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2010 DIGILAW 986 (KER)

O. Narayanan, S/O. Achuthan Nair v. Cochin Devaswom Board

2010-12-15

P.BHAVADASAN, THOTTATHIL B.RADHAKRISHNAN

body2010
Judgment :- Thottathil. B. Radhakrishnan, J. In exercise of power under Section 93 of the Travancore Cochin Hindu Religious and Charitable Endowments Act, 1950, Ext.P1 scheme was framed and issued on 22.08.1955, for the management of the Kamoth Devaswom. The provisions in Ext.P1 had never been under challenge. With the passage of time, certain clarifications were sought for. That led to the issuance of Ext.P2 proceedings in 1994. 2. The issue in hand relates to the effect of provisions contained in clause 42 of Ext.P1 scheme and its modulation as per Ext.P2. 3. Clause 42 of Ext.P1 reads as follows : "MALAYALAM". An English version of that provision is that "All males and females of 21 or more years of age in the "Nair grihams" in the area referred to in Clause 42 will be entitled to be a member of the general body and would be eligible to vote." We have, for this English version, left the phrase "Nair griham" in vernacular, since the moot issue as we proceed, would be as to what that phrase means. 4. In 1994, it was clarified as per Ext.P2 that those persons who come into those "Nair grihams" by reason of marriage and the children, who would be born to them would also, with the passage of time, be within the electoral college. 5. The petitioners claim that they, going by the materials on record, are Nairs, residing within the territorial limits earmarked in Clause 42 and that they are permanently residing in that area. They, accordingly, contend that they are eligible to be included in the voters list. They insist that in terms of Clause 43(a) of Ext.P1, the voters list has to be revised every three years and therefore, the eligibility for inclusion in the list is to be determined as on the date of such revision. They contend that they are unauthorisedly excluded from the voters list. 6. Raising the aforenoted complaint, they approached this court earlier. Having regard to the provision in Clause 61 of the scheme, the petitioners were relegated to the Board. The Board issued the impugned decision, taking the view that the petitioners do not belong to the "Nair Grihams" in terms of Clause 42 of Ext.P1 and are, therefore, not entitled to be included in the voters list. This is the crux of the dispute in this writ petition. 7. Ext. The Board issued the impugned decision, taking the view that the petitioners do not belong to the "Nair Grihams" in terms of Clause 42 of Ext.P1 and are, therefore, not entitled to be included in the voters list. This is the crux of the dispute in this writ petition. 7. Ext. P1 is a scheme framed by the competent authority, namely, the Board, under section 93 of the Travancore-Cochin Hindu Religious Charitable Institutions Act, 1950. A scheme is settled terms of that provision, after publication of its draft and after considering the objections, if any, of persons likely to be affected thereby. An order settling a scheme of administration for the institution can be questioned by the trustee or any person having interest, by instituting a suit before the court within six months. Subject to the result of such suit, the order of the Board settling a scheme shall be final and binding on the trustee and all persons having interest. Of course, there is a procedure prescribed to modify or cancel the scheme. As already noted, exhibit P1 scheme was framed and settled in 1950. It was in 1994 that its clarification was issued as per Ext. P-2. The scheme is holding the field for more than six decades by now and with Ext. P-2 clarification, for nearly 15 years. Even as of now, there is no challenge to the provisions contained in the scheme. 8. The only controversy is as to the scope of the term "Nair grihams" contained in exhibit P1. That scheme was drawn up by a statutory authority. In doing so, it was statutorily obliged to act in the best interest of the institution. The Board would initiate action for settling a scheme of administration for an institution only when it is satisfied that it is necessary to do so in the interests of that institution. Once that has been done, and the scheme so settled remains intact, it has to be presumed that the statutory authority had taken into consideration all relevant facts and factors to arrive at the best interest of the institution and that the scheme so settled is in the interests of institution, though the court may, at a later point of time, in exercise under section 93(7), modify or cancel the scheme, even on the application by the Board. As a necessary consequence, apart from the presumption as to regularity of those official acts, it could also be presumed that the Board were aware of all factors attendant to the management of the affairs of the institution until then, including practices as also, the exclusive involvement, if any, of members of certain families in such activity. In terms of section 114 of the Evidence Act, the Court may presume, inter-alia, the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public business, in their relation to the facts of the particular case. The Court may presume that judicial and official acts have been regularly performed. When such official acts include determination of issues in relation to which there could be different views and even rival stands and claims, such determination would give rise to decisions, which though administrative, would essentially have a quasi-judicial flair. This would also be so when such decision-making process is provided for and regulated by statutory provisions. In that context, the concept of regularity includes, not merely procedural regularity, but also as regards the regularity of the decision-making process and hence the correctness of the decision. Therefore, unless there is an overwhelming circumstance in any particular case to hold that the presumption available as regards the regularity of such official acts should be confined to the procedural formalities, there is nothing wrong in the court drawing a presumption as to the correctness of the decision and of it being one within the realm of the concept of regularity as regards the exercise of the statutory official acts. Of course, this is part of presumptions and the courts are not tied down to that. It would also be reasonable to say that in the common course of natural events, human conduct and public business in relation to the exercise of authority under section 93 of the Travancore-Cochin Hindu Religious Charitable Institutions Act, 1950, the Board has to be presumed to have adverted to and considered all relevant factors, in the interest of the institution, having regard to the nature of institution ; the needs of the community utilising it for the purpose of their religious practices and matters relating to faith, etc. The societal structuring and the community texture of the lex-loci, and the locality needs at that particular point of time would have been relevant considerations since actions taken under the Act, cannot in any manner impinge the cohesiveness of the local community or interfere to deflect the existing practices. We cannot assume that the Board, while making the scheme, would have ever intended to deal with the matter otherwise than in accordance with the laws that governed the communities at the relevant time. Therefore, the use of the phrase "Nair grihams", and not, "Nairs", or "Members of the Nair community" is indicative of the conscious decision of the Board to identify a group as constituting "Nair grihams" for the purpose of exhibit P1 scheme. Therefore, in construing the effect of the phrase "Nair grihams" in exhibit P1, we have to necessarily proceed to appreciate it in the light of relevant materials in that regard. The concepts germane to Nairs and Nair community as reflected by the statutory provisions that applied to that community at the relevant time would be a safe yardstick. 9. We would recall that in 1950, when Ext.P1 was made, the law that governed the Nairs in Kerala was not, in any manner, affected by any disruption of the concept of joint family. That happened only in 1976 by the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1976. This means that the cohesiveness of the concept of "Tharwad" was well in the mind of those, who made Ext.P1. It has necessarily to be presumed that this was very much there. Added to this, we find that Ext.P19 issued under the Right to Information Act shows that there were four families, namely, 'Mankamadathil', 'Madathil', 'Edathil' and 'Kovilkovilakathumveedu', which, going by Ext.P19, were ''ooranmas" of the temple in question. Though the petitioners dispute as to whether the temple is an "ooranma" temple or not, we need not go into that issue at all for the purpose of deciding the controversy in hand. This is because, whether those families were actual "ooranmas" or were among the founder families, it makes no distinction. Though the petitioners dispute as to whether the temple is an "ooranma" temple or not, we need not go into that issue at all for the purpose of deciding the controversy in hand. This is because, whether those families were actual "ooranmas" or were among the founder families, it makes no distinction. All that is to be decided is as to whether those four families were the only "Nair grihams" which is referred in clause 42 of Ext.P1 or whether every house where a Nair resides with the passage of time, would also be eligible for coverage under Clause 42 of Ext.P1. The concept of "griham" in the context of Ext.P1 as understood and acted upon in Ext.P2 in 1994, is essentially made with reference to the concept of "tharwad" or joint hindu family. This is why, even when the question was raised before the competent authority in 1994, it was stated that the persons who come into the families by marriage would also be eligible to be in the electoral college. Obviously, therefore, the identity of the four Nair families in existence at that time, formed the basis of the use of the term "Nair griham" in clause 42 of Ext.P1. This means that only those four "Nair tharwads" were treated as "Nair grihams" for the purpose of Clause 42. This is the manner in which we see clause 42 on its plain reading as also on a contextual construction that could be applied to that provision in the light of Exts.P1 and P2. It is not as if every person belonging to the Nair community, who would migrate and get settled within the Panangad desom of Kumbalam village would get the right to be in the electoral college. The petitioners do not claim to be members of any of those four "Nair grihams". 10. As regards Clause 43(a) of Ext.P1, all that it provides is that there has to be revision of the electoral roll every three years. This means that the voters list has to be revised by including persons, who have attained the bench mark of age for entry into the voters list without incurring any of the disqualifications as are prescribed in clause 45 and by excluding the names of persons who may be dead or otherwise liable to be removed from the electoral roll, including by disqualification. In this context, the materials tend to suggest that the only available voters list is that of 1994. Therefore, as of 1994, there is a list with reference to the members of the four "Nair grihams" and all that is required with the passage of time is to ensure that persons referable to those "Nair grihams" in accordance with Clause 42 of Ext.P1 and the clarification -Ext.P2, have to be included subject to their not being disqualified in terms of clause 45. Similarly, persons who are liable to be deleted from that voters list have to be deleted. This would keep in order the electoral process as regards the finalisation of the voters list. 11. Having regard to the aforesaid reasons, we do not find any right in the writ petitioners to be included in the voters list. In the result, the writ petition fails and it is accordingly dismissed. No costs.