Kerala High Court
Suo Motu vs The State Of Kerala on 20 February, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
WP(C) NO. 26941 OF 2024 1 2025:KER:14565
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
THURSDAY, THE 20th DAY OF FEBRUARY 2025 / 1ST PHALGUNA, 1946
WP(C) NO. 26941 OF 2024
PETITIONER:
SUO MOTU,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE SENIOR DEPUTY DIRECTOR,
KERALA STATE AUDIT DEPARTMENT, MALABAR DEVASWOM
BOARD AUDIT, CIVIL STATION, NEW BLOCK, KOZHIKODE,
PIN - 673020
3 THE MALABAR DEVASWOM BOARD,
REPRESENTED BY ITS SECRETARY,
OFFICE OF THE MALABAR DEVASWOM BOARD,
HOUSEFED COMPLEX, ERANJIPALAM,
KOZHIKODE, PIN - 673006
*4 THE DEVASWOM COMMISSIONER,
OFFICE OF THE MALABAR DEVASWOM BOARD,
HOUSEFED COMPLEX, ERANJIPALAM,
KOZHIKODE, PIN - 673 006
*THE DECSRIPTION OF R4 SUO MOTU CORRECTED AS "THE
COMMISSIONER" INSTEAD OF "THE DEVASWOM
COMMISSIONER" AS PER THE ORDER DATED 29.07.2024
IN THE WPC
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BY SRI. S. RAJMOHAN, SR. GP
SMT. R. RANJANIE, SC, MDB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Anil K. Narendran, J.
This writ petition is registered suo motu, pursuant to the
order of this Court dated 19.07.2024 in W.P.(C) No.21960 of 2024,
after obtaining the orders of the Honorable the Acting Chief
Justice, regarding the audit of accounts of temples, which are
controlled institutions under Malabar Devaswom Board, by the
Kerala State Audit Department, Malabar Devaswom Audit.
2. On 29.07.2024, when this writ petition came up for
consideration, the learned Senior Government Pleader and the
learned Standing Counsel for Malabar Devaswom Board sought
time to file counter affidavits of the 2nd respondent Senior Deputy
Director, Kerala State Audit Department, Malabar Devaswom Audit
and the 4th respondent Commissioner, Malabar Devaswom Board.
3. On 03.10.2024, when this writ petition came up for
consideration, the learned Senior Government Pleader, on written
instructions from the 2nd respondent Senior Deputy Director
submitted that out of 378 temples, concurrent audit of accounts
has been completed in 7 temples.
4. The learned Senior Government Pleader has filed a
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counter affidavit dated 30.09.2024 of the 2nd respondent Senior
Deputy Director, Kerala State Audit Department, Malabar
Devaswom Audit, wherein it is stated that the Kerala State Audit
Department (formerly Local Fund Audit Department) is the agency
conducting statutory audit of Malabar Devaswom and the temples
under its administrative control, as per the provisions under the
Kerala Local Fund Audit Act, 1994. The 2nd respondent is
conducting the audit of the temples in Kozhikode District,
Wayanad District and five Taluks in Malappuram District, namely,
Ernad, Tirur, Tirurangadi, Nilambur and Kondotty Taluks. There are
378 temples under the administrative control of Malabar
Devaswom Board in these districts and taluks. The Annual
accounts are to be submitted by these temples for audit to the 2nd
respondent after the closing of each calendar year. Though a few
temples furnish the annual accounts on time, there are some
temples, which furnish the accounts for audit every two or three
years and there are some temples, which have not yet submitted
its accounts for audit ever since it came under the administrative
control of Malabar Devaswom Board. The details of such temples
are furnished in paragraph 2 of the counter affidavit. The details
of the temples under the purview of the statutory audit by the 2nd
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respondent are furnished in Appendix I to the counter affidavit.
5. The learned Standing Counsel for Malabar Devaswom
Board has filed a counter affidavit dated 15.11.2024 of the 4 th
respondent Commissioner, Malabar Devaswom Board. Paragraphs
2 to 5 of that counter affidavit read thus;
"2. It is respectfully submitted that the Commissioner had
issued direction to the sub officers as per the letter dated
04.10.2024 issued to the Assistant Commissioner of the 3rd
Board to furnish the details. The Assistant Commissioners of
Palakkad, Malappuram, Kozhikode, Kannur and Kasargod
conveyed the report. The number of temples within the
purview of the HR&CE Act comes to more than 1400 and
some of which are minor temples among the group temples.
Amongst those, the number of auditable institutions under
Section 71(4) of the Act comes to 1240 temples.
3. As per the Sl.No.9 of the schedule under Section 3(1) of
the Kerala Local Fund Audit Act, 1994, the temples under
the Hindu Religious and Charitable Endowments (Admn)
Department, the former department till the formation of
Malabar Devaswom Board at the helm being enlisted, the
Audit Department authorities are bound to audit the
accounts of 1240 temples, within the purview of the Hindu
Religious and Charitable Endowments Act, 1951. Prior to the
formation of Malabar Devaswom Board, the Local Fund
Office, at Palakkad and Thalassery have been discharging
the audit under Section 71(4) by the Commissioner. There
after the Kerala Local Fund Audit Act, 1994 came into force,
by which the audit and review of the Audit reports including
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the action thereon was taken over by the Director of the
Kerala Local Fund Audit Department. In addition to it,
another office, under a Senior Deputy Director was also
sanctioned at Kozhikode after formation of Malabar
Devaswom Board.
4. Even though the Kerala Local Fund Audit Department
offices situated at Palakkad and Thalassery were auditing
the accounts of the temples, within the jurisdiction spanning
from Kasargod, Wayanad, Kannur, Kozhikode, Malappuram,
Palakkad and to certain parts of Trissur District, and a
temple situated at Fort Kochi, all the contact details of the
temples were available with the Deputy Director Local Fund
(Audit) (HR&CE Wing), Palakkad, it was unnecessary to
forward any other details after formation of Malabar
Devaswom Board. Even then the address of the temples
sought for as per letter No.LFMDK.E-No.34/2015 dated
08.01.2015, were forwarded again by the Assistant
Commissioners of five divisional offices, as directed by the
Commissioner in letter No.Hl.451/2015/MDB. dated
26.11.2015.
5. After enforcement of the Kerala Local Fund Audit, 1994,
the empowered duty of the Commissioner to review of audit
report and surcharge proceedings held under Section 74 of
the HR & CE Act, 1951 was also got vested with the Director
of the Audit Department under the Kerala Local Fund Audit
Act, 1994. Since then, Malabar Devaswom Board came to
be stranded in the matter of empowered actions under
Section 71 to 74 of the HR & CE Act, as it were vested with
the Director, Kerala Local Fund Audit Act, 1994. So the
auditor under the said Act got empowered to require
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production of accounts from the temple under Section 11 of
the said Act. The Audit Department under Kerala
Government has been vested with all the powers in the
matter of Audit of the accounts and review of the Audit
reports of the temples within the purview of the HR&CE Act,
1951. It is submitted that the number of auditable
institutions mentioned in the counter affidavit of 2nd
respondent is incorrect. The true copy of the list of temples
whose accounts has not been audited is produced herewith
and marked as Ext.R4(1). The true copy of the list of
temples whose accounts has been audited for the years up
to 2023, is produced herewith and marked as Ext.R4(2)."
6. Heard the learned Senior Government Pleader for the
2nd respondent and the learned Standing Counsel for Malabar
Devaswom Board for the 3rd respondent.
7. The Madras Hindu Religious and Charitable
Endowments Act, 1951 is enacted to provide for the better
administration and governance of Hindu Religious and Charitable
Institutions and Endowments in the State of Madras. The Act
received the assent of the President on 27.08.1951. By the Kerala
Adoption of Laws Order, 1956 the provisions under the said Act
have been made applicable to Hindu Religious and Charitable
Institutions and Endowments in the Malabar District.
8. Clause (9) of Section 6 of the Act defines the term
'hereditary trustee' to mean the trustee of a religious institution
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succession to whose office devolves by hereditary right or is
regulated by usage or is specifically provided for by the founder,
so long as such scheme of succession is in force. Clause (19) of
Section 6 defines the term 'trustee' to mean any person or body
by whatever designation known in whom or in which the
administration of a religious institution is vested, and includes any
person or body who or which is liable as if such person or body
were a trustee.
9. The provisions contained in Chapter II of the Act were
substituted by the Madras Hindu Religious and Charitable
Endowments (Amendment) Act, 2008 (Act 31 of 2008), which
deals with the Malabar Devaswom Board and its officers. Section
7B of the Act deals with qualification for membership in the
Malabar Devaswom Board; Section 7D deal with disqualification
for membership; and Section 7E deals with supervening
disqualifications. As per the provisions under Section 7M, the
duties and functions of the Board include a duty to ensure proper
maintenance and upliftment of Hindu religious institutions and to
establish and maintain proper facilities in the temples for the
devotees. In view of the provisions under Section 8 of the Act, all
the powers and duties under this Act, in respect of various
WP(C) NO. 26941 OF 2024 9 2025:KER:14565
religious institutions of the Malabar area, that have been exercised
or performed by the Commissioner, Deputy Commissioners,
Assistant Commissioners and Area Committees before the
commencement of the Madras Hindu Religious and Charitable
Endowments (Amendment) Act, 2008 shall vest in the Board, on
its constitution. Section 8A of the Act deals with supervision and
control by the Board.
10. As per Section 22 of the Act, no person may succeed
or be appointed to, or hold, the office of the trustee of a religious
institution, (a) unless he professes the Hindu religion; and (b)
except in the case of a hereditary trustee, unless he is not less
than twenty-five and not more than seventy years of age. As per
Section 23 of the Act, the trustee of a religious institution shall be
bound to obey all lawful orders issued under the provisions of this
Act by the Government, Board, the Commissioner, the Deputy
Commissioner, the Area Committee or the Assistant
Commissioner.
11. Section 24 of the Act deals with the care required of
the trustee and his powers. As per sub-section (1) of Section 24,
subject to the provisions of the Madras Temple Entry Authorisation
Act, 1947, the trustee of every religious institution is bound to
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administer its affairs and to apply its funds and properties in
accordance with the terms of the trust, the usage of the institution
and all lawful directions which a competent authority may issue in
respect thereof and as carefully as a man of ordinary prudence
would deal with such affairs, funds and properties if they were his
own. As per sub-section (2) of Section 24, a trustee shall, subject
to the provisions of the Act be entitled to exercise all powers
incidental to the provident and beneficial administration of the
religious institution and to do all things necessary for the due
performance of the duties imposed on him. As per sub-section (3)
of Section 24, a trustee shall not be entitled to spend the funds of
the religious institution for meeting any costs, charges or
expenses incurred by him in any suit, appeal or application or
other proceeding for, or incidental to, his removal from office or
the taking of any disciplinary action against him. As per the
proviso to sub-section (3) of Section 24, the trustee may
reimburse himself in respect of such costs, charges or expenses if
he is specifically permitted to do so by an order passed under
Section 88.
12. Section 25 of the Act deals with the preparation of the
register for all institutions. As per sub-section (1) of Section 25,
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for every religious institution, there shall be prepared and
maintained a register showing (a) the names of past and present
trustees and particulars as to the custom, if any, regarding
succession to the office of trustee; (b) particulars of the scheme
of administration and of the dittam or scale of expenditure; (c) the
names of all offices to which any salary, emolument or perquisite
is attached and the nature, time and conditions of service in each
case; (d) the jewels, gold, silver, precious stones, vessels and
utensils, and other movables belonging to the institution, with
their estimated value; (e) particulars of all other endowments of
the institution and of all title deeds and other documents; (f)
particulars of the idols and other images in or connected with the
institution, whether intended for worship or for being carried in
processions; (g) such other particulars as may be required by the
Commissioner.
13. As per sub-section (2) of Section 25 of the Act, the
register shall be prepared, signed and verified by the trustee of
the institution concerned or by his authorised agent and submitted
by him to the Commissioner, directly in the case of math, through
the Area Committee, in case the institution is subject to the
jurisdiction of an Area Committee, and through the Assistant
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Commissioner in other cases, within three months from the
commencement of this Act or from the founding of the institution,
as the case may be, or within such further period as may be
allowed by the Commissioner, the Area Committee or the Assistant
Commissioner. As per the proviso to sub-section (2) of Section 25,
the said sub-section shall not apply where a register so signed and
verified has been submitted to the Board before the
commencement of this Act.
14. As per sub-section (3) of Section 25, the Area
Committee or the Assistant Commissioner, if the register is
submitted through it or him, may, after such inquiry as it or he
may consider necessary, recommend such alterations, omissions
or additions in the register as it or he may think fit. As per sub-
section (4) of Section 25, the Commissioner may, after receiving
the register and recommendations of the Area Committee or of
the Assistant Commissioner with respect thereto and making such
further inquiry as he may consider necessary, direct the trustee to
make such alterations, omissions or additions in the register as
the Commissioner may deem fit. As per sub-section (5) of Section
25, the trustee shall carry out the orders of the Commissioner and
then submit three copies of the register as corrected to the
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Commissioner for approval. As per sub-section (6) of Section 25,
one copy of the register as approved by the Commissioner shall
be furnished to the trustee and one to the Area Committee or the
Assistant Commissioner concerned, if any.
15. Section 26 of the Act deals with the annual verification
of the register, As per Section 26, the trustee or his authorised
agent shall scrutinise the entries in the register every year and
submit it to the Commissioner for his approval, directly or through
the Area Committee or through the Assistant Commissioner as the
case may require, a verified statement showing the alterations,
omissions or additions required in the register; and the provisions
of sub-sections (3) to (6) of Section 25 shall apply in relation to
such statement as they apply in relation to a register.
16. Section 27 of the Act deals with furnishing accounts,
returns, etc., by the trustee. As per sub-section (1) of Section 27,
the trustee of every religious institution shall furnish to the
Commissioner such accounts, returns, reports or other
information relating to the administration of the institution, its
funds, property or income, or moneys connected therewith, or the
appropriation thereof, as the Commissioner may require and at
such time and in such form as he may direct. As per sub-section
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(2) of Section 27, the powers conferred by sub-section (1) may
also be exercised by the Assistant Commissioner in the case of
religious institutions other than maths, and by the Area
Committee in the case of institutions subject to its jurisdiction.
17. Chapter VII of the Act deals with accounts and audit.
Section 70 of the Act deals with budgets of religious institutions.
Section 71 of the Act deals with accounts and audit. As per sub-
section (1) of Section 71, the trustee of every religious institution
shall keep regular accounts of all receipts and disbursements. As
per sub-section (2) of Section 71, the accounts of every religious
institution, the annual income of which as calculated for the
purposes of Section 76 for the calendar year immediately
preceeding is not less than sixty thousand rupees, shall be subject
to concurrent audit, that is to say, the audit shall take place as
and when expenditure is incurred. As per sub-section (3) of
Section 71, the accounts of every other religious institution shall
be audited annually, or if the Commissioner so directs in any case
or class of cases, at shorter intervals. As per sub-section (4) of
Section 71, the audit shall be made (a) in the case of a religious
institution the annual income of which calculated as aforesaid for
the calendar year immediately preceeding is not less than one
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thousand rupees, by auditors appointed in the prescribed manner,
who shall be deemed to be public servants within the meaning of
Section 21 of the Indian Penal Code; (b) in the case of any other
religious institution, by an officer or servant subordinate to the
Commissioner and deputed by him for the purpose.
18. Section 72 of the Act deals with authority to whom
audit report is to be submitted. As per Section 72, after completing
the audit for any year or shorter period, or for any transaction or
series of transactions, as the case may be, the auditor shall send
a report (a) to the Area Committee, if the institution is subject to
the jurisdiction of such a Committee; and (b) to the Commissioner,
in other cases. Section 73 of the Act deals with contents of audit
report. As per sub-section (1) of Section 73, the auditor shall
specify in his report all cases of irregular, illegal or improper
expenditure, or of failure to recover moneys or other property due
to the religious institution, or of loss or waste of money or other
property thereof, caused by neglect or misconduct. As per sub-
section (2) of Section 73, the auditor shall also report on such
other matter relating to the account as may be prescribed, or on
which the Commissioner or the Area Committee concerned, as the
case may be, may require him to report.
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19. Section 74 of the Act deals with rectification of defects
disclosed in audit and order of surcharge against trustee, etc.
Section 74 reads thus;
"74. Rectification of defects disclosed in audit and order of
surcharge against trustee, etc.- (1) The Area Committee or
the Commissioner, as the case may be, shall send a copy of
every audit report relating to the accounts of a religious
institution to the trustee thereof, and it shall be the duty of
such trustee to remedy any defects or irregularities pointed
out by the auditor and report the same to the Area
Committee or the Commissioner, as the case may be.
(2) The Area Committee shall forward to the Commissioner
a copy of every audit report received by it under clause (a)
of Section 72 and the report, if any, of the trustee made
under sub-section (1), together with such remarks as the
Area Committee may wish to make thereon.
(3) If, on a consideration of the report of the auditor along
with the report, if any, of the trustee, and the remarks, if
any, of the Area Committee, the Commissioner thinks that
the trustee or any other person, was guilty of
misappropriation or wilful waste of the funds of the
institution or of gross neglect resulting in a loss to the
institution, the Commissioner may, after giving notice to the
trustee or such person to show cause why an order of
surcharge should not be passed against him and after
considering his explanation, if any, by order, certify the
amount so lost and direct the trustee or such person to pay
within a specified time such amount personally and not from
the funds of the religious institution.
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Provided that if, in respect of any expenditure, or dealing
with trust property, the trustee or such person had obtained
the directions of the Area Committee or of the Commissioner
and had acted in accordance with such directions, he shall
not be held responsible.
(4) The Commissioner shall forward a copy of the order
under sub-section (3) with reasons for the same, by
registered post to the trustee or person concerned.
(5) The trustee or other person aggrieved by such order
may, within thirty days of the receipt by him of the order,
either-
(a) apply to the Court to modify or set aside the order and
the Court, after taking such evidence as is necessary, may
confirm, modify or remit the surcharge with such orders as
to costs as it may think appropriate in the circumstances, or
(b) in lieu of such application may appeal to the State
Government who shall pass such orders as they think fit.
(6) Neither the Court nor the State Government to which or
to whom an application or appeal is made under sub-section
(5) shall have power to stay the operation of the order
pending the disposal of the application or appeal.
(7) An order of surcharge under this section against a
trustee shall not bar a suit for accounts against him except
in respect of the matter finally dealt with by such order.
(8) The Collector of the district in which is situated any
property of the trustee or other person from whom an
amount is recoverable by way of surcharge shall, on a
requisition made by the Commissioner, recover such amount
as if it were an arrear of land revenue and pay the same to
the religious institution concerned."
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20. As per Section 75, Chapter VII to apply
notwithstanding the provision in Scheme. Section 75 provides that
the provisions of this chapter shall apply to every religious
institution, notwithstanding anything to the contrary contained in
any scheme settled or deemed to be settled under this Act.
21. In exercise of the powers under clause (j) of sub-
section (2) of Section 100 of the Act, rules were made with
reference to proper collection of income of, and the incurring of
expenditure by, religious institutions. Similarly in exercise of the
powers under clause (n) of sub-section (2) of Section 100 of the
Act, rules were made with reference to the manner in which the
accounts of religious institutions shall be audited and published,
the time and place of audit and the form and contents of auditors
report.
22. The stand taken in the counter affidavit filed by the 4th
respondent Commissioner, Malabar Devaswom Board is that after
the enforcement of the Kerala Local Fund Audit Act, 1994, the
powers exercised by the Commissioner and the Area Committee,
as the case may be, in respect of 1240 temples, which are
auditable institutions under sub-section (4) of Section 71 of the
Madras Hindu Religious and Charitable Endowments Act, are
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vested with the Senior Deputy Director in the Kerala State Audit
Department (formerly Local Fund Audit Department), dealing with
Malabar Devaswom Audit.
23. The Kerala Local Fund Audit Act, 1994 was enacted to
provide for and regulate the audit of the Local Funds under the
management or control of certain local authorities in the State of
Kerala. Section 4 of the Act deals with audit of accounts. As per
sub-section (1) of Section 4, notwithstanding anything contained
in any other law for the time being in force, but subject to the
provisions of the Comptroller and Auditor General (Duties, Powers
and Conditions of Service) Act, 1971 the Director shall, in the
manner provided by or under this Act, conduct the audit of
accounts of a local authority or a local fund included in the
Schedule. As per sub-section (2) of Section 4, the Government
may, by notification in the Gazette and for reasons to be specified
therein, add any other authority, body, institution or local fund to
the Schedule referred to in sub-section (1) and on the publication
of the notification, such authority, body, institution or local fund
shall be deemed to be added to the Schedule. As per sub-section
(3) of Section 4, no authority, body, institution or local fund
included in the Schedule referred to in sub-section (1) shall be
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omitted therefrom except by the authority of a law made by the
State Legislature. Temples under the management of the erstwhile
Hindu Religious and Charitable Endowments Administration
Department is Serial No.9 in the Schedule to the Act.
24. Section 7 of the Act deals with the manner in which
audit is to be conducted; Section 9 deals with liability of local
authority to prepare and present accounts for audit; Section 10
deals with completion of audit of accounts; Section 11 deals with
power of auditor to require production of accounts and attendance
of persons; and Section 12 deals with penalty of disobeying
requisition under Section 11. As per Section 13, as soon as
practicable after the completion of the audit, but not later than
three months thereafter, the auditor shall send to the local
authority concerned a report on the accounts audited and
examined by him and the copies of the report shall also be sent to
such officers and such bodies as the Government may direct or as
may be specified under the law governing that local authority.
Section 14 of the Act deals with the contents of audited reports;
Section 15 deals with the procedure to be followed after getting
the report of the Director under Section 13. Section 15 of the Act
reads thus;
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"15. Procedure to be followed after getting the report of the
Director under Section 13 - (1) On receipt of a report under
Section 13, the Executive authority concerned shall either
remedy the defects or irregularities which may have been
pointed out in the report and send to the Director within two
months of the receipt of the report or within such period as
may be specified under the law governing the local
authority, intimation of his having done so, or shall within
the said period, supply to the Director any further
explanation as he may wish to make in regard to the defects
or irregularities.
(2) On receipt of such intimation or explanation, the auditor
may, in respect of all or any of the matters discussed in his
report - (a) accept the intimation or explanation and drop
the objection; or (b) hold that the defects or irregularities
pointed out in the report or any of them have not been
removed or remedied.
(3) (a) The auditor shall send a report of his decision to the
Executive authority concerned within two months from the
date of receipt by him of the intimation or explanation
referred in sub-section (1) or if no such intimation or
explanation is received, on the expiry of the period of two
months mentioned in that sub-section. (b) If the auditor
holds that any defects or irregularities have not been
removed or remedied he shall state in the report, - (i)
whether, in his opinion, the defects or irregularities can be
regularised and, if so, by what method; (ii) if they do not
admit of being regularised, whether they can be condoned
and, if so, by what authority; and (iii) whether the amounts
to which the defects or irregularities relate should, in his
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opinion, be charged and, if so, against whom.
(4) The local authority concerned shall publish in its next
administration report, such portions of the report under
Section 13, dealing with defects and irregularities falling
under clause (b) of sub-section (2) together with the
explanation thereof, if any, given under sub-section (1) and
the final report of the auditor thereon under sub-section (3).
The report of defects and irregularities, the explanation
thereon and the final report shall be open to inspection by
the public at the office of the local authority for a period of
one month from the date of their receipt.
(5) Nothing in this Section or in Section 13 shall preclude
the auditor, at any time, from bringing to the notice of the
Government or of any officer of Government for such action
as may be necessary, any information which appears to the
auditor to support a presumption of criminal
misappropriation or fraud or which, in his opinion, deserves
special attention or immediate investigation.
25. Section 16 of the Act deals with the power of the
auditor to surcharge illegal payments and losses caused by
negligence or misconduct. Section 16 of the Act reads thus;
"16. Auditor to surcharge illegal payments and loss caused
by negligence or misconduct - (1) The auditor may disallow
any item which appears to him to be contrary to law and
surcharge the same against the person making or person or
body of persons authorising the making of the illegal
payment and may charge against any person responsible
therefore, the amount of any deficiency or loss caused by
the negligence or misconduct of that person or any sum
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received which ought to have been, but has not been
brought into account by that person and shall, in every such
case, certify the amount due from such person.
(2) The auditor shall state, in writing, the reasons for his
decision in respect of every disallowance, surcharge or
charge and shall communicate the same by registered post
to the person against whom it is made together with an
extract of the relevant objection in the audit report.
(3) Any person aggrieved by disallowance, surcharge or
charge made may, within one month after he has received
or been served with the decision of the auditor, apply to the
District Court, to set aside such disallowance, surcharge or
charge and the court, after taking such evidence as is
necessary, may confirm, modify or remit such disallowance,
surcharge or charge.
(4) Every sum certified to be due from any person by the
auditor under this Act shall be paid by such person to the
Executive authority within one month after the intimation to
him of the decision of the Director unless, within that time,
such person has filed an application before the District Court
against the decision under sub-section (3) and such
amount, if not so paid, or such amount as the District Court
shall declare to be due, shall be recoverable under the
provisions of the Kerala Revenue Recovery Act, 1968 (15 of
1968) for the time being in force, as if it were an arrear of
public revenue due on land."
26. Section 17 of the Act deals with the powers and duties
of the Director. As per sub-section (1) of Section 17, the Director
shall exercise general supervision and control over the discharge
WP(C) NO. 26941 OF 2024 24 2025:KER:14565
by the auditors of their duties under this Act. As per sub-section
(2) of Section 17, he may condone a payment made from a local
fund, which appears to him to be contrary to law, if (i) in his
opinion there was no negligence or misconduct on the part of the
person making or authorising such payment, and (ii) such
payment does not exceed rupees one hundred in each case.
27. During the course of arguments, the submission made
by the learned Standing Counsel for Malabar Devaswom Board is
that after the enforcement of the Kerala Local Fund Audit Act,
1994, the Area Committee or the Commissioner, as the case may
be, ceased to have power to require the trustee of a religious
institution to remedy any defects or irregularities pointed out in
the statutory audit and to initiate surcharge proceedings. Such
powers are vested with the Senior Deputy Director, Kerala State
Audit Department, Malabar Devaswom Audit.
28. From the pleadings and materials on record and also
the submissions made at the Bar, we notice that the accounts of
most of the religious institutions, which are controlled institutions
under the Malabar Devaswom Board, which fall within the purview
of sub-section (4) of Section 71 of the Madras Hindu Religious and
Charitable Endowments Act, are not subjected to statutory audit
WP(C) NO. 26941 OF 2024 25 2025:KER:14565
by the State Audit Department. As evident from Annexure R4(1)
list produced along with the counter affidavit filed by the 4 th
respondent, the accounts of 478 temples are not subjected to
statutory audit till date. As evident from Annexure R4(2) list, the
accounts of 28 temples are subjected to statutory audit up to the
year 2023 and the statutory audit is pending in respect of the
remaining 730 temples.
29. Section 45 of the Act deals with the power to suspend,
remove or dismiss trustees. As per sub-section (1) of Section 45,
the Deputy Commissioner in the case of any religious institution
over which an Area Committee has jurisdiction, and the
Commissioner in the case of any other religious institution, may
suspend, remove or dismiss any hereditary or non-hereditary
trustee or trustees thereof (a) for persistent default in the
submission of budgets, accounts, reports or returns, or; (b) for
wilful disobedience of any lawful order issued under the provisions
of the Act by the State Government, the Commissioner or Deputy
Commissioner, the Area Committee or the Assistant
Commissioner; or (c) for any malfeasance, misfeasance, breach
of trust or neglect of duty in respect of the trust; or (d) for any
misappropriation of, or improper dealing with, the properties of
WP(C) NO. 26941 OF 2024 26 2025:KER:14565
the institution; or (e) for unsoundness of mind or other mental or
physical defect or infirmity which unfits him for discharging the
functions of the trustee. As per sub-section (2) of Section 45,
when it is proposed to take action under sub-section (1), the
Commissioner or the Deputy Commissioner, as the case may be,
shall frame charges against the trustee concerned and give him
an opportunity of meeting such charges, of testing the evidence
in his favour; and the order of suspension, removal or dismissal
shall state the charges framed against the trustee, his explanation
and the finding on each charge with the reasons therefor.
30. In view of the provisions contained in clause (a) of sub-
section (1) of Section 45 of the Act, persistent default in the
submission of budgets, accounts, reports or returns is a ground
on which the power to suspend, remove or dismiss trustees can
be exercised by the Deputy Commissioner, in the case of any
religious institution over which an Area Committee has
jurisdiction, and the Commissioner in the case of any other
religious institution. Any malfeasance, misfeasance, breach of
trust or neglect of duty in respect of the trust, or any
misappropriation of, or improper dealing with the properties of the
institution are valid grounds under clauses (c) and (d) of sub-
WP(C) NO. 26941 OF 2024 27 2025:KER:14565
section (1) of Section 45 of the Act to exercise the power to
suspend, remove or dismiss trustees. In view of the provisions
contained in Section 7M of the Act, the duties and functions of the
Malabar Devaswom Board include a duty to ensure proper
maintenance and upliftment of Hindu Religious Institutions. As
per sub-section (1) of Section 24 of the Act, the trustee of every
institution is bound to administer its affairs and apply its funds and
properties in accordance with the terms of the trust, the usage of
the institution and all lawful directions which a competent
authority may issue in respect thereof and as carefully as a man
of ordinary prudence would deal with such affairs, funds and
properties if they were his own.
In such circumstances, we deem it appropriate to dispose of
this writ petition by directing the Special Secretary to
Government, Revenue (Devaswom) Department to convene a
joint meeting of the Director of the Kerala State Audit Department,
the Senior Deputy Director, Malabar Devaswom Audit, the
Commissioner, Malabar Devaswom Board and also the Secretary,
Malabar Devaswom Board to discuss the issues relating to
statutory audit of the accounts of the temples, which are
controlled institutions under the Malabar Devaswom Board. Based
WP(C) NO. 26941 OF 2024 28 2025:KER:14565
on the said discussion, an appropriate proposal shall be made to
the 1st respondent State to ensure that the statutory audit of such
religious institutions is conducted appropriately in a time bound
manner and that any malfeasance, misfeasance, breach of trust
or neglect of duty in respect of the trust, etc. are dealt with by the
Area Committee and the Commissioner, as the case may be, in
accordance with the provisions under Section 45 of the Act. The
1st respondent State shall take an appropriate decision on that
proposal, as expeditiously as possible, at any rate, within a period
of three months from the date of receipt of a certified copy of this
judgment.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
DMR/-
WP(C) NO. 26941 OF 2024 29 2025:KER:14565
APPENDIX OF WP(C) 26941/2024
PETITIONER'S EXHIBITS
Exhibit P1 COPY OF JUDGMENT DATED 10.10.2023 IN
W.A. NO. 1604 OF 2022
Exhibit P2 COPY OF JUDGMENT DATED 11.01.2024 IN
W.A. NOS.1583,1608,1664 OF 2022 & 354,
392 & 407 OF 2023
Exhibit P3 COPY OF CHAPTER VII OF THE MADRAS HINDU
RELIGIOUS AND CHARITABLE ENDOWMENTS ACT,
Exhibit P4 COPY OF KERALA LOCAL FUND AUDIT ACT,
Exhibit P5 COPY OF RULES MADE UNDER SECTION 100
(2)(n) OF THE MADRAS HINDU RELIGIOUS AND
CHARITABLE ENDOWMENTS ACT, 1951
Exhibit P6 COPY OF SECTION 24 OF THE MADRAS HINDU
RELIGIOUS AND CHARITABLE ENDOWMENTS ACT
Exhibit P7 COPY OF ORDER DATED 19.07.2024 IN WP(C)
Exhibit P8 COPY OF ORDER DATED 24.07.2024 OF THE
HONOURABLE THE ACTING CHIEF JUSTICE TO
REGISTER SUO MOTU WP(C)
RESPONDENTS' EXHIBITS
Ext. R-4(1) THE TRUE COPY OF THE LIST OF TEMPLES
WHOSE ACCOUNTS HAS NOT BEEN AUDITED
Ext. R-4(2) THE TRUE COPY OF THE LIST OF TEMPLES
WHOSE ACCOUNTS HAS BEEN AUDITED FOR THE
YEARS UP TO 2023
// TRUE COPY //
P.A. TO JUDGE
