Kerala High Court
Anilkumar vs The District Registrar (General) And on 26 September, 2018
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940
WP(C).No. 7470 of 2018
PETITIONER/S:
ANILKUMAR
AGED 45 YEARS, SON OF VELAYUDHAN,
KOLLAMPARAMBIL HOUSE,PAATHIRIPADAM (P.O),
EDAKKARA VILLAGE,MALAPPURAM DISTRICT, PIN-
679 331
BY ADV. SRI.R.RAJESH KORMATH
RESPONDENT/S:
1 THE DISTRICT REGISTRAR (GENERAL) AND
REGISTRAR OF SOCIETIES
MALAPPURAM, OFFICE OF THE DISTRICT
REGISTRAR(GENERAL) AND-REGISTRAR OF
SOCIETIES, CIVIL STATION P.O, MALAPPURAM
DISTRICT, PIN- 676 505
2 KURATHI AMMA DEVI KSHETHRAM
KURATHIMALA, A REGISTERED SOCIETY, BEARING
NO.MPM/CA/453/2017, REPRESETNED BY ITS
PRESIDENT KIRTHADAS, AGED 60 YEARS, SON OF
LATE BALAKRISHNAN NAIR, KRISHNA HOUSE,
KAATTICHIRA, POOKOTUMANNA P.O. CHUNGATHARA,
NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN- 679
334
3 VIJAYAKUMAR
AGED 52 YEARS, SON OF LATE NARAYANAN NAIR,
SECRETARY OF THE SECOND RESPONDENT SOCIETY,
PUTHENPURACKAL HOUSE,PATHIRIPADAM P.O.
CHUNGATHARA VILLAGE, NILAMBUR
TALUK,MALAPPURAM DISTRICT, PIN- 679 331
4 SANKARANARAYANAN
AGED 62 YEARS, SON OF CHOZHI, ENGAKODAN
HOUSE, PAATHIRIPADAM P.O. CHUNGATHARA
VILLAGE, NILAMBUR TALUK, MALAPPURAM DISTRICT,
PIN- 679 331
5 BALAKRISHNAN
W.P.(C)Nos.7470 & 8737 of 2018
..2..
AGED 52 YEARS, SON OF PALANISWAMI, IRUTHATTIL
HOUSE, KATTICHIRA, POOKOTUMANNA P.O.MALAPPURAM
DISTRICT, PIN- 679 334
6 MOHANAN NAIR
AGED 61 YEARS, PADINJATTINKAVU
HOUSE,PAATHIRIPADAM P.O. CHUNGATHARA VILLAGE,
NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN- 679
331
7 CHINNAN ALIAS VISWANATHAN
AGED 65 YEARS, SON OF UNNIKUTTY,
KALLAMPARAMBIL HOUSE,PAATHIRIPADAM P.O.
CHUNGATHARA VILLAGE, NILAMBUR TALUK,
MALAPPURAM DISTRICT, PIN- 679 331
8 SADASIVAN P.K.
AGED 50 YEARS, SON OF KAARI, PARAKKAL
HOUSE,PAATHIRIPADAM P.O. CHUNGATHARA VILLAGE,
NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN- 679
331
9 RAMACHANDRAN P.K.
AGED 52 YEARS, SON OF KORU, PARAKKAL
HOUSE,PAATHIRIPADAM P.O. CHUNGATHARA VILLAGE,
NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN- 679
331
*Addl.R10 MALABAR DEVASWOM BOARD
HOUSE FED BUILDING, ERANHIPALAM PO, KOZHIKODE-
673006.
*Addl.R10 is suo motu impleaded as per order
dtd.28.3.18 in W.P.(C)No.7470/18
BY ADVS.
SRI.C.DINESH
SRI.P.DEEPAK
SRI.R.LAKSHMI NARAYAN SC MALABAR DEVASWOM
BOARD
OTHER PRESENT:
SMT.A.C.VIDHYA, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 26.09.2018, ALONG WITH W.P.(C)No.8737/2018 THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)Nos.7470 & 8737 of 2018
..3..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ALEXANDER THOMAS
WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940
WP(C).No. 8737 of 2018
PETITIONER/S:
KURATHI AMMA DEVI KSHETRAM
KURATHIMALA, REGN.NO.MPM/CA/453/2017,
KURATHIMALA, MALAPPURAM DISTRICT,
REPRESENTED BY PRESIDENT
SRI.KIRATHADAS, KRISHNA HOUSE, KAATTICHIRA,
POOKOTTUMANA P.O,CHUNGATHARA VILLAGE, NILAMBUR
TALUK.
BY ADV. SRI.P.DEEPAK
RESPONDENT/S:
1 THE DISTRICT REGISTRAR (GENERAL)
& REGISTRAR OF SOCIETIES, MALAPPURAM OFFICE OF
THE DISTRICT REGISTRAR (GENERAL) & REGISTRAR
OF SOCIETIES,CIVIL STATION, MALAPPURAN-676505
2 ANIL KUMAR
KOLLAMPARAMBIL HOUSE,PAATHIRIPADAM
P.O,EDAKKARA VILLAGE,MALAPPURAM-679331
*Addl.R3 MALABAR DEVASWOM BOARD
HOUSE FED BUILDING, ERANHIPALAM PO, KOZHIKODE-
673006.
*Addl.R3 is suo motu impleaded as per order
dtd.28.3.18 in W.P.(C)No.8737/18.
BY ADVS.
SRI.R.RAJESH KORMATH
SRI.R.LAKSHMI NARAYAN SC MALABAR DEVASWOM
BOARD
SMT.A.C.VIDHYA, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 26.09.2018, ALONG WITH WP(C).7470/2018, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)Nos.7470 & 8737 of 2018
..4..
ALEXANDER THOMAS, J.
--------------------------------
W.P.(C)Nos.7470 & 8737 of 2018
---------------------------------
Dated this the 26th day of September, 2018
JUDGMENT
The petitioners in both these cases challenge the very same order issued by the respondent Registrar notified under the provisions of the Societies Registration Act, 1860. The petitioner in W.P.(C)No.7470 of 2018 would pray for interdiction of the said impugned order and would also seek directions to ensure the revocation of the registration of the society concerned on the contention that the registration is vitiated on account of fraud which is well established in the proceedings before the respondent Registrar. Whereas, the petitioner in W.P.(C)No.8737 of 2018 would seek interdiction of the said impugned order and would pray that the impugned registration granted to the society concerned does not require any interference or in the W.P.(C)Nos.7470 & 8737 of 2018 ..5..
alternative, the matter may be remitted to the respondent Registrar for further consideration. The respondent No.2 in W.P.(C)No.7470 of 2018 is the petitioner in W.P.(C)No.8737 of 2018. The petitioner in W.P.(C)No.7470 of 2018 is the second respondent in W.P.(C)No.8737 of 2018. In the light of these aspects, both these cases are disposed of on the basis of this common judgment. For the sake of convenience, the Exhibits referred to herein are those in relation to W.P. (C)No.7470 of 2018, unless otherwise indicated.
2. The prayers in W.P.(C)No.7470 of 2018 are as follows:-
i) A Writ of Certiorari or any other appropriate Writ, Direction or Order quashing Exhibit-P8-order to the extent it holds that the Executive Committee of the second respondent-society is invalidated and also authorised to convene a general body meeting to elect new Executive Committee of the second-respondent-
Society, in accordance with 'Societies Registration Act, 1860'.
ii)Declare that the registration of the second-respondent-Society stands revoked in the light of findings in W.P.(C)Nos.7470 & 8737 of 2018 ..6..
Exhibit-P8-order;
iii)Any other appropriate Writ, Direction or Order as may be deemed fit and proper in the facts and circumstances of the case."
3. The prayers in W.P.(C)No.8737 of 2018 are as follows:-
"1. Issue a writ in the nature of certiorari or such other writ, order or direction calling for the records leading to Exhibit P6 and quash the same.
2. Issue such other writ order or direction as this Hon'ble Court may deem fit in the facts and circumstances of the case."
4. Heard Sri.Rajesh Kormath, learned counsel appearing for the petitioner in W.P.(C)No.7470 of 2018 and respondent No.2 in W.P.(C)No.8737 of 2018, Sri.P.Deepak, learned counsel appearing for the petitioner in W.P.(C)No.8737 of 2018 and contesting respondents 2 to 6 in W.P.(C)No.7470 of 2018, Sri.C.Dinesh, learned counsel appearing for contesting respondents 7 to 9 in W.P. (C)No.7470 of 2018, Smt.A.C.Vidhya, learned Government Pleader appearing for the respondent- W.P.(C)Nos.7470 & 8737 of 2018 ..7..
Registrar and Sri.R.Lakshmi Narayanan, learned Standing Counsel for the Malabar Devaswom Board appearing for the said respondent-Malabar Devaswom Board in these cases.
5. According to the petitioner in W.P. (C)No.7470 of 2018, registration of a society by name 'Kurathi Amma Devi Kshethram' under the enabling provisions contained in the Societies Registration Act, 1860 was effected with the respondent Registrar on the basis of an application in that regard submitted by one Sri.Kirathadas and 8 others comprising of contesting respondents 3 to 9 in W.P.(C)No.7470 of 2018 and another person by name Sri.Babu.C.S. The impugned registration of the society under the provisions of the said Act was effected by the first respondent Registrar on 26.7.2017. The petitioner complained against the said impugned registration given to the said society (respondent No.2 in W.P.(C)No.7470 of 2018), on W.P.(C)Nos.7470 & 8737 of 2018 ..8..
various grounds and had submitted a complaint (Ext.P1) in that regard before the first respondent registrar. Ext P2 is the copy of the registered memorandum and articles of association of the 2nd respondent-society. As the petitioner was not intimated about any further developments in the matter, he had filed W.P.(C)No.41209 of 2017 before this Court. This Court disposed of W.P.(C)No.41209 of 2017 as per Ext.P6 judgment dated 20.12.2017 whereby the respondent-Registrar was directed to take a decision on the said complaint/objection submitted by the petitioner herein after affording an opportunity of being heard to the petitioner and all the affected parties concerned and after adverting to the dictum laid down by this Court in the judgment in Pullichira Parish Protection Council vs. District Registrar (General) (2013 (2) KLT 6). The process in that regard was directed to be completed by the respondent Registrar within one W.P.(C)Nos.7470 & 8737 of 2018 ..9..
month. Thereafter the 1st respondent Registrar had issued Ext.P7 communication dated 11.1.2018 addressed to the President of the 2nd respondent Society wherein it is observed that there is substance in the said complaint raised by the petitioner herein but that the Office bearers of the Society should endeavour to settle the matter after giving due participation to the complainant therein/petitioner.
6. Petitioner alleged that the said unilateral stand of the 1st respondent-Registrar as reflected in Ext.P7 would amount to non- compliance of the directions in Ext.P6 judgment in as much as the said official was attempting for settlement of the dispute between the parties instead of deciding the matter on merits etc. Accordingly the petitioner had filed a contempt of court case (civil) as C.O.C.No.170 of 2018 and this Court had passed order dated 12.2.2018 in this case which reads as follows:-
W.P.(C)Nos.7470 & 8737 of 2018 ..10..
"Having gone through the impugned order in the Contempt Case, I am prima facie of the view that the respondent committed contempt.
Therefore, opportunity is given to respondent to rectify that order and take appropriate decision in the light of the judgment of this Court.
Post on 19-2-2018."
7. The impugned order referred to in the above said order dated 12.2.2018 in the contempt case is the above referred Ext.P7. Thereafter hearing all the parties concerned, the 1st respondent-Registrar has passed the impugned Ext.P8 order dated 17.2.2018 the operative portion of which reads as follows:-
"ന ലവ ലല ഭരണസമ ത യ ലല മന ഗങൾ,രജ സ ഷൻ തങളല അറ സവ ല അല എന രജ ർ മൻപ ല$ നൽ$ യ ലമ ഴ വ സവമ ലണന സ( ധ*ല+ടത ല- അ സനത0ൽ സമൽ ഭരണസമ ത ലയ അസ ധവ ക ലക ണ ഇത ന ൽ ഉതരവ കന.
1860 ലല സ ഘ രജ സ ഷൻ ന യമത ൽ
പത പ ദ കന വകപ$ൾകനസ*തമ യ ലപ തസയ ഗ
സ>ർന? പത യ ഭരണസമ ത ലയ ത രലAടകനത ന
ന ലവ ലല ഭ രവ ഹ $ലD ചമതലല+ടത0 ലക ണ സമൽ പര ത $D സFൽ അന മ ത0ർ+? $ല?+ ച? ഉതരവ കന."
8. According to the petitioner, the 1st respondent has clearly found that three out of the nine signatories who had submitted the W.P.(C)Nos.7470 & 8737 of 2018 ..11..
application for the registration of the Society, has clearly admitted that their signatures were obtained by respondent No.2 and others through fraud and misrepresentation and that their signatures in blank papers were obtained with the assurance that it will be used only for the purpose of obtaining pan card for the purpose of the temple funds but that in spite of this factual conclusion, the respondent-Registrar has ordered only for the invalidation of the governing body of the Society with a further direction to the same governing body to convene a general body meeting of the society in accordance with law for electing a new governing body/Executive Committee. The contention of the petitioner is that having reached at the clear conclusion that the registration was obtained on the basis of fraud and misrepresentation, the only option open to the respondent-Registrar was to order for the revocation of the registration W.P.(C)Nos.7470 & 8737 of 2018 ..12..
granted to the said society and that he should not have passed the directions in Ext.P8 as mentioned herein above.
9. Per contra the contention of the petitioner in W.P.(C)No.8737 of 2018 and contesting respondents 2 to 6 in W.P.(C)No.7470 of 2018 is that the main reasoning of the respondent-Registrar in arriving at the afore said conclusion was that the above said parties had not denied the allegations of the opposite parties that the signatures of three out of the nine persons were obtained on the basis of the misrepresentation etc. and that the said finding is clearly untenable in as such as respondent No.2 in W.P.(C)No.7470 of 2018 had submitted Ext.P5 objections clearly denying the allegations that the signatures were obtained on the basis of fraud and misrepresentation and that signatures of all the nine persons concerned including the above said two persons were voluntarily given by them. On this ground it is submitted by W.P.(C)Nos.7470 & 8737 of 2018 ..13..
the petitioner in W.P.(C)No.8737 of 2018 that the whole basis for arriving at a conclusion in the impugned order regarding the commission of the alleged fraud/misrepresentation is unreasonable and that registration of the Society does not require any interdiction or in the alternative the matter may be remitted to the respondent- Registrar for further consideration.
10. From the facts and materials on record it is seen that 9 persons including Sri.Kirathadas (the President of the Society), contesting respondents 3 to 9 in W.P.(C)No.7470 of 2018 and another person by name Sri.C.S.Babu had submitted the application in terms of Section 1 of the Societies Registration Act for getting the registration of the Society mooted by them. It is to be borne in mind that Section 1 of the Societies Registration Act, 1860 mandates that any seven or more persons who are associated to the proposed Society should subscribe their names W.P.(C)Nos.7470 & 8737 of 2018 ..14..
to the memorandum of association and for filing of the same with the competent registration official concerned for getting the society registered under the said Act. Section 1 of the Societies Registration Act, 1860 reads as follows:-
"1. Societies formed by memorandum of association and registration.- Any seven or more persons associated for any literary, scientific, or charitable purpose or for any such purpose as is described in Section 20 of this Act, may, by subscribing their names to a memorandum of association, and filing the same with [the Inspector-General of Registration (hereinafter in this Act referred to as the Inspector- General)] [x x x x] from themselves into a society under this Act. [Explanation.-"Inspector-General of Registration" means the Inspector- General of Registration appointed by the State Government under Section 3 of the Indian Registration Act, 1908 (Central Act 16 of 1908), or any of the district authorities subordinate to the Inspector-General of Registration not below the rank of the District Registrar to whom powers may be delegated in respect of this Act.]
11. Further it is seen that contesting respondents 7 to 9 who are three among the nine W.P.(C)Nos.7470 & 8737 of 2018 ..15..
persons concerned have clearly given statements dated 8.9.2017 before the respondent-Registrar clearly stating therein that their signatures in blank papers were obtained by Kirathadas and other persons concerned on the basis of the representation that it is to be utilised only for the purpose of issuance of pan card for the temple fund and that it is later they could know that their signatures in blank papers have been misutilized by Sri.Kirathadas and the other persons concerned for using it for the purpose of registration of the Society. The said objections/statements given by contesting respondents 7 to 9 have been produced as Exts.P3 to P5 in W.P.(C)No.7470 of 2018. It is also not in dispute that copies of the said statements/objections of the above said three persons were also duly furnished to the President of the Society on 15.2.2018, based on the request made by him. It is thereafter that the impugned W.P.(C)Nos.7470 & 8737 of 2018 ..16..
decision has been arrived at by the respondent Registrar as per Ext.P8 dated 17.2.2018. It is also common ground that the above said President of the Society was duly represented through a legal practitioner before the respondent Registrar. The main contention raised by the petitioner in W.P.(C)No.8737 of 2018 is that there has been no effective consideration of the objections raised by that party as seen in Ext.P5 produced in W.P.(C)No.8737 of 2018. Contesting respondents 7 to 9 in W.P.(C)No.7470 of 2018 have also entered appearance before this Court and has asserted on the basis of the materials, like Ext.P5 in W.P.(C)No.7470 of 2018 that their signatures in blank papers were misutilised and misused by Sri.Kirathadas and others and that they were never in the knowing that their signatures would be utilised for the purpose of registration of the Society. True that the fact finding mentioned towards the bottom of the page W.P.(C)Nos.7470 & 8737 of 2018 ..17..
No.2 of Ext.P8 that Sri.Kirathadas had never objected to the allegations regarding fraud is incorrect in as such as he had clearly submitted Ext.P5 objections stating that the signatures of the above said three persons were obtained voluntarily and with their full knowledge. To that extent the fact finding mentioned in page 2 of Ext.P8 is incorrect. But even if the matter is to be remitted only due to that technical reason, no other conclusion can be arrived at by the respondent Registrar in as much as the clear case of the above said three persons (contesting respondents 7 to 9 in W.P.(C)No.7470 of 2018) is that their signatures were obtained fraudulently as afore stated. Moreover a perusal of Ext.R2(a) produced in W.P.(C)No.8737 of 2018 which is a copy of the proceedings of the respondent Registrar which led to the above said impugned Ext.P8 order, would show that the statements of the parties concerned and that the submissions of W.P.(C)Nos.7470 & 8737 of 2018 ..18..
both the rival sides were duly heard by him and that the respondent Registrar found that there is substance in the allegations raised by the petitioner in W.P.(C)No.7470 of 2018. Having regard to the fact that the consistent stand of contesting respondents 7 to 9 in W.P.(C)No.7470 of 2018 is that their signatures were obtained on the basis of the above said misrepresentation, it is only to be held that the conclusion ultimately arrived at by the respondent Registrar in the operative portion of Ext.P8 order that the registration was secured on the basis of such false representation does not deserve any interference at the hands of this Court. However after reaching that factual conclusion regarding the finding of fraud/misrepresentation which has vitiated the process of registration, the respondent Registrar only directed for the invalidation of the present Executive Committee/ Governing Body of the Society and with a W.P.(C)Nos.7470 & 8737 of 2018 ..19..
direction that the very same body should convene a general body meeting of the members of the society for electing a new Executive Committee/Governing Body. It is true that no explicit provisions are made in the Societies Registration Act, 1860 for cancellation or revocation of the registration granted to the society by the Registrar. But it is now well established that fraud would vitiate the entire decision making process and the end product of the same would be a nullity. Therefore once it is established that the registration was secured on the basis of fraud/misrepresentation, then the notified Registrar has the inherent power to revoke the registration so granted and to formally pass orders for the cancellation of the registration of the society.
12. Since it has been established that the signatures of three out of the nine signatories, who had mooted the application for registration, W.P.(C)Nos.7470 & 8737 of 2018 ..20..
has been obtained by misrepresentation, then there remains only the request made by six persons. The minimum number of persons required to put in motion the process of registration of a society in terms of Section 1 of the Act is seven or more persons. Obviously the statutorily required minimum number of persons have not mooted and proposed the motion for registration of the society and hence the registration of society itself was highly illegal and ultravires. In view of this aspect, the only course of action that was legally open to the respondent Registrar was to have revoked the registration of the society.
13. Hence in view of the above said finding arrived at by the respondent Registrar that the registration of the society was secured on the basis of fraud, the only course of action opened to the respondent Registrar was to have revoked the registration granted to the society earlier W.P.(C)Nos.7470 & 8737 of 2018 ..21..
on 26.07.2017, instead of adopting the strange procedure for invalidating the governing body and authorising the very same invalidated body to ensure the election of the successive body. In the light of these aspects, this Court is of the considered opinion that the operative portion of the impugned Ext.P8 order to the extent it does not direct the revocation and cancellation of the impugned registration granted to the society but only directs for the invalidation of the governing body with direction to re-elect a new governing body etc. is vitiated by arbitrariness. Therefore in view of that aspect it is ordered that the impugned order dated 17.2.2018 (Ext.P8 in W.P.(C)No.7470 of 2018/Ext.P6 in W.P. (C)No.8737 of 2018), to the extent it does not direct the revocation and cancellation of the registration of the society and it only directs the invalidation of the governing body of the society will stand set aside and it is ordered W.P.(C)Nos.7470 & 8737 of 2018 ..22..
that the registration granted to the 2nd respondent-society will stand revoked and cancelled. Formal orders in that regard should be passed by the first respondent Registrar revoking and cancelling the registration so granted, within a period of one month from the date of production of a certified copy of this judgment.
14. Now the most important live issue to be considered is as to what further directions should be issued for regulating the functioning of the temple for whose interest the society was sought to be registered. Taking note of the acute nature of this problem, this Court had already passed a detailed order dated 28.3.2018 directing the suo motu impleadment of the Malabar Devaswom Board as an additional respondent in these cases. Further a detailed order dated 2.4.2018 was also passed by this Court in these cases which reads as follows:-
"The Kurathi Amma Devi Kshethram in Kurathimala in Nilambur Taluk of Malappuram District is an ancient W.P.(C)Nos.7470 & 8737 of 2018 ..23..
temple. It has not been declared as a public temple so far. The temple is maintained by the local public. The dispute espoused in these writ petitions would clearly indicate that there is no unanimity among public as to the manner in which the temple has to be protected and maintained. It appears that a committee was registered under the Societies Registration Act, 1860. That was challenged by the writ petitioner in WP.(C), No.7470/2018 (Mr.Anilkumar) by filing W.P(C).No.41209/2017. Taking note of the nature of the complaint raised by the petitioner therein, this Court directed the District Registrar to consider his complaint. His complaint was that the Society was registered by forging documents. Thereupon, pursuant to the direction of this Court, the District Registrar passed an order on 17.2.2018 nullifying the constitution of the governing body of the society and directed the present office bearers to convene a general body meeting and to elect a new body. The said decision is challenged by Kurathi Amma Devi Kshethram in WP(C).No.8737/2018 stating that it was passed without adverting to their objection and without giving an opportunity of hearing the committee. The same decision is also challenged by the petitioner in W.P.(C).No.7470/2018. His case is that on invalidating the governing body, the present officer bearers cannot convene a general body. According to the petitioner, instead of cancelling the W.P.(C)Nos.7470 & 8737 of 2018 ..24..
registration, the District Registrar passed an order invalidating the governing body of the committee.
2. Both the parties have espoused a larger interest of devotees in relation to the affairs of the temple. It is certainly, the concern of this Court to protect the interest of the temple by streamlining it through appropriate procedure. Accordingly, this Court had suo motu impleaded the Malabar Devaswom Board in the party array. Both the parties have expressed their views before this Court that they have no objection in the Malabar Devaswom Board streamlining the affairs of the temple to protect the assets of the temple and interest of the devotees.
3. I have also heard the learned Standing Counsel for the Malabar Devaswom Board. The learned Standing Counsel submits that, since there is no notification under the Hindu Religious and Charitable Endowments Act, 1951 the Malabar Devaswom Board cannot take any action.
4. This Court is of the view that the Deputy Commissioner of the Malabar Devaswom Board shall inquire into the affairs of the temple and shall take all steps to protect the temple. Appropriate decision shall be taken after hearing all affected parties including the petitioners herein within a period of two months and report the decision before this Court by next posting date. Till such a decision is taken by the Malabar Devaswom Board, the present office bearers shall manage the affairs of the temple. The present W.P.(C)Nos.7470 & 8737 of 2018 ..25..
office bearers shall not transfer or alienate the property of the temple without orders of this Court or the Deputy Commissioner of the Malabar Devaswom Board.
Post this matter on 6.6.2018."
15. In compliance with the directions issued by this Court on 2.4.2018, the Deputy Commissioner (Law) of the respondent-Malabar Devaswom Board has filed a detailed report dated 5.6.2018 which reads as follows:-
"The Hon'ble High court as per the order dated 02.04.2018 in WP(C) No.7470/2018 & 8737/2018 directed the Deputy Commissioner (Law), Malabar Devaswom Board to enquire into the affairs of the temple and take all steps to protect the temple. It is also ordered to take a decision within two,months after hearing all the affected parties including the petitioner.
2. I visited Kurathy Amma Devi Temple, Kurathimala on 06.04.2018. The temple is situated in Nilambur Palunda-Munderi Road of Chungathara Amsom Desom comprised within the Taluk of Nilambur, Malappuram District. The main deity of the temple is Kirathamoorthy (Lord Siva) with Kurathi Amma (Parvathy). Apart from this Ganapathy is a sub deity inside the Nalambalam. Outside the Nalambalam there is a Nagaprathishta. In all 'Nada' (ന ) and outside the temple there are hundials. In W.P.(C)Nos.7470 & 8737 of 2018 ..26..
addition to this the temple have Namaskara Mandapam, Vathilmadam, Thidappally and an office and bathrooms, latrine for devotees. The temple situated approximately in an area of 1 acre of land. There is board showing vazhipadu rates in front of the office. 'Muttarukkal' and 'Mangallya pooja' are special offerings of the temple. Muttarukkal offers every day and Mangallya Pooja offers only in the first Monday of every Malayalam month. From 2002 onwards annually celebrates Prathishtadinam in the malayalam month of Kumbham and prior to this festival, Kalampattu for Devi and Vettekaran also celebrated. In addition to this Sivarathri, Ganesholsavam and Sreekrishnajayathi were also celebrated as periodical festivals. The employees of the temple told that the monthly income of the Temple derived from Vazhipadu and hundials is approximately Rs. 2 lakhs
3. As per the direction from this Hon ble court, the enquiry was posted on 19.04.18 after serving due notices to all parties. On 19.4.2018 R1 the District Registrar (General), Malappuram and R2 to R6 were present and statement of R1 is recorded and for R2 to R6, R2 gave Statement. The petitioner appeared through Counsel on that day and R7, R8 and R9 were absent and set ex-parte. In the statement R2 stated that he is the President of the Committee from
06.05.98 till today and the same Committee is continuing as such. At that time the temple was only a small Sreekovil with one stone lamp. On W.P.(C)Nos.7470 & 8737 of 2018 ..27..
16.03.1998 at the beginning of the renovation of the temple the 'Kuttiyadikkal' (കറ യ കൽ) of the new Sreekovil performed and as per the instruction of the Kshethram Thanthri on 27.05.98 stone was laid for the new Sreekovil. On 27.10.1998 a Public Meeting was convened and decided to speed up the renovation of the temple and as a result on 27.02.2002 the 'Prathikshta (പത ഷ?o) of the present Temple was held. In the year 2005 the present 'Nadappanthal' (ന +നൽ) was constructed and in the year in 2011. The Vazhipadu Counter and the Stock Room were constructed. To make the accounting system transparent, the Vazhipadu counter was computerized and made arrangement to deposit the daily income of the Temple on the same day in the Bank account and as per the instruction from the Local Police CCTV Cameras were installed for the protection of the Temple. He further stated that when the existing Committee took charge, the Temple had only 50 cents of land and after that, step by step 53 cents of land purchased for the Temple. He also stated that the registration of the Temple under the Societies Registration Act was done only for obtaining a PAN Card in the name of the temple which is mandatory for online banking. The enquiry was adjourned to 24.04.18.
4. On 24.04.18 Petitioner and his counsel present and filed Vakalath and Statement. He had stated that W P (C) filed against the order of the District Registrar (General), Malappuram and there is no need of interference of Malabar Devaswom W.P.(C)Nos.7470 & 8737 of 2018 ..28..
Board in the matter. On that day R2 to R6 filed supporting documents for their evidence. The enquiry was adjourned to 03.05.2018. On that day, Counsel appeared for R7, R8 and R9 and filed Vakalath and Petition to set aside ex-parte order. The enquiry was adjourned to 11.05.18. On that day R2 to R6 filed Counter Statement in the above Petition. The ex-parte order was set aside on payment of cost of Rs. 500/- each and posted for statement of R7, R8 and R9 to 17.05.18. On that day R7, R8 and R9 filed Statement in which it is stated that the only dispute is regarding the registration of the society No.453/2017 and interference in the administration of the Kurathi Amma Devi Temple by Malabar Board is unwarranted and objectionable. On 17.05.2018 the Enquiry was closed.
5. The next matter to be considered is whether the Temple has the characteristics of a religious institution as defined in the Madras Hindu Religious and Charitable Endowment Act, 1951. The Structure of the Temple Nalambalam, Hundials and entrance to the public Road, Vazhipadu Counter and Board with rates of Vazhipadu, the Public address system, receipts issued from the temple etc. denotes its public character. The administration of the temple is done by the Committee constituted from the public. The Temple has been functioning on the income derived from the Vazhipadu Offerings and Hundials installed there in. All devotees worship in the Temple as of right. The regular Pooja W.P.(C)Nos.7470 & 8737 of 2018 ..29..
in the Temple is done with the money received from the public devotees, there are thirteen workers and employees in the Temple including two Santhis (Priests), three office workers, two lady workers and daily waged workers as Temple employees.
6. From the Statements given by the petitioner and Respondents and the peculiar circumstances available, I find that the only dispute between the parties is as to registration of the Committee under the Societies Registration Act, 1860. Both parties expressed their displeasure with the involvement of Malabar Devaswom Board. Thus the present dispute can be solved by appointing an independent authority, to ensure enrollment of eligible devotees in the list of membership and for overseeing the registration process and thereby to transparent administration in a democratic manner. The assets of the Temple have considerably increased with the devoted activities of the present Committee and devotees. What is required is a democratic and transparent framework for administration, which can be put in place by operation of devotees. I do not find sufficient materials justifying interference by Malabar Devaswom Board, at this point of time, especially in view of above facts and circumstances.
I am submitting this report in compliance of the directions of this Hon'ble court in order dated 02.04.2018 in W.P(C) No.7470/2018 and 8737/2018. It may kindly be received W.P.(C)Nos.7470 & 8737 of 2018 ..30..
on file and appropriate orders may be passed."
16. From a reading of the above said order dated 2.8.2018 it can been seen that initially both the rival sides had fully welcomed the stand taken by this Court to adopt a procedure to streamline the functioning of the temple through the involvement of the Malabar Devaswom Board. Further a reading of the report dated 5.6.2018 of the Deputy Commissioner, Malabar Devaswom Board would disclose that later both sides have changed their stand and have opposed the involvement of the Malabar Devaswom Board.
17. However without getting into the merits of the various other aspects mentioned in the report dated 5.6.2018, this Court is of the view that the matter requires proper enquiry by the statutory officials of the Malabar Devaswom Board as to whether the temple in question (Kurathiamma Devi Kshetram), is one which is amenable to the regulatory provisions of the Madras Hindu W.P.(C)Nos.7470 & 8737 of 2018 ..31..
Religious and Charitable Endowments Act, 1951. In that context it may be pertinent to make reference to some of the important provisions of the said Act. Section 1(2) of the said Act stipulates that it extends to the whole of Malabar District and applies to all Hindu public religious institutions and endowments, including the Thirumalai-Thirupathi Devasthanoms and the endowments thereof. In the explanation appended to sub section (2) of Section 1 it is stated that in that subsection, Hindu public religious institutions and endowments do not include Jain religious institutions and endowments. Section 6 of the Act deals with the definition clauses. Section 6(14) dealing with 'religious endowment' reads as follows:-
"Section 6(14) "religious endowment"
or "endowment" means all property belonging to or given or endowed for the support of maths or temples, or given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity; and includes the institution concerned and also W.P.(C)Nos.7470 & 8737 of 2018 ..32..
the premises thereof, but does not include gifts of property made as personal gifts to the archaka service-holder or other employee of a religious institution;
Explanation (1).- Any inam granted to an archaka, service-holder or other employee of a religious institution for the performance of any service or charity in or connected with a religious institution shall not be deemed to be a personal gift to the archaka, service-holder or employee but shall be deemed to be religious endowment. Explanation (2).-All property which belonged to, or was given or endowed for the support of a religious institution, or which was given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity shall be deemed to be a 'religious endowment"or 'endowment' within the meaning of this definition, notwithstanding that, before or after the commencement of this Act, the religious institution has ceased to exist or ceased to be used as a place of religious worship or instruction or the service or charity has ceased to be performed:
Provided that this explanation shall not be deemed to apply in respect of any property which vested in any person before the commencement of this Act, by the operation of the law of limitation."
18. Section 6(15) defines 'religious institutions' as follows:-
W.P.(C)Nos.7470 & 8737 of 2018 ..33..
"Section 6(15) "religious institution"
means a math, temple or specific endowment;
19. Section 6(16) and 6(17) reads as follows:-
"6(16) "Specific endowment" means any property or money endowed for the performance of any specific service or charity in a math or temple, or for the performance of any other religious charity, but does not include an inam of the nature described in Explanation (1) to clause (14);
(17) "temple" means a place by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of or used as of right by the Hindu Community or any section thereof, as a place of public religious worship:
20. Section 57 of the Act confers power on the Deputy Commissioner to decide certain disputes and matters and as per Clause(a) of Section 57 it is stipulated that subject to the rights of suit or appeal thereinafter provided, the Deputy Commissioner shall have the power to enquire into and decide the following disputes and matters - (a) whether an institution is a W.P.(C)Nos.7470 & 8737 of 2018 ..34..
religious institution. The Rules framed under Section 57 deals with the procedure to be adopted in the exercise of the powers under Section 57. Hence by virtue of the specific provision engrafted in Clause (a) of Section 57 the Deputy Commissioner concerned is given the power to enquire into and decide as to whether an institution is a religious institution as understood in section 6(15) and in other words it also includes the power on the Deputy Commissioner to decide whether it is a temple as understood in Section 6(17). Appeal provision is made in Section 61 to the Commissioner so as to enable any person aggrieved by an order passed by the Deputy Commissioner under any of the forgoing provisions of that Chapter to prefer such appeal etc. Section 62 provides for institution of suits and further appeals. Once a decision is rendered under Section 57 that the institution concerned is a religious institution or a temple as W.P.(C)Nos.7470 & 8737 of 2018 ..35..
envisaged in Section 6(15) and Section 6(17) of the Act, then the provisions contained in Sections 39 and 41 of the Act confers power on the statutory Authorities concerned for appointment of non-hereditary trustees for such a temple. Section 20 of the Act provides that subject to the provisions of the Act, the administration of all the religious endowments shall be subject to the general superintendence and control of the Commissioner and such superintendence and control shall include the power to pass any orders which may deem it necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist.
21. Now as per the orders passed by this Court the registration given to the 2nd respondent society stands revoked and cancelled. What is more paramount as far as this Court is the W.P.(C)Nos.7470 & 8737 of 2018 ..36..
overall welfare of the temple as well as the interest of the worshipers of the temple.
22. Having regard to the various aspects already dealt with by this Court in the order dated 2.4.2018 as well as the various factual aspects borne out from the report dated 5.6.2018 submitted by the respondent-Deputy Commissioner of the Malabar Devaswom Board, this Court is of the view that the matter should be referred to the Deputy Commissioner of the respondent-Malabar Devaswom Board to decide by virtue of the powers conferred under Section 57(a) as to whether the temple is a religious institution/temple as envisaged in Section 6(15) and 6(17) of the above said Act after hearing all the interested parties concerned. Accordingly it is ordered that the matter will stand referred to the designated Deputy Commissioner concerned of the respondent- Malabar Devaswom Board who shall render a considered decision after hearing all the W.P.(C)Nos.7470 & 8737 of 2018 ..37..
necessary/interested parties concerned as to whether the Kurathiamma Devikshetram is a religious institution or temple as envisaged in Section 6(15) and Section 6(17) of the above said Act and as contemplated in Clause (a) of Section 57 of the Act. The Deputy Commissioner concerned will give an opportunity to all the parties to this proceedings and a public notice should also be displayed in the notice board of the temple inviting submissions/suggestions/proposals from any of the interested persons who are worshipers of the temple to forward their written submissions to the Commissioner within a reasonable time limit of four weeks. The parties may also submit necessary materials in support of their contentions and submissions before the Deputy Commissioner of the Malabar Devaswom Board. Thereafter reasonable opportunity of being heard should be afforded to all the parties concerned and then the Deputy Commissioner of the W.P.(C)Nos.7470 & 8737 of 2018 ..38..
respondent-Malabar Devaswom Board should take a considered decision on the issue as to whether or not the Kurathiamma Devi Kshethram is a 'religious institution' or 'temple' as understood in Section 6(15) and Section 6(17) of the above said Act, as envisaged in Clause (a) of Section
57. The process in that regard should be duly completed by the Deputy Commissioner within an outer time limit of four months from the date of production of a certified copy of this judgment. If any person is aggrieved by the decision so taken by the Deputy Commissioner, he/she will be at liberty to challenge the same in the manner known to law.
23. Sri.P.Deepak, learned counsel appearing for the petitioner in W.P.(C)No.8737 of 2018 and contesting respondents 2 to 6 in W.P.(C)No.7470 of 2018 would submit on the basis of instructions from his parties that the said parties would welcome the order of this Court to refer the W.P.(C)Nos.7470 & 8737 of 2018 ..39..
matter for the considered decision of the Malabar Devaswom Board and that they have no objection in bringing both the functioning of the Kurathiamma Devi Kshethram within the regulatory frame work of the HR & CE Act. Sri.P.Deepak, learned counsel appearing for the said parties would submit that his parties were sincerely conducting the affairs of the temple for a very long time, even when the Committee was functioning as an unregistered body and that the interest of the said parties is only to ensure the welfare of the temple and that they have no objection in the Malabar Devaswom Board exercising its supervisory jurisdiction for the said temple.
24. Per contra Sri.Rajesh R.Kormath, learned counsel appearing for the petitioner in W.P. (C)No.7470 of 2018 and Sri.C.Dinesh, learned counsel appearing for contesting respondents 7 to 9 in W.P.(C)No.7470 of 2018 would submit that, according to the said parties, the temple in W.P.(C)Nos.7470 & 8737 of 2018 ..40..
question is not one which could be brought for within the regulatory frame work of the HR & CE Act and that it is a private temple. This Court is not expressing any opinion on the merits of the rival versions and it is for the Deputy Commissioner of the respondent-Malabar Devaswom Board to take a considered call in the matter as directed herein above.
25. This Court is inclined to direct the Commissioner of the Malabar Devaswom Board to exercise his prerogative powers as envisaged in Section 20 of the HR & CE Act to ensure that adequate interim arrangement should be put in place for taking care of the interim administration and management of the affairs of the temple, until the process of putting in place a competent body for the management of the temple, in the manner known to law, is finalised. However Sri.P.Deepak, learned counsel for the petitioner in W.P.(C)No.8737 of 2018 and W.P.(C)Nos.7470 & 8737 of 2018 ..41..
contesting respondents 2 to 6 in W.P.(C)No.7470 of 2018 and Sri.Rajesh Kormath, learned counsel for the petitioner in W.P.(C)No.7470 of 2018 and respondent No.2 in W.P.(C)No.8737 of 2018 and Sri.C.Dinesh, learned counsel for respondents 7 to 9 in W.P.(C)No.7470 of 2018 have submitted in unison that both the unregistered committee and the registered committee consisted of 9 persons, inclusive of respondents 7 to 9 in W.P.(C)No.7470 of 2018 and the said committee of 9 persons may be directed to continue as interim body to be in charge of the interim management of the temple for the above purpose. Sri.Lakshmi Narayanan, learned Standing Counsel for the respondent Malabar Devaswom Board also submitted that appropriate orders may be passed by this Court in the interest of justice.
26. This Court in the order dated 2.4.2018 had also ordered that the said body would continue as an interim arrangement. Though the W.P.(C)Nos.7470 & 8737 of 2018 ..42..
very registration of the society has been ordered to be revoked and cancelled, as an interim arrangement it is ordered in the light of the submissions made by the rival parties that the said nine member body would continue to act as an interim administrative committee to take care of the interim management and administration of the temple, under the direct supervision of the competent officials of the respondent-Malabar Devaswom Board, until the process of putting in place a competent body for the management of the temple in the manner known to law is finalised. The said interim body should be concerned mainly with the day-to-day administration and management of the temple and in case any important policy decision is to be taken, then the same can be effected only after getting prior approval of the competent officials of the respondent-Malabar Devaswom Board. The Commissioner or any other official duly authorised by him will be at W.P.(C)Nos.7470 & 8737 of 2018 ..43..
liberty to issue necessary directions for regulating the functioning of the said interim body.
With these observations and directions these writ petitions (civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE skj W.P.(C)Nos.7470 & 8737 of 2018 ..44..
APPENDIX IN W.P.(C)No.7470/2018 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF EXHIBITP2 DATED 30-08-2017 REFERRED TO IN WPC NO.41209 OF 2017 EXHIBITP2 TRUE COPY OF MEMORANDUM OF ASSOCIATION DATED 11-7-2017 OF THE SECOND RESPONDENT SOCIETY EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED 8.9.2017 PREFERRED BY THE SEVENTH-
RESPONDENT BEFORE THE FIRST RESPONDENT-REGISTRAR EXHIBIT P4 TRUE COPY OF COMPLAINT DATED 8.9.2017 PREFERRED BY THE EIGHTH-RESPONDENT BEFORE THE FIRST RESPONDENT-REGISTRAR EXHIBIT P5 TRUE COPY OF COMPLAINT DATED 8.9.2017 PREFERRED BY THE NINETH-RESPONDENT BEFORE THE FIRST RESPONDENT-REGISTRAR EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 20-12-2017 IN WPC NO.41209 OF 2017 ON THE FILE OF THIS COURT EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 11-1-2018 ISSUED BY THE FIRST RESPONDENT REGISTRAR TO KIRATHADAS EXHIBIT P8 TRUE COPY OF THE ORDER DATED 17-02-2018 PASSED BY THE FIRST RESPONDENT- REGISTRAR W.P.(C)Nos.7470 & 8737 of 2018 ..45..
APPENDIX IN W.P.(C)No.8737/2018 PETITIONER'S/S EXHIBITS:
EXHIBIT P1: A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE PETITIONER SOCIETY EXHIBIT P2: A TRUE COPY OF THE NOTICE DATED 12.02.2018 EXHIBIT P3: A TRUE COPY OF THE OBJECTION DATED 30.08.2017 OF THE 2ND RESPONDENT EXHIBIT P4: A TRUE COPY OF THE OBJECTION DATED 08.09.2017 FILED BY CHINNAN @ VISHWANANATHAN EXHIBIT P4(A): TRUE COPY OF THE OBJECTION DATED 08.09.2017 FILED BY P.K.SADASIVAN EXHIBIT P4(B): TRUE COPY OF THE OBJECTION DATED 08.09.2017 FILED BY P.K.RAMACHANDRAN EXHIBIT P5: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER SOCIETY ON 16.02.2018 EXHIBIT P6: TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 17.02.2018 EXHIBIT P7: TRUE COPY OF THE JUDGMENT DATED 20.12.2017 IN WPC NO.41209/2017 EXHIBIT P8: TRUE COPY OF THE COVERING LETTER DATED 03.01.2018 EXHIBIT P9: TRUE COPY OF THE NOTICE DATED 11.01.2018 EXHIBIT P10: TRUE COPY OF THE MEMO (INDEX & DOCKET) FILED BY THE GOVERNMENT PLEADER IN CONTEMPT CASE NO.170/2018 RESPONDENTS' EXHIBITS:
EXT.R2(A) TRUE COPY OF THE PROCEEDINGS WITH RESPECT TO EXT.P3 COMPLAINT BEARING NO.S1-4306/17 ON DIFFERENT DATES TILL 16.1.2018 EXT.R2(B) TRUE COPY OF THE APPLICATION DATED 15.2.2018 SUBMITTED BY THE SECOND RESPONDENT BEFORE THE FIRST RESPONDENT-REGISTRAR.