Vaikkathur Kshetra Samrakshana ... vs State Of Kerala on 12 January, 2023

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Kerala High Court

Vaikkathur Kshetra Samrakshana ... vs State Of Kerala on 12 January, 2023

Ext.P6 is an order issued by the 3 rd respondent to assume the administration of Sree Vaikkathoor Mahadeva Temple for which an Executive Officer was appointed. The petitioners filed this Writ Petition under Article 226 of the Constitution of India seeking to issue a writ of certiorari quashing Ext.P6. They claim further reliefs of a declaration that the 1st petitioner Vaikkathur Kshetra Samrakshana Samithi is the trustee of the Temple, and a writ of mandamus so as to allow the 1st petitioner to continue in the administration of the Temple.

2. The 1st petitioner is the Vaikkathur Kshetra Samrakshana Samithi represented by its president. The 2 nd petitioner claims to be its Secretary. The 3rd petitioner claims to be the Managing Trustee of Sree Ayyappa Trust, which had administered Sree Vaikkathoor Mahadeva Temple till 1976. The Temple originally belonged to Mazhuvancheri Illam. Since the Ooralans were not able to carry on its 5 W.P.(C) No.6504 of 2021 administration, the 1st petitioner Samithi was entrusted with the administration of the Temple for which Ext.P1 agreement was executed. The 1st petitioner was registered later under the Societies Registration Act, 1860. Ext.P2 is its bye-law. The office bearers of the Samithi are elected every 2 years. Making use of the contribution from the devotees, the Samithi acquired huge assets for the Temple. However, during 2018 alleging that there occurred misappropriation of funds, the 4 th respondent issued Ext.P3 notice inviting application for appointment of non-hereditary trustees in the Temple. The petitioners filed W.P.(C) No.32047 of 2019 challenging Ext.P3. Despite that, the 4th respondent issued Ext.P4 dated 08.01.2021 appointing non-hereditary trustees in exercise of the powers under Section 39(2) of the Madras Hindu Religious Charitable Endowment Act, 1951 (for short HR&CE Act). The non-hereditary trustees so appointed are ineligible persons. The petitioners therefore filed W.P.(C) No.2048 of 2021 challenging Ext.P4 order as per which the non-hereditary trustees were appointed. This Court disposed of the said Writ 6 W.P.(C) No.6504 of 2021 Petition as per Ext.P5 judgement directing the 3 rd respondent- Commissioner to consider the revision petition filed before him challenging Ext.P4 order. While so, the 4 th respondent issued Ext.P6 dated 17.02.2021 assuming the administration of the Temple purportedly in the exercise of its powers under Section 8B of the HR&CE Act. The said order is illegal, irregular and unconstitutional. Hence, the petitioners filed this Writ Petition seeking the aforesaid reliefs.

3. When this Writ Petition came up for admission on 15.03.2021, the learned Senior Government Pleader took notice for respondent No.1 and the learned Standing Counsel for the Malabar Devaswom Board took notice for respondents 2 to 5. Respondents 7 to 9 were impleaded as per the order in I.A.No.6 of 2021. Subsequently, respondents 10 and 11 and also respondents 12 and 13 were additionally impleaded.

4. The 4th respondent filed a counter affidavit disputing the claim that the 1 st petitioner is the trustee of the Temple. It was further contended that Ext.P1 is an illegal document and the petitioners did not obtain any right over 7 W.P.(C) No.6504 of 2021 the Temple by virtue of that document. Placing reliance on Exts.R4(a) and R4(b) it is contended that after obtaining consent of the hereditary trustee only, steps for appointing non-hereditary trustees were taken. The Board of Trustees was constituted including a representative of the hereditary trustee. The petitioners have filed O.S.No. 47 of 2021 before the Munsiff's Court, Tirur regarding the same matter. Hence they are disentitled to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. It is true that the said court has no jurisdiction to entertain the suit. The further contention is that the Executive Officer was appointed invoking the provisions of Section 20 of the HR&CE Act in order to see that the administration of the Temple is done in an appropriate manner. The petitioners by filing civil suit and resorting to clandestine and surreptitious activities created a situation befalling the administration of the Temple is total disarray and that compelled the 4 th respondent to appoint an Executive officer. Accordingly, the 4 th respondent sought to dismiss the Writ Petition as not maintainable. 8 W.P.(C) No.6504 of 2021

5. Respondent No.11 has filed a statement to the effect that in terms of Ext.P6, the administration of the Temple was taken over by the Executive Officer and a complaint lodged by one Sri.Narayanan, Chairman of the Ayyappan Trust Board was closed opining that what transpired was only taking over of the administration by the Executive Officer in discharge of his official duty and no cognizable offence was revealed.

6. Respondent Nos.7 to 9 filed a counter affidavit justifying their appointment as non-hereditary trustee. It is further contended that a revision petition challenging their appointment was filed before the 3rd respondent- Commissioner and the same after due consideration was rejected as per Ext.R7(a) order.

7. Additional respondent No.13 also filed a counter affidavit wherein it was contended that very constitution of the 1st petitioner Samithi is illegal for, it is against the circular dated 15.06.2007 issued by the 2nd respondent, a copy of which is Ext.R13(a). Further contention is that the 1 st 9 W.P.(C) No.6504 of 2021 petitioner cannot claim to be a trustee of the Temple and the non-hereditary trustee was appointed with the consent of the hereditary trustee only. The additional 13th respondent produced Exts.R13(c) to (m) in order to substantiate that there have been gross mismanagement and malfeasance in the administration of the temple affairs by the 1st petitioner.

8. The petitioners have filed a reply affidavit controverting the contentions of the respondents and further stating that even after Ext.P8 order of injunction, the non- hereditary trustees are functioning and usurping the powers, they are involving in the administration of the Temple, including money trasanctions.

9. Heard the learned counsel appearing for the petitioners, the learned Senior Government Pleader, the learned Standing Counsel for the Malabar Devaswom Board, and learned respective counsel appearing for the party respondents.

10. It is beyond dispute that Sree Vaikkathoor Mahadeva Temple is a religious institution included in List-B 10 W.P.(C) No.6504 of 2021 published for the purpose of Section 38 of the HR&CE Act. The essential contention of the petitioners is that having the Ooralans of the Temple transferred the right of its administration in favour of the 1 st petitioner-Samithi, it has become the trustee of the Temple within the meaning of Section 6(19) of the HR&CE Act. Since the 1st petitioner is the trustee, it has every right to administer the Temple and the 2nd respondent Board or its officials could not have taken over administration of the Temple without its permission. It is the contention of the petitioners that for the reasons; firstly, that there is no proof for mismanagement on the part of the 1st petitioner and secondly, that the provisions of Section 8B of the HR&CE Act are not complied with, there could not be a valid assumption of the Temple. The learned counsel appearing for the petitioners would further contend that the 1 st petitioner being the trustee the 3 rd respondent was obligated to give notice to it before taking steps for appointment of non-hereditary trustee. There is total 11 W.P.(C) No.6504 of 2021 infraction of the said procedure and therefore Ext.P4 as well as Ext.P6 are sought to be declared illegal.

11. Section 6(19) of the HR&CE Act reads,-

"6. Definition.- xx xx (19) "tustee" means 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."

12. In order for a body or a person to be a trustee, the entire administration should be vested with it. There is no dispute that Sree Vaikkathoor Mahadeva Temple is a religious institution as defined in Section 6(19) of the HR&CE Act, having it been included in the list of Hindu religious institutions for the purpose of Section 38 of the HR&CE Act, its assets and properties are vested with the Deity.

13. The petitioners claim that by executing Ext.P1, which is an agreement dated 01.03.1976, the entire assets and properties of the Temple along with the right of its administration were transferred in favour of the 1st petitioner- Samithi. The Samithi was later registered under the Societies Registration Act, 1860 and a copy of the certificate of 12 W.P.(C) No.6504 of 2021 registration together with its bye-law is Ext.P2. As per the recitals in Ext.P1, Ooralans agreed to transfer the right of administration in favour of the Samithi. The question is, can Ext.P1 create the right of trusteeship in favour of the 1 st petitioner.

14. The Apex Court in Kali Kinkor Ganguly v. Panna Banerjee and others [(1974) 2 SCC 563] held that alienation of a religious office by which the transferer gets a pecuniary benefit cannot be upheld even if a custom is set up sanctioning such alienation. It was further observed that even if the transfer is not for consideration, the transfer would be bad if it is not in favour of those next in the line of succession.

15. As far as Temples under the supervisory control of the Malabar Devaswom Board are concerned, any transfer of the assets and properties of the Temple can be done only in accordance with Section 29 of the HR&CE Act. Section 29 interdicts such transfer made without sanction from the Commissioner. In the light of the law laid down by the Apex Court in the aforesaid decision, and the prohibition in Section 13 W.P.(C) No.6504 of 2021 29 of the HR&CE Act, the assets and properties of Temples under the supervisory control of the Malabar Devaswom Board are res extra commercium unless and until the Commissioner grants sanction for such transfer. When the assets of Sree Vaikkathoor Mahadeva Temple are thus inalienable, the petitioners cannot claim that by virtue of Ext.P1, the 1 st petitioner acquired right and interest in the properties of the Temple, including the right of its administration, thereby it has become the trustee displacing the Ooralan or the hereditary trustee.

16. When that is the position of law, the challenge set up by the petitioners in the capacity of the trustees against Ext.P4 as per which the non-hereditary trustees were appointed and Ext.P6 as per which additional respondent No.13 was appointed to administer the Temple cannot be entertained in law. That apart, when the 1 st petitioner Samithi claims that it is the trustee, the remedy available to it to challenge vires of the order appointing non-hereditary trustees is under Section 39(4) of the HR&CE Act. Of course, 14 W.P.(C) No.6504 of 2021 the Samithi filed O.S.No.47 of 2021 before the Munsiff's Court, Tirur, challenging right of the non-hereditary trustees. Ext.P8 is the order of injunction granted by the learned Munsiff restraining non-hereditary trustees from taking over possession of the records and movables of the Temple. The definition of the court contained in Section 6(6) of the HR&CE Act, constitutes a subordinate judge's court to decide the dispute relating to appointment of non-hereditary trustees. Can then a Munsiff's Court have jurisdiction to entertain such a suit is a relevant question. That question is not, however, germane for consideration in this proceedings. Dehors that the fact remains that the remedy available to challenge the appointment of non-hereditary trustee is under Section 39(4) HR&CE Act. When such a statutory remedy is available, no relief under Article 226 of the Constitution of India can ordinarily be granted.

17. In M/s Magadh Sugar and Energy Limited v. State of Bihar [2021 (5) KLT 667 (SC)] the Apex Court held, 15 W.P.(C) No.6504 of 2021 "19. While a High Court would normally would not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai [1999 (1) KLT OnLine 908 (SC) : (1998) 8 SCC 1)] and Harbanslal Sahni v. Indian Oil Corporation Ltd. [2003 (1) KLT OnLine 1161 (SC) : (2003) 2 SCC 107].

20. Recently, in Radha Krishan Industries v. State of Himachal Pradesh and others [2021 (2) KLT OnLine 1158 (SC) : (2021) SCC OnLine SC 334] a two Judge Bench of this Court of which one of us was a part of (Justice D. Y. Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternative remedy. This Court has observed:

"28. The principles of law which emerge are that:

(i) The power under Art.226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a Writ Petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

16 W.P.(C) No.6504 of 2021

(iii) Exceptions to the rule of alternate remedy arise where,-

(a) the Writ Petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice;

(c) the order or proceedings are wholly without jurisdiction; or

(d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a Writ Petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with." (emphasis supplied) 17 W.P.(C) No.6504 of 2021

18. A plea based on violation of any fundamental right of the petitioners is not involved in this case. A civil suit in regard to the dispute involved in this Writ Petition was already filed by the petitioners. It may be noted that following the direction of this Court as per Ext.P5 judgement in W.P.(C) No.2048 of 2021, the 3rd respondent disposed the revision petition challenging appointment of the non-hereditary trustees as per Ext.P4.

Ext.R7(a) is the order. The challenge to Ext.P4 was repelled as per Ext.R7(a). Rightly or wrongly such an order was passed by the Commissioner. The remedy then is to challenge Ext.P7(a) before the Government under Section 99 of the HR&CE Act. That has not been resorted to. In such circumstances, we are of the view that this Writ Petition is not maintainable and the petitioners are not entitled to get any of the reliefs claimed.

Hence, the Writ Petition is dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE dkr 18 W.P.(C) No.6504 of 2021 APPENDIX OF WP(C) 6504/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE AGREEMENT DATED 1.3.1976 EXECUTED BY THE OORALAN (HEREDITARY TRUSTEE) IN FAVOUR OF THE SAMITHI.

EXHIBIT P2 TRUE COPY OF THE BYE LAW OF THE SAMITHI WITH REGISTRATION CERTIFICATE AND MEMORANDUM OF ASSOCIATION.

EXHIBIT P3 TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 3.8.2019 EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 8.1.2021 EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 19.2.2021 IN WP(c) N0.2048/2021 OF THIS HON'BLE COURT.

EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 4TH RESPONDENT DATED 17.2.2021 EXHIBIT P7 TRUE COPY OF THE LETTER 17.2.1991 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE ORDER IN INTERLOCUTORY APPLICATION NO.2/2021 IN OS NO.47/2021 DATED 10.2.2021 Exhibit P9 TRUE COPY OF THE LATEST TAX RECEIPT DATED 3.8.2021.

Exhibit P10 TRUE COPY OF THE BUILDING NUMBER AFFIXED IN THE BUILDING BY THE VALANCHERY MUNICIPALITY, AS BUILDING NO 8/1658.

W.P.(C) No.6504 of 2021 Exhibit P11 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 11.11.2021 ISSUED BY THE KATTIPARUTHY VILLAGE OFFICER.

Exhibit P12 TRUE COPY OF THE COMPLAINT BEFORE THE DY SUPDT OF POLICE DATED 3.11.2021.

EXHIBIT P13 TRUE COPY OF THE PHOTO APPEARED IN THE MEDIA SHOWING HIS PARTICIPATION IN THE POLITICAL PARTY CONFERENCE OF DYFI.

EXHIBIT P14 TRUE COPY OF THE NOTIFICATION DAED 07.08.2014.

EXHIBIT P15 TRUE COPY OF THE POSTER PUBLISHED DURING THE ELECTION PERIOD.

EXHIBIT P16 TRUE COPY OF THE COMMUNICATION DATED 03.02.2021.

RESPONDENT EXHIBITS ANNEXURE R4(A) PHOTOCOPY OF THE LETTER DATED 26.12.2018.

ANNEXURE R4(B) PHOTOCOPY OF THE LETTER DATED 21.02.2019.

ANNEXURE R4(C) PHOTOCOPY OF THE ORDER NO.H6-2334/MDB DATED 27.03.2021.

ANNEXURE R4(D)        PHOTOCOPY   OF   LIST   OF    INVENTORY,
                      PREPARED   BY  EXECUTIVE    OFFICER   ON
                      30.10.2021,    MADE     AVAILABLE     BY
                      ASSISTANT COMMISSIONER.
EXHIBIT R7(A)         TRUE COPY OF ORDER DATED 26.04.2021 IN
                      R.P.2/2021 BEFORE THE COMMISSIONER,
                      MDB.
EXHIBIT R7(B)         TRUE   COPY   OF   THE   PLAINT DATED
                      09.02.2021 IN O.S.47/2021 ON THE FILE
                      OF THE MUNSIFF COURT, TIRUR
                                20
W.P.(C) No.6504 of 2021


EXHIBIT R7(C)         TRUE COPY OF THE WRITTEN STATEMENT

DATED 10.11.2021 FILED BY RESPONDENTS 7 TO 9 IN O.S.NO.47/2021 ON THE FILE OF THE MUNSIFF COURT, TIRUR.

EXHIBIT R7(D) TRUE COPY OF THE DECISION CITED IN 2021 (2) KLT 885.

ANNEXURE R11(A)       TRUE COPY OF THE REQUEST OF THE
                      EXECUTIVE   OFFICER   DATED  28.10.2021
                      ALONG     WITH    THE    ORDER    NO.H6

2334/2018/MDB(4) DATED 21.10.2021 OF MDB.

EXHIBIT R13(A) TRUE COPY OF THE CIRCULAR NO.HRH 5/8246/06 DATED 15.06.2007 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT R13(B) TRUE COPY OF THE CHARGE LIST DATED 22.02.2021 BY WHICH THIS RESPONDENT TOOK CUSTODY OF THE ARTICLES MENTIONED THEREIN.

EXHIBIT R13(C) TRUE COPY OF THE NOTICE DATED 11.03.2021 ISSUED BY THIS REPONDENT TO THE PETITIONERS 1 AND 2.

EXHIBIT R13(D) TRUE COPY OF THE REPLY letter dated 26.03.2021 ISSUED BY SRI.E.P.GOVINDAN, PRESIDENT OF 1ST PETITIONER SAMITHI AND OFFICE BEARER OF AYYAPPA TRUST.

EXHIBIT R13(E) TRUE COPY OF THE NOTICE DATED 21.04.2021 ISSUED BY THE 13TH RESPONDENT TO THE PRESIDENT, SECRETARY AND TREASURER OF THE 1ST PETITIONER SAMITHI.

EXHIBIT R13(F) TRUE COPLY OF THE REPLY NOTICE DATED 26.04.2021 ISSUED BY THE 1ST PETITIONER TO THE RESPONDENT NO.13.

W.P.(C) No.6504 of 2021 EXHIBIT R13(G) TRUE COPY OF THE PROCEEDINGS NO.H67- 2334/2019/ MDB(1) DATED 21.10.2021 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT R13(H) TRUE COPY OF THE CHARGE LIST DATED 30.10.2021 PREPARED BY THIS RESPONDENT AND COUNTERSIGNED BY THE DIVISION INSPECTOR OF MALABAR DEVASWOM BOARD AND THE VILLAGE OFFICER, KATTIPARUTHI. EXHIBIT R13(I) TRUE COPY OF THE PLAN OF THE LANDED PROPERTY LYING IN THE NAME OF THE TEMPLE, PREPARED BY THE VILLAGE OFFICER, KATTIPARUTHI.

EXHIBIT R13(J) TRUE COPY OF THE PLAN OF THE LANDED PROPERTY LYING IN THE NAME OF THE 1ST PETITIONER PREPARED BY THE VILLAGE OFFICER, KATTIPARUTHI.

EXHIBIT R13(K) TRUE COPY OF THE INCOME AND EXPENDITURE STATEMENT OF THE TEMPLE FROM 22.02.2021 TO 31.12.2021.

EXHIBIT R13(L) TRUE COPY OF ORDER NO.H6- 4952/2021/MDB(KDIS) DATED 18.012.2021 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT R13(M) TRUE COPY OF THE ORDER DATED 10.01.2022 ISSUED BY THE 4TH RESPONDENT.

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