Judgment :- Ramachandran Nair, J. 1. The petitioner herein is the President of the Managing Committee of Sree T.T.K. Devaswom, Thaliparamba in Kannur District. In the writ petition the petitioner has produced Ext.P5, an order passed by the second respondent Deputy Commissioner, Malabar Devaswom Board, suspending the Managing Committee on certain grounds pending enquiry into them. The writ petition has been filed seeking for the issuance of a writ of mandamus directing the first respondent to allow another five hereditary trustees to discharge the functions of hereditary trustees in the temporary vacancies occurred due to the suspension of hereditary trustees, until disability of the present hereditary trustees of the managing committee ceases. As relief No.(iii) the petitioner is seeking for a declaration that the temporary vacancies of hereditary trustees in Sree T.T.K. Devaswom can be filled temporarily from the members of the 43 families having trusteeship by electing from them. One of the other prayers is to quash Ext.P9 communication by which the suspended trustees have been informed that in the light of the order of suspension they shall not participate in the meetings of the general body of hereditary trustees. 2. The relevant facts as revealed from the averments in the writ petition show the following: Sree T.T.K. Devaswom is a renowned religious institution of northern Kerala which manages three major shrines which include Sree Raja Rajeswara Temple of Taliparamba, Sree Krishna Temple of Trichambaram and Sree Vydhyanatha Temple of Kanhirangad and several other minor temples. The Devaswom headquarters is situated within the premises of Sree Raja Rajeswara Temple at Talimparamba. 3. Ext.P1 is the scheme framed as per the provisions of the Hindu Religious and Charitable Endowments Act, 1951 (for short H.R. & C.E. Act) on the direction of the Sub Court, Payyannur in O.P.No.60/1987. The same has been approved by this Court in C.M.A.No.451/1990. Going by para 2 of the scheme, the trusteeship in the Taliparamba, Trichambaram and Kanhirangad temples and sub temples and other shrines attached thereto vests hereditary in the Karanavars for the time being of the Illoms in existence in the group of families known as 'Parinchalloor Gramam' in Kannur District. The same has been approved by this Court in C.M.A.No.451/1990. Going by para 2 of the scheme, the trusteeship in the Taliparamba, Trichambaram and Kanhirangad temples and sub temples and other shrines attached thereto vests hereditary in the Karanavars for the time being of the Illoms in existence in the group of families known as 'Parinchalloor Gramam' in Kannur District. Para 3 of the scheme shows that the administration will have to be carried out by the managing committee of eight members, five members are elected by the hereditary trustees from among themselves and three members appointed by the department from the public as non hereditary trustees. The present managing committee, of which the petitioner is the President, took charge on 29.9.2011. As of now there are no non-hereditary trustees. There are 43 families having hereditary urazhma rights over the Sree T.T.K. Devaswom temples. Para 10 of the scheme shows that the managing committee shall appoint an Executive Officer or Manager to conduct the day today affairs of the temple. The functions of the Executive Officer are governed by paragraphs 12 to 14 of the scheme. 4. The present controversy started by the issuance of show cause notice dated 29.9.2012 produced as Ext.P2 asking them to show cause why action should not be taken under Section 45 of the HR & CE Act. Ext.P3 is the copy of the explanation submitted by them. Even though the show cause notice was challenged before this Court in W.P.(C) No.26891/2012, this Court by Ext.P4 judgment, disposed of the writ petition directing the respondents therein to treat the objection as answer to Ext.P2 and proceed with accordingly. Even though a Special Leave Petition was filed before the Honourable Supreme Court against Ext.P4 judgment, the same has been dismissed. In the meanwhile, a suspension order was issued as per Ext.P5 and W.P.(C) No.62/2013 filed before the Honourable Supreme Court challenging the same, has also been dismissed as per Ext.P6 order. 5. We heard learned Senior Counsel for the petitioner, Shri K.P. Kylasanatha Pillai, Shri V. Krishna Menon, learned Standing Counsel for the Malabar Devaswom Board and Shri K. Mohana Kannan, learned counsel appearing for the Executive Officer. 6. 5. We heard learned Senior Counsel for the petitioner, Shri K.P. Kylasanatha Pillai, Shri V. Krishna Menon, learned Standing Counsel for the Malabar Devaswom Board and Shri K. Mohana Kannan, learned counsel appearing for the Executive Officer. 6. After hearing the learned Senior Counsel appearing for the petitioner and learned Standing Counsel appearing for respondents 1 and 2, this Court had passed an interim order on 12.4.2013 directing respondents 1 and 2 to consider the request of the petitioner for appointment of a fit person and to pass appropriate orders within a period of one month from the date of receipt of a copy of the said order. On 3.6.2013 Annexure A1 order has been placed before this Court whereby the additional fourth respondent, Shri Kurumathurillathu Shankaranarayana Namboothiripadu, Advocate, Thiruvangadi P.O., Thalassery has been appointed as a fit person and this Court allowed him to assume charge as fit person. 7. After completion of the pleadings the matter has come up for hearing. Learned Senior Counsel for the petitioner submitted that in the light of Section 47 of the Act and the provisions of the Scheme Ext.P1, there should be a committee to fill up the temporary vacancies (Ad hoc Committee) for discharging the functions of the hereditary trustees who can be elected from the general body of the trustees. It is submitted that there are 43 families and the petitioner has no objection that an election can be conducted even without participation of the five hereditary trustees who have been suspended as per Ext.P5. While explaining the scheme under Section 47 of the Act, learned Senior Counsel submitted that sub-section (2) will come into play herein, which covers the situation when a temporary vacancy occurs by reason of the suspension of hereditary trustee under Section 45, and the next in the line of succession shall be entitled to succeed and discharge the functions of the trustee until his disability ceases. It is submitted that really the scheme for appointment of a fit person under sub-section (3) is different and that will apply in a case where there arises contingencies like a dispute in respect of the right of succession to the office, unsoundness of mind of the hereditary trustee or other mental or physical defect or infirmity, minority, etc. It is submitted that really the scheme for appointment of a fit person under sub-section (3) is different and that will apply in a case where there arises contingencies like a dispute in respect of the right of succession to the office, unsoundness of mind of the hereditary trustee or other mental or physical defect or infirmity, minority, etc. Therefore, according to the learned Senior Counsel, the provisions of sub-section (2) necessitates the appointment of the temporary committee as mainly prayed for in the writ petition. There cannot be a vacuum in the affairs concerning administration. 8. Learned Senior Counsel for the petitioner further submitted that the hereditary trustees are members of Urazhma families and they are also performing various religious duties and functions of the temple and are helping the chief priest and other santhies also. Going by the custom they can also enter the sanctum sanctorum of the temple. The Executive Officer cannot perform such functions. The fit person, even though is a member of the family, he is a practicing lawyer. Apart from the same, it is submitted that all the three Temples are visited by a large number of pilgrims every day and are very important Temples in northern Malabar. Therefore, there cannot be any vacancy in the office of the hereditary trustee. Learned Senior Counsel also relied upon the principles stated by a Division Bench of this Court in Bhanunni v. Commissioner, HR & CE (Admn.) Department (2011 (4) KLT 230) to contend for the position that the department is only having supervision and really the administration of the Temple is vested with the hereditary trustees. He relied upon paragraphs 69 to 73 in this context. Learned Senior Counsel also invited our attention to the decision of a Division Bench of this Court in M.F.A.No.451/1990 concerning the amendment of the scheme Ext.P1 whereby the introduction of amendment to clauses 10 and 15 have been approved. Under those clauses the Executive Officer will have to be appointed by the managing committee and the disciplinary control will also vest with the said committee. It is submitted that the Assistant Commissioner who has sent the report which led to the suspension, is the Executive Officer herein. Under those clauses the Executive Officer will have to be appointed by the managing committee and the disciplinary control will also vest with the said committee. It is submitted that the Assistant Commissioner who has sent the report which led to the suspension, is the Executive Officer herein. Learned Senior Counsel submitted that the principles stated by this Court after a detailed analysis of the provisions of the Act, will squarely apply here and therefore the primacy is really vested in the hereditary trustees and the Temples cannot therefore be left out without a Temporary Managing Committee. 9. Learned Standing Counsel for the Board, Shri V. Krishna Menon submitted that now that a fit person has been appointed, no further reliefs are called for in this writ petition. The fit person has been appointed after considering the pleas of the petitioner and in the light of the interim order passed by this Court and the said order is not under challenge also. 10. While opposing the contentions of the petitioner, learned Standing Counsel points out that even though in the Managing Committee five members alone are there, the action taken against them is applicable in respect of all the 43 members, meaning that as they were elected by them, they are also vicariously liable for the acts of the five members. Therefore, a temporary managing committee consisting of any other member out of the remaining 38 excluding the five, cannot be appointed. It is therefore submitted that the prayer of the petitioner is not liable to be granted by this Court. 11. Shri Mohanakannan, learned counsel appearing for the Executive Officer also opposed the prayers of the learned Senior Counsel for the petitioner. It is submitted that in Ext.P10 the petitioner, as President, has made both prayers, viz. to fill up the temporary vacancy or to appoint a fit person from among the families. It is submitted that as the fit person has been appointed, nothing survives for consideration. 12. First we will examine the relevant clauses of the scheme, Ext.P1. Going by clause 2, the trusteeship of the three Temples, sub Temples and other shrines attached thereto shall vest hereditarily in the Karanavans for the time being of the illoms now in existence in the group of families' known as 'Parinchalloor Grammam' in Kannur district. 12. First we will examine the relevant clauses of the scheme, Ext.P1. Going by clause 2, the trusteeship of the three Temples, sub Temples and other shrines attached thereto shall vest hereditarily in the Karanavans for the time being of the illoms now in existence in the group of families' known as 'Parinchalloor Grammam' in Kannur district. Clause 3 provides that the affairs of the Temples and their endowments shall be administered by a managing committee of eight members, five members elected by the hereditary trustees from among themselves and three members appointed by the department from the public as non hereditary trustees. Their term is provided as three years from the date of the first meeting of the committee. The procedure for conduct of election is provided under clause 5. The election will have to be conducted at a meeting of the trustees held in the presence of the Asst. Commissioner, HR & CE Department. It shall be convened by the Executive Officer. There should be seven clear days notice for the meeting and it shall be sent by registered post, apart from publication in the Temple notice board. Clause 6 concerns with the election of the President of the committee, who will have to be elected by the members of the committee. Clause 7 concerns with the convening of the meeting of the general body of the trustees which shall meet at least 3 times in a year and the specific dates have been provided therein. Clause 8 is concerned with the quorum for the general body meetings, which shall be 1/3rd of the total number of trustees and of the Managing Committee meetings shall be three. These are the relevant clauses apart from clause 10 concerning appointment of Executive Officer and clause 15 conferring disciplinary powers of the Managing Committee, on the Executive Officer which we have already noticed. For easy reference, we extract Sections 45 and 47 hereinbelow: "45. Power to suspend, remove or dismiss trustees.- (1) 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. For easy reference, we extract Sections 45 and 47 hereinbelow: "45. Power to suspend, remove or dismiss trustees.- (1) 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 returns, or (b) for willful 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. (2) When it is proposed to take action under sub-section (1) the Commissioner or the Deputy Commissioner, as the case may be, shall frame charges against the trustees concerned and give him an opportunity of meeting such charges, of testing the evidence in his favour, and the order of suspension, removal or dismissal shall state the charges framed against the trustees, his explanation and the finding on each charge with the reason thereunder. Provided that the Deputy Commissioner shall also consult the Area Committee before passing the final order under sub- section (1). (3) Pending the disposal of the charges framed against the trustee, the Commissioner or the Deputy Commissioner may place the trustee under suspension and appoint a fit person to discharge the function of the trustee. (4) It shall be open to an Assistant Commissioner to move the Deputy Commissioner to take action under sub-section (1) in respect of any trustee of an institution over which an Area Committee has jurisdiction, and to place the trustee under suspension pending the orders of the Deputy Commissioner under sub-section (3). (5) A trustee who is suspended, removed or dismissed under sub-section (1) may, within one month from the date of the receipt of the order of suspension, removal or dismissal appeal against the order to the Commissioner if it was passed by a Deputy Commissioner, and to the State Government if it was passed by the Commissioner. 47. (5) A trustee who is suspended, removed or dismissed under sub-section (1) may, within one month from the date of the receipt of the order of suspension, removal or dismissal appeal against the order to the Commissioner if it was passed by a Deputy Commissioner, and to the State Government if it was passed by the Commissioner. 47. Filling up of vacancies in the office of hereditary trustee.- (1) When a permanent vacancy occurs in the office of the hereditary trustee of a religious institution, the next in the line of succession shall be entitled to succeed to the office. (2) When a temporary vacancy occurs in such an office by reason of the suspension of the hereditary trustee under section 45, sub-section (1), or by reason of his supersession under section 46, sub-section (3), the next in the line of succession shall be entitled to succeed and discharge the functions of the trustee until his disability ceases. (3) When a permanent or temporary vacancy occurs in such an office and there is a dispute respecting the right of succession to the office, or When such vacancy cannot be filled up immediately, or when a hereditary trustee is a minor and has no guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, or When a hereditary trustee is by reason of unsoundness of mind or other mental or physical defect or infirmity unfit for discharging the functions of the trustee; The Deputy Commissioner may appoint a fit person to discharge the functions of the trustee of the institution until the disability of the hereditary trustee ceases or another hereditary trustee succeeds to the office or for such shorter term as the Deputy Commissioner may direct. Explanation: In making any appointment under this sub section the Deputy Commissioner shall have due regard to the claims of members of he family, if any, entitled to the succession." 13. The circumstances under which the power of suspension could be exercised, are provided under Section 45(1). The important provisions for filling up the vacancies in the office of hereditary trustees are sub-sections (1) and (2) of Section 47. The circumstances under which the power of suspension could be exercised, are provided under Section 45(1). The important provisions for filling up the vacancies in the office of hereditary trustees are sub-sections (1) and (2) of Section 47. It can be seen from sub-sections (1) and (2) that whether it is a case of occurrence of permanent vacancy or temporary vacancy, the next in the line of succession shall be entitled to succeed to the office of the hereditary trustees. It is a statutory right itself. As far as temporary vacancy is concerned, such a hereditary trustee can discharge the functions of the trustee until his disability ceases. 14. As far as the appointment of fit person under sub-section (3) is concerned, it will be applicable in the following cases: (a) When there is a dispute in respect of the right of succession to the office; (b) When a vacancy cannot be filled up immediately or due to the fact that the hereditary trustee is a minor and has no guardian fit and willing to act as such or there is a dispute in respect of the person who is entitled to act as guardian; and (c) When the hereditary trustee is by reason of unsoundness of mind or other mental or physical defect or infirmity unfit for discharging the functions of the trustee. Therefore, the scope of sub-sections (2) and (3) of Section 47 are quite different. 15. Herein, none of the limbs of sub-section (3) applies. From among the 43 members of the general body, only five are in the Managing Committee who have been suspended. Therefore, there are remaining 38 members who are not subjected to any disability. 16. The next question is whether the objection by the learned Standing Counsel that the remaining 38 members are also vicariously liable and will have to be excluded, is correct or not. We have already gone through the limbs of Section 45. Ext.P5 is the order of suspension. All the allegations are against the individual actions of the member/members of the Managing Committee and not against the general body as a whole. The charges attached to the suspension order also makes this position clear. The suspension order in its operative portion, after giving the names and addresses of five Managing Committee members states that they are suspended from the Managing Committee with immediate effect. The charges attached to the suspension order also makes this position clear. The suspension order in its operative portion, after giving the names and addresses of five Managing Committee members states that they are suspended from the Managing Committee with immediate effect. It is further stated by way of the concluding part that the charge memo against these five members are attached under it. When the Managing Committee is a small body elected by the general body and is entrusted with the administration, it cannot be said that if any default is committed by the members of the Managing Committee, the general body as a whole will be vicariously liable and will incur disqualification. There is no provision under Ext.P1 or under any of the provisions of HR & CE Act, to support such a contention. The said contention therefore cannot be accepted. 17. The fit person has been appointed only by way of an interim arrangement as per the orders of this Court and it is not a substitute for hereditary trustees other than the suspended Managing Committee members. The said arrangement had been made since it was represented by the learned Senior Counsel for the petitioner, when the interim application was heard, that unless such an interim arrangement is made, the religious functions and other rites and the management of the Devaswom will be affected, as the Executive Officer cannot exercise the powers of management of the Devaswom. The Executive Officer alone was left in the field at that point of time to conduct the day today affairs. The department had also raised a contention, at that stage, that Section 47(2) of the Act can have no application here. Therefore, the said legal issue had to be examined in detail by this Court. As rightly pointed out by the learned Senior Counsel for the petitioner, merely because a fit person has been appointed on an interim basis, that cannot go against the larger relief sought for by the petitioner in this writ petition. The fit person appointed is a practicing lawyer, of course from among one of the families of the trustees. Learned Senior Counsel therefore submitted that as he is a practicing advocate, that aspect also will have to be considered by this Court. 18. The scheme under Ext.P1 and the statutory scheme under Section 47 of the Act therefore support the plea of the petitioner. Learned Senior Counsel therefore submitted that as he is a practicing advocate, that aspect also will have to be considered by this Court. 18. The scheme under Ext.P1 and the statutory scheme under Section 47 of the Act therefore support the plea of the petitioner. Sub-section (2) of Section 47 confers right on the hereditary trustees who are next in the line of succession, to succeed and discharge the functions of the trustees until his disability ceases. This is quite important. Sub-section (2) clearly mentions about temporary vacancies arising due to suspension of hereditary trustee under Section 45, which is the situation herein. 19. We are fortified in this view by a recent decision of this Court in Bhanunni' case (2011 (4) KLT230) wherein this Court was of the view that the provisions of the Act conferring supervisory powers on the Commissioner and the authorities under the Board, do not mean that the hereditary trustee is under the absolute control or is a subordinate of the Board. The Bench has considered the entire statutory scheme and explained the various aspects concerning the trusteeship of a religious institution, the importance of conducting the affairs of the religious institution in a regular manner and the important functions of the hereditary trustee while managing the affairs of the Temple including the religious ceremonies and rites of which the Board and its officers have no say. Paragraphs 68 to 71 of the judgment are relevant. Finally, in para 72 it was held that mere fact that supervisory powers are given to the Board and its officers do not make the hereditary trustee a subordinate of the Board. For easy reference we extract paras.70, 71 and 72: "70. It is true that the Act gives wide powers to the Board as well as to its officers. But as already noticed, in Bhanunni's case (supra) one has to remember that temples are not financed by the Government nor are they unit offices of the Board. The hereditary trustee, going by the provisions of the Act as well as Ext.P1 scheme, has considerable liberty with regard to the administration of the temple and so long as he administers the affairs of the trust without causing any detriment to the institution and without depleting its resources and affecting the interest of the public, interference by the statutory authority is uncalled for. 71. 71. It may be mentioned here that even though the statutory provisions give wide powers to the Board as well as its officers and it is stated that the Trustee is bound to obey the orders issued by the State and the Board etc., one has to notice that those powers are limited in nature. It is not as if that any order could be issued by the State, Board or its officers under the Act to curb the right of administration and management of the hereditary trustee. In case of rituals, ceremonies and rites of the temple, it is well settled that the State, Board and its officers have no say in the matter. In fact an impartial look at the Act would indicate that the power conferred on the authorities under the Act is confined to ensure that the affairs of the trust are properly administered and that the hereditary trustee does not use the funds of the institution for his personal benefits or does any act detrimental to the institution. The determination of rituals, ceremonies and rites of a religious institution do not fall within the province of the powers conferred on the Board or its officers at all. That would be evident from a reading of the provisions already referred to. Their powers are restricted and they can exercise their statutory functions only in accordance with the custom, usage and accepted practice of the religious institution. Neither the Board nor its officers have any authority whatsoever to meddle with those matters. As long as the trustee administers the affairs of the temple as a man of ordinary prudence and utilizes the funds with due care and caution, we see no reason as to why the Board or its officers should interfere in the affairs of the temple. We are clear in our mind that the provisions of the Act do not confer any unfettered power on the Board or its officers to meddle with the affairs of the temple so long as the situations already mentioned of do not arise. It cannot be said that for each and every matter to be done in relation to the temple, the hereditary trustee has to look up to the Commissioner or the other officers under the Act for consent or sanction. It cannot be said that for each and every matter to be done in relation to the temple, the hereditary trustee has to look up to the Commissioner or the other officers under the Act for consent or sanction. As long as the acts done by him fall within the normal administrative function, and within the ambit and scope of S.24 of the Act, it could not be said that the trustee would be acting against the orders of the State, Commissioner or the other officers as the case may be. We see no power under the Act which would indicate that the Trustee is an employee or is a person who is bound by any order issued by the Commissioner or the other officers under the Act irrespective of the wide powers conferred on the hereditary trustee as per the provisions of the Act. 72. There is sufficient power given to the Commissioner as well as the authorities under the Board to ensure that the affairs of the institution are properly administered. The Act provides for budget proposal, audit etc. But that does not mean that the hereditary trustee is under the absolute control or is an employee of the Board. Mere fact that supervisory powers are given to the Board and its officers does not make the hereditary trustee a subordinate of the Board." 20. In fact, with respect to Sree T.T.K. Devaswom itself, a Division Bench of this Court in M.F.A. No.451/1990 had gone into the statutory scheme itself and held that there is great importance for the hereditary trustee. The said appeal was one filed by the Commissioner, HR & CE in a matter wherein the amendment of the scheme, Ext.P1 herein, viz. by Clauses 10 and 15 was upheld by the trial court. The appeal was also dismissed confirming the judgment of the trial court. In the course of the discussion of the various issues, the Division Bench had occasion to examine the various provisions of the Act itself. In para 6 with reference to the meaning of the hereditary trustee and management by such trustees, it has been explained thus: "The term "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 is in force. ......................Rule is that, normally religious institution governed by Madras Hindu Religious and Charitable Endowment Act shall be managed by hereditary trustees, but for reasons recorded under Section 39(2) non hereditary trustees can be appointed by the Commissioner. .................The above mentioned provisions would indicate that rule is that religious institutions governed by HR & CE Act shall be administered by the hereditary trustees." 21. Therefore, it is well settled that the powers of the department are only supervisory. The administration of affairs and the management of the Temples are vested with the Managing Committee under Ext.P1 scheme. In that view of the matter, we are of the view that in the present vacuum, till matters are settled after enquiry is completed on the allegations raised in Ext.P5 and till it attains a finality, there should be a proper administration by an ad hoc Managing Committee of hereditary trustees who are not included in the present Managing Committee and who are entitled to succeed. In fact, in Ext.P9 communication issued to the petitioner, it has been informed to the petitioner that the five suspended members will have to keep away from the general body meeting of the hereditary trustees. 22. Learned Senior Counsel for the petitioner fairly submitted that an election can be conducted with participation of the remaining members of the general body, viz. 38 in number excluding the five suspended members for having the temporary/ad hoc committee. Accordingly, the writ petition is allowed. There will be a direction to respondents 1 to 3 to see that a proper Managing Committee is elected in terms of the provisions of the scheme, after convening a general body meeting. They will be appointed as temporary committee till a regular Managing Committee can enter office. It will be subject to the further proceedings initiated under Ext.P5. The proceedings as above, directed for electing the Adhoc Managing Committee, will be finalised within a period of one month from the date of production of a certified copy of this judgment. The fit person appointed as per the interim order of this Court, will continue till the said committee takes charge. No costs.