temple. The contention that the notification inviting
application for the post of Non Hereditary Trustees was not
published anywhere including notice board of the temple, is
incorrect. Further contention that the petitioner, applied for
the same, even though the notification was not published, is
baseless.
6. Ext.P10 is dated 09.08.2023 and there is no date for
Exts.P11, P12 and P13. The Inspector had enquired into the
complaints regarding allegation of political affinity of the
applicants. Ext.P2 would evidently prove that the respondent
No.8 is not an active politician but contested as an
independent candidates in the local body election. In Column
18 of Ext.P6, it is shown that the mentioned person is
Haridas Kunnathody, who is a different person and hence a
false attribution, of the 8th respondent as the representative
of Kera Karshaka Sangham. If at all he was a member of the
said Vilayoor 'Karshika Vikasana Samithy', which is not a
political body but a committee with certain limited
agricultural developmental activities attached with 'Krishi
Bhavan'. So the said fact cannot be reckoned as a
disqualification by categorising the said person as an active
politicians.
7. In Column 7 of Ext.P8 suspected accused is Chandran,
whereas the respondent No.9 is Ramachandran P.V. and the
address mentioned in the FIR and that of the 9th respondent
in the writ petition are also different. As such is the Ext.P7
also. If at all the 9th respondent had become accused in FIR
it cannot be termed as a disqualification under Section 46 of
the HR & CE Act. The Inspector had reported that such a
case was registered against respondent No.9 and he had
deposed before the Inspector that the alleged item was kept
by him with the permission and under the authoritative
records issued by the Department concerned.
8.It is submitted that there were three applications within
the prescribed time and the report of the Inspector would
show that three of them are qualified, so it was impossible
for excluding them unless they are suffering from any
disqualifications as contemplated under the statutory
provision in the HR & CE Act or in the guidelines formulated.
It is submitted that the Trustee Board had its meeting on
28.12.2023 and the respondent No.8 had been elected as
Chairman and the Board assumed the office on 28.12.2023.
So, it is most humbly prayed that this Hon'ble Court may be
pleased to uphold the above contentions and dismiss the writ
petition."
8. The petitioner has filed a reply affidavit dated
09.04.2024. Paragraphs 3 to 10 of that affidavit read thus;
"3. The allegation in paragraph 3 is regarding the hereditary
trustees. As per the averment in this paragraph, the
Trusteeship of this temple is vested with Chumaramkandathu
Mana. This is absolutely false. The Trusteeship of
Karippamanna Siva Temple is vested in Chumaramkandathu
Mana as well as Panampatta Mana and the hereditary
trustees of the temple are respondents 11 and 12.
The 11th respondent is C.M.Chithrabhanu Namboothiri,
Chumaramkandathu Mana and he is laid up after a stroke.
The 12th respondent Sri. Rajesh Namboothiri, Panampatta
Mana is active in the temple management. He used to
participate in every meetings conducted by the temple
management and used to sign in Minutes Book also. The 4th
respondent itself had given the details of the hereditary
trustees to the petitioner for impleading them.
4. The averments made in paragraph 5 that the information
regarding the appointment of trustees were published is
absolutely false and hence denied. It is true that the
application for the appointment of non-hereditary trustees
invited on 30.08.2022 and the last date for submitting the
application was 14.10.2022. The same was kept as a secret
and not published everywhere including the notice board
inside the temple or not informed anybody. When the
petitioner and other two applicants came to know the same,
they submitted applications and after receiving the
applications, they were also invited for the interview. The fact
is that the other three persons were selected even before the
petitioner and other three persons were invited for the
interview. If the applications were rejected on a reason that
they were submitted after the prescribed date, the invitation
for attending interview seems a mockery towards the other
applicants including the petitioner herein.
5. Exts.P11, P12 and P13 are facebook posts. It is true that
the 8th respondent is contested the local body election as an
independent candidate but as "LDF Swathanthran". He
himself appears as Haridas Kunnathodi and known as
Babiettan in the Karinganadu locality and he appears in
Social media as Haridas Pottachira. His photos are evident to
prove that the person known as above three names is the
same person, the 8th respondent herein. The Kera Karshaka
Sangham is a wing of CPI(M) and the 8th respondent is a
member in this.
6. It is stated in paragraph 7 that the name of the 9 th
respondent and the name in Ext.P8 FIR is different persons.
The 9th respondent is known as Chandran in the locality. He
is also included in Anakkomb case and the case is pending in
Munsiff Magistrate Court, Pattambi
7. The averments made in paragraph, the 10th respondent is
also a non-hereditary trustee and he denied to accept the
notice issued vide special messenger.
8. It is most humbly submitted here that the Karippamanna
Siva Temple is managed by a committee of devotees
including the Trustees of the temple and the Malabar
Devaswom Board had not involved in any other activities
except the present appointment of non-hereditary trustees.
The temple renovated by the committee of devotees and
there is no mismanagement in the temple, till date.
9. The appointed non-hereditary trustees not participated in
any of the activities of this temple.
10. If the information of the application is published, several
devotees who are active in the temple activities have to
submit applications for the posts of non-hereditary trustees.
It is also suspected here that the appointment of respondents
8 to 10 is determined earlier."
9. On 09.04.2024, when this matter came up for
consideration, this Court passed the following order;
"In paragraph 4 of the affidavit filed by the 4th respondent
Assistant Commissioner, it is stated that the Trustee Board
of the Karippamanna Sree Siva Temple, 'inclusive of non-
hereditary trustees' was constituted for the first time as per
proceedings dated 01.11.2023 of that respondent.
2. The learned Standing Counsel for Malabar Devaswom
Board to make available for the perusal of this Court the
files relating to the proceedings dated 01.11.2023."
10. Today, when this matter came up for consideration, the
learned Standing Counsel for Malabar Devaswom Board has made
available for the perusal of this Court the files relating to Ext.P1
order dated 01.11.2023 of the 4th respondent Assistant
Commissioner.
11. Heard the learned counsel for the petitioner, the
learned Senior Government Pleader for the 1st respondent and the
learned Standing Counsel for Malabar Devaswom Board for
respondents 2 to 6. Despite service of notice, none appears for
respondents 7 to 10 and also for additional respondents 11 and
12.
12. Ext.P1 order dated 01.11.2023 of the 4th respondent
Assistant Commissioner is one issued based on Decision No.11
dated 25.09.2023 of the 6th respondent Area Committee, whereby
respondents 8 to 10 have been appointed as non-hereditary
trustees of Sree Karippamanna Siva Temple, for a period of two
years. The grievance of the petitioner is that respondents 8 to 10,
who are active politicians in the locality, and the 9th respondent,
who is involved in several criminal cases, who are disqualified to
be appointed as non-hereditary trustees in a temple which is a
controlled institution under the Malabar Devaswom Board, have
been appointed as non-hereditary trustees by Ext.P1 order,
despite the complaints made by the devotees.
13. In Sreedharan Nambeesan P. v. Commissioner
Malabar Devaswom Board and Others [2018 (2) KLT 115]
the issue raised before a Division Bench of this Court was whether
the hereditary trustee of a temple would have any right to be given
notice before a non-hereditary trustee is being appointed by the
Commissioner, Malabar Devaswom Board, under Section 39(5) of
the Madras Hindu Religious and Charitable Endowments Act, 1951.
In paragraph 11 of the said judgment, the Division Bench held as
follows;
"11. This is not to say that when the Commissioner invokes his
power under Section 39(5) the Hereditary Trustee is completely
divested of any say. The power vested with the Commissioner is
to act fairly, judiciously and in a manner that behooves his office,
being the seneschal of the various temples and institutions under
his command. The power of the Commissioner being bridled by
the section itself, not to act unless there is an imminent necessity
to fill up the vacancies of Non-hereditary Trustee or Trustees and
that too after recording such reasons in writing, show the implicit
care to be invested while acting under its sanction. The vacancies
are not to be filled under his whim or fancy but the Commissioner
is clearly obligated to first conclude if it is necessary to do so,
which can only mean to be a situation in which he thinks that the
Hereditary Trustee will not be sufficient on his own to manage the
affairs of the temple/institution. The competence and capability
of the Hereditary Trustee or Trustees thus becomes absolutely
relevant and germane when vacancies are sought to be filled up
in the posts of Non-hereditary Trustees under Section 39(5) of
the Act and, therefore, the issuance of a notice of such intention
by the Commissioner to the Hereditary Trustee or Trustees,
though not specifically mentioned in Section 39(5), will be
apposite if not to be read into its provisions as a concomitant
necessity to ensure fairness in procedure. The submission of the
learned Standing Counsel that the Hereditary Trustee need not
be consulted at all, while acting under Section 39(5), therefore,
does not appear to be on terra firma forensically."
14. Seeking review of the judgment in Sreedharan
Nambeesan P. [2018 (2) KLT 115], the Commissioner
Malabar Devaswom Board and others filed R.P.No.227 of 2018
[neutral Citation No: 2018:KER:17236], contending that the
words in paragraph 11 of the said judgment would give an
impression that before acting under Section 39(5) of the Act, the
competent authority is obligated to obtain the concurrence of the
hereditary trustee.
15. In the decision in Commissioner, Malabar
Devaswom Board and others v. Sreedharan Nambeesan P.
[2018:KER:17236] the Division Bench clarified that in the
judgment, what was intended was that the hereditary trustee be
offered an opportunity to place his view regarding the necessity of
filling up the vacancy in the office of the non-hereditary trustee.
The judgment did not say that the concurrence of the hereditary
trustee is necessary but only that he may be given the opportunity
to state why he thinks that there is no necessity for the
Commissioner to appoint a non-hereditary trustee. The Division
Bench found this apposite since as per the provisions of Section
39(5) of the Act the Commissioner shall not fill up a vacancy of a
non-hereditary trustee unless he considers it necessary to do so.
It was in the backdrop of this particular provision that the Division
Bench said that even though the issuance of a notice to the
hereditary trustee is not mandated or specifically provided under
Section 39(5) of the Act, it will be desirable, to ensure fairness in
procedure, that the hereditary trustee is also afforded an
opportunity to place his views appropriately before final orders are
passed under Section 39(5). The intention was not that the
concurrence of the hereditary trustee to the proposal of the
Commissioner be obtained but merely that he be given an
opportunity to speak his opinion as to why he feels that there is
no necessity to appoint a non-hereditary trustee in the temple. It
is needless to say that since it was not the concurrence of the
hereditary trustee that is required to be obtained, as per the
judgment, the only obligation of the Commissioner is to afford the
hereditary trustee an opportunity to say why he feels that no
necessity exists for an order under Section 39(5) of the Act, so
that any vital information, which is within the domain of the
hereditary trustee can also be placed for his consideration. The
Division Bench further clarified that the views of the hereditary
trustee are not binding on the Commissioner, as per the provisions
under Section 39(5) of the Act, but merely that such views can
also be elicited to aid the Commissioner while he takes a decision
as to whether it is necessary to fill up the vacancy. With the above
clarification, the Division Bench closed the review petition.
16. In Gopinatha Menon (Kenathachan) v. Malabar
Devaswom Board [2012:KER:16515] a Division Bench of this
Court held that recourse to sub-section (2) of Section 39 of the
Act, is not necessary to make an appointment of a non-hereditary
trustee on any ground referable to the conduct of the hereditary
trustee, or otherwise, when there is a scheme governing the trust,
which provides, among other things, for appointment of four non-
hereditary trustees.
17. In Chathu Achan K. v. State of Kerala [2022 (6)
KLT 388] a Division Bench of this Court in which one among us
[Anil K. Narendran, J] was a party noticed that the decision of the
Division Bench in Parameshwaran Namboothiri
P.M. v. Commissioner, Malabar Devaswom Board [2011 (2)
KHC 719] and Sreedharan Nambissan P. v. Commissioner,
Malabar Devaswom Board [2018 (2) KLT 115] are in the
context of the provisions under sub-section (2) of Section 39 of
the Act, which deals with the appointment of non-hereditary
trustees in the circumstances stated in the sub-section (2), which
has no application when the appointment of non-hereditary
trustees in a temple is governed by the provisions under the
scheme framed under Section 58 of the Act. Sub-section (2) of
Section 39 of the Act relates to the appointment of non-hereditary
trustees in temples, where there is no scheme framed in terms of
Section 58 of the Act. Once such a scheme is framed, the Malabar
Devaswom Board has to see that the administration of the temple
is carried on in accordance with that scheme.
18. In Gopinatha Menon [2012:KER:16515] the
Division Bench noticed that the complaint of the petitioner, who is
the Managing Trustee of the temple in question was that, the
persons who are appointed as non-hereditary trustees are
disqualified, as they are active politicians or those clouded by
allegations referable to financial misconduct. The Division Bench
observed that, even if the persons who have been selected and
appointed as non-hereditary trustees have any such
disqualifications, it may be open to the petitioner to move the
Commissioner by pointing out such disqualifications. The
Commissioner will then have to hear the petitioner and the
persons against whom such allegations are made and conclude
whether any such disqualification exists, warranting the removal
of those persons. Therefore, the Division Bench dismissed the writ
petition in limine, leaving that issue open.
19. In V. Sudharsanan v. Malabar Devaswom Board
and others [2012:KER:24089], the Division Bench of this Court
was dealing with a case in which one of the contention raised by
the petitioners was that, the persons elected are disqualified from
being appointed as non-hereditary trustees of the temple in
question, on account of their alleged political allegiance and the
fact that they are active political workers. The Division Bench
noticed that the said question is essentially a question of fact,
which has to be decided, if any such objection is raised. Such
decision-making process has to be undertaken by the appointing
authority. Therefore, if any one among the petitioners has any
objection or complaint in that regard, he may place it before the
Malabar Devaswom Board, within a period of one month. If any
such objection or complaint is received, the competent authority
will issue notice to the non-hereditary trustees concerned and give
him an opportunity of being heard and take a decision on that
issue, in accordance with law.
20. In Suresh K. v. State of Kerala and others [2021
(2) KLT 885], a Division Bench of this Court observed that temple
or its precincts cannot be made a place where political parties
should look forward to give political asylum to their workers. The
Division Bench noticed that ours being a highly politically sensitive
State, hardly any person can be traced, who is completely
apolitical or who may not have his own independent political views.
There may be persons having permanent political ideologies or
views whereas there may be equal number of persons who hold
views according to the issues involved. Perhaps that may be the
reason why Kerala has become a State of political swinging. The
Division Bench made it clear that holding political views or
sympathizing with a political denomination cannot be held a
disqualification for nominating anyone to such a post. On the facts
of the case on hand, the Division Bench held that "even assuming
that respondents 7 to 9 have some political leaning or rather they
are sympathizers of a political party, that fact will not disentitle
them to be considered for appointment as non-hereditary trustees.
There is clear distinction between sympathizing with a political
party and indulging in active participation in the activities of the
party. The taboo under sub-clause (g) of clause 3 of the
notification issued by the Commissioner will be attracted only if
respondents 7 to 9 are active politicians or are office bearers of a
political party, for which absolutely no evidence is forthcoming.
21. In Chathu Achan K. [2022 (6) KLT 388], this Court
held that the provisions of Clauses 3 and 4 of the notification
issued by the Commissioner, make it explicitly clear that, for
appointment as non-hereditary trustee of the temple, the
applicant should be a regular worshipper of the temple, who is
prepared to actively work for the betterment of the temple. He
should be a permanent resident of the Taluk in which the temple
situates, who believe in idolatry. Persons who are busy with their
employment, office bearers of political parties, active politicians or
those indulging in active participation in the activities of a political
party cannot aspire appointment as non-hereditary trustee of the
temple. Therefore, it is for the Commissioner to take necessary
steps to ensure that any appointment made as non-hereditary
trustee of the temples under the control of Malabar Devaswom
Board is strictly in terms of the disqualification and eligibility
clauses provided in similar notifications. If found necessary, the
format of the application for appointment as a non-hereditary
trustee in the temple under the control of Malabar Devaswom
Board has to be modified in an appropriate manner, by requiring
the applicant to furnish particulars in terms of the disqualification
and eligibility clauses in similar notifications. The Commissioner
was directed to take necessary steps in this regard, if found
necessary, after placing before the Malabar Devaswom Board, as
expeditiously as possible, at any rate, within a period of one month
from the date of receipt of a certified copy of that judgment.
22. In judgment dated 08.09.2023 in W.P.(C)No.29279 of
2023 this Court held that, in view of the law laid down by this
Court in Chathu Achan K. [2022 (6) KLT 388], for appointment
as non-hereditary trustee in TTK Devaswom, which are controlled
institutions under the Malabar Devaswom Board, the applicant
should be a regular worshipper of the temple, who is prepared to
actively work for the betterment of the temple. He should be a
permanent resident of the Taluk in which the temple situates, who
believe in idolatry. Persons who are busy with their employment,
office bearers of political parties, active politicians or those
indulging in active participation in the activities of a political party
cannot aspire appointment as non-hereditary trustees of TTK
Devaswom. Therefore, the 1st respondent Commissioner has to
ensure that any appointments made as non-hereditary trustee in
TTK Devaswom, which is a controlled institution under the Malabar
Devaswom Board, are strictly in terms of the disqualification and
eligibility clauses provided in the notification dated 10.07.2023
(Ext.P1).
23. In Anantha Narayanan and another v. Malabar
Devaswom Board and others [2023 KLT OnLine 1195 : 2023
SCC OnLine Ker 1022], a Division Bench of this Court in which
one among us [Anil K. Narendran, J] was a party, held that when
clause 3(7) of Ext.R6(a) notification [clause 5(2) in Ext.P1
notification dated 02.02.2023] issued by the Commissioner for
appointment as non-hereditary trustees in the temples, which are
controlled institutions under the Malabar Devaswom Board, is
considered in the light of the interpretation given by this Court in
Chathu Achan K. [2022 (6) KLT 388], no person actively
involved in politics is eligible to be appointed as a non-hereditary
trustee in a temple.
24. In Anantha Narayanan [2023 KLT OnLine 1195]
the Division Bench noticed that the Oxford Advanced Learners
Dictionary defines 'politician' as "a person whose job is concerned
with politics, especially as an elected member of the Parliament,
etc." Such a technical meaning of the word 'politician' cannot be
accepted to understand clause 3(7) in Ext.R6(a) notification which
says that active politicians or persons holding official posts in any
political party are ineligible. The terms are used disjunctively. So
persons who are actively involved in politics, whether or not they
hold any post in a political party, are ineligible. On the facts of the
case on hand, the Division Bench noticed that respondents 6 to 8
therein have no case that they have any other profession. It is a
matter of common knowledge that the functioning of a political
party and selection/election of its office bearers is not similar to
public employment. Whichever be the political party, one who is
actively involved in the activities of that political party alone is
ordinarily selected/elected as an office bearer. Having been
selected as office bearers of the political party/DYFI before or soon
after the appointment as non-hereditary trustees, respondents 6
to 8 cannot contend that they were not active politicians. In
constitution of DYFI [Ext.R6(e)], it is stated that a member of the
DYFI can work in any political party. That does not mean that the
DYFI does not have any political colour. Whether or not it has any
affiliation to any particular political party, what is evident from the
constitution is that the area of activities of DYFI is politics and
related activities. As such it cannot be said that the activities of
DYFI are non-political.
25. In Anantha Narayanan [2023 KLT OnLine 1195]
the Division Bench noticed that, going by the parameters
prescribed in notification [Ext.R6(a)], persons who are convicted
for more than six months for offences involving moral turpitude
are alone ineligible to be non-hereditary trustees. It is, however,
specifically prescribed in Ext.R6(a) that persons who apply to be
appointed as non-hereditary trustees shall be idol worshippers and
persons having an interest in the advancement of the temple.
They should also be persons used to be involved in the affairs of
the temple. A person having reverence and adoration for a deity
can alone be treated as a worshipper. A person facing criminal
prosecution for an offence involving moral turpitude cannot be
considered a true worshipper of that standard required for a
person to be appointed as a trustee in a temple. A trustee is a
person obligated to conduct temple affairs in accordance with
custom or usage. In A.A. Gopalakrishnan v. Cochin
Devaswom Board [(2007) 7 SCC 482] a Three-Judge Bench of
the Apex Court explained the diligence and devotion a trustee of
a temple should have. When those are the necessary qualifications
required for a person to be appointed as a non-hereditary trustee,
and the danger of appointing unqualified and untrustworthy
persons as trustees, the Malabar Devaswom Board shall stipulate
the eligibility criteria in consonance with that. Therefore, the
Malabar Devaswom Board was directed to take a decision in that
regard before proceeding with any new appointment of non-
hereditary trustees in the temples under it.
26. Against the appointment of respondents 8 to 10 as non-
hereditary trustees in the temple in question, vide Ext.P1
proceedings dated 01.11.2023 of the 4th respondent Assistant
Commissioner, which was one issued based on Decision No.11
dated 25.09.2023 of the 6th respondent Area Committee, the
petitioner submitted Ext.P11 complaint before the 3rd respondent
Commissioner, Malabar Devaswom Board. It is for the petitioner
to file a revision petition before the 3rd respondent Commissioner,
invoking the provisions under Section 18 of the Madras Hindu
Religious and Charitable Endowments Act, 1951.
Having considered the submissions made at the Bar, we
deem it appropriate to dispose of this writ petition, leaving open
the legal and factual contentions raised by the petitioner, with the
following directions;
(1) Within three weeks from the date of receipt of a certified copy
of this judgment, the petitioner shall file a revision petition before
the 3rd respondent Commissioner, Malabar Devaswom Board,
invoking the provisions under Section 18 of the Madras Hindu
Religious and Charitable Endowments Act, 1951, challenging the
appointment of respondents 8 to 10 as non-hereditary trustees in
the temple in question, vide Ext.P1 proceedings dated 01.11.2023
of the 4th respondent Assistant Commissioner, which was one
issued based on Decision No.11 dated 25.09.2023 of the 6th
respondent Area Committee, along with an application for interim
stay.
(2) The 3rd respondent Commissioner shall consider and pass
appropriate orders on the application for interim stay, with notice
to the petitioner, the 7th respondent Executive Officer, respondents
8 to 10 and also additional respondents 11 and 12, as expeditiously
as possible, at any rate, within a period of two weeks from the date
of receipt of that application. Thereafter, the 3rd respondent shall
finally dispose of that revision petition, as expeditiously as possible,
at any rate, within a further period of two months; after adverting
to the legal and factual contentions raised by both sides and also
the law laid down in the decisions referred to supra.
(3) The order to be passed by the 3rd respondent Commissioner
shall be a 'reasoned order'.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
HARISANKAR V. MENON, JUDGE
MIN
APPENDIX OF WP(C) 6396/2024
PETITIONER EXHIBITS
EXHIBIT.P- 1 A TRUE COPY OF THE ORDER DATED 01.11.2023 ISSUED BY THE
4TH RESPONDENT
EXHIBIT .P-2 A TRUE COPY OF THE NOTICE REQUESTING TO VOTE FOR THE
8TH RESPONDENT DATED NIL
EXHIBIT.P- 3 A TRUE COPY OF FACEBOOK POST OF THE 8TH RESPONDENT
DATED 19.09.2021
EXHIBIT.P- 4 A TRUE COPY OF FACEBOOK POST DATED 29.09.2023 POSTED
BY MR.KARINGANAD NOUFAL KP SHOWING THE PARTICIPATION
OF THE 8TH RESPONDENT IN POLITICAL ACTIVITY
EXHIBIT.P- 5 A TRUE COPY OF FACEBOOK POST DATED 26.11.2023 POSTED
BY ONE MR.SHEREEF VILAYUR
EXHIBIT.P- 6 A TRUE COPY OF THE PROCEEDINGS OF THE PRINCIPAL
AGRICULTURAL OFFICER, PALAKKAD DATED 29.07.2021
EXHIBIT .P-7 TRUE COPIES OF SCREEN SHOTS TAKEN FROM MANORAMA NEWS
DATED 05.07.2021
EXHIBIT .P-8 A TRUE COPY OF FIR.NO.0117 OF 2023 LODGED IN KOPPAM
POLICE STATION DATED 02.04.2023
EXHIBIT.P- 9 A TRUE COPY OF FACEBOOK POST OF ''KARINGANAD SAGHAKKAL"
DATED 17.01.2024 SHOWING THE PARTICIPATION OF THE 10TH
RESPONDENT IN DYFI
EXHIBIT .P-10 A TRUE COPY OF REPORT DATED 17.08.2023 SUBMITTED BY THE
5TH RESPONDENT BEFORE THE 4TH RESPONDENT ALONG WITH THE
AFFIDAVITS OF THE APPLICANTS AS WELL AS THE COMPLAINTS
GIVEN BY SRI.MANOJ KUMAR AND THE DEVOTEES OF
KARIPPAMANNA
EXHIBIT.P- 11 A TRUE COPY OF COMPLAINT DATED 18.01.2024 GIVEN BY THE
PETITIONER BEFORE THE 3RD RESPONDENT
EXHIBIT.P- 12 A TRUE COPY OF COMPLAINT DATED NIL SUBMITTED BY THE
PETITIONER BEFORE THE 5TH RESPONDENT
EXHIBIT.P- 13 A TRUE COPY OF COMPLAINT DATED NIL SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
