Kerala High Court
Sree Mad Janardhana Swamy Devaswom vs State Of Kerala on 17 March, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
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WP(C)No.30741 of 2016 2025:KER:25248
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 17TH DAY OF MARCH 2025 / 26TH PHALGUNA, 1946
WP(C) NO. 30741 OF 2016
PETITIONER:
SREE MAD JANARDHANA SWAMY DEVASWOM
AMARAVATHI, FORT KOCHI,REPRESENTED BY ITS MANAGING
TRUSTEE.
BY ADV SRI.MOHAN C.MENON
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS CHIEF
SECRETARY,SECRETARIAT,THIRUVANANTHAPURAM-695 001.
2 THE MALABAR DEVASWOM BOARD
KOZHIKODE, REPRESENTED BY ITS COMMISSIONER/SECRETARY,
PIN 673601.
3 THE DEPUTY COMMISSIONER
MALABAR DEVASWOM BOARD,KOZHIKODE, PIN 673 601.
4 STATE OF KERALA
REPRESENTED BY THE SPECIAL SECRETARY TO
GOVERNMENT,REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT
SECRETERIAT,THIRUVANANTHAPURAM - 695001.. IS SUO MOTU
IMPLEADED AS ADDL R4 AS PER ORDER DATED 10.03.2025 IN
THE WP(C).
5 SENIOR DEPUTY DIRECTOR
KERALA STATE AUDIT DEPARTMENT, MALABAR DEVASWOM BOARD
AUDIT, KOZHIKODE.. .. IS SUO MOTU IMPLEADED AS ADDL.
R5 AS PER ORDER DATED 10.03.2025 IN THE WP(C).
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WP(C)No.30741 of 2016 2025:KER:25248
BY ADVS.
R.RANJANIE
SMT.P.K.RADHIKA, SC, MALABAR DEVASWOM BOARD
OTHER PRESENT:
SRI. S. RAJMOHAN, SR. GP;
SMT. R. RANJANIE, SC, MDB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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WP(C)No.30741 of 2016 2025:KER:25248
JUDGMENT
Muralee Krishna, J.
This writ petition is filed under Article 226 of the Constitution of India by the petitioner seeking the following reliefs:
"a) A declaration that Amaravathi Sree Mad Janardhana Swami Devaswom is a sectional Temple, established and administered by Konkani speaking Vaniya Vaishya denomination of the Hindu Minority Community entitled to the rights under Article 26 of the Constitution of India and that Ext.P3 ex-parte Scheme of Administration dated 14.11.1938 issued by the Hindu Religious Endowments Board, Madras is hit by Article 13(1) of the Constitution of India and hence ultra vires and NON EST in Law;
b) A writ in the nature of certiorari and quash Exts. P6, P8 and P9 proceedings issued by the 3rd respondent; after calling for records leading to them."
2. Going by the averments in the writ petition, the petitioner is a Devawsom belongs to Konkani-speaking Vaishya Vaniya Samudayam of Kochi. It was formerly a part of the erstwhile Madras Presidency and Ext.P3 Scheme of Administration was formulated on 14.11.1938 by the erstwhile Madras Hindu Religious Endowments Board. Till 2010 no Executive Officer was appointed in pursuance to Ext.P3 Scheme. When the 3rd respondent Deputy 4 WP(C)No.30741 of 2016 2025:KER:25248 Commissioner, Malabar Devaswom Board issued an order dated 18.11.2010 appointing an Executive Officer, the same was challenged before this Court by the petitioner by filing W.P.(C)No.35997 of 2010. As per Ext.P4 interim order dated 03.12.2010 the appointment was stayed by this Court. Subsequently, the writ petition was disposed of by Ext.P5 judgment dated 21.12.2011. The reconstituted Trustee Board of 2012 is presently administering the Devaswom. The advice and suggestions of Local Fund Audit are being complied with and carried out in 2012 and 2014 respectively. On 21.03.2015 the 3 rd respondent issued Ext.P6 notice under Section 58(1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 ('the Act' in short) to replace Ext.P3 Scheme with a draft Scheme of Administration appended to Ext.P6 notice. To the said notice, the petitioner filed Ext.P7 objection dated 15.05.2015 before the 3 rd respondent. Till December 2015 no further action was followed. On 07.12.2015, the petitioner was served with Ext.P8 notice dated 07.12.2015 under Section 58(6) of the Act directing it to produce all evidence and objections if any, on 29.12.2015. Pursuant to the said notice, the Managing Trustee of the petitioner appeared 5 WP(C)No.30741 of 2016 2025:KER:25248 rd before the 3 respondent and explained the factual background. Ext.P7 objection was reiterated on 23.02.2016; the next posting date. Nothing was heard till July 2016. However, on 14.07.2016 the petitioner was served with Ext.P9 notice dated 14.07.2016 under Section 58(1) of the Act appended with a draft Scheme which is a replication of the Scheme annexed with Ext.P6 notice. Thereafter the petitioner approached this Court with the above writ petition contending that Exts P6, P8 and P9 are ultra vires.
3. On 28.09.2016 when this writ petition came up for consideration, the learned Government Pleader took notice for the 1st respondent and respondents 2 and 3 entered appearance through Counsel. This Court clarified that respondents 2 and 3 will be at liberty to proceed with the action initiated through Ext.P9 and the petitioner may participate in such proceedings without prejudice to the contentions in the writ petition. It was clarified that if a final decision is taken on the proceedings that follow Ext.P9, that will not be given effect to without obtaining orders from this Court.
4. When this writ petition was listed on 12.02.2025 the matter was adjourned with a direction to the learned Standing 6 WP(C)No.30741 of 2016 2025:KER:25248 Counsel for Malabar Devaswom Board to get instructions as to whether the proceedings in O.A. No.7 of 2015 as evident from Ext.P9 notice, are still pending before the 3rd respondent Deputy Commissioner.
5. On 10.03.2025 additional respondents 4 and 5 were suo motu impleaded in the writ petition and the learned Senior Government Pleader took notice for them. In terms of the directions contained in the order dated 05.03.2025 the Assistant Commissioner who is holding the charge of the Deputy Commissioner, Malabar Devaswom Board, Kozhikode was personally present in Court along with files in O.A. No.7 of 2015. The learned Standing Counsel submitted that the audited accounts of the petitioner Devaswom were not submitted before the Malabar Devaswom Board. The Senior Government Pleader, on instructions from the Senior Deputy Director, Kerala State Audit Department submitted that the audited accounts of the petitioner Devaswom are not submitted to the State Audit Department for statutory audit. After perusing the files in O.A. No.7 of 2015, it was returned to the learned Standing Counsel for the Malabar Devaswom Board.
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WP(C)No.30741 of 2016 2025:KER:25248
6. Heard the learned counsel for the petitioner, the learned Senior Government pleader and the learned Standing Counsel for the Malabar Devawom Board.
7. Section 58 of the Act deals with the power of Deputy Commissioner to frame Scheme. The said section reads thus:
"58. Power of Deputy Commissioner to frame scheme (1) When the Deputy Commissioner has reason to believe that in the interests of the proper administration of a religious institution, a scheme should be settled for the institution, or when not less than five persons having interest make an application in writing, stating that in the interests of the proper administration of a religious institution a scheme should be settled for it, the Deputy Commissioner shall consult in the prescribed manner the trustee and the persons having interest and the Area Committee, if any, having jurisdiction over the institution;
and if, after such consultation, he is satisfied that it is necessary or desirable to do so, he shall, by order, frame a scheme of administration for the institution. (2) A scheme settled under sub-section (1) for a temple or for a specific endowment other than one attached to a math for may contain provision for--
(a) removing any existing trustee, whether hereditary or non-hereditary:
Provided that where provision is made in the scheme for the removal of a hereditary trustee, provision shall also be made 8 WP(C)No.30741 of 2016 2025:KER:25248 therein for the appointment as trustee of the person next in succession who is qualified;
(b) appointing, or directing the appointment of, a paid executive officer, who shall be a person professing the Hindu religion, on such salary and allowances as may be fixed, to be paid out of the funds of the institution; and defining the powers and duties of such officer:
Provided that in making any provision of the nature specified in clause (b) due regard shall be had to the claims of persons belonging to the religious denomination for whose benefit the institution is chiefly maintained.
(3) A scheme settled under sub-section (1) for a math or for a specific endowment attached to a math may contain provision for-
(a) associating one or more persons with the trustee or constituting a separate body for the purpose of participating or assisting in the whole or any part of the administration of the endowments of such math or of the specific endowment;
provided that such person or persons or the members of such body shall be chosen from persons having interest in such math or endowment;
(b) appointing or directing the appointment of a paid executive officer, who shall be a person professing the Hindu religion, on such salary and allowances as may be fixed by the Deputy Commissioner, to be paid out of the trust funds, and defining the powers and duties of such officer;
(c) defining the powers and duties of the trustee; (4) The Deputy Commissioner may determine what the properties of the religious institution are and append to the 9 WP(C)No.30741 of 2016 2025:KER:25248 scheme a schedule containing a list of such properties:
Provided that such determination shall not affect the rights of persons who are in hostile possession of any of the said properties.
(5) Pending the framing of a scheme for a temple or for a specific endowment other than one attached to a math, the Deputy Commissioner may appoint a fit person to discharge all or any of the functions of the trustee thereof and define his powers and duties.
(6) The Deputy Commissioner may, at any time, after consulting the trustee and the persons having interest and the Area Committee, if any, having jurisdiction over the institution, by order, modify or cancel any scheme settled under sub-section (1) or a scheme settled by the Board under the Madras Hindu Religious Endowments Act, 1926. (7) Every order of the Deputy Commissioner settling, modifying or cancelling a scheme under this section shall be published in the prescribed manner and on such publication shall, subject to the provisions of Sections 61 and 62, be binding on the trustee, the executive officer and all persons having interest.
(8) The powers conferred by this section shall, in respect of maths, be exercised by the Commissioner or by a Deputy Commissioner to whom powers in this behalf have been delegated by the Commissioner under Section 10, sub-
section (2)".
8. Against Ext.P6 notice, the petitioner already filed Ext.P7 objection before the 3rd respondent Deputy Commissioner. 10
WP(C)No.30741 of 2016 2025:KER:25248 In such circumstances, we deem it appropriate to dispose of this writ petition directing the 3rd respondent Deputy Commissioner to take an appropriate decision in OA.No.07 of 2015, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment, after affording an opportunity of hearing to the petitioner. In that hearing the petitioner is at liberty to raise all the legal and factual contentions before the 3rd respondent, including the question of maintainability.
Sd/-
ANIL K.NARENDRAN, JUDGE Sd/-
MURALEE KRISHNA S., JUDGE
sks
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WP(C)No.30741 of 2016 2025:KER:25248
APPENDIX OF WP(C) 30741/2016
PETITIONER EXHIBITS
EXHIBIT-P1: TRUE COPY OF THE PHOTOGRAPHS OF SREE
JANARDHANA TEMPLE.
EXHIBIT-P2: TRUE COPY OF THE PUBLICATION APPEARED IN
THE INDIAN EXPRESS, DATED 9.9.1989.
EXHIBIT-P3: TRUE COPY OF THE EXPARTE SCHEME OF
ADMINISTRATION IN C.A.245/1938 DATED
14.11.1938.
EXHIBIT-P4: TRUE COPY OF THE ORDER DATED 3.12.2010 IN
W.P.(C) NO.35997/2010.
EXHIBIT-P5: TRUE COPY OF THE JUDGMENT DATED 21.12.2011
IN W.P.(C) NO.35997/2010.
EXHIBIT-P6: TRUE COPY OF THE NOTICE DATED 21.3.2015
ISSUED BY OBJECTION DATED 15.5.2015 WAS
SUBMITTED BEFORE THE 3RD RESPONDENT.
EXHIBIT-P7: TRUE COPY OF THE OBJECTION DATED 15.5.2015
SUBMITTED BEFORE THE 3RD RESPONDENT.
EXHIBIT-P8: TRUE COPY OF THE NOTICE BY 3RD RESPONDENT
ISSUED UNDER SECTION 58(6) OF THE ACT,
DATED 7.12.2015.
EXHIBIT-P9: TRUE COPY OF THE NOTICE, "UNDER SECTION
58(1) OF THE HR & CE ACT" DATED 14.7.2016
ISSUED BY 3RD RESPONDENT.