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2025 DIGILAW 308 (KER)

SREE AKHORA SHIVA TEMPLE v. STATE OF KERALA

2025-02-18

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Anil K. Narendran, J. 1. The petitioner and the additional 7 th respondent are the hereditary trustees of Panthalayani Sree Akhora Shiva Temple, Koyilandi, which is a controlled institution under the 2 nd respondent Malabar Devaswom Board. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 notification dated 27.01.2024 issued by the 5 th respondent Assistant Commissioner, Malabar Devaswom Board inviting applications for appointment as non-hereditary trustees in the Board of Trustees of Panthalayani Sree Akhora Shiva Temple. The petitioner has also sought for a declaration that respondents 5 and 6, namely, the Assistant Commissioner and the Area Committee of Malabar Devaswom Board, Kozhikode Division are bound to maintain an equal proportion between the number of hereditary and non- hereditary trustees in the Board of Trustees of Panthalayani Sree Akhora Shiva Temple, in order to ensure effective participation of both in the administration of the temple and also for transparency in administration; a writ of mandamus commanding the 4 th respondent Deputy Commissioner to consider and pass orders on Ext.P3 representation dated 01.11.2023, within a time frame to be fixed by this Court, after affording an opportunity of being heard to the petitioner. 2. In the writ petition, it is averred that Panthalayani Sree Akhora Shiva Temple and Sree Kaliyambath Bhagavathi Temple are under the management of the same Board of Trustees. Non-hereditary trustees were being appointed to the above temples without maintaining proportion to the number of hereditary trustees, thereby making the hereditary trustees mere spectators in administration. In this writ petition, the petitioner seeks a declaration that respondents 4 and 5 are bound to maintain proportion in the number of hereditary and non-hereditary trustees. The 5 th respondent Assistant Commissioner issued Ext.P5 notification dated 27.01.2024 for the appointment of non-hereditary trustees. Ext.P1 partition deed No.935/1958 shows that Panthalayani Sree Akhora Shiva Temple and Sree Kaliyambath Bhagavathi Temple were the family temples and the said document authorises the family members to maintain the temples. 3. On 05.02.2024, when this writ petition came up for admission, the matter was admitted on file. The learned Senior Government Pleader took notice for the 1 st respondent State and the learned Standing Counsel for Malabar Devaswom Board for respondents 2 to 6. 3. On 05.02.2024, when this writ petition came up for admission, the matter was admitted on file. The learned Senior Government Pleader took notice for the 1 st respondent State and the learned Standing Counsel for Malabar Devaswom Board for respondents 2 to 6. By a detailed order dated 05.02.2024, this Court granted an interim stay of Ext.P5 notification dated 27.01.2024 issued by the 5 th respondent Assistant Commissioner, Kozhikode for a period of one month. 4. By the order dated 05.02.2024, the learned Standing Counsel for Malabar Devaswom Board was directed to make available for the perusal of this Court the files relating to Ext.P5 notification dated 27.01.2024 issued by the 5 th respondent Assistant Commissioner and also the relevant files maintained in the office of the 3 rd respondent Commissioner and the 6 th respondent Area Committee regarding the appointment of non- hereditary trustees in Panthalayani Sree Akhora Shiva Temple. 5. On 23.10.2024, the learned Standing Counsel for Malabar Devaswom Board made available for the perusal of this Court the files relating to the appointment of the non-hereditary trustee in Panthalayani Sree Akhora Shiva Temple, originally made in the year 2017. 6. In the order dated 20.11.2024, after perusal of the said files, this Court noticed that the appointment of non- hereditary trustees for the first time in the year 2021 was made based on a request made by one among the hereditary trustees, namely, Vasudevan M.K., the additional 6 th respondent herein. Ext.P5 notification is issued based on another request made by the said hereditary trustee. By the order dated 25.11.2024 in I.A.No.1 of 2024, notice was ordered to one Vasudevan Kaliyambath, the other hereditary trustee of the temple, by special messenger, returnable by 02.12.2024. By the order dated 02.12.2024, the said interlocutory application was allowed, and he was impleaded as additional 7 th respondent. 7. Heard the learned counsel for the petitioner, learned Senior Government Pleader for the 1 st respondent and the learned Standing Counsel for Malabar Devaswom Board for respondents 2 to 6. Despite service of notice, none appears for the additional 7 th respondent. 8. In the writ petition, it is alleged that on account of the appointment of three non-hereditary trustees, including those who are supporters/active members of political parties, the hereditary trustees have absolutely no role in the decision- making process in the administration of the temple. Despite service of notice, none appears for the additional 7 th respondent. 8. In the writ petition, it is alleged that on account of the appointment of three non-hereditary trustees, including those who are supporters/active members of political parties, the hereditary trustees have absolutely no role in the decision- making process in the administration of the temple. The learned counsel for the petitioner would place reliance on the decisions of this Court in Sreedharan Nambissan P. v. Commissioner, Malabar Devaswom Board, [ 2018 (2) KLT 115 ] and Chathu Achan v. State of Kerala [ILR 2022 (4) Kerala 199] to contend that continued appointment of non-hereditary trustees cannot be automatic or mechanical. Therefore, Ext.P5 notification is violative of Section 39 read with Section 41 of the Madras Hindu Religious and Charitable Endowments Act, 1951. The learned counsel for the petitioner would point out that as per Ext.P1 partition deed, which is the first document regarding the administration of the affairs of the temple in question, there must be five hereditary trustees among the member s of his family. In the last paragraph of Ext.P4 representation dated 01.12.2023, the petitioner has stated as follows; 9. The Madras Hindu Religious and Charitable Endowments Act, 1951 is enacted to provide for the better administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Madras. The Act received the assent of the President on 27.08.1951. By the Kerala Adoption of Laws Order, 1956 the provisions under the said Act have been made applicable to Hindu Religious and Charitable Institutions and Endowments in the Malabar District. 10. Clause (9) of Section 6 of the Act defines the term ‘hereditary trustee’ to mean 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. Clause (19) of Section 6 defines the term ‘trustee’ to mean any person or body by whatever designation known in whom or in which the administration of a religious institution is vested, and includes any person or body who or which is liable as if such person or body were a trustee. 11. Clause (19) of Section 6 defines the term ‘trustee’ to mean any person or body by whatever designation known in whom or in which the administration of a religious institution is vested, and includes any person or body who or which is liable as if such person or body were a trustee. 11. The provisions contained in Chapter II of the Act were substituted by the Madras Hindu Religious and Charitable Endowments (Amendment) Act, 2008 (Act 31 of 2008), which deals with the Malabar Devaswom Board and its officers. Section 7B of the Act deals with qualification for membership in the Malabar Devaswom Board. In view of the provisions contained in Section 7B, a person shall be qualified for nomination or election as a member of the Board only if he is a permanent resident of the Malabar area; professes the Hindu religion; is a believer of temple worship; and falls within the age criteria prescribed in clause (iv) of Section 7B. In view of the provisions under Section 7C, where a person has been elected or nominated as a member of the Board, before entering the office as a member, he shall take an oath before the Commissioner of the Board stating that he is a person professing Hindu religious rites and is a believer of God and temple worship. The provisions under Section 7D deal with disqualification for membership and Section 7E deals with supervening disqualifications. As per the provisions under Section 7M, the duties and functions of the Board include a duty to ensure proper maintenance and upliftment of Hindu religious institutions and to establish and maintain proper facilities in the temples for the devotees. In view of the provisions under Section 8 of the Act, all the powers and duties under this Act, in respect of various religious institutions of the Malabar area, that have been exercised or performed by the Commissioner, Deputy Commissioners, Assistant Commissioners and Area Committees before the commencement of the Madras Hindu Religious and Charitable Endowments (Amendment) Act, 2008 shall vest in the Board, on its constitution. Section 8A of the Act deals with supervision and control by the Board. As per Section 9 of the Act, the Commissioner, etc. to be Hindus. 12. Section 24 of the Act deals with the care required of the trustee and his powers. Section 8A of the Act deals with supervision and control by the Board. As per Section 9 of the Act, the Commissioner, etc. to be Hindus. 12. Section 24 of the Act deals with the care required of the trustee and his powers. As per sub-section (1) of Section 24, subject to the provisions of the Madras Temple Entry Authorisation Act, 1947, the trustee of every religious institution is bound to administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of the institution and all lawful directions which a competent authority may issue in respect thereof and as carefully as a man of ordinary prud ence would deal with such affairs, funds and properties if they were his own. As per sub-section (2) of Section 24, a trustee shall, subject to the provisions of the Act be entitled to exercise all powers incidental to the provident and beneficial administration of the religious institution and to do all things necessary for the due performance of the duties imposed on him. As per sub-section (3) of Section 24, a trustee shall not be entitled to spend the funds of the religious institution for meeting any costs, charges or expenses incurred by him in any suit, appeal or application or other proceeding for, or incidental to, his removal from office or the taking of any disciplinary action against him. As per the proviso to sub-section (3) of Section 24, the trustee may reimburse himself in respect of such costs, charges or expenses if he is specifically permitted to do so by an order passed under Section 88. 13. Section 39 of the Act deals with Trustees and their number and term of office. As per sub-section (1) of Section 39, where a religious institution included in the list published under Section 38 or over which no Area Committee has jurisdiction, has no hereditary trustee, the Commissioner shall constitute a Board of Trustees consisting of not less than three and not more than five persons appointed by him. As per sub-section (1) of Section 39, where a religious institution included in the list published under Section 38 or over which no Area Committee has jurisdiction, has no hereditary trustee, the Commissioner shall constitute a Board of Trustees consisting of not less than three and not more than five persons appointed by him. As per sub-section (2) of Section 39, where, in the case of any such institution having a hereditary t rustee or trustees; the Commissioner after notice to such trustee or trustees, and after such enquiry as he deems adequate, considers for reasons to be recorded, that the affairs of the institution are not, and are not likely to be, properly managed by the hereditary trustee or trustees, the Commissioner may, by order appoint such number of non- hereditary trustees as he thinks necessary, so however that the total number of trustees does not exceed five. As per sub-section (3) of Section 39, every trustee appointed under sub-section (1) and subject to the result of an application, if any, filed under sub-section (4) every non-hereditary trustee appointed under sub-section (2) shall hold office for a term of two years, unless in the meanwhile the trustee is removed or dismissed or his resignation is accepted by the Commissioner or he otherwise ceases to be a trustee. 14. As per sub-section (4) of Section 39 of the Act, where the Commissioner by order appoints a non-hereditary trustee or trustees the hereditary trustee or trustees may, within thirty days of the receipt of the order, file an application to the court to set aside or modify such order. As per sub-section (5) of Section 39, where a vacancy arises in the office of a non-hereditary trustee appointed under sub-section (2) the Commissioner shall not fill up such a vacancy unless, for reasons to be recorded, he cons iders it necessary to do so. A non-hereditary trustee appointed in the vacancy shall be deemed to have been appointed under sub-section (2), and the provisions of sub- sections (3) and (4) shall apply accordingly. 15. Section 40 of the Act deals with the Chairman. As per sub-section (1) of Section 40, in the case of a religious institution for which a Board of Trustees is constituted under sub-section (1) of Section 39, the Board shall elect one of its members to be its Chairman. 15. Section 40 of the Act deals with the Chairman. As per sub-section (1) of Section 40, in the case of a religious institution for which a Board of Trustees is constituted under sub-section (1) of Section 39, the Board shall elect one of its members to be its Chairman. As per sub-section (2) of Section 40, in the case of any other religious institution having more than one trustee, the trustees of such institution shall elect one of their members to be the Chairman. As per sub-section (3) of Section 40, a Chairman elected under sub-section (1) or sub- section (2) shall hold office for such period as may be prescribed. 16. Section 41 of the Act deals with the power of the Area Committee to appoint Trustees. As per sub-section (1) of Section 41, in the case of any religious institution over which an Area Committee has jurisdiction, the Area Committee shall have the same power to appoint trustees as is vested in the Commissioner in the case of a religious institution referred to in Section 39. As per the proviso to Sub-section (1) of Section 41, the Area Committee may, in the case of any institution which has no hereditary trustee, appoint a single trustee. As per sub-section (2) of Section 41, the provisions of sub-section (3) of Section 39 and Section 40 shall apply to the trustee or trustees appointed, or the Board of Trustees constituted, by the Area Committee as they apply in relation to the trustee or trustees appointed, or the Board of trustees constituted, by the Commissioner. 17. As per Section 42 of the Act, the power to appoint trustees under Section 39 or Section 41 Shall be exercisable notwithstanding that the scheme, if any, settled, or deemed under this Act to have been settled for the institution contains provisions to the contrary. 18. 17. As per Section 42 of the Act, the power to appoint trustees under Section 39 or Section 41 Shall be exercisable notwithstanding that the scheme, if any, settled, or deemed under this Act to have been settled for the institution contains provisions to the contrary. 18. In P.V. Sankaran and others v. Malabar Devaswom Board and others, [2024:KER:78509] a Division Bench of this Court in which one among us [Anil K. Narendran, J.] was a party noticed that a reading of the provisions contained in Sections 39 and 41 of the Act makes it explicitly clear that, sub-section (1) of Section 39 empowers the Commissioner to constitute a Board of Trustees consisting of not less than three and not more than five persons appointed by him, in a religious institution included in the list published under Section 38 or over which no Area Committee has jurisdiction, which has no hereditary trustee. Sub-section (2) of Section 39 empowers the Commissioner, by order to appoint such number of non- hereditary trustees as he thinks necessary, not exceeding five, in any such institution having a hereditary trustee or trustees, if the Commissioner after notice to such trustee or trustees, and after such enquiry as he deems adequate, considers for reasons to be recorded, that the affairs of the institution are not, and are not likely to be, properly managed by the hereditary trustee or trustees. Sub-section (3) of Section 39 deals with the term of office of the trustees appointed under sub-sections (1) and (2) of Section 39 of the Act. The provisions under sub-section (5) of Section 39 of the Act makes it explicitly clear that where a vacancy arises in the office of a non-hereditary trustee appointed under sub-section (2) the Commissioner shall not fill up such a vacancy unless, for reasons to be recorded, h e considers it necessary to do so. As per sub-section (1) of Section 41 of the Act, in the case of any religious institution over which an Area Committee has jurisdiction, the Area Committee shall have the same power to appoint trustees as is vested in the Commissioner in the case of a religious institution referred to in Section 39. 19. As per sub-section (1) of Section 41 of the Act, in the case of any religious institution over which an Area Committee has jurisdiction, the Area Committee shall have the same power to appoint trustees as is vested in the Commissioner in the case of a religious institution referred to in Section 39. 19. In P.V. Sankaran [2024:KER:78509] it was held that in view of the provisions contained in Sections 39 and 41 of the Act, any appointment of non-hereditary trustees in a religious institution having hereditary trustee or trustees, by the Commissioner invoking the provisions under sub-section (2) of Section 39 of the Act, or by the concerned Area Committee invoking the provisions under sub-section (1) of Section 41 of the Act, has to be made after notice to such trustee or trustees, after such enquiry as he deems adequate and for reasons to be recorded that the affairs of the religious institution are not, and are not likely to be, properly managed by the hereditary trustee or trustees. For filling up the vacancy in the office of non- hereditary trustees appointed under sub-section (2) of Section 39 of the Act, the Commissioner or the Area Committee, as the case may be, has to record reasons, as per the mandate of sub- section (5) of Section 39, read with sub-section (1) of Section 41. Therefore, neither the Commissioner nor the Area Committee can issue an order filling up the vacancy of non-hereditary trustees appointed under sub-section (2) of Section 39 of the Act, in a religious institution having hereditary trustee or trustees, as a routine order, in continuation of the earlier order appointing non-hereditary trustees in that religious institution. 20. In such circumstances, we deem it appropriate to dispose of this writ petition by setting aside Ext.P5 notification dated 27.01.2024 issued by the 5 th respondent Assistant Commissioner and by directing the 3 rd respondent Commissioner or the 6 th respondent Area Committee, Malabar Devaswom Board, Kozhikode Division to conduct an enquiry as provided under sub-section (2) of Section 39 of the Madras Hindu Religious and Charitable Endowments Act, before issuing any fresh notification for appointing non-hereditary trustees in the Board of Trustees of Panthalayani Sree Akhora Shiva Temple, after taking note of the law laid down by this Court in P.V. Sankaran [2024:KER: 78509] . Such an enquiry shall be conducted with notice to the petitioner, the additional 7 th respondent and any other affected parties, and after affording them an opportunity of hearing. The decision taken by the Commissioner or the Area Committee shall be supported by reasons, as per the statutory mandate of sub-section (2) of Section 39 of the Act. A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. The declaratory relief No.(ii) sought for in the writ petition is left open to be raised at a later stage, if found necessary.