Nandakumar vs Malabar Devaswom Board on 6 February, 2025

[Cites 14, Cited by 0]

Kerala High Court

Nandakumar vs Malabar Devaswom Board on 6 February, 2025

The petitioner, who is a devotee of Sree Parukkanchery Bhagavathi Temple, Pallathery, Palakkad District, which is a controlled institution under the 1st respondent Malabar Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2nd respondent Commissioner, Malabar Devaswom Board to conduct a site inspection at Sree Parukkanchery Bhagavathi Temple in order to find out whether there is any requirement or necessity for demolishing the temple structures for reconstructing the same; a writ of mandamus commanding the 2nd respondent to consider Ext.P2 complaint dated 30.12.2024 submitted by the petitioner; a writ of mandamus restraining respondents 7 to 11 from proceeding with the demolition of the temple structures to effect reconstruction; and a writ of mandamus commanding respondents 1 to 6 to ensure that public money is not collected by respondents 7 to 11 under the guise of reconstruction of the temple structures, 5 W.P.(C)No.237 of 2025 2025:KER:9637 st without sanction from the 1 respondent Malabar Devaswom Board.

2. Going by the averments in the writ petition, Sree Parukkanchery Bhagavathi Temple is managed by a Trustee Board consisting of five hereditary trustees. The surviving hereditary trustees are arrayed as respondents 9 to 11. The 7th respondent is the Manager of the temple and the 8 th respondent is the Chairperson of the Board of Trustees. In the writ petition, it is alleged that though the temple structures do not require any modifications or alterations, respondents 7 to 11 have decided to demolish and reconstruct the same, without any sanction from the 2nd respondent Commissioner, Malabar Devaswom Board or the 5th respondent Area Committee, Palakkad Division. Respondents 7 and 8 have published Ext.P1 notice in connection with Lakshadeepam scheduled on 15.12.2024, in which donations are solicited from the devotees for the renovation of temple structures. In the 'Note' in Ext.P1, it is stated that the Devaprasnam stressed the urgency of immediate renovation of the temple structures. As any delay in the renovation will lead to grave mishaps in the village, as well as to the devotees, the wholehearted support extended by the devotees is solicited. The 6 W.P.(C)No.237 of 2025 2025:KER:9637 bank account details with the mobile number are provided in Ext.P1 notice. After the publication of Ext.P1 notice, the petitioner submitted Ext.P2 complaint dated 30.12.2024 before the 2nd respondent Commissioner. The document marked as Ext.P3 is a few photographs of the temple structures, in order to show that it requires no renovation or reconstruction. In the writ petition, it is pointed out that any construction or reconstruction of temple structures can be made under the provisions of Madras Hindu Religious and Charitable Endowment Rules, 1951, framed under Section 100(2)(q), (r) and (s) of the Madras Hindu Religious and Charitable Endowments Act, 1951.

3. On 07.01.2025, when this writ petition came up for admission, the learned Standing Counsel for Malabar Devaswom Board took notice for respondents 1 to 5. Urgent notice by speed post was ordered to respondents 6 and 7, returnable within three weeks. Having considered the materials on record and also the submissions made at the Bar, this Court granted an interim order dated 07.01.2025, directing the respondents not to demolish or reconstruct Sree Parukkanchery Bhagavathi Temple in Palakkad District, for a period of one month. The learned Standing Counsel 7 W.P.(C)No.237 of 2025 2025:KER:9637 for Malabar Devaswom Board was directed to file a counter affidavit within three weeks.

4. Respondents 6 and 7 have filed a counter affidavit dated 25.01.2025, opposing the reliefs sought for in this writ petition, producing therewith Exts.R6(a) to R6(e) documents. In the counter affidavit sworn to by the 7th respondent, who is the Manager of the temple, it is stated that he is holding charge as Manager/Executive Officer of eight temples which are controlled institutions under the Malabar Devaswom Board. Since there is seepage/leakage in the Sreekovil of Sree Parukkanchery Bhagavathi Temple and also in the Thidappally and Chuttambalam and there is accumulation of Abhisheka Jalam and Dravyam in the Sreekovil, the Tantri of the temple suggested in Ext.R6(a) letter dated 19.08.2023 to conduct Ashtamangalya Prasnam, which was conducted on 25.01.2024 and 26.01.2024 in the presence of the devotees, after due publication of notice. The astrologers suggested renovation and various other Parihara Karmas. Parihara Karmas preceding the renovation work were done under the supervision of the Tantri in August and December 2024. The renovation work is proposed to be carried out under the supervision of a Vasthu Expert. The estimate for the work is 8 W.P.(C)No.237 of 2025 2025:KER:9637 prepared by a retired Assistant Engineer (PWD). With the permission of the Board of Trustees, the 7th respondent Manager submitted the estimate and plan for the renovation work before the 2nd respondent Commissioner for approval. The approval is awaited. In the counter affidavit it is stated that no funds have been collected for the renovation work and the work has also not been started. On getting permission from the 2nd respondent Commissioner, a separate account would be opened and the work would be executed as per the approval granted by the Commissioner.

5. In the counter affidavit filed by respondents 6 and 7, it is stated that a renovation committee has been functioning at Sree Parukkanchery Bhagavathi Temple, from the year 2011 onwards, without approval from the Malabar Devaswom Board, ostensibly for constructing an Oottupura. As per Ext.R6(b) audit report of the Deputy Director, Kerala State Audit Department, Malabar Devaswom Board Audit, for the period 1997-2017, an amount of Rs.1,53,000/- has to be recovered from the Devaswom fund, towards the income from Oottupura. As per Ext.R6(c) audit report for the period 2018-20, the renovation committee is required to remit a sum of Rs.8,43,546.97 to the 9 W.P.(C)No.237 of 2025 2025:KER:9637 Devaswom fund. In the counter affidavit, it is alleged that the petitioner is a prominent member of the aforesaid renovation committee. He was an executive committee member and was also the Secretary of the festival committee for the last more than 20 years. The accounts of the festival committee submitted before the 7th respondent Manager were incomplete, which has already been forwarded to the State Audit Department and the audit report is awaited. The document marked as Ext.R6(b) is a lawyer notice caused to be issued by the 7th respondent Manager on 08.01.2025 to recover the Devaswom fund, to which the Secretary of the renovation committee submitted Ext.R6(e) reply dated 14.01.2025.

6. Heard the learned counsel for the petitioner, the learned Standing Counsel for Malabar Devaswom Board for respondents 1 to 5, the learned counsel for respondents 6 and 7 and also the learned counsel for respondents 8 to 10.

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 10 W.P.(C)No.237 of 2025 2025:KER:9637 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 (11) of Section 6 of the Act defines the term 'person having interest'. As per sub-clause (b) of clause (11) of Section 6, in the case of a temple, a person who is entitled to attend at or is in the habit of attending the performance of worship or service in the temple, or who is entitled to partake or is in the habit of partaking in the benefit of the distribution of gifts thereat shall fall under the definition of 'person having interest'.

9. Clause (9) of Section 6 of the Act defines the term 'hereditary trustee' to mean the trustee of a religious institution 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.

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10. 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 7 of the Act deals with the Constitution of the Malabar Devaswom Board. 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.

11. In view of the provisions under Section 8 of the Act, all the powers and duties under this Act, in respect of various 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. As per Section 8A of the Act, subject to supervision and control of the Board, and other provisions of this Act, the Commissioner, Deputy Commissioners, Assistant Commissioners and Area Committees exercising any power or 12 W.P.(C)No.237 of 2025 2025:KER:9637 performing any duty under this Act, before the commencement of the Madras Hindu Religious and Charitable Endowments (Amendment) Act, 2008, shall continue to exercise such powers and perform such duties, as officers of the Board, as if those powers are delegated to them by the Board.

12. 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.

13. 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 administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of 13 W.P.(C)No.237 of 2025 2025:KER:9637 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.

14. As per sub-section (3) of Section 24 of the Act, 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.

15. 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 14 W.P.(C)No.237 of 2025 2025:KER:9637 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 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.

16. As per sub-section (2) of Section 45 of the Act, 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 15 W.P.(C)No.237 of 2025 2025:KER:9637 explanation and the finding on each charge with the reasons therefor.

17. In Muraleedharan M. v. Malabar Devaswom Board and others [2024 (6) KHC SN 20] a Division Bench of this Court in which one among us [Anil K. Narendran, J.] was a party held that in view of the provisions contained in Chapter II of the Act of the Madras Hindu Religious and Charitable Endowments Act, 1951, as amended by the Amendment Act of 2008, the Malabar Devaswom Board and the authorities of the Board, including the Commissioner, have the duty and obligation to act in trust. In the said decision, this Court held further that in view of the provisions contained in Section 24 of the Act, the trustee of every religious institution is bound to 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.

18. Clauses (r), (s) and (t) of sub-section (2) of Section 100 of the Madras Hindu Religious and Charitable Endowments Act, 1951, deal with the power to make Rules with reference to 16 W.P.(C)No.237 of 2025 2025:KER:9637 the preservation, maintenance, management and improvement of the properties and buildings of religious institutions; the inspection and supervision of the properties and buildings of religious institutions, the reports to be submitted by persons making such inspection and supervision and the fees leviable for such inspection, supervision and report; and the preservation of the images in temples. As per clause (1) of Rule 1 of the Rules made under Section 100(2)(r), (s) and (t) of the Act, 'building work' includes work relating to the construction, repair, alteration, conservation or renovation of a building and other works of construction belonging to a religious institution. As per clause (2) of Rule 1, 'building' includes the premises of a religious institution and any building or structure or work relating to agriculture or irrigation, owned by, or in the possession of, a religious institution. As per clause (3) of Rule 1, 'appropriate authority' means the Area Committee in relation to religious institutions coming within the jurisdiction of an Area Committee and the Commissioner in relation to other institutions.

19. As per Rule 2 of the Rules, the trustee of a religious institution shall submit to the appropriate authority annually, six months before the end of each fasli [a period of twelve months 17 W.P.(C)No.237 of 2025 2025:KER:9637 st commencing from the 1 day of July every year], a report on the building works which it is desirable or necessary to carry out during the succeeding fasli, setting out the need for, and the details of, the works and giving a rough estimate of the expenditure involved and of the manner in which the expenditure on the works is proposed to be met. As per Rule 3, proposals in regard to building works that are not purely secular shall be framed with due regard to the principles and practice of traditional architecture and to the need for preserving architecture and sculptural and archeological features.

20. As per Rule 4 of the Rules, whenever a worshipper or other person offers to donate the cost of, or execute any building works, the trustee shall obtain from him details of his proposals and, if he proposes to undertake the works himself, a statement showing the manner in which the necessary finances for the execution of the works will be made available and the time within which the construction will be completed and forward the details or statement, as the case may be, to the appropriate authority with his remarks whether the said offer may be accepted and if so, on what conditions.

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21. As per sub-rule (1) of Rule 5 of the Rules, on the appropriate authority approving a proposal of the trustee to execute the building works from the funds of the institution or with a donation made by a worshipper or other person, the trustee shall prepare detailed estimates for the works proposed, make provision in the budget for the proposed expenditure and submit the estimate along with plans to the appropriate authority. As per sub-rule (2) of Rule 5, when the appropriate authority approves the trustee's proposal to allow a worshipper or other person to execute any building works and settles the conditions on which such permission may be granted, the trustee shall obtain from such worshipper or other person detailed plans and estimates for the works proposed and submit them to the appropriate authority with his remarks.

22. As per Rule 6 of the Rules, the appropriate authority may sanction the plans and estimates submitted under sub-rule (1) or sub-rule (2) of Rule 5 with such modifications and subject to such conditions as it may deem fit and where the cost of the construction to be met from the funds of the institution, sanction, the necessary expenditure. As per Rule 7, the appropriate authority may decide whether a construction is to be 19 W.P.(C)No.237 of 2025 2025:KER:9637 made departmentally or through contractors. Where execution through contractors is deemed fit the contract shall be given on the open tender system.

23. As per Rule 8 of the Rules, in all cases in which a building work is undertaken, such work shall be subject to supervision, control and inspection as and when the appropriate authority deems fit and the said authority may, at any stage of the execution, order such check measurement and control as may be deemed essential, before the work is further proceeded with or further expenditure incurred. As per the mandate of Rule 9, a trustee shall not undertake or commence any building work without the previous sanction of the appropriate authority, provided that minor repairs, which cannot, owing to urgency, be postponed, may be executed in anticipation of sanction applied for.

24. As per Rule 10 of the Rules, a trustee shall not, except with the appropriate authority's express previous sanction, exceed the expenditure sanctioned or deviate from the plan and estimate approved by the said authority. As per Rule 11, a trustee shall not permit any worshipper or other person to commence the execution of any building work or deviate from 20 W.P.(C)No.237 of 2025 2025:KER:9637 the plan approved by the appropriate authority without the previous permission of the said authority. As per Rule 12, a trustee shall not repair, alter, replace, sell, gift or destroy an antiquities or other objects of interest, like jewels, vahanams or other movables, sculptures, carvings, inscriptions or paintings without the express previous permission of the Commissioner and such permission shall be accorded only on obtaining competent advice thereon.

25. In view of the provisions under sub-rule (1) of Rule 13 of the Rules, the appropriate authority should secure technical advice and assistance in respect of all building works proposed to be undertaken by a trustee from out of the funds of the religious institution or proposed by a trustee to be allowed to be executed by a worshipper, at an estimated cost of Rs.10,000/- and above and in other cases when it is of opinion that there is need such advice and assistance as to the necessity of any building works or the nature of the building works or for the preparation or scrutiny of plans and estimates, having due regard to the nature and importance and estimated cost of the building works.

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26. As per Rule 17 of the Rules, the trustee shall maintain such books, registers, accounts, vouchers and records in respect of building works and shall make such reports as the Commissioner may require. As per Rule 18, it shall be the duty of the trustee to ensure that utmost care is taken of the architectural, sculptural and archaeological features of every structure in the temple or on its lands in his charge. As per Rule 22, the Commissioner may exclude any class of building works from the operation of these rules on the ground that the cost of the works is too small to require such application.

27. The Rules made under Section 100(2)(r), (s) and (t) of the Act cover every minute aspect of the work relating to the construction, repair, alteration, conservation or renovation of a building and other works of construction belonging to a religious institution. In view of the prohibition contained in Rule 9, a trustee shall not undertake or commence any building work without the previous sanction of the appropriate authority, provided that minor repairs, which cannot, owing to urgency, be postponed, may be executed in anticipation of sanction applied for. As per the mandate of Rule 18, it shall be the duty of the trustee to ensure that utmost care is taken of the architectural, 22 W.P.(C)No.237 of 2025 2025:KER:9637 sculptural and archaeological features of every structure in the temple or on its lands in his charge. In view of the provisions contained in sub-section (1) Section 24 of the Act, the trustee of every religious institution is bound to 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. Any action of the trustee or the board of trustees of a religious institution, in relation to a 'building work' as defined under clause (1) of Rule 1 of the Rules under Section 100(2)(r), (s) and (t) of the Act, openly flouting the provisions under the said Rules, would enable 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, to exercise the powers under Section 45 of the Act, in accordance with law, to suspend, remove or dismiss trustees, for any malfeasance, misfeasance, breach of trust or neglect of duty in respect of the trust, as provided under clause (c) of sub-section (1) of Section 45, or for any misappropriation of, or improper 23 W.P.(C)No.237 of 2025 2025:KER:9637 dealing with, the properties of the institution, as provided under clause (d) of sub-section (1) of Section 45, depending upon the facts and circumstances of each case.

28. During the course of arguments, the learned counsel for respondents 6 and 7 would point out the specific stand taken in the counter affidavit dated 25.01.2025 filed by the said respondent, wherein it is stated that no funds have been collected for the renovation work and the work has also not been started. The estimate and plan for the renovation work are pending approval before the 2nd respondent Commissioner. Upon getting the approval, a separate account would be opened, and the renovation work would be executed as per the said approval.

29. On the other hand, the learned counsel for the petitioner would point out that, even before getting approval from the 2nd respondent Commissioner for the proposal to renovate the temple structures, respondents 6 and 7 published Ext.P1 notice in connection with Lakshadeepam scheduled on 15.12.2024, in which donations are solicited from the devotees for the renovation of temple structures. The bank account details with the mobile number are provided in Ext.P1 notice. The learned counsel would also submit that, as evident from Ext.P3 24 W.P.(C)No.237 of 2025 2025:KER:9637 photographs, the temple structures do not require renovation or reconstruction.

30. We do not propose to consider the rival contentions on the above aspects in this writ petition since the approval for the proposal made by respondents 6 and 7 to reconstruct the temple structures is now pending consideration before the 2nd respondent Commissioner, who is the appropriate authority under clause (3) of Rule 1 of the Rules, in relation to Sree Parukkanchery Bhagavathi Temple, Pallathery.

31. The learned Standing Counsel for Malabar Devaswom Board would submit that the 2nd respondent Commissioner shall consider the proposal made by respondents 6 and 7 to reconstruct the temple structures of Sree Parukkanchery Bhagavathi Temple, Pallathery, and pass appropriate orders, within a time limit that may be fixed by this Court.

32. In such circumstances, this writ petition is disposed of by directing the 2nd respondent Commissioner to take an appropriate decision on the proposal made by respondents 6 and 7 to reconstruct the temple structures of Sree Parukkanchery Bhagavathi Temple, Pallathery, and pass appropriate orders, strictly in accordance with law, taking note of the statutory 25 W.P.(C)No.237 of 2025 2025:KER:9637 provisions referred to hereinbefore, with notice to respondents 7 to 11 and also to the petitioner, and after affording them an opportunity of personal hearing. A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. Till such time, the interim order granted by this Court on 07.01.2025, shall continue to be in force.

From the pleadings and materials on record, we notice that there are certain issues regarding the audit of the accounts of the festival committee in which the petitioner is the Secretary and also that of the renovation committee. Therefore, it is for the 2nd respondent Commissioner to look into those aspects, with notice to the affected parties, and take an appropriate decision within the aforesaid period.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE AV/ 26 W.P.(C)No.237 of 2025 2025:KER:9637 APPENDIX OF WP(C) 237/2025 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE DATED NIL THE TEMPLE Exhibit P2 TRUE COPY OF THE COMPLAINT DATED 30- 12- 2024 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P3 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE NATURE OF THE TEMPLE EXHIBIT P4 TRUE COPY OF THE STATEMENT OF ACCOUNT OF KUMBHABHISHEKAM EXHIBIT P5 TRUE COPY OF THE STATEMENT OF ACCOUNTS OF THE STATE BANK OF INDIA ELAPULLY BRANCH RESPONDENT EXHIBITS EXT.R6(A) TRUE COPY OF THE LETTER OF THE TANTRI, DATED 19-08-2023 EXT.R6(B) TRUE COPY OF THE AUDIT REPORT OF THE LOCAL AUDIT DEPARTMENT, PALAKKAD, DATED 14-1-2019 EXT.R6(C) TRUE COPY OF THE AUDIT REPORT OF THE LOCAL AUDIT DEPARTMENT, PALAKKAD, DATED 23-04-2022 27 W.P.(C)No.237 of 2025 2025:KER:9637 EXT.R6(D) TRUE COPY OF THE LAWYER NOTICE ISSUED ON BEHALF OF THE TEMPLE, DATED 8-1-2025 EXT.R6(E) TRUE COPY OF THE REPLY NOTICE DATED 14- 1-2025

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