[Cites 17, Cited by 0]
Kerala High Court
Zamorin Raja Of Calicut vs Malabar Devaswom Board on 30 January, 2026
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 30TH DAY OF JANUARY 2026 / 10TH MAGHA, 1947
WP(C) NO. 32595 OF 2016
PETITIONER:
ZAMORIN RAJA OF CALICUT
CENTRAL DEVASWOM, THALI, KOZHIKODE-02.
BY ADVS.
SRI.M.P.SREEKRISHNAN
SHRI.A.MUHAMMED MUSTHAFA
RESPONDENTS:
1 MALABAR DEVASWOM BOARD
REPRESENTED BY ITS COMMISSIONER, ERANJIPALAM P.O.,
KOZHIKODE-673006.
2 MURALI K.
COMMISSIONER (IN-CHARGE), MALABAR DEVASWOM BOARD,
ERANJIPALAM P.O., KOZHIKODE-673006.
3 VISWAN P.
S/O. RAMAN KUTTY NAIR, PULIYARAMKUZHIYIL VEEDU,
VELLALASSERY P.O., NIT(VIA), KOZHIKODE-673601.
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4 SHAILENDRA VARMA.R
S/O. RAMA VARMA T.R, KIZHAKKE KOVILAKAM, KOTTAKKAL,
MALAPPURAM.
5 P.K.KUMARADASAN RAJAH
S/O. KERALA VARMA, ASHWINIPURAM, CHALAPPURAM,
KOZHIKODE.
6 K.C.SUBHADRA THAMPURATTY
W/O T.R.RAMA VARMA, KIZHAKKE KOVILAKAM, KOTTAKKAL,
MALAPPURAM.
7 P.C.RAVI VAMA RAJA
S/O T.M.SUBRAMANYAN NAMBOODIRI, VIHNU NIVAS,
WEST MANKAV, NO.100B, THIRUVANNUR, KOZHIKOD-673029.
8 K.C.SEEMANTHINI RAJAGOPAL
W/O A.C.RAJAGOPAL, 14/64, SAMIS STREET, EGMORE,
CHENNAI-8.
9 MOHANAVALLI THAMPATTY P.K
D/O K.V.RAJA, PATHAYAPPURA, THIRUANNUR KOVILAKAM,
THIRUVNNUR, KOZHIKODE-673029.
10 K.C.RANJIT
S/O T.N.SATHYANATH, 'AKSHATHA', NILAMBUR KOVILAKAM,
NILAMBUR, MALAPPURAM-DIST.
11 ANJALI VARMA P.K
D/O V.RAJA RAJA VARMA, POORNENDU, KIZHAKKEKETTU,
THIRUVANNUR, KOZHIKODE-673029.
12 RADHA P.C
D/O PARAMESWARAN NAMBOODIRI, KIZHAKKE PATHAYAPPURA,
MANKAVE PALACE, KOZHIKODE-673007.
13 P.K.SHANKARA VARMAN RAJA
S/O (LATE) RAMAN NAMBOODIRI, 'MANJEERAM', THIRUVANNUR,
KOZHIKODE-673029.
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14 P.C. RETHI THAMPATTY
W/O GOVIND VARMA RAJA, GOVINDAM, MANKAVE PALACE,
MANKAVE, KOZHIKODE.
15 ANNAPOORNA VARMA P.C
D/O SREEKUMAR VARMA P.K, 'AMRUTHAKRIPA',
MANKAVE PALACE, MANKAVE, KOZHIKODE.
16 KUNHETTAN RAJA P.K
S/O P.P.VASUDEVAN NAMBOODIRI, 'SREE KOVILAKAM',
CHULOOR PO, VIA NIT, KOZHIKODE-673601.
17 PRUDHA.S.RAJA
D/O SURENDRA VARMA RAJA, C.R.FLAT NO.A1,
'ATHULYA',RAJA APARTMENTS, MANKAVE, KOZHIKODE.
18 RANJITH RAJA P.C
S/O (LATE) RAJA RAJA VARMA, PUTHENMALIKA,
PADINJARE KOVILAKAM, MANKAVE PALACE, KOZHIKODE.
19 MOHANAKRISHNAN P.C
S/O MANORAMA THAMPURATTY, KIZHAKKE SRAMBI,
MANKAVE PALACE, KOZHIKODE-673007.
20 P.K.SASIDHARN RAJA
S/O (LATE) KERALA VARMA RAJA, STAFF QUARTERS,
GURUVAYURAPPAN COLLEGE, KOZHIKODE.
21 BIJU RAJ P.C
S/O MECHERI KESAVAN NMBOODIRI, KIZHAKKE SRAMBI,
MANKAVE PALACE, KOZHIKODE-673007.
22 SANGAMESH VARMA K.C
S/O T.R.RAMA VARMA, KIZHAKKE KOVILAKAM, KOTTAKKAL.
23 SIVAJI VARMA K.C
S/O T.R.RAMA VARMA, KIZHAKKE KOVILAKAM,
KOTTAKKAL.
BY ADVS.
SHRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD
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SRI.MAHESH V RAMAKRISHNAN
SRI.K.RAMAKUMAR (SR.)
SMT.R.RANJANIE
SRI.S.SREEKUMAR (SR.)
SRI.MAHESH V.RAMAKRISHNAN, SC, MALABAR DEVASWOM BOARD
SRI.A.C.VENUGOPAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 30.01.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Raja Vijayaraghavan V, J.
Under challenge in this Writ Petition is Ext.P2 order issued by the
Commissioner-in-charge of the Malabar Devaswom Board constituting a special
team to conduct a detailed enquiry into the affairs of the entire Zamorin
Devaswom as regards the matters relating to Special Grade, 'A' Grade and 'B'
Grade Temples.
2. The petitioner herein is the Zamorin Raja of Calicut. According to
him, he is the hereditary trustee of the 3 Kovilakoms. There are about 43
temples and sub temples under his trusteeship. The petitioner is also the
educational agency which runs the Zamorin's Guruvayurappan College and
Zamorin's Higher Secondary Schools. According to the petitioner, the religious
and educational institutions are administered in accordance with law and the
Board has no jurisdiction to interfere with the internal administration. It is
contended that the provisions of the Madras Hindu Religious and Charitable
Endowment Act, 1951, ('MHRCE Act' for the sake of brevity) governs the
administration. Neither the temple nor the educational institution is financed by
the Government.
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3. It is contended that on 01.10.2016, he was served with a notice
issued by the 2nd respondent purportedly under Section 45 (c) and (d) of the
MHRCE Act calling upon the petitioner to appear before the said authority on
26.10.2016 to respond to a complaint received by the said authority. According
to the petitioner, he was also served with Ext.P2 order passed in
I.A.No.11/2016 issued by the 2nd respondent. It is contended that even a
casual perusal of the order would reveal that the said order was passed in gross
violation of the principles of natural justice as the petitioner was not heard. The
petitioner asserts that the 2nd respondent has violated the provisions of Section
45 of the MHRCE Act while issuing the order. It is further contended that
Ext.P2 order has been passed by an authority who is not competent to issue
the same. It is urged that in terms of Section 8C of the MHRCE Act, the
Commissioner shall be an officer not below the rank of a Joint Secretary to
Government and who is professing Hindu religion and a believer of god and
temple worship. The 2nd respondent, at the time of his appointment as
Commissioner, was not in the rank of Joint Secretary but was in the service of
the erstwhile HR & CE Department. The 2nd respondent was put in charge
during the interregnum to manage the routine affairs of the Board and was not
competent to pass Ext.P2 order. It is further contended that the passing of the
order by the 2nd respondent is a mala fide exercise. It is on these assertions
that the instant Writ Petition is filed seeking the following relief:
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i) Issue a Writ of Certiorari, quashing Ext.P2 order as the same is
without jurisdiction, vitiated by mala fides, against the provisions
of the Madras Hindu Religious & Charitable Endowments Act,
1951, illegal and arbitrary.
4. A counter affidavit has been filed by the 1st respondent. It is
stated that the right of the Trustee to manage the affairs of the temple in the
matter of religion though absolute, the Trustees are bound to administer the
temple in accordance with the regulations. While exercising supervisory control,
the authorities under the MHRCE Act are to ensure that there is no
mismanagement by the Trustee. The appointments made by the Trustee
without obtaining sanction as provided in Rule 10 under Section 100(2)(y) is
illegal and it is for the said reason that the Commissioner had ventured to act
to ensure that the Trustee exercises his power in terms of Sections 27 and 28
of the MHRCE Act. It is stated that it was while working as Deputy
Commissioner that the 2nd respondent was put in additional charge of the
Commissioner with all powers as vested with the Commissioner. A challenge
can be mounted only after receipt of the enquiry report and on the initiation of
the proceedings in terms of Section 45 of the Act. It is stated that numerous
complaints were received against the Trustee and that is the reason why
proceedings were initiated. As per Section 28 of the MHRCE Act, the
Commissioner is competent to depute any official to inspect all movable and
immovable property and all records, plans, correspondence accounts belonging
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to any religious institutions. The allegations in the petitions are grave and by
keeping the Trustee under suspension during the pendency of the enquiry
cannot cause any prejudice to the writ petitioner. According to the
respondent, if the Trustee was aggrieved by the order to conduct an enquiry,
the statutory remedy open to the petitioner is to file a revision petition under
Section 99 of the Act and not by filing a Writ petition.
5. In the course of proceedings, respondent Nos. 4 to 23 were
impleaded by order dated 31.05.2017.
6. We have heard the submissions of Sri. M.P. Sreekrishnan, the
learned counsel appearing for the petitioner, Sri.Lakshmi Narayanan, the
learned Senior Counsel appearing for the Board, and Sri. A.C.Venugopal, the
learned counsel appearing for the additional respondent.
7. It would be apposite to note that pursuant to the State
Reorganisation Act, 1956 and the consequent formation of the State of Kerala,
the Malabar District, which previously formed part of the erstwhile State of
Madras, stood merged with the newly constituted State of Kerala. The temples
situated in the Malabar region continued to be governed by the provisions of
the Madras Hindu Religious and Charitable Endowments Act, 1951. In the year
2008, the Hindu Religious and Charitable Endowments Ordinance was
promulgated, which marked a significant statutory intervention by providing for
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the constitution of a separate administrative body, namely, the Malabar
Devaswom Board. The said Ordinance was subsequently replaced by the
Madras Hindu Religious and Charitable Endowments (Amendment) Act, 2008,
whereby Section 7 was substituted and Sections 7A to 7L, Section 8, and
Sections 8A to 8D were newly inserted into the parent enactment of 1951.
8. Under the substituted Section 7, the Malabar Devaswom Board
was constituted as a body corporate having perpetual succession. Section 7
expressly mandates that upon the commencement of the Amendment Act, the
Government shall, by notification in the Gazette, constitute a Board in the name
and style of "the Malabar Devaswom Board". The provision further confers upon
the Board a distinct juristic personality, with a common seal and the statutory
authority to acquire, hold, and dispose of both movable and immovable
properties, to enter into contracts, and to sue and be sued in its own name.
Further, Section 19E provides for the complete statutory transfer of assets and
liabilities of the Hindu Religious and Charitable Endowments (Administration)
Department to the newly constituted Board. Upon the constitution of the Board
under Section 7, the existing Department stood abolished by operation of law,
and all its assets and liabilities stood transferred to and vested in the Board.
Section 19G further safeguards the service conditions of employees of the
abolished Department. It stipulates that upon the constitution of the Board,
every full-time employee of the erstwhile Department shall be deemed to
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continue as a Government employee for all practical purposes, including pay,
allowances, and pensionary benefits, as a vanishing category within the Board.
Such employees are entitled to hold office on the same terms and conditions of
service, and with the same rights and privileges, as would have been available
to them had the Amendment Act of 2008 not been enacted, subject to any
lawful alteration by the Board.
9. The 2nd respondent was in fact an employee of the existing
department and as stated above was deemed to be a vanishing category within
the board
10. Section 6(5) of the MHRCE Act defines the Commissioner, which
reads as under:
"Commissioner" means the Commissioner appointed under
sub-section (1) of Section 8C.
11. Section 8C of the MHRCE Act, 1951 defines Officers and
Employees of the Board. Prior to the substitution by Act of 12 of 2018 (with
effect from 01.01.2017), the provision read as under:
8C Officers and Employees of the Board:
(1) The government may appoint an officer not below the rank of a
Joint Secretary to Government, who is professing Hindu Religion
and is a believer of God and temple worship as the Commissioner
of the Board on such terms and conditions as may be fixed by
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the Government who shall also function as the Secretary of the
Board.
(2) He shall be the Chief Executive Officer of the Board who shall
implement all decisions of the Board
(3) He shall submit reports to the Government, once in three months,
with respect to the working of the Board.
(4) The Board may appoint such number of Deputy Commissioners,
Assistant Commissioners, and such other officers and staff as are
necessary for discharging its functions under this Act.
(5) The Board may create, with the approval of the Government,
such number of posts of officers and employees of the Board, as
it requires.
(6) The pay and allowances and other conditions of service of the
officers and employees of the Board, appointed under
sub-section (4), shall be such, as may be prescribed.
12. Ext.P2 which is the order impugned in this petition issued by the
Commissioner in charge by invoking powers under Section 45 of the Act. At the
time of passing of the order, the post of Commissioner should have been
occupied by an officer not below the rank of a Joint Secretary to the
Government. It would also be pertinent to note that Section 8C of the Act was
amended by Act 12 of 2018 and the amendment had come into force only on
01.01.2017 much after the passing of the impugned order.
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13. Section 45 of the Act reads as under:
Section 45. Power to suspend, remove or dismiss trustees:
(1) 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 this 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 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.
(2) 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:
Provided that the Deputy Commissioner shall also consult
the Area Committee before passing the final order under
sub-section (1).
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(3) Pending the disposal of the charges framed against
the trustee, the Commissioner or the Deputy Commissioner may
place the trustee under suspension and appoint a fit person to
discharge the functions of the trustee.
(4) It shall be open to an Assistant Commissioner to move
the Deputy Commissioner to take action under sub-section (1) in
respect of any trustee of an institution over which an Area
Committee has jurisdiction, and to place the trustee under
suspension pending the orders of the Deputy Commissioner under
sub-section (3).
(5) A trustee who is suspended, removed or dismissed
under sub-section (1) may, within one month from the date of the
receipt of the order of suspension, removal or dismissal, appeal
against the order to the Commissioner if it was passed by a
Deputy Commissioner, and to the 3[State Government] if it was
passed by the Commissioner.
14. It would be apposite to note that under Section 45, powers are
conferred on the Deputy Commissioner, in respect of any religious institution
over which an Area Committee has jurisdiction, and on the Commissioner, in
the case of any other religious institution, to suspend, remove, or dismiss any
hereditary or non-hereditary trustee or trustees for the reasons enumerated in
sub-clauses (a) to (e) of the said provision. However, the statute mandates that
when action is proposed to be taken under sub-section (1), the Commissioner
shall frame specific charges against the trustee concerned and afford him an
opportunity to meet such charges and to test the evidence adduced against
him. The provision further stipulates that any order of suspension, removal, or
dismissal shall explicitly state the charges framed, the explanation submitted by
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the trustee, and the findings recorded on each charge, together with the
reasons therefor.
15. As per Section 45(3), pending the disposal of the charges framed
against the trustee, the Commissioner or the Deputy Commissioner, as the case
may be, is empowered to place the trustee under suspension and to appoint a
fit person to discharge the functions of the trustee. Section 45(5) further
provides that a trustee who is suspended, removed, or dismissed under
sub-section (1) may, within one month from the date of receipt of such order,
prefer an appeal against the said order--before the Commissioner, if the order
is passed by the Deputy Commissioner, and before the State Government, if the
order is passed by the Commissioner.
16. In Manavikrama Zamorin Raja of Kozhikode v.
Commissioner1, it has been authoritatively held that proceedings under
Section 45 are quasi-judicial in nature, and that the procedural safeguards
applicable to the main enquiry would equally extend to ancillary proceedings
arising therefrom. It is also relevant to note that an appeal against the order of
the Deputy Commissioner lies to the Commissioner.
17. We shall now advert to the relevant provisions of the Kerala
Service Rules which empower the competent authority to appoint an officer to
1960 KHC 372
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hold substantively or to officiate in two or more independent posts
simultaneously. In this context, reference may be made to Rule 53, Part I of the
Kerala Service Rules, which reads as follows:
(a) A competent authority may appoint an officer to hold
substantively or to officiate in two or more independent posts at
one time.
(b) The competent authority appointing an officer to hold
or officiate in a second post in addition to his own shall declare
whether the officer holds full charge of the additional post or is
appointed merely to discharge the current duties. The order shall
also specify the amount of special allowance, if any, to be granted,
subject to the prescribed limits.
RULING
The term "independent" occurring in the above rule shall
be construed to mean separate or distinct posts involving
independent duties and responsibilities. A post subordinate to the
one already held by the officer shall not be treated as an
independent post for the purposes of this rule.
The following criteria shall be adopted to distinguish
between "full additional charge" and "discharge of current duties":
(i) An officer appointed to hold "full additional charge"
shall perform all administrative, financial, and statutory functions
and duties attached to that post.
(ii) An officer appointed merely to discharge current duties
shall attend only to routine work pertaining to that post.
18. A conjoint reading of Rule 53(a) and (b) would indicate that while
an officer holding a substantive post may be appointed to officiate in additional
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independent posts, the competent authority is statutorily obligated to clearly
declare whether such appointment is by way of full additional charge or only for
the discharge of current duties. The Ruling further clarifies that a subordinate
post cannot be treated as an independent post for the purpose of such
appointment.
19. In the case on hand, the post of Deputy Commissioner held by
the second respondent was admittedly inferior in hierarchy to the post of Joint
Secretary to the Government. In such circumstances, serious doubt arises as to
whether the said officer could have been directed to officiate as
Commissioner-in-Charge. It is significant to note that none of the respondents
have asserted or produced any material to demonstrate whether the second
respondent was appointed to hold "full additional charge" of the post or was
merely entrusted with the discharge of current duties. This distinction assumes
critical importance, inasmuch as only an officer appointed to hold full additional
charge is legally empowered to exercise all administrative, financial, and
statutory functions and duties attached to the higher post. Probably, it was
after noting this aspect that a substitution was carried out to by Act 12 of 2018
w.e.f. 01/01/2017 by inserting "a Deputy Commissioner in the abolished
department who is eligible to be promoted as Commissioner as per the
provision contained in section 19 G and in the absence of such an officer, an
officer not below the rank of a Joint Secretary to Government" instead of "a
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Joint Secretary to Government" as it originally stood. But the pertinent aspect is
that the amendment came into effect only on 1/1/2017 much after the issuance
of Exhibit P2 on 23.09.2016. In view of the discussion, we are of the view that
the Deputy Commissioner in the abolished department could not have been
appointed as the Commissioner- in charge, and in that capacity could not have
exercised quasi judicial powers by invoking powers under Section 45 of the Act.
20. We are of the view that Exhibit P2 cannot be sustained for yet
another reason as well. We find that Exhibit P1 is the notice issued by the
Commissioner-in-Charge purportedly under Sections 45(c) and (d) of the
Madras Hindu Religious and Charitable Endowments Act 1951. A perusal of
Exhibit P1 would disclose that the said notice dated 26.09.2016 was issued
calling upon the respondent therein, who is the petitioner before this Court, to
appear before the Commissioner-in-Charge on 26.10.2016 at 11.00 a.m.
However, even before the scheduled date for appearance and without awaiting
any response or explanation from the petitioner, Exhibit P2 order dated
23.09.2016 came to be passed in I.A. No. 01 of 2016 in M.P. No. 4 of 2016.
21. It is significant to note that in Exhibit P2, the
Commissioner-in-Charge has specifically recorded that the order was passed on
an application filed under Section 45(1) of the Madras Hindu Religious and
Charitable Endowments Act, 1951. Acting on the said interlocutory application,
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the Commissioner-in-Charge proceeded to allow the same and constituted a
Special Team consisting of three officers to conduct a detailed enquiry into the
allegations raised. The Special Team was further directed to undertake a
comprehensive enquiry into the entire administrative functioning of the Zamorin
Devaswom, with particular emphasis on matters relating to Special Grade, A
Grade and B Grade temples, and to submit a report within a one month. The
scope and sweep of the directions issued under Exhibit P2 clearly demonstrate
that the order was not of a routine or ministerial nature, but one having
wide-ranging administrative and statutory implications affecting the functioning
of several temples and the rights of the petitioner.
22. As noticed above, the power vested in the Commissioner under
Section 45 is not administrative in character but is distinctly quasi-judicial in
nature. The statutory framework mandates strict compliance with procedural
safeguards. The provision expressly requires that when it is proposed to initiate
action under sub-section (1), the Commissioner shall frame specific charges
against the trustee concerned and afford him a reasonable opportunity to meet
such charges and to test the evidence produced in support thereof. These
safeguards are not empty formalities but are mandatory statutory requirements
intended to protect the rights of the affected parties and to ensure fairness in
the decision-making process.
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23. In the present case, it is not in dispute that Exhibit P2 was passed
ex parte and without granting the petitioner any opportunity of being heard.
What is even more disturbing is the fact that the impugned order was passed
prior to the date fixed for appearance pursuant to the notice issued under
Exhibit P1. Such a course of action strikes at the very root of fair procedure and
renders the statutory hearing illusory and meaningless.
24. We are, therefore, of the considered view that the impugned
order suffers from a patent violation of the principles of natural justice. We find
absolutely no justification for the officer functioning as Commissioner-in-Charge
to have exercised such drastic powers on the basis of an interlocutory
application without even calling for an explanation from the affected party or
granting an opportunity of personal hearing. It cannot be disputed that
proceedings initiated under Section 45 have serious civil consequences,
including interference with the management and administration of religious
institutions. When such grave consequences are likely to ensue, the duty to
adhere to procedural fairness becomes all the more imperative.
25. In these circumstances, the action of the Commissioner-in-Charge
in passing Exhibit P2, without compliance with the mandatory statutory
procedure and in flagrant disregard of the principles of natural justice, cannot
be sustained. On this ground alone, and also on account of the serious
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procedural infirmities noticed above, Exhibit P2 order is liable to be interfered
with and is accordingly liable to be set aside.
Resultantly, this Writ Petition will stand allowed. Ext.P2 order issued by
the Commissioner-in-charge will stand quashed.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
K.V. JAYAKUMAR,
JUDGE
PS/30/01/26
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APPENDIX OF WP(C) NO. 32595 OF 2016
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE NOTICE, DATED
26-09-2016.
EXHIBIT P2 A TRUE COPY OF THE ORDER DATED
23-09-2016, ISSUED BY THE 2ND
RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE MINUTES OF THE
MEETING DATED 30-09-2016.
EXHIBIT P4 A TRUE COPY OF THE PROCEEDINGS DATED
24-11-2015.
