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2003 DIGILAW 754 (KER)

V. M. Santhosh v. T. K. Vijayaraghavan

2003-12-09

K.S.RADHAKRISHNAN, PIUS C.KURIAKOSE

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Judgment :- Radhakrishnan, J. This application has been moved under Sec. 69 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 praying for an order removing respondents 1 to 3 from the post of President and Members of the Cochin Devaswom Board and constitute an enquiry by an independent agency and fix the liability and recover the same in accordance with law. 2. Applicant claims to be member of Hindu community and is a devotee. He has annexed various newspaper reports to the application. He submits on the basis of the facts disclosed in the newspaper reports that a de novo enquiry be ordered. Counsel appearing for the Devaswom Baord opposed the said prayer. Counsel submitted that the term of the second respondent is already over and therefore the question of removing him does not arise. Further counsel submitted that there is no basis in the allegations raised against the member individually. Maintainability of the application was also questioned and contended that the application can be posted only by the single judge and not before the Division Bench. 3. The present application has been filed under Section. 69 of the Act. The said provision is extracted below for easy reference. 69. (1) A member of the Board may be removed from his office by the High Court on the ground of proved misbehaviour or incapacity on an application made to the High Court as provided in sub-section (2). Explanation:- If member does any act which is intended or is likely to endanger Communal harmony or which tends to promote feelings of enmity or hatred between different classes of citizens in the State he shall, for the purposes of sub-section (1) be deemed to be guilty of misbehaviour. (2) Any such application may be made to the High Court by the Advocate General or a person belonging to the Hindu Community. (3) Such application shall be heard by a Single, judge of the High Court in the first instance. Where it appears to him after such preliminary enquiry as he deems necessary, that there is no prima facie case, he shall reject the application and may make such order as to costs as he deems proper. Where he is of opinion that there is a prima facie case he shall after recording his reasons therefore refer the application to a Division Bench. Where he is of opinion that there is a prima facie case he shall after recording his reasons therefore refer the application to a Division Bench. The Division Bench shall, after such enquiry as it deems fit, pass final orders thereon and make such orders as to costs as it deems proper. (4) The Court fee payable in respect of an application under sub-section. (1) shall be Rs.100. Section 69 stipulates that a member of the Board may be removed from his office by the High Court on the ground of proved misbehavior or incapacity on an application made to the High Court. Sub-sec.(2) stipulates that any such application may be made to the High Court by the Advocate General or a person belonging to the Hindu community. Sub-Sec.(3) stipulates that such application shall be heard by a single judge of the High Court in the first instance. Therefore, posting the application before the Division Bench is not in order. Sub-sec.(3) also provides that where it appears to the single judge after such preliminary enquiry as he deems necessary, that there is no prima facie case, he shall reject the application and may make such order as to costs as he deems proper. Where learned single judge is of opinion that there is a prima facie case he shall after recording reasons therefore refer the application to the Division Bench and the Division Bench shall, after such enquiry as it deems fit, pass final orders thereon and make such orders as to costs as it deems proper. Therefore, under Sec. 69 (3) Division Bench can entertain such application on a reference made by the learned single judge when a prima facie case has been made out in the application before the learned Single judge. Above being the statutory procedure, we are of the view, applicant is not justified in moving the application before has Division Bench. As per the procedure contemplated under Sec. 69 (3) the application has to be considered by the learned single judge at the first instance. The application lacks merits and it is accordingly dismissed.