Kerala High Court
Balan vs Malabar Devaswom Board on 7 July, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
W.P.(C)No.9118 of 2025
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2025:KER:49979
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
MONDAY, THE 7TH DAY OF JULY 2025 / 16TH ASHADHA, 1947
W.P.(C)NO.9118 OF 2025
PETITIONERS:
1 BALAN
AGED 60 YEARS
S/O.SANKARAN, KOMACHANKANDI, MENHANIAM P.O., PERAMBRA,
KOZHIKODE DISTRICT, PIN - 673525
2 PADMINI BALAN
AGED 64 YEARS
W/O.LATE PARUTHIPARA BALAN, PARUTHIPALA HOUSE,
PERAMBRA P.O., KOZHIKODE DISTRICT, PIN - 673525
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.MAYA S. KUMAR
RESPONDENTS:
1 MALABAR DEVASWOM BOARD
HOUSEFED COMPLEX, ERANJIPALAM, KOZHIKODE DISTRICT,
REPRESENTED BY ITS SECRETARY, PIN - 67300
2 THE COMMISSIONER,
MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANJIPALAM
KOZHIKODE DISTRICT, PIN - 673003
3 THE ASSISTANT COMMISSIONER
MALABAR DEVASWOM BOARD, OFFICE OF THE ASSISTANT
COMMISSIONER KOZHIKODE DIVISION, HOUSEFED COMPLEX,
EAST NADAKKAVE, ERANHIPPALAM, KOZHIKODE,PIN - 673003
4 KOZHIKODE DIVISION AREA COMMITTEE
MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, EAST
NADAKKAVE, ERANHIPPALAM, KOZHIKODE, REPRESENTED BY ITS
W.P.(C)No.9118 of 2025
2
2025:KER:49979
CHAIRMAN, PIN - 673003
5 EXECUTIVE OFFICER
ELAMARANKULANGARA BHAGAVATHI TEMPLE, PERAMBRA,
KOYILANDY TALUK, CALICUT ROAD, AMBALA NADA, MENHANIAM,
PERAMBRA, KOZHIKODE, PIN - 673525
6 SASIKUMAR P P,
S/O.MADHAVAN NAMBIAR, PARATTPOYIL, MADHAVAM PERAMBRA
KOZHIKODE, PIN - 673525
7 LAL N K
S/O.GOPALAN, THALICHANKULATH HOSUE, PERAMBRA ,
KOZHIKODE DISTRICT, PIN - 673525
8 NAGATH CHANDRASEKHARAN
S/O.NAGATH CHATHUKUTTY NAIR, NAGATH HOUSE,
AROKOOTTATHIL PERAMBRA, KOZHIKODE, PIN - 673525
9 SANILKUMAR A.
S/O.KUTTIYAPPA NAIR, MARUTHORACHALIL HOUSE, PERAMBRA,
KOZHIKODE, PIN - 673525
10 A K KARUNAKARAN NAIR
AVALINCHOTTIIL HOUSE, PERAMBRA P.O., KOZHIKODE
DISTRICT HEREDITARY TRUSTEE, ERAMARANKULANGARA
BHAGAVATHI TEMPLE, PERAMBRA , KOZHIKODE, PIN - 673525
*11 STATE OF KERALA, REPRESENTED BY SPECIAL SECRETARY TO
GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT,
GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM
*12 BALAKRISHNAN S/O. NARAYANA NAIR, KOLLIYIL
(SREEVALSAM), CHENOLI PO PERAMBRA, KOZHIKODE.
*13 VALSA RAJ S/O NARAYANA NAIR, KIZHAKKAYIL HOUSE,
PERAMBRA PO, KOZHIKODE.
*[ADDL. RESPONDENTS 11 TO 13 ARE IMPLEADED AS PER
ORDER DATED 07.07.2025 IN THE W.P.(C)NO.9118 OF 2025]
BY ADVS.
SMT.R.RANJANIE
SRI.MAHESH V RAMAKRISHNAN
SHRI.P.K.RAMKUMAR
SHRI.P.K.IBRAHIM
SHRI.K.B.PRADEEP
SMT.ANITHA MENON
SHRI.PRADEEP KUMAR A.
SMT.K.P.AMBIKA
SMT.ZEENATH P.K.
W.P.(C)No.9118 of 2025
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2025:KER:49979
SMT.JABEENA K.M.
SHRI.ANAZ BIN IBRAHIM
SMT.KSHEMA ELIZABETH SAMUEL
OTHER PRESENT:
SMT. R. RANJANIE, SC, MDB
SRI. S. RAJMOHAN, SR.GP.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.9118 of 2025
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JUDGMENT
Anil K. Narendran, J.
The petitioners, who are devotees of Sree Elamarankulangara Bhagavathi Temple in Koyilandy Taluk,
Kozhikode District, which is a controlled institution under the 1 st respondent Malabar Devaswom Board, in which the 10th respondent is the hereditary trustee, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P7 order dated 01.03.2025 of the 4th respondent Area Committee, Kozhikode Division, whereby respondents 6 to 9 have been appointed as non-hereditary trustees of the said temple, for a period of two years.
2. On 07.03.2025, when this writ petition came up for admission, the learned Standing Counsel for Malabar Devaswom Board took notice on admission for respondents 1 to 4. Urgent notice on admission by special messenger was ordered to respondents 5 to 10, returnable by 11.03.2025. By the order dated 07.03.2025, this Court granted an interim stay of operation and implementation of Ext.P7 order dated 01.03.2025 of the 4 th respondent Area Committee, for a period of one month, thereby restraining respondents 6 to 9 from taking charge as non W.P.(C)No.9118 of 2025 5 2025:KER:49979 hereditary trustees of the temple in question or exercising any powers as such. Paragraphs 3 to 5 of the said order read thus;
"3. Having considered the pleadings and materials on record and also the submissions made by the learned counsel for the petitioners and the learned Standing Counsel for Malabar Devaswom Board in the light of the law laid down by this Court in Muraleedharan M. v. Malabar Devaswom Board and others [2024 (6) KHC SN 20] and the directions contained in clauses (i) and (ii) of paragraph 154 and also the interim order dated 20.01.2025 of the Apex Court in SLP(C)Diary No.60879 of 2024, we find that the petitioners have made out a prima facie case for the grant of an interim stay of operation and implementation of Ext.P7 order dated 01.03.2025 of the 4th respondent Area Committee, Kozhikode Division, Malabar Devaswom Board.
4. In the result, there will be an interim stay of operation and implementation of Ext.P7 order dated 01.03.2025 of the 4th respondent Area Committee for a period of one month, thereby restraining respondents 6 to 9 from taking charge as non-hereditary trustees of the temple in question or exercising any powers as such.
5. The learned Standing Counsel for Malabar Devaswom Board to make available for the perusal of this Court the files relating to Ext.P7 order dated 01.03.2025 and also that relating to Exts.P1 to P3 complaints received against the appointment of non-hereditary trustees in the temple in question."
3. On 11.03.2025, when this writ petition came up for consideration, respondents 6, 7 and 10 entered appearance W.P.(C)No.9118 of 2025 6 2025:KER:49979 through respective counsel, who sought time to file counter affidavit. Despite service of notice, none appears for respondents 8 and 9. Paragraphs 2 to 6 of the order dated 11.03.2025 read thus;
"2. In terms of the directions contained in the order of this Court dated 07.03.2025, the learned Standing Counsel for Malabar Devaswom Board has made available for the perusal of this Court the files relating to Ext.P7 order dated 01.03.2025 and also that relating to Exts.P1 to P3 complaints received against the appointment of non-hereditary trustees in Elamarankulangara Bhagavathi temple, Koyilandi. The files contains a report dated 25.02.2025 of the Divisional Inspector (Page Nos.149 and 150), Paragraph Nos.5 and 6 of that report deals with Sasikumar P.P known as Sasikumar Perambra and Lal N.K, who are arrayed as respondents 6 and 7 respectively in this writ petition.
3. After considering the report of the Divisional Inspector, Kozhikode, the Assistant Commissioner submitted a report dated 27.02.2025 before the Area Committee, in which it is stated that Sasikumar is having disqualification in terms of the notification issued for appointment of non-hereditary trustees in the temple. The complaint that the 7th respondent Lal N.K is an active politician, has also been referred to in the said report of the Assistant Commissioner. A reading of decision No.40 dated 27.02.2025 of the Area Committee, which is available at Page No.10 of the note filed with File No.A4-2096/2024/MDB, would show that the appointment of the said respondents as non-hereditary trustees by Ext.P7 order of the Area Committee is one made by totally ignoring W.P.(C)No.9118 of 2025 7 2025:KER:49979 the above aspects.
4. Having perused the files relating to Ext.P7 order, we deem it appropriate to direct the learned Standing Counsel to ensure that an affidavit sworn to by the Chairman of the 4 th respondent Area Committee, Kozhikode, is placed on record within two weeks.
5. The learned Standing Counsel for the Malabar Devaswom Board to retain the files.
6. A counter affidavit on behalf of the 1st respondent Board and that of respondents 6, 7 and 10 shall be placed on record within two weeks."
4. The 10th respondent hereditary trustee has filed a counter affidavit dated 26.03.2025. Paragraphs 2 to 5 of that counter affidavit read thus;
"2. It is a well-established religious practice among Hindus that the eldest member of the family assumes the position of hereditary trustee of all temples owned by the family. Being the eldest member of my undivided family, I am the hereditary trustee of Elamarankulangara Bhagavathi Temple and all other temples owned by our family.
3. It is respectfully submitted that hereditary trustees do not participate in the financial affairs of the temples but are solely responsible for overseeing the rituals and religious practices associated with the temples. Accordingly, this respondent is neither involved in nor competent to provide any information regarding the observations made in the audit report for the years 2018 to 2023.
4. It is respectfully submitted that this respondent has attended only four meetings of the Trustee Board since W.P.(C)No.9118 of 2025 8 2025:KER:49979 01.01.2022. No notices were issued to this respondent for attending any other meetings of the Board held after the aforementioned.
5. It is further submitted that the proceedings under Ext.P7, whereby the 4th respondent appointed non-hereditary trustees from among the applicants, were undertaken without any consultation with this respondent. It is pertinent to state that being the hereditary trustee this respondent has no role or involvement in the selection process of non- hereditary trustees.
5. The learned Standing Counsel for Malabar Devaswom Board has filed a counter affidavit dated 22.03.2025 sworn to by the Chairman of the 4th respondent Area Committee. Paragraphs 2 to 9 of that counter affidavit read thus;
"2. It is submitted that the term of the earlier Trustee Board expired on 30.07.2024. On the request of the 10th respondent, the hereditary trustee, as per letter dated 16.07.2024, the Area Committee/Assistant Commissioner has commenced the proceedings to constitute new Board of Trustees. A notification dated 08.08.2024 was issued by the 3 rd respondent, on behalf of the 4th respondent, inviting application for the post of Non Hereditary Trustees. The true copy of the notification dated 08.08.2024 issued by the 3rd respondent is produced herewith and marked as Ext.R4(a). The true copy of the letter dated 16.07.2024 issued by the 10th respondent, addressed to the 3rd respondent is produced herewith and marked as Ext.R4(b).
3. Thereafter, the 4th respondent's office, through the 3rd respondent, commenced the proceedings in the matter of W.P.(C)No.9118 of 2025 9 2025:KER:49979 appointment of the Non Hereditary Trustees. All the mandatory procedures and formalities were complied. Sufficient publications, as mandated by law and as directed by this Hon'ble Court have been done in the matter giving sufficient publicity to the notification inviting applications to the post of Non Hereditary Trustees. The notifications was published in the newspapers and also notices were affixed in the Board of the temple Village Office, Panchayat, in conspicuous places. Notices were also published in the Notice Board of the temple, for enabling the devotees to point out any disqualification of any of the applicants. It is submitted that the complaints submitted by the devotees with reference to certain applicants were also considered by the officers under the Area Committee, including the Inspector as well as the 3rd respondent. These aspects are discernable from the file note produced before this Hon'ble Court. The true copy of the Communication dated 25.02.2025 issued by the Inspector to the 3rd respondent, is produced herewith and marked as Ext.R4(c). The true copy of the letter dated nil, issued by the 3rd respondent, addressed to the 2nd respondent, is produced herewith and marked as Ext.R4(d). As Exts.R4(c) and Ext.R4(d) are self-explanatory, and so the contents thereof are not reiterated in the counter affidavit for the sake of brevity.
4. It is submitted that the allegations against the respondents
6 and 7 is that they are active politicians and hence they are disentitled to be considered for the appointment to the post of Non Hereditary Trustees. The 3rd respondent has given a Note that there is an allegation by the devotees that the 6th respondent is in an active politician, as he is the member of the Block Panchayat, as reported by the Inspector. So it was W.P.(C)No.9118 of 2025 10 2025:KER:49979 also reported that there is allegation that the 7th respondent is also an active politician and some photographs are received in support of the allegations. The applications, with the above notings and reports, was submitted to the 4th respondent for taking a final decision.
5. It is submitted that the 4th respondent Area Committee had met on 27.02.2025, and taken note of the situation in the temple and the necessity of having a duly elected Trustee Board including Non Hereditary Trustees. The Area Committee, have perused the reports and note of the Assistant Inspector and Assistant Commissioner, indicating allegations of the certain devotees that the 6th and 7th respondents are active politicians. The Area Committee, on overall assessment that the present renovation activities are going on well in the temple for the interest of the temple, appointed these persons who had already served as Non Hereditary Trustees in the past as Non Hereditary Trustees of the said temple. So, four Non Hereditary Trustees were appointed for 2 years. Except the allegations raised against 6th and 7th respondents and the fact that the 6th respondent is a sitting Block Panchayat Member, no material were there to disqualify him, especially when he had served the temple as Non Hereditary Trustees in the past also. At that point of time also he was serving as a Block Panchayat Member. Hence the Area Committee thought that the status of the 6 th respondent as a member of the local body, especially the Block Panchayat membership, is not enough to categorize the person as an active politician to weed out from the zone of consideration for appointment to the post of Non Hereditary Trustees.
6. It is submitted that, Ext.P6 Audit Report of the temple is W.P.(C)No.9118 of 2025 11 2025:KER:49979 pertaining to the years 2018-2020. Undisputedly, no surcharge has been issued in this regard and that before finalization of the Audit Report, several steps like submission of explanation, forwarding of a rectification report etc. has to be gone into. At present, no surcharge notice under Section 74(3) has been issued against respondents 6 to 8, to the knowledge of this respondent. Moreover, no amount was disallowed or objected in Clauses 4-2 and 4-3 of Ext.P6 report. So the contention that there were serious allegation of mal administration and mismanagement, is premature at this point of time respondents 6 and 7 were the Trustee Board Members and the 6th respondent being the Chairman appointed for the term of the Board 2020-2022. No allegations worth considering was received against them, while they were in the administration of the temple.
7. It is submitted that the allegation in paragraph 2 of the writ petition that the 3rd respondent is the Authority controlling the 4th respondent, is unfounded and mischievous in nature, hence empathetically denied. It is also incorrect to contend that the 3rd respondent has specifically pointed out that the respondents 6 and 7 are active politicians. Apart, from the allegation that the 6th respondent is the elected member of Perambra Block Panchayat and Chairman of the Health Standing Committee, and the 7th respondent is a member of CPI(M) and Office Bearer of CITU District Committee, no materials were placed before the Area Committec, to show that they are falling within the category of active politicians, to be weeded out from the consideration for the appointment of the Non Hereditary Trustees, especially when those persons have served the temple in the past in an appreciable manner, as evidenced from records. So the appointment of W.P.(C)No.9118 of 2025 12 2025:KER:49979 Non Hereditary Trustees were made by the 4th respondent, for securing the temple interest, and all other allegation to the contrary are denied by the 4th respondent.
8. It is incorrect to content that Ext.P7 was passed without considering any of the objections and the allegations regarding the disqualification of the respondents 6 to 8. None of the grounds raised in the writ petition are tenable in law. This respondent has duly complied with the judgments referred in the writ petition and the Ext.P7 order is passed subject to result of the SLP pending before the Hon'ble Supreme Court of India. So the petitioners are not entitled to get any of the reliefs claimed in the writ petition.
9. It is submitted that the 4th respondent acted bonafidely in the matter of appointment and not infracted any of the binding judgments of this Hon'ble Court, in the matter of the procedure to be adopted for the appointment of Non Hereditary Trustees and considering the suitability of each of them for the appointment."
6. By a separate order of this date, I.A.No.1 of 2025 filed by the petitioners seeking an order to implead the State of Kerala as additional 11th respondent is allowed. By that order, I.A.No.2 of 2025 filed by third parties, who have submitted applications pursuant to the notification dated 08.08.2024 issued by the 4th respondent Area Committee, are impleaded as additional respondents 12 and 13, since additional 11th respondent has already impleaded by the order in I.A.No.1 of 2025.
7. Heard the learned counsel for the petitioners, the W.P.(C)No.9118 of 2025 13 2025:KER:49979 learned Standing Counsel for Malabar Devaswom Board for respondents 1 to 4, the learned counsel for the 5th respondent Executive Officer, the learned counsel for the 10th respondent hereditary trustee, the learned Senior Government Pleader for the additional 11th respondent State and the learned counsel for additional respondents 12 and 13.
8. The issue that requires consideration in this writ petition is as to whether any interference is warranted on Ext.P7 order dated 01.03.2025 of the 4th respondent Area Committee, whereby respondents 6 to 9 have been appointed as non- hereditary trustees of the temple, for a period of two years.
9. Though various reasons have been stated in the counter affidavit filed by the 4th respondent Area Committee to supplement the reasoning of the Area Committee in Ext.P7 order dated 01.03.2025, we find that such a course is legally impermissible, in view of the law laid down by the Apex Court in Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405].
10. In Mohinder Singh Gill [(1978) 1 SCC 405], the Apex Court reiterated that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh W.P.(C)No.9118 of 2025 14 2025:KER:49979 reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.
11. The Madras Hindu Religious and Charitable Endowments Act, 1951 is enacted to provide for the better administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Madras. The Act received the assent of the President on 27.08.1951. By the Kerala Adoption of Laws Order, 1956 the provisions under the said Act have been made applicable to Hindu Religious and Charitable Institutions and Endowments in the Malabar District.
12. Clause (9) of Section 6 of the Act defines the term 'hereditary trustee' to mean the trustee of a religious institution succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force. Clause (19) of Section 6 defines the term 'trustee' to mean any person or body by whatever designation known in whom or in which the administration of a religious institution is vested, and includes any person or body who or which is liable as if such person or body W.P.(C)No.9118 of 2025 15 2025:KER:49979 were a trustee.
13. The provisions contained in Chapter II of the Act were substituted by the Madras Hindu Religious and Charitable Endowments (Amendment) Act, 2008 (Act 31 of 2008), which deals with the Malabar Devaswom Board and its officers. Section 7B of the Act deals with qualification for membership in the Malabar Devaswom Board. In view of the provisions contained in Section 7B, a person shall be qualified for nomination or election as a member of the Board only if he is a permanent resident of the Malabar area; professes the Hindu religion; is a believer of temple worship; and falls within the age criteria prescribed in clause (iv) of Section 7B. In view of the provisions under Section 7C, where a person has been elected or nominated as a member of the Board, before entering the office as a member, he shall take an oath before the Commissioner of the Board stating that he is a person professing Hindu religious rites and is a believer of God and temple worship. The provisions under Section 7D deal with disqualification for membership and Section 7E deals with supervening disqualifications. As per the provisions under Section 7M, the duties and functions of the Board include a duty to ensure proper maintenance and upliftment of Hindu religious institutions and to W.P.(C)No.9118 of 2025 16 2025:KER:49979 establish and maintain proper facilities in the temples for the devotees. In view of the provisions under Section 8 of the Act, all the powers and duties under this Act, in respect of various religious institutions of the Malabar area, that have been exercised or performed by the Commissioner, Deputy Commissioners, Assistant Commissioners and Area Committees before the commencement of the Madras Hindu Religious and Charitable Endowments (Amendment) Act, 2008 shall vest in the Board, on its constitution. Section 8A of the Act deals with supervision and control by the Board. As per Section 9 of the Act, the Commissioner, etc. to be Hindus.
14. Section 24 of the Act deals with the care required of the trustee and his powers. As per sub-section (1) of Section 24, subject to the provisions of the Madras Temple Entry Authorisation Act, 1947, the trustee of every religious institution is bound to administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of the institution and all lawful directions which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence would deal with such affairs, funds and properties if they were his own. As per sub-section (2) of Section 24, a trustee shall, subject W.P.(C)No.9118 of 2025 17 2025:KER:49979 to the provisions of the Act be entitled to exercise all powers incidental to the provident and beneficial administration of the religious institution and to do all things necessary for the due performance of the duties imposed on him. As per sub-section (3) of Section 24, a trustee shall not be entitled to spend the funds of the religious institution for meeting any costs, charges or expenses incurred by him in any suit, appeal or application or other proceeding for, or incidental to, his removal from office or the taking of any disciplinary action against him. As per the proviso to sub-section (3) of Section 24, the trustee may reimburse himself in respect of such costs, charges or expenses if he is specifically permitted to do so by an order passed under Section 88.
15. Section 39 of the Act deals with Trustees and their number and term of office. As per sub-section (1) of Section 39, where a religious institution included in the list published under Section 38 or over which no Area Committee has jurisdiction, has no hereditary trustee, the Commissioner shall constitute a Board of Trustees consisting of not less than three and not more than five persons appointed by him. As per sub-section (2) of Section 39, where, in the case of any such institution having a hereditary trustee or trustees; the Commissioner after notice to such trustee W.P.(C)No.9118 of 2025 18 2025:KER:49979 or trustees, and after such enquiry as he deems adequate, considers for reasons to be recorded, that the affairs of the institution are not, and are not likely to be, properly managed by the hereditary trustee or trustees, the Commissioner may, by order appoint such number of non-hereditary trustees as he thinks necessary, so however that the total number of trustees does not exceed five. As per sub-section (3) of Section 39, every trustee appointed under sub-section (1) and subject to the result of an application, if any, filed under sub-section (4) every non- hereditary trustee appointed under sub-section (2) shall hold office for a term of two years, unless in the meanwhile the trustee is removed or dismissed or his resignation is accepted by the Commissioner or he otherwise ceases to be a trustee.
16. As per sub-section (4) of Section 39 of the Act, where the Commissioner by order appoints a non-hereditary trustee or trustees the hereditary trustee or trustees may, within thirty days of the receipt of the order, file an application to the court to set aside or modify such order. As per sub-section (5) of Section 39, where a vacancy arises in the office of a non-hereditary trustee appointed under sub-section (2) the Commissioner shall not fill up such a vacancy unless, for reasons to be recorded, he considers it W.P.(C)No.9118 of 2025 19 2025:KER:49979 necessary to do so. A non-hereditary trustee appointed in the vacancy shall be deemed to have been appointed under sub- section (2), and the provisions of sub-sections (3) and (4) shall apply accordingly.
17. Section 40 of the Act deals with the Chairman. As per sub-section (1) of Section 40, in the case of a religious institution for which a Board of Trustees is constituted under sub-section (1) of Section 39, the Board shall elect one of its members to be its Chairman. As per sub-section (2) of Section 40, in the case of any other religious institution having more than one trustee, the trustees of such institution shall elect one of their members to be the Chairman. As per sub-section (3) of Section 40, a Chairman elected under sub-section (1) or sub-section (2) shall hold office for such period as may be prescribed.
18. Section 41 of the Act deals with the power of the Area Committee to appoint Trustees. As per sub-section (1) of Section 41, in the case of any religious institution over which an Area Committee has jurisdiction, the Area Committee shall have the same power to appoint trustees as is vested in the Commissioner in the case of a religious institution referred to in Section 39. As per the proviso to Sub-section (1) of Section 41, the Area W.P.(C)No.9118 of 2025 20 2025:KER:49979 Committee may, in the case of any institution which has no hereditary trustee, appoint a single trustee. As per sub-section (2) of Section 41, the provisions of sub-section (3) of Section 39 and Section 40 shall apply to the trustee or trustees appointed, or the Board of Trustees constituted, by the Area Committee as they apply in relation to the trustee or trustees appointed, or the Board of trustees constituted, by the Commissioner.
19. As per Section 42 of the Act, the power to appoint trustees under Section 39 or Section 41 Shall be exercisable notwithstanding that the scheme, if any, settled, or deemed under this Act to have been settled for the institution contains provisions to the contrary.
20. A reading of the provisions contained in Sections 39 and 41 of the Act makes it explicitly clear that, sub-section (1) of Section 39 empowers the Commissioner to constitute a Board of Trustees consisting of not less than three and not more than five persons appointed by him, in a religious institution included in the list published under Section 38 or over which no Area Committee has jurisdiction, which has no hereditary trustee. Sub-section (2) of Section 39 empowers the Commissioner, by order to appoint such number of non-hereditary trustees as he thinks necessary, W.P.(C)No.9118 of 2025 21 2025:KER:49979 not exceeding five, in any such institution having a hereditary trustee or trustees, if the Commissioner after notice to such trustee or trustees, and after such enquiry as he deems adequate, considers for reasons to be recorded, that the affairs of the institution are not, and are not likely to be, properly managed by the hereditary trustee or trustees. Sub-section (3) of Section 39 deals with the term of office of the trustees appointed under sub- sections (1) and (2) of Section 39 of the Act. The provisions under sub-section (5) of Section 39 of the Act makes it explicitly clear that where a vacancy arises in the office of a non-hereditary trustee appointed under sub-section (2) the Commissioner shall not fill up such a vacancy unless, for reasons to be recorded, he considers it necessary to do so. As per sub-section (1) of Section 41 of the Act, in the case of any religious institution over which an Area Committee has jurisdiction, the Area Committee shall have the same power to appoint trustees as is vested in the Commissioner in the case of a religious institution referred to in Section 39.
21. Regarding the challenge made against Ext.P7 order dated 01.03.2025 of the 4th respondent Area Committee, whereby respondents 6 to 9 have been appointed as non-hereditary W.P.(C)No.9118 of 2025 22 2025:KER:49979 trustees of the temple, for a period of two years, the learned counsel for the petitioner would point out the law laid down by this Court in P.V. Sankaran and others v. Malabar Devaswom Board and others [2025 KHC OnLine 89].
22. In P.V. Sankaran [2025 KHC OnLine 89], a Division Bench of this Court in which one among us [Anil K. Narendran, J.] was a party noticed that a reading of the provisions contained in Sections 39 and 41 of the Act makes it explicitly clear that, subsection (1) of Section 39 empowers the Commissioner to constitute a Board of Trustees consisting of not less than three and not more than five persons appointed by him, in a religious institution included in the list published under Section 38 or over which no Area Committee has jurisdiction, which has no hereditary trustee. Sub-section (2) of Section 39 empowers the Commissioner, by order to appoint such number of non-hereditary trustees as he thinks necessary, not exceeding five, in any such institution having a hereditary trustee or trustees, if the Commissioner after notice to such trustee or trustees, and after such enquiry as he deems adequate, considers for reasons to be recorded, that the affairs of the institution are not, and are not likely to be, properly managed by the hereditary trustee or W.P.(C)No.9118 of 2025 23 2025:KER:49979 trustees. Sub-section (3) of Section 39 deals with the term of office of the trustees appointed under subsections (1) and (2) of Section 39 of the Act. The provisions under sub-section (5) of Section 39 of the Act makes it explicitly clear that where a vacancy arises in the office of a non-hereditary trustee appointed under sub-section (2) the Commissioner shall not fill up such a vacancy unless, for reasons to be recorded, he considers it necessary to do so. As per sub-section (1) of Section 41 of the Act, in the case of any religious institution over which an Area Committee has jurisdiction, the Area Committee shall have the same power to appoint trustees as is vested in the Commissioner in the case of a religious institution referred to in Section 39.
23. In P.V. Sankaran [2025 KHC OnLine 89] it was held that in view of the provisions contained in Sections 39 and 41 of the Act, any appointment of non-hereditary trustees in a religious institution having hereditary trustee or trustees, by the Commissioner invoking the provisions under sub-section (2) of Section 39 of the Act, or by the concerned Area Committee invoking the provisions under sub-section (1) of Section 41 of the Act, has to be made after notice to such trustee or trustees, after such enquiry as he deems adequate and for reasons to be recorded W.P.(C)No.9118 of 2025 24 2025:KER:49979 that the affairs of the religious institution are not, and are not likely to be, properly managed by the hereditary trustee or trustees. For filling up the vacancy in the office of non-hereditary trustees appointed under sub-section (2) of Section 39 of the Act, the Commissioner or the Area Committee, as the case may be, has to record reasons, as per the mandate of sub-section (5) of Section 39, read with sub-section (1) of Section 41. Therefore, neither the Commissioner nor the Area Committee can issue an order filling up the vacancy of non-hereditary trustees appointed under sub- section (2) of Section 39 of the Act, in a religious institution having hereditary trustee or trustees, as a routine order, in continuation of the earlier order appointing non-hereditary trustees in that religious institution.
24. In view of the law laid down by this Court in P.V. Sankaran [2025 KHC OnLine 89] for filling up the vacancy in the office of non-hereditary trustees in Sree Elamarankulangara Bhagavathi Temple, appointed under sub-section (2) of Section 39 of the Act, the 4th respondent Area Committee has to record reasons, as per the mandate of sub-section (5) of Section 39, read with sub-section (1) of Section 41. The 4th respondent Area Committee cannot exercise that power, by way of a routine order, W.P.(C)No.9118 of 2025 25 2025:KER:49979 in continuation of its earlier order appointing non-hereditary trustees in that religious institution.
In the above circumstances, this writ petition is allowed by setting aside Ext.P7 order dated 01.03.2025 passed by the 4 th respondent Area Committee, Kozhikode Division, whereby respondents 6 to 9 have been appointed as non-hereditary trustees of Sree Elamarankulangara Bhagavathi Temple. Before issuing a fresh notification for appointment of non-hereditary trustees in Sree Elamarankulangara Bhagavathi Temple, the 4 th respondent Area Committee has to record its reasons, as per the mandate of sub-section (5) of Section 39 of the Act, read with sub- section (1) of Section 41, with notice to the 10th respondent hereditary trustee. The decision taken by the Area Committee shall be communicated to the hereditary trustee, before issuing any fresh notification. We also make it clear that in case a fresh notification is issued after complying with the mandate of sub- section (5) of Section 39 of the Act, read with sub-section (1) of Section 41, the entire process of appointment shall be strictly in terms of the law laid down by the Division Bench of this Court in Muraleedharan M. v. Malabar Devaswom Board and others [2024 (6) KHC SN 20], subject to the interim order dated W.P.(C)No.9118 of 2025 26 2025:KER:49979 20.01.2025 of the Apex Court in SLP (C)No.4484 of 2025.
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ANIL K. NARENDRAN, JUDGE Sd/-
MURALEE KRISHNA S., JUDGE MIN W.P.(C)No.9118 of 2025 27 2025:KER:49979 APPENDIX OF WP(C) 9118/2025 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 11-10- 2024 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT WITH ACKNOWLEDGEMENT RECEIPT EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 24-10- 2024 SUBMITTED BY THE DEVOTEES WITH POSTAL ACKNOWLEDGEMENT RECEIPT EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT DATED 1-11-2024 WITH POSTAL ACKNOWLEDGEMENT EXHIBIT P4 TRUE COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAMA DAILY DATED 10-9-2024 EXHIBIT P5 TRUE COPY OF THE ANOTHER NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY DATED 2-3-2025 EXHIBIT P5(A) TRUE COPY OF THE NOTICE OF THE CITU SHOPS AND COMMERCIAL EMPLOYEES UNION, PERAMBRA COMMITTEE EXHIBIT P6 TRUE COPY OF THE COMMUNICATION NO.K.S.A/M.L.D-T.2/681/2023 DATED 8-1-2024 SENT BY THE AUDIT DEPARTMENT TO THE EXECUTIVE OFFICER OBTAINED UNDER THE RIGHT TO INFORMATION ACT EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT NO.A4-2096/2024/MDB DATED 01-03- 2025 RESPONDENT EXHIBITS EXT. R-4(A) THE TRUE COPY OF THE NOTIFICATION DATED 8.8.2024 ISSUED BY THE 3RD RESPONDENT EXT. R-4(A) THE TRUE COPY OF THE LETTER DATED 16.7.2024 ISSUED BY THE 10TH RESPONDENT, ADDRESSED TO THE 3RD RESPONDENT EXT. R-4(C) THE TRUE COPY OF THE COMMUNICATION DATED 25.2.2025 ISSUED BY THE INSPECTOR TO THE 3RD RESPONDENT EXT. R-4(D) THE TRUE COPY OF THE LETTER DATED NIL, ISSUED BY THE 3RD RESPONDENT, ADDRESSED TO THE 2ND RESPONDENT