Research › Search › Judgment

Kerala High Court · body

2016 DIGILAW 122 (KER)

Arunkumar M. v. State of Kerala

2016-01-29

A.M.SHAFFIQUE, ASHOK BHUSHAN

body2016
JUDGMENT : A.M. Shaffique, J. This appeal has been filed challenging the judgment dated 20.10.2015 in W.P.(C) No. 18953 of 2015. The petitioner in the writ petition is the appellant herein (who is hereinafter referred to as 'the petitioner'). The petitioner challenged Exts.P2 and P3 proceedings, by which, his appointment to the post of Non-Hereditary Trustee of Sree Vilakkumadam Venkittarmana Temple, Karicheri, Kasaragod Taluk, Kasaragod District has been set aside by the 2nd respondent, which was confirmed by the Government. 2. The short facts involved in the writ petition would disclose that the 3rd respondent had invited applications for appointment of Non-Hereditary Trustee in the aforesaid Temple. After attending the selection process, the petitioner as well as respondents 6 to 9 were appointed as Non-Hereditary Trustees, which came to be challenged in a revision filed under Sec.18 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as 'the Act'). The 3rd respondent, Assistant Commissioner, set aside the appointment and directed the Area Committee to make fresh appointment within a period of one month from the date of receipt of a copy of the order. The petitioner preferred an appeal before the Government, which was decided as per order dated 2.6.2015, rejecting the claim of the petitioner. 3. It was inter alia contended by the petitioner that the Commissioner had not decided the claim of the petitioner in accordance with law. The Commissioner in Ext.P2 order dated 27.9.2014 observed as under:- "Under the above circumstances, I am inclined to set aside the impugned order appointing respondents 2 to 6 as non hereditary trustees of the temple. The Assistant commissioner is not the Chairman of Area Committee as alleged by the petitioners. The allegation made against the Petitioners by the Respondents in their counter also is not seen contradicted or denied. The Assistant commissioner is not the Chairman of Area Committee as alleged by the petitioners. The allegation made against the Petitioners by the Respondents in their counter also is not seen contradicted or denied. The Area Committee is directed to make appointment afresh within one month of date of receipt of this order, from the applications already received, after conducting a proper enquiry and giving representation to all communities, which have applied, as also preferring persons who believe in temple worship, and interested in the welfare and progress of the temple, and residing in the locality of the temple, and able to organise and mobilize men and material for the welfare of the temple." The only reason for setting aside the appointment was that several persons from the same community were selected as non hereditary trustees and out of which, three of them were from the same Tharavadu, which cannot be sustained. According to the Commissioner, opportunity should have been given to various persons from other communities as well. Since there were 12 qualified applicants including persons from other communities other than Nair community, opportunity should have been given to them as well. Though the petitioner had raised a claim that by custom the members of the Tharavadu family were given preference and there was nothing wrong in appointing three of the members of the same family, the Commissioner had rejected the same on a finding that there was no evidence to substantiate the same. The Government also upheld the findings of the Commissioner. 4. The learned Single Judge, after evaluating the respective contentions, dismissed the writ petition. It was observed that there is no reason for this Court to exercise judicial review to upset the finding of fact, especially, when the whole intention behind the impugned orders was to create a sense of belonging to all community members and that the temple belongs to them in common. 5. Impugning the aforesaid judgment, the learned counsel for the appellant would submit that in terms of Sec.18(3)(a) of the Act, when the Commissioner exercises power of revision, if he had thought that evidence was required in regard to the claim made by the petitioner, he would have called for a report from the Area Committee and took a decision in the matter. Failure to do so, according to the learned counsel, clearly amounts to not exercising the jurisdiction in accordance with law and for that reason itself, the impugned order is liable to be set aside. It was also argued that the members of the Karichery Tharavadu, by custom, has been appointed as non hereditary trustees in the temple for quite a long time and therefore, merely for the reason that three of the members of the same family were made non hereditary trustees as recommended by the Area Committee, the Commissioner ought not to have set aside the order passed. 6. On the other hand, the learned counsel appearing for respondents 2 and 3 submits that when the order passed by the Commissioner and approved by the Government is in accordance with law, there is no reason for interference and the learned Single Judge was justified in dismissing the writ petition. 7. The learned counsel appearing on behalf of respondents 4 and 5 submits that no materials were produced by the appellant before the Commissioner to evidence that their family by custom had a right to be non hereditary trustees in the temple. It is stated that even assuming that they are having a customary right, their remedy is to approach the Deputy Commissioner by invoking Sec.57(e) of the Act. When no materials are produced to substantiate their claim, the learned Single Judge was justified in dismissing the writ petition and no interference is called for in the matter. 8. The Area Committee has been impleaded in the case and has filed a counter affidavit inter alia stating that the Karicheri Tharavadu is having "Oorayma" right in the temple, which is evident from the Partition Deed dated 5.2.1938. It is stated that in the light of the stipulations in the Partition Deed, the members of the Karicheri Tharavadu is having some special rights regarding the temple and in so far as the Tharavadu belongs to Nair Community, while constituting the Trustee board of the temple comprising of non hereditary trustees, on account of the population of the Nair Community residing in the vicinity of the temple, the members of the Nair Community was given higher representation. It is also stated that it is recognising the right of the Karicheri Tharavadu that such a decision was taken. It is also stated that it is recognising the right of the Karicheri Tharavadu that such a decision was taken. It is also stated that other communities formed only a minor fraction while considering the population of residents in the locality. 9. Having regard to the respective contentions raised by the parties, it is apparent that the Commissioner had allowed the revision filed by respondents 4 and 5 herein, mainly on the ground that materials were not produced to prove the claim of appellant and others that they were members of Karicheri Tharavadu. As rightly contended by the learned counsel for the appellant, Sec.18 (3)(a) gives a discretionary power to the Commissioner to call for a report from the Committee while deciding the revision. Sec.18(3) (a) reads as under:- "If any such decision or order has been passed by any Area Committee or by the trustee of any religious institution included in the list published under Section 38, the Commissioner may, if he thinks fit, remit the matter together with his observations in regard thereto, to the Committee or trustee for reconsideration of the decision or order and report to the Commissioner within a time to be specified by him in this behalf." It is apparent that this discretion has not been exercised by the Commissioner, whereas, the Commissioner has virtually confirmed that there was no evidence to substantiate the same. As rightly contended by the learned counsel for the appellant, it is for the Area Committee to take a decision based on the number of applications received and the Area Committee will have all the material particulars regarding the competency of the applicants, who are considered for appointment and the credentials available to them. If there was any doubt regarding the claim made by the petitioner and other non hereditary trustees, the Commissioner ought to have exercised the discretion in terms of Sec.18(3)(a) of the Act. 10. With reference to the contention of the learned counsel for respondents 4 and 5 that the petitioner is entitled to approach the Deputy Commissioner under Sec.57(e), we do not think that such power could have been exercised at this point of time. The Commissioner, while deciding the revision filed by respondents 4 and 5, will have to act in accordance with law. The Commissioner, while deciding the revision filed by respondents 4 and 5, will have to act in accordance with law. When a power is given to call for necessary report, especially in regard to the claim made by the petitioner, discretion ought to have exercised at that time. Failure to exercise such discretion has resulted in injustice to the petitioner. The learned Single Judge had proceeded on the basis that there was no scope for any judicial review, especially, on account of the findings of the Commissioner and the Government. In regard to a temple, it is always ideal to have more than one member from different communities to be non hereditary trustee, but when a specific claim has been raised by the members of the Tharavadu and as per custom, they were made non hereditary trustees for quite a long time, it was incumbent on the part of the Commissioner and the Government to decide their rights. This aspect of the matter has not been considered by the learned Single Judge and therefore, we are of the view that the judgment is liable to be set aside. Hence, we dispose of the writ appeal with the following directions :- 11. That the writ petition is allowed. Exts.P2 and P3 are set aside. The 2nd respondent is directed to reconsider the revision filed by respondents 4 and 5 under Sec.18 of the Act after calling for a report from the Area Committee in terms of Sec.18(3)(a) of the Act and take a final decision in the matter within a period of two months from the date of receipt of a copy of this judgment. This shall be done after issuing notice to all the affected parties.