Chandini M vs State Of Kerala on 27 June, 2024

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Kerala High Court

Chandini M vs State Of Kerala on 27 June, 2024

The petitioners, who are devotees of Sree Pokkyarathu Bhagavathi Temple, which is a controlled institution under the 2 nd respondent, Malabar Devaswom Board, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P8 order dated 13.03.2024 of the 3 rd respondent Assistant Commissioner, which is one issued based on decision No.758 dated 13.03.2024 of the Area Committee of Malabar Devaswom Board, Thalasseri Division, whereby the 5 th respondent along with two others are appointed as non-hereditary trustees of the temple for a period of two years. The petitioners have also sought for a writ of mandamus commanding the 3 rd respondent Assistant Commissioner to take action on Exts.P1 to P3 complaints made by the devotees against the 5th respondent; a declaration that the 5th respondent is not entitled to continue as the Chairman of the Board of Trustees of Sree Pokkyarathu Bhagavathi Temple and has no right to manage the day-to-day affairs of the temple; and a writ of mandamus commanding the 3rd respondent Assistant Commissioner to remove the 5 th respondent from acting as Chairman and non-hereditary trustee of Sree Pokkyarathu Bhagavathi Temple.

WP(C) NO. 16183 OF 2024

2. Going by the averments in the writ petition the non- hereditary trustees appointed as per Ext.P8 order dated 13.03.2024 of the 3rd respondent Assistant Commissioner has selected the 5th respondent as the Chairman of the Board of Trustees. The petitioners, who are the local devotees interested in the affairs of the temple submitted a complaint against the 5 th respondent, much before he was again appointed as a non- hereditary trustee. In the writ petition it is alleged that the 5 th respondent is a local politician, who is active in his political activities. Despite such a complaint, the 3rd respondent Assistant Commissioner has not taken any action. The appointment of the 5th respondent as non-hereditary trustee is politically motivated. In this writ petition filed against the appointment of the 5 th respondent as non-hereditary trustee, the petitioners would rely on the decisions of this Court Court in Chathu Achan v. State of Kerala [2022 (6) KLT 388] and also Ananthanarayanan v. State of Kerala [2023 KLT Online 1195].

3. On 19.04.2024, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for the 1st respondent and the learned Standing Counsel for the Malabar Devaswom Board for 5 WP(C) NO. 16183 OF 2024 respondents 2 and 3. Notice by special messenger was ordered to respondents 4 and 5.

4. On 23.04.2024, respondents 4 and 5 entered appearance through counsel and sought time to file a counter affidavit. Further time was granted, by the order dated 29.05.2024.

5. Heard the learned counsel for the petitioners, the learned Senior Government Pleader for the 1st respondent, the learned Standing Counsel for Malabar Devaswom Board for respondents 2 and 3 and also Smt.Thejalakshmi R.S., the learned counsel who entered appearance for the 5th respondent.

6. During the course of arguments, on a query made by this Court, the learned counsel for the petitioners would submit that though the 1st relief sought for in this writ petition is writ of certiorari to quash Ext.P8 order dated 13.03.2024 of the 3 rd respondent Assistant Commissioner, whereby the 5th respondent along with two others are appointed as non-hereditary trustees of Sree Pokkyarathu Bhagavathi Temple, the contentions raised in the writ petition are solely against the 5th respondent.

7. In Sreedharan Nambeesan v. Commissioner, Malabar Devaswom Board and others [2018 (2) KLT 115] the issue raised before a Division Bench of this Court was whether the hereditary trustee of a temple would have any right to be given 6 WP(C) NO. 16183 OF 2024 notice before a non-hereditary trustee is being appointed by the Commissioner, Malabar Devaswom Board, under Section 39(5) of the Madras Hindu Religious and Charitable Endowments Act, 1951. In paragraph 11 of the said judgment, the Division Bench held as follows;

"11. This is not to say that when the Commissioner invokes his power under Section 39(5) the Hereditary Trustee is completely divested of any say. The power vested with the Commissioner is to act fairly, judiciously and in a manner that behooves his office, being the seneschal of the various temples and institutions under his command. The power of the Commissioner being bridled by the section itself, not to act unless there is an imminent necessity to fill up the vacancies of Non-hereditary Trustee or Trustees and that too after recording such reasons in writing, show the implicit care to be invested while acting under its sanction. The vacancies are not to be filled under his whim or fancy but the Commissioner is clearly obligated to first conclude if it is necessary to do so, which can only mean to be a situation in which he thinks that the Hereditary Trustee will not be sufficient on his own to manage the affairs of the temple/institution. The competence and capability of the Hereditary Trustee or Trustees thus becomes absolutely relevant and germane when vacancies are sought to be filled up in the posts of Non-hereditary Trustees under Section 39(5) of the Act and, therefore, the issuance of a notice of such intention by the Commissioner to the Hereditary Trustee or Trustees, though not specifically mentioned in Section 39(5), will be apposite if not to be 7 WP(C) NO. 16183 OF 2024 read into its provisions as a concomitant necessity to ensure fairness in procedure. The submission of the learned Standing Counsel that the Hereditary Trustee need not be consulted at all, while acting under Section 39(5), therefore, does not appear to be on terra firma forensically."

8. Seeking review of the judgment in Sreedharan Nambeesan P. [2018 (2) KLT 115], the Commissioner Malabar Devaswom Board and others filed R.P.No.227 of 2018, contending that the words in paragraph 11 of the said judgment would give an impression that before acting under Section 39(5) of the Act, the competent authority is obligated to obtain the concurrence of the hereditary trustee.

9. In the decision in Commissioner, Malabar Devaswom Board and others v. Sreedharan Nambeesan P. [2018:KER:17236] the Division Bench clarified that in the judgment, what was intended was that the hereditary trustee be offered an opportunity to place his view regarding the necessity of filling up the vacancy in the office of the non-hereditary trustee. The judgment did not say that the concurrence of the hereditary trustee is necessary but only that he may be given the opportunity to state why he thinks that there is no necessity for the Commissioner to appoint a non-hereditary trustee. The Division Bench found this apposite since as per the provisions of Section 8 WP(C) NO. 16183 OF 2024 39(5) of the Act the Commissioner shall not fill up a vacancy of a non-hereditary trustee unless he considers it necessary to do so. It was in the backdrop of this particular provision that the Division Bench said that even though the issuance of a notice to the hereditary trustee is not mandated or specifically provided under Section 39(5) of the Act, it will be desirable, to ensure fairness in procedure, that the hereditary trustee is also afforded an opportunity to place his views appropriately before final orders are passed under Section 39(5). The intention was not that the concurrence of the hereditary trustee to the proposal of the Commissioner be obtained but merely that he be given an opportunity to speak his opinion as to why he feels that there is no necessity to appoint a non-hereditary trustee in the temple. It is needless to say that since it was not the concurrence of the hereditary trustee that is required to be obtained, as per the judgment, the only obligation of the Commissioner is to afford the hereditary trustee an opportunity to say why he feels that no necessity exists for an order under Section 39(5) of the Act, so that any vital information, which is within the domain of the hereditary trustee can also be placed for his consideration. The Division Bench further clarified that the views of the hereditary trustee are not binding on the Commissioner, as per the provisions 9 WP(C) NO. 16183 OF 2024 under Section 39(5) of the Act, but merely that such views can also be elicited to aid the Commissioner while he takes a decision as to whether it is necessary to fill up the vacancy. With the above clarification, the Division Bench closed the review petition.

10. In Gopinatha Menon (Kenathachan) v. Malabar Devaswom Board [2012:KER:16515] a Division Bench of this Court held that recourse to sub-section (2) of Section 39 of the Act, is not necessary to make an appointment of a non-hereditary trustee on any ground referable to the conduct of the hereditary trustee, or otherwise, when there is a scheme governing the trust, which provides, among other things, for appointment of four non- hereditary trustees.

11. In Chathu Achan K. v. State of Kerala [2022 (6) KLT 388] a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party noticed that the decision of the Division Bench in Parameshwaran Namboothiri P.M. v. Commissioner, Malabar Devaswom Board [2011 (2) KHC 719] and Sreedharan Nambissan P. v. Commissioner, Malabar Devaswom Board [2018 (2) KLT 115] are in the context of the provisions under sub-section (2) of Section 39 of the Act, which deals with the appointment of non-hereditary trustees in the circumstances stated in the sub-section (2), which 10 WP(C) NO. 16183 OF 2024 has no application when the appointment of non-hereditary trustees in a temple is governed by the provisions under the scheme framed under Section 58 of the Act. Sub-section (2) of Section 39 of the Act relates to the appointment of non-hereditary trustees in temples, where there is no scheme framed in terms of Section 58 of the Act. Once such a scheme is framed, the Malabar Devaswom Board has to see that the administration of the temple is carried on in accordance with that scheme.

12. In Gopinatha Menon [2012:KER:16515] the Division Bench noticed that the complaint of the petitioner, who is the Managing Trustee of the temple in question was that, the persons who are appointed as non-hereditary trustees are disqualified, as they are active politicians or those clouded by allegations referable to financial misconduct. The Division Bench observed that, even if the persons who have been selected and appointed as non-hereditary trustees have any such disqualifications, it may be open to the petitioner to move the Commissioner by pointing out such disqualifications. The Commissioner will then have to hear the petitioner and the persons against whom such allegations are made and conclude whether any such disqualification exists, warranting the removal 11 WP(C) NO. 16183 OF 2024 of those persons. Therefore, the Division Bench dismissed the writ petition in limine, leaving that issue open.

13. In V. Sudharsanan v. Malabar Devaswom Board and others [2012:KER:24089], the Division Bench of this Court was dealing with a case in which one of the contention raised by the petitioners was that, the persons elected are disqualified from being appointed as non-hereditary trustees of the temple in question, on account of their alleged political allegiance and the fact that they are active political workers. The Division Bench noticed that the said question is essentially a question of fact, which has to be decided, if any such objection is raised. Such decision-making process has to be undertaken by the appointing authority. Therefore, if any one among the petitioners has any objection or complaint in that regard, he may place it before the Malabar Devaswom Board, within a period of one month. If any such objection or complaint is received, the competent authority will issue notice to the non-hereditary trustees concerned and give him an opportunity of being heard and take a decision on that issue, in accordance with law.

14. In Suresh K. v. State of Kerala and others [2021 (2) KLT 885], a Division Bench of this Court observed that temple or its precincts cannot be made a place where political parties 12 WP(C) NO. 16183 OF 2024 should look forward to give political asylum to their workers. The Division Bench noticed that ours being a highly politically sensitive State, hardly any person can be traced, who is completely apolitical or who may not have his own independent political views. There may be persons having permanent political ideologies or views whereas there may be equal number of persons who hold views according to the issues involved. Perhaps that may be the reason why Kerala has become a State of political swinging. The Division Bench made it clear that holding political views or sympathizing with a political denomination cannot be held a disqualification for nominating anyone to such a post. On the facts of the case on hand, the Division Bench held that "even assuming that respondents 7 to 9 have some political leaning or rather they are sympathizers of a political party, that fact will not disentitle them to be considered for appointment as non-hereditary trustees. There is clear distinction between sympathizing with a political party and indulging in active participation in the activities of the party. The taboo under sub-clause (g) of clause 3 of the notification issued by the Commissioner will be attracted only if respondents 7 to 9 are active politicians or are office bearers of a political party, for which absolutely no evidence is forthcoming. 13 WP(C) NO. 16183 OF 2024

15. In Chathu Achan K. [2022 (6) KLT 388], this Court held that the provisions of Clauses 3 and 4 of the notification issued by the Commissioner, make it explicitly clear that, for appointment as non-hereditary trustee of the temple, the applicant should be a regular worshipper of the temple, who is prepared to actively work for the betterment of the temple. He should be a permanent resident of the Taluk in which the temple situates, who believe in idolatry. Persons who are busy with their employment, office bearers of political parties, active politicians or those indulging in active participation in the activities of a political party cannot aspire appointment as non-hereditary trustee of the temple. Therefore, it is for the Commissioner to take necessary steps to ensure that any appointment made as non-hereditary trustee of the temples under the control of Malabar Devaswom Board is strictly in terms of the disqualification and eligibility clauses provided in similar notifications. If found necessary, the format of the application for appointment as a non-hereditary trustee in the temple under the control of Malabar Devaswom Board has to be modified in an appropriate manner, by requiring the applicant to furnish particulars in terms of the disqualification and eligibility clauses in similar notifications. The Commissioner was directed to take necessary steps in this regard, if found 14 WP(C) NO. 16183 OF 2024 necessary, after placing before the Malabar Devaswom Board, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of that judgment.

16. In Ext.P4 judgment dated 08.09.2023 in W.P.(C)No.29279 of 2023 this Court held that, in view of the law laid down by this Court in Chathu Achan K. [2022 (6) KLT 388], for appointment as non-hereditary trustee in TTK Devaswom, which are controlled institutions under the Malabar Devaswom Board, the applicant should be a regular worshipper of the temple, who is prepared to actively work for the betterment of the temple. He should be a permanent resident of the Taluk in which the temple situates, who believes in idolatry. Persons who are busy with their employment, office bearers of political parties, active politicians or those indulging in active participation in the activities of a political party cannot aspire appointment as non-hereditary trustees of TTK Devaswom. Therefore, the 1st respondent Commissioner has to ensure that any appointments made as non- hereditary trustee in TTK Devaswom, which is a controlled institution under the Malabar Devaswom Board, are strictly in terms of the disqualification and eligibility clauses provided in Ext.P1 notification dated 10.07.2023.

WP(C) NO. 16183 OF 2024

17. In Anantha Narayanan and another v. Malabar Devaswom Board and others [2023 KLT OnLine 1195 : 2023 SCC OnLine Ker 1022], a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party, held that when clause 3(7) of Ext.R6(a) notification [clause 3(g) in Ext.P1 notification dated 10.07.2023] issued by the Commission for appointment as non-hereditary trustees in the temples, which are controlled institutions under the Malabar Devaswom Board, is considered in the light of the interpretation given by this Court in Chathu Achan K. [2022 (6) KLT 388], no person actively involved in politics is eligible to be appointed as a non-hereditary trustee in a temple.

18. In Anantha Narayanan [2023 KLT OnLine 1195] the Division Bench noticed that the Oxford Advanced Learners Dictionary defines 'politician' as "a person whose job is concerned with politics, especially as an elected member of the Parliament, etc." Such a technical meaning of the word 'politician' cannot be accepted to understand clause 3(7) in Ext.R6(a) notification which says that active politicians or persons holding official posts in any political party are ineligible. The terms are used disjunctively. So persons who are actively involved in politics, whether or not they hold any post in a political party, are ineligible. On the facts of the 16 WP(C) NO. 16183 OF 2024 case on hand, the Division Bench noticed that respondents 6 to 8 therein have no case that they have any other profession. It is a matter of common knowledge that the functioning of a political party and selection/election of its office bearers is not similar to public employment. Whichever be the political party, one who is actively involved in the activities of that political party alone is ordinarily selected/elected as an office bearer. Having been selected as office bearers of the political party/DYFI before or soon after the appointment as non-hereditary trustees, respondents 6 to 8 cannot contend that they were not active politicians. In Ext.R6(e) constitution of DYFI, it is stated that a member of the DYFI can work in any political party. That does not mean that the DYFI does not have any political colour. Whether or not it has any affiliation to any particular political party, what is evident from Ext.R6(e) constitution is that the area of activities of DYFI is politics and related activities. As such it cannot be said that the activities of DYFI are non-political.

19. In Anantha Narayanan [2023 KLT OnLine 1195] the Division Bench noticed that, going by the parameters prescribed in Ext.R6(a) notification, persons who are convicted for more than six months for offences involving moral turpitude are alone ineligible to be non-hereditary trustees. It is, however, 17 WP(C) NO. 16183 OF 2024 specifically prescribed in Ext.R6(a) that persons who apply to be appointed as non-hereditary trustees shall be idol worshippers and persons having an interest in the advancement of the temple. They should also be persons used to be involved in the affairs of the temple. A person having reverence and adoration for a deity can alone be treated as a worshipper. A person facing criminal prosecution for an offence involving moral turpitude cannot be considered a true worshipper of that standard required for a person to be appointed as a trustee in a temple. A trustee is a person obligated to conduct temple affairs in accordance with custom or usage. In A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex Court explained the diligence and devotion a trustee of a temple should have. When those are the necessary qualifications required for a person to be appointed as a non-hereditary trustee, and the danger of appointing unqualified and untrustworthy persons as trustees, the Malabar Devaswom Board shall stipulate the eligibility criteria in consonance with that. Therefore, the Malabar Devaswom Board was directed to take a decision in that regard before proceeding with any new appointment of non- hereditary trustees in the temples under it.

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20. The learned Standing counsel for Malabar Devaswom Board would point out the statutory remedy available to the petitioners for challenging Ext.P8 order dated 13.03.2024 of the 3rd respondent Assistant Commissioner, which is one issued based on decision No.758 dated 13.03.2024 of the Area Committee of Malabar Devaswom Board, Thalassery Division, whereby the 5th respondent along with two others have been appointed as non- hereditary trustees of the temple in question. The petitioners can challenge that order before the Commissioner, Malabar Devaswom Board, invoking the provisions under Section 18 of the Act.

21. The learned counsel for the petitioners would submit that the petitioners shall challenge Ext.P8 order dated 13.03.2024, before the Commissioner, Malabar Devaswom Board, by invoking the statutory remedy provided under Section 18 of the Act.

Having considered the submissions made at the Bar, we deem it appropriate to dispose of this writ petition, leaving open the legal and factual contentions raised by the petitioners and respondents 4 and 5 with the following directions;

(1) Within three weeks from the date of receipt of a certified copy of this judgment, the petitioners shall file a revision petition before the Commissioner of the 2nd respondent Malabar Devaswom Board, invoking the provisions under Section 18 of the Madras Hindu Religious and Charitable 19 WP(C) NO. 16183 OF 2024 Endowments Act, 1951, challenging the appointment of the 5th respondent as Non-Hereditary Trustee, along with an application for interim stay.

(2) The Commissioner shall consider and pass appropriate orders on the application for interim stay, with notice to the petitioners and respondents 4 and 5, as expeditiously as possible, at any rate, within a period of three weeks from the date of receipt of that application. Thereafter, the Commissioner shall finally dispose of that revision petition, as expeditiously as possible, at any rate, within a further period of two months; after adverting to the legal and factual contentions raised by both sides and also the law laid down in the decisions referred to supra. (3) The order to be passed by the Commissioner, Malabar Devaswom Board shall be a 'reasoned order'.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

HARISANKAR V. MENON, JUDGE Skk//07.07.2024 20 WP(C) NO. 16183 OF 2024 APPENDIX OF WP(C) NO.16183 OF 2024 PETITIONER'S EXHIBITS:-

EXHIBIT P1 THE TRUE COPY OF THE COMPLAINT FILED BY THE 'MATHRUSAMITHY' BEFORE THE 3RD RESPONDENT DATED 14-01-2023 EXHIBIT P2 THE TRUE COPY OF THE COMPLAINT FILED BY THE MEMBERS OF THE TRUST BOARD BEFORE THE 3RD RESPONDENT DATED NIL EXHIBIT P3 THE TRUE COPY OF THE COMPLAINT FILED BY THE DEVOTEES OF THE SREE POKKYARATHU BHAGAVATHI KSHETHRAM BEFORE THE 3RD RESPONDENT DATED 26- 06-2023 EXHIBIT P4 THE TRUE COPIES OF THE TWO PIECES OF PAPER ISSUED BY THE CHAIRMAN TO THE DEVOTEES FOR RECEIPT OF VAZHIPADU AMOUNTS DATED NIL EXHIBIT P5 THE TRUE COPY OF THE COMPLAINT FILED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT DATED NIL EXHIBIT P6 THE TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT FILED BY ONE OF THE DEVOTEES MR. SANTHOSH N BALAN BEFORE THE SPIO OF THE 3RD RESPONDENT DATED 20-03-2024 EXHIBIT P7 THE TRUE COPY OF THE REPORT NO. 285/23/MDB SUBMITTED BY THE INSPECTOR, MALABAR DEVASWOM BOARD BEFORE THE 3RD RESPONDENT DATED 12-

                03-2024, OBTAINED UNDER RTI ACT
EXHIBIT P8      THE TRUE COPY OF THE ORDER NO. A3-1951-2023/MDB
                OF THE 3RD RESPONDENT DATED        13-03-2024
EXHIBIT P9      THE TRUE COPY OF THE REPLY WITH REF. NO. 2/2024
                GIVEN BY THE VILLAGE OFFICER/ INFORMATION

OFFICER, AZHIKODE SOUTH VILLAGE TO MR. SANTHOSH N BALAN DATED 09-04-2024

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