N. Pramod vs The Malabar Devaswom Board on 17 November, 2023

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Kerala High Court

N. Pramod vs The Malabar Devaswom Board on 17 November, 2023

The petitioner, who is a devotee of Sree Annapoorneshwari Temple, Puthucode, which is one among the 18 temples under the Naduvil Madom Group of Temples, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 3 to take necessary action pursuant to Ext.P12 representation dated 12.04.2023 and Ext.P13 representation dated 13.06.2023. The petitioner has also sought for a writ of mandamus commanding the 1st respondent Malabar Devaswom Board to remove the 4th respondent, who is the Manager of Sree Annapoorneshwari Temple, who has been appointed by the hereditary trustee, from the office.

2. Alleging mismanagement in the management of Sree Annapoorneshwari Temple, Puthucode, by the Manager and Puthucode Annapoorneshwari Seva Samithi, the petitioner had earlier approached this Court in W.P.(C)No.16806 of 2020, which was disposed of by Ext.P2 judgment dated 17.08.2020, based on the submission made on behalf of the Malabar Devaswom Board that the records relating to the transactions effected by the Seva Samithi are under scrutiny and that, a new committee has 4 W.P.(C)No.28664 of 2023 replaced the Seva Samithi, which is managing the affairs of the temple. According to the petitioner, though the Malabar Devaswom Board is duty-bound to take appropriate action in accordance with the law, on completion of the examination, nothing has been done. Though the Malabar Devaswom Board required the 4th respondent Manager to audit the accounts of the temple, that has not been done till date, and the members of the Seva Samithi are continuing to run the affairs of the temple along with the 4th respondent Manager. In the meantime, the 5th respondent was appointed as the Manager of the temple by the Malabar Devaswom Board on a finding that the affairs of the temple were being conducted in an improper manner. The said appointment was under challenge before this Court in W.P.(C)No.19403 of 2022. By Ext.P9 judgment dated 07.12.2022, that writ petition was disposed of upholding the appointment of the 5th respondent to the extent that he shall assist the 4th respondent Manager in matters of administration of the temple and directing him to see that the management of the temple is done in a proper way. Consequent to the said judgment, the Board has issued Ext.P10 order, authorising the 5th respondent to direct the 4th respondent on matters relating to the day-to-day functioning of the temple, auditing of accounts, 5 W.P.(C)No.28664 of 2023 etc. According to the petitioner, the properties of the temple are neither accounted for nor entered in the inventory register and that, despite Exts.P2 and P9 judgments and Ext.P10 order, the 4th respondent is wilfully abstaining from furnishing the accounts of the temple to the 5th respondent.

3. On 25.08.2023, when this writ petition came up for admission, the learned Standing Counsel for Malabar Devaswom Board took notice on admission for respondents 1 to 3. The 4th respondent entered appearance through counsel. This Court issued urgent notice on admission by speed post to the 5th respondent, returnable within three weeks. The learned Standing Counsel for the Malabar Devaswom Board and also the learned counsel for the 4th respondent were directed to get instructions.

4. By the order dated 19.10.2023 in I.A.No.1 of 2023, the hereditary trustee of Sree Annapoorneshwari Temple was impleaded as the additional 6th respondent.

5. The 4th respondent has filed a counter affidavit dated 10.10.2023, opposing the reliefs sought for in this writ petition, producing therewith Ext.R4(a) and R4(b) documents.

6. Today, when this matter is taken up for consideration, the petitioner has filed I.A.No.4 of 2023 seeking an order to stay the auction proposed to be conducted on 21.11.2023, in the 6 W.P.(C)No.28664 of 2023 presence of the Divisional Inspector of the Malabar Devaswom Board, vide Ext.P17 auction notice dated 03.11.2023 issued by the 4th respondent. The petitioner has also filed I.A.No.5 of 2023 seeking an order to accept Exts.P16 and P17 as additional documents.

7. Heard the learned counsel for the petitioner, the learned Standing Counsel for Malabar Devaswom Board for respondents 1 to 3 and also the learned counsel for the 4th respondent and additional 6th respondent.

8. The main relief sought for in this writ petition is a writ of mandamus commanding the 1st respondent Malabar Devaswom Board to remove the 4th respondent, who is the Manager of the temple, appointed by the additional 6 th respondent hereditary trustee, from the office. Another relief sought for is consideration of Exts.P12 and P13 representations by respondents 1 to 3.

9. In A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and 7 W.P.(C)No.28664 of 2023 safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of 'fence eating the crops' should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.

10. In Travancore Devaswom Board v. Mohanan Nair [(2013) 3 KLT 132] a Division Bench of this Court noticed that in A.A. Gopalakrishnan [(2007) 7 SCC 482] a Three-Judge Bench of the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The Division Bench further noticed that the relevant principles under the Hindu law will show that the deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court is the guardian of the deity and apart from the revisional jurisdiction under Section 103 of the Kerala Land 8 W.P.(C)No.28664 of 2023 Reforms Act, 1963, the High Court has inherent jurisdiction and the doctrine of parens patriae will also apply in exercising the jurisdiction.

11. In the writ petition, the grievance of the petitioner is that the Malabar Devaswom Board, which is duty-bound to take appropriate action in accordance with the law, failed to take necessary steps to ensure that the audit of accounts of Sree Annapoorneshwari Temple under Naduvil Madom Devaswom, which is a controlled institution under the Board, is completed without any further delay. According to the petitioner, the 4th respondent is wilfully abstaining from furnishing the accounts of the temple to the 5th respondent. Further, the members of the Seva Samithi are continuing to run the affairs of the temple along with the 4th respondent Manager.

12. Section 18 of the Madras Hindu Religious and Charitable Endowments Act, 1951 deals with the powers of the Commissioner to call for records and pass orders. As per sub- section (1) of Section 18, the Commissioner may call for and examine the record of any Deputy or Assistant Commissioner, or any Area Committee, or of any trustee not being the trustee of a math or of a specific endowment attached to a math, in respect of any proceeding under this Act (not being a proceeding in 9 W.P.(C)No.28664 of 2023 respect of which a suit or an appeal to a Court is provided by this Act), to satisfy himself as to the regularity of such proceeding, or the correctness, legality or propriety of any decision or order passed therein.

13. Section 20 of the Act deals with the powers and duties of the Commissioner in respect of religious endowments. As per Section 20, subject to the provisions of the said Act, the administration of all 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 be deemed 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.

14. Section 45 of the Act deals with the power to suspend, remove or dismiss trustees. As per subsection (1) of Section 45, the Deputy Commissioner in the case of any religious institution over which an Area Committee has jurisdiction, and the Commissioner in the case of any other religious institution, may suspend, remove or dismiss any hereditary or non-hereditary trustee or trustees thereof (a) for persistent default in the submission of budgets, accounts, reports or 10 W.P.(C)No.28664 of 2023 returns; or (b) for wilful disobedience of any lawful order issued under the provisions of this Act by the State Government, the Commissioner or Deputy Commissioner, the Area Committee or the Assistant Commissioner; or (c) for any malfeasance, misfeasance, breach of trust or neglect of duty in respect of the trust; or (d) for any misappropriation of, or improper dealing with, the properties of the institution; or (e) for unsoundness of mind or other mental or physical defect or infirmity which unfits him for discharging the functions of the trustee.

15. The Madras Hindu Religious and Charitable Endowments Act, therefore, makes it irrefragable that the administration of all religious endowments, including temples, are always under the general superintendence and control of the Commissioner, Malabar Devaswom Board and the Commissioner have the power to pass orders to ensure that the endowments are properly administered and that its income is duly appropriated only for the purposes of the endowment. Even though the temples are autonomous and independent and not owned by the Devaswom Board (except those temples over which, under the provisions of Section 8B of the Act, the Board has assumed management as per the request of the Trustee), they are under the complete supervisory control of the 11 W.P.(C)No.28664 of 2023 Commissioner appointed under the Act and who is obligated statutorily to ensure that the endowments are administered at the highest standards and that its income is used and appropriated only for the purpose for which it is founded.

16. Sree Annapoorneshwari Temple under Naduvil Madom Devaswom is a controlled institution under the Malabar Devaswom Board. As held in the decisions referred to supra, it is the duty of the trustees, hereditary trustees and non-hereditary trustees to be faithful to the Devaswom and manage, protect and safeguard the interest and properties of the Devaswom, with reasonable diligence. The Malabar Devaswom Board and its officials are duty-bound to exercise their supervisory control in order to ensure that the interests and properties of the Devaswom are protected and safeguarded by its trustees and the employees of the Devaswom. Any act of 'fence eating the crops' has to be dealt with sternly.

17. After the decision of the Division Bench of this Court in Payyannur Sree Subrahmanya Swami Kshethrodharana Samithi [2013 (3) KHC 849], quashing the circular dated 03.08.2009, the formation of committees consisting of the devotees in the temples, which are controlled institutions under the Malabar Devaswom Board, can only be for the specific 12 W.P.(C)No.28664 of 2023 purpose of conducting festivals, renovation works, etc. and the constitution of such committees are governed by the provisions contained in Circular No.HRH5/8246/2006 dated 15.06.2007 issued by the Commissioner of the erstwhile, Hindu Religious and Endowments (Administration) Department.

18. In the instant case, the petitioner has not chosen to approach the Commissioner, Malabar Devaswom Board, invoking the provisions under Section 18 of the Act, for redressal of his grievances regarding the alleged mismanagement of the affairs of Sree Annapoorneshwari Temple by the 4th respondent Manager appointed by the 6th respondent hereditary trustee, the illegality in the members of a Seva Samithi continuing to run the affairs of the temple along with the 4th respondent Manager, the alleged removal of copper plates from the dome and other parts of the temple by the 4th respondent and the renovation committee, etc. Exts.P12 and P13 representations made by the petitioner are before the Secretary of Malabar Devaswom Board, the Deputy Commissioner, Kozhikode and the Assistant Commissioner, Palakkad.

19. The learned counsel for the petitioner would submit that the petitioner shall file a proper petition before the Commissioner, Malabar Devaswom Board, invoking the 13 W.P.(C)No.28664 of 2023 provisions under Section 18 of the Madras Hindu Religious and Charitable Endowments Act, pointing out his grievances regarding the mismanagement of the affairs of Sree Annapoorneshwari Temple.

20. In such circumstances, leaving open the legal and factual contentions raised by both sides, this writ petition is disposed of with the following directions;

i) Within two weeks from the date of receipt of a certified copy of this judgment, the petitioner shall file a petition before the Commissioner, Malabar Devaswom Board, invoking the provisions under Section 18 of the Act against the conduct of the 4 th respondent Manager of Sree Annapoorneshwari Temple under Naduvil Madom Devaswom, which is a controlled institution under the Malabar Devaswom Board;

ii) On receipt of such a petition filed by the petitioner, the Commissioner, Malabar Devaswom Board shall consider the same and pass appropriate orders thereon, with notice to the petitioner, the 4th respondent Manager, the 5th respondent Executive Officer and the additional 6th respondent Hereditary Trustee, and also Puthucode Annapoorneshwari Seva Samithi and the Renovation Committee, if any, constituted for undertaking the renovation works in the temple, at any rate, within a period of three 14 W.P.(C)No.28664 of 2023 months from the date of receipt of such petition, taking note of the statutory provisions referred to hereinbefore and the law laid down in the decisions referred to supra. The order so passed by the Commissioner shall be a reasoned order, after adverting to the legal and factual contentions raised by both sides;

iii) It would be open to the petitioner to move an interlocutory application in the petition filed before the Commissioner, Malabar Devaswom Board seeking interim relief, in which event, the Commissioner shall pass appropriate orders in that interlocutory application, without any delay.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

G. GIRISH, JUDGE AV/18/11 15 W.P.(C)No.28664 of 2023 APPENDIX OF WP(C) 28664/2023 PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF SCHEME APPROVED BY THE COMMISSIONERS OF THE MADRAS HINDU RELIGIOUS ENDOWMENTS BOARD IN 1936 Exhibit-P1(a) TYPED COPY OF EXHIBIT-P1 Exhibit-P2 TRUE COPY OF THE JUDGMENT DATED 17.08.2020 OF THIS HON'BLE COURT IN WP(C)NO. 16806 OF 2020 Exhibit-P3 TRUE COPY OF THE COMMUNICATION NO.

A5/2038/2020/MDB DATED 29.09.2020 ISSUED BY THE 2NDRESPONDENT TO THE 4TH RESPONDENT Exhibit-P4 TRUE COPY OF THE JUDGEMENT DATED 22.01.2021 OF THIS HON'BLE COURT IN WP(C) NO. 26295 OF 2020 Exhibit-P5 TRUE COPY OF THE PROCEEDINGS NO.A3- 3588/2019/M.D.B(K.DIS) DATED 26.12.2019 OF THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, PALAKKAD Exhibit-P6 TRUE COPY OF THE RTI APPLICATION DATED 27.07.2021 SENT BY THE PETITIONER Exhibit-P6(a) TRUE COPY OF THE REPLY DATED 24.08.2021 TO EXHIBIT-P6 RTI APPLICATION, RECEIVED BY THE PETITIONER Exhibit-P7 TRUE COPY OF THE ORDER A3-2932/2021/MDB (K. DIS.) DATED 11.10.2021 OF THE 2ND RESPONDENT Exhibit-P8 TRUE COPY OF THE REPLY NO. RTI-

822/2022/MDB DATED 16.03.2022 FROM THE OFFICE OF THE 2ND RESPONDENT TO AN RTI APPLICATION FILED BY THE PETITIONER Exhibit-P9 TRUE COPY OF THE JUDGMENT DATED 07.12.2022 OF THIS HON'BLE COURT IN 16 W.P.(C)No.28664 of 2023 WP(C) NO. 19403 OF 2022 Exhibit-P10 TRUE COPY OF THE ORDER NO.

J3/3270/2022/MDB DATED 30.01.2023 OF THE COMMISSIONER, MALABAR DEVASWOM BOARD Exhibit-P11 TRUE COPY OF THE REQUEST DATED 03.03.2023 SENT BY THE 5TH RESPONDENT TO THE 2ND RESPONDENT Exhibit-P12 TRUE COPY OF THE REPRESENTATION DATED 12.04.2023 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT Exhibit-P13 TRUE COPY OF THE REPRESENTATION DATED 13.06.2023 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT Exhibit-P14 TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE MEETING OF THE AREA COMMITTEE OF THE 1ST RESPONDENT HELD ON 22.05.2023 RECEIVED BY THE PETITIONER THROUGH APPLICATION UNDER RTI ACT RESPONDENT EXHIBITS EXHIBIT R4 (A) TRUE COPY OF THE REPORT SUBMITTED FOR AUDIT DATED 23/09/2023 OF THE LOCAL FUND AUDIT DEPARTMENT, DEPUTY DIRECTOR OF LOCAL FUND AUDIT, PALAKKAD EXHIBIT R4 (B) TRUE COPY OF THE RELEVANT PAGE OF THE GOLD AND SILVER REGISTER MAINTAINED BY THE TEMPLE IS PRODUCED HEREWITH AND MARKED AS PETITIONER EXHIBITS Exhibit P15 TRUE COPY OF THE RECEIPT DATED 16.10.2023 ISSUED BY THE PUTHUKKAD SREE ANNAPOORNESWAY TEMPLE.

Exhibit P16 TRUE COPY OF THE RELEVANT PAGES FROM THE "COMPREHENSIVE DEVELOPMENT PLAN, 1996"

[SAMAGRA VIKASANA REKHA) OF PUDUCODE GRAMA PANCHAYAT, PALAKKAD.

17 W.P.(C)No.28664 of 2023

Exhibit P17 TRUE COPY OF NOTICE DATED 03.11.2023 ISSUED BY THE 4TH RESPONDENT.

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