Kerala High Court
Raman Namboothiri vs Chief Commissioner, H.R. And C.E. on 14 November, 2003
Equivalent citations: AIR2004KER319, 2004(1)KLT945
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, Pius C. Kuriakose
JUDGMENT K.S. Radhakrishnan, J.
1. Petitioner in O.P.No. 32886 of 2002 is a member of Elayakorarnbu Mana of Payyallur village, Kollengode taluk in Palakkad district. Sree Kuruvambalam Siva temple is an ancient temple situated at Kuruvambalam, Perinthalmanna taluk in Malappuram district. The temple was owned by four Namboodiri families and they are trustees of the temple from time immemorial. The temple is a public religious institution coming under the purview of Madras Hindu Religious and Charitable Endowments Act, 1951. Day to day administration of the temple is vested in a Board of Trustees consist of both hereditary and non hereditary trustees.
2. Petitioner is a member of Elayakorambu Mana. Members of Moothakorambu Mana, Pulikkezhu Illom and Attayoor Mana are the other three non hereditary trustees of the temple. Petitioner has approached this court seeking a direction to the respondents to allow him to continue as member of the Board of Trustees of the temple. Consequent on the death of Karunakaran Nambiar, who was holding the post of Chairman of the Board of Trustees, election to the post of Chairman has become necessary. Petitioner and other two hereditary trustees then made enquiries and they came to know that the petitioner was not included as a member of the Trustee Board and the constitution of the Trustee Board consisted of two hereditary trustees and three non hereditary trustees. Petitioner noticed that Elayakorambu Mana in which petitioner is the eldest member was illegally dropped from the Trustee Board. On enquiry he came to know that second respondent had taken a decision on 29.6.1994 by which he had appointed three non hereditary trustees for a period of five years, exercising the powers conferred under Section 41 of the H.R. & C.E. Act. Ext. P1 order was issued by the second respondent indicating that there would be three non hereditary trustees and two hereditary trustees.
3. Petitioner was unaware of the said proceedings since no copy of the proceeding was served on him. Petitioner then sent a lawyer notice dated 11.10.2002 to the Deputy Commissioner, H.R. & C.E., Kozhikode. He took strong exception to the manner in which Ext. P1 order was issued by the second respondent. It was pointed out that non inclusion of a hereditary trustee in the Trustee Board was illegal and sought for immediate induction in the Trustee Board. Copy of the lawyer notice was sent to the second respondent. They reminded the Commissioner that the trusteeship exists to their families from time immemorial and the Devaswom or the Area Committee has no power to deny the right and found that the decision taken by the Trustee Board excluding the petitioner is illegal and liable to be reversed. Though Ext.P3 notice was sent by all the hereditary trustees no action was taken.
4. Counter affidavit has been filed on behalf of the second respondent. It is stated that two hereditary trustees and three non hereditary trustees are proposed to be appointed by the Area Committee, Palakkad. Further it is pointed out that the term of appointment of non hereditary trustees under Ext. P1 has expired and the challenge against Ext.P1 cannot stand. It is stated that if the case of the petitioner is that his family has got hereditary rights, he has to establish the same before the Deputy Commissioner under Section 57(b) of the Act. Therefore it is submitted that the Original Petition is liable to be dismissed.
5. Petitioner filed reply affidavit producing three documents. Ext.P4 is photo copy of the register dated 27.11.1903 of the Joint Pattadar of Valluvanadu taluk maintained in the erstwhile Malabar district which would prove the fact that the trustee of Kuruvambalam Devaswom as recognised by the then Government are (i) Pulikkizhu Thrivikraman Namboodiri, (ii) Moothakurambil Narayanan Namboodiri, (iii) Ilayakkurambil Raman Namboothiri and (iv) Attayoor Agnitrathan Namboodiri. It is stated that Attayoor family does not exist for the last 50 years and the third family referred to in Ext.P4 is that of the petitioner. Petitioner also produced photo copy of the third page of Kathakali Souvenir published on 1st March 1983 which would show that Sri. E.K. Raman Namboodiri, petitioner, with two other hereditary trustees and two non hereditary trustees were in the Board of Trustees. Further, petitioner has also produced extract of the register of the immovable property of Perinthalmanna taluk justifying his case. It is stated in the said document that the petitioner is one of the hereditary trustees of the temple.
6. The term "hereditary trustee" is defined in Section 6(9) of the Madras Hindu Religious and Charitable Endowments Act, 1951, as follows:
"hereditary trustee" means 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 if in force."
Trustee of a religious institution has to obey all lawful orders issued under the provisions of the Act by the Government, the Commissioner, the Deputy Commissioner, the Area Committee or the Assistant Commissioner. Subject to the provisions of the Madras Temple Entry Authorization 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 trusts, 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. The administration of a religious institution is vested on the trustee. A trustee shall, subject 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. Various other powers have also been conferred on the trustee, so also on the Area Committee. For disposal of this petition, we need not elaborate all those aspects. We need only examine whether the Area Committee has properly exercised its powers under Section 41 of the H.R. & C.E. Act.
7. Section 39 of the Act stipulates that 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. Sub-section (2) of Section 39 states as follows:
Where, in the case of any such institution having a hereditary trustee or trustees, 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 area 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.
Section 41 deals with power of Area Committee to appoint trustees, states as follows:
41(1) 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."
Provided that the Area Committee may, in the case of any institution which has no hereditary trustee, appoint a single trustee.
(2) The provisions of Section 39 Sub-section (3), 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.
Looking at the provisions of the Hindu Religious and Charitable Endowments Act, primarily it is for the hereditary trustees to manage the religious institution and that is the rule and the appointment of non-hereditary trustees is an exception. Appointment of non hereditary trustee is not as a matter of course. Section 39 empowers the Commissioner to constitute a Board consisting of not less than three and not more than five persons only when a religious institution has no hereditary trustee. A priori the question of appointing a non hereditary trustee arises when there is no hereditary trustee. Only when the affairs of the institution are not likely to be properly managed by the hereditary trustee or trustees the Commissioner may appoint such number of non hereditary trustees. The Commissioner could exercise the power under Section 39(2) only after recording reasons. In other words, there must be materials to show that the hereditary trustee or trustees are not properly managing the religious institution or are not likely to be properly managed by the religious institution. The powers under Section 39(2) could be exercised only after giving due notice to the hereditary trustees and after conducting such enquiries as he may deem adequate. In other words, before recording reasons he has to conduct such enquiry as he deems adequate. Recording of reasons must precede an enquiry, not the subjective satisfaction of the Commissioner. Statute obliges the Commissioner to record reasons. Reasons are the links between the materials on which certain conclusions are based and the actual conclusion. The appellate authority or the court could therefore always examine whether the reasons he considers adequate and have a rational connection or a relevant bearing to the foundation of his conclusion and to reassure that he has hot taken into consideration extraneous or irrelevant materials. A learned Judge of this Court, Justice S. Sankarasubban, also examined the scope of Section 39 in Ponnoth Narayani v. Commissioner, H.R. & C.E., 2001 (1) KLT SN 110 - page 89, followed the earlier decision of this Court in Ikkanda Warriar v. State of Kerala (1976 KLT 118). We fully endorse the view of the learned Judge.
8. Ext.P1 order was passed without following any of the statutory procedures. The order does not disclose why the affairs of the institution are not or likely to be properly managed by the trustee or trustees. Further second respondent has also not stated as to whether he had conducted any enquiry or rendered a finding that the hereditary trustee would not be able to manage the temple properly. Second respondent has not stated any reason why the affairs of the institution are not likely to be properly managed by the hereditary trustees. In other words, while issuing Ext.P1 order, second respondent has not complied with Section 39(2) of the Act read with Section 41. For that reason Ext. P1 order is bad and we are inclined to set aside the same. Further, before issuing Ext.P1 order no notice was given to any of the hereditary trustees.
9. Learned Government Pleader submits that the petitioner if he is aggrieved can approach the Deputy Commissioner. We fail to see why the petitioner should be directed to approach the Deputy Commissioner. It is the bounden duty of the Commissioner and the second respondent to examine the grievances stated in the petition. We are of the view, second respondent has completely misunderstood the effect of Section 57(b). Section 57 states that the Deputy Commissioner shall have power to inquire into and decide matters as to whether an institution is a religious institution and whether a trustee holds or held office as a hereditary trustee etc. Petitioner is not expected to approach the Deputy Commissioner, In such circumstances, we have no hesitation to hold that Ext.P1 order is illegal. The petition is allowed as above.
10. Writ Petition No. 35404 of 2003 arises out of an order passed by the Commissioner, the second respondent, by which he has entrusted the management of Kalari Bhagavathi temple of Ottappalam taluk to 8th respondent who is stated to be hereditary trustee of the temple. Assistant Commissioner, H.R. & C.E. passed an order dated 9.9.2002 by which he appointed four non hereditary trustees to Kalary Bhagavathy temple of Ottappalam taluk. Aggrieved by the said order a devotee approached the Commissioner in R.P. No. 25 of 2002 who passed order dated 24.4 2003 holding that the Assistant Commissioner has not issued notice under Section 39(2) which is mandatory before appointing non hereditary trustees. Commissioner therefore cancelled the order passed by the Assistant Commissioner and directed the Assistant Commissioner to start de novo proceedings. It was ordered that until then management of the temple shall vest with hereditary trustee. We make it clear that when first respondent initiates de novo proceedings he has to proceed only in accordance with law. Scope of Sections 39 and 41 has been elaborately considered by us in this judgment. The rule is that a religious institution be managed by the hereditary trustee and only when there is no hereditary trustee the question of application of Section 39(2) arises and that too for reasons to be recorded. The appointment of non hereditary trustee is always an exception. With the above observation, Writ Petition No. 35404 of 2003 is also disposed of.
A copy of this judgment shall be sent to the Commissioner, H.R. & C.E. (Administration) Department, Kozhikode.