IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 OP(C).No. 895 of 2010(O) ------------------------ AGAINST THE ORDER DATED 02/11/2010 IN IA 1035/2006 IN OS.228/1995 of III ADDL.SUB COURT, KOZHIKODE .................... PETITIONERS: -------------------------------- 1. THAZHATHEYIL RAMESAN, S/O.SAMIKKUTTY, NADUVATTOM AMSOM DESOM, KOZHIKODE TALUK. 2. BAGAVATHY KANDY RAJESH, S/O.SAHADEVAN, PANNIYANKARA AMSOM DESOM, KOZHIKODE. 3. KADAPPAYIL VIVEKANANDAN, S/O.RARU, PANNIYANKARA AMSOM DESOM, KOZHIKODE. 4. KALATHUMARATH SAJEEVAN, S/O.BHASKARAN, DO. 5. PADANNAVALAPPIL RAMAN, S/O.KANDAN, DO. 6. KADAPPAYIL VINOD KUMAR, S/O.BHASKARAN, DO. BY ADV. SRI.M.KRISHNAKUMAR SMT.PRABHA R.MENON RESPONDENT(S): --------------- 1. PAYYANAKKAL SREE BAGAVATHY KSHETRA COMMITTEE SECRETARY, VALIYAPARAMBATH DASAN, S/O.VELAYUDHAN, RESIDING AT PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK-673001. 2. PAYYANAKKAL SREE BAGAVATHY KSHETRA COMMITTEE PRESIDENT, POONCHOLA APPUTTY, S/O.APPU, PLANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK-673001. ADV. SRI.M.G.ASHOKAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.895/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 A TRUE COPY OF THE SCHEME DATED 30.11.2005 EXT.P2 A TRUE COPY OF THE JUDGMENT DATED 30.03.2007 IN RFA NO.123/2006 OF THE HIGH COURT OF KERALA EXT.P3 A TRUE COPY OF THE ORDER DATED 2.11.2010 IN IA NO.1035/2010 RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION IA NO.1035/2006 EXT.R1(b) TRUE COPY OF THE JUDGMENT MADE IN RP NO.990/2007 DATED 14.7.2009 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.895 of 2010 -------------------------------------- Dated this the 20th day of December, 2011. JUDGMENT Ext.P3, order passed by the learned Additional Sub Judge-III, Kozhikode on 02.11.2011 on I.A.No.1035 of 2006 in O.S.No.228 of 1995 is under challenge. The scope of challenge is limited to the question whether a thanthri has been appointed for the temple in question and assuming so, he is competent to function as thanthri. 2. Petitioners filed the suit for a declaration of their right to manage the tharwad temple. Though the suit was dismissed, appellate court interfered with the dismissal and remitted the case to the trial court with direction to frame a scheme. Accordingly Ext.P1 scheme was framed. Petitioners challenged certain clauses in Ext.P1, scheme in this Court in R.F.A.No.123 of 2006. The challenge concerned number of non-hereditary trustees to be taken from the public. The scheme provided it as 14 while the number of hereditary trustees to be taken from the seven tharwads was limited as seven. This Court while allowing the R.F.A.No.123 of 2006 reduced the number of non-hereditary trusses to seven as is the number of hereditary trustees. This Court also directed that the thanthri shall preside over the meetings and in case of tie, he shall have a right to cast vote. In view of Ext.P2, judgment of this Court learned Sub Judge passed Ext.P3, order where, while allowing the application, terms OP(C)No.895/2010 2 and conditions for convening the meetings were set out. Learned Sub Judge appointed an Advocate Commissioner to convene the meeting of nominated persons and thanthri of the temple for formation of the trustee board in accordance with Ext.P1, scheme as modified in the judgment in R.F.A.No.123 of 2006. It was also directed in paragraph 5 of Ext.P3, order that meeting of the trustee board shall be presided over by the thanthri of the temple with right to cast vote in case of tie. 3. Challenge to Ext.P3 is on the ground that thanthri has not so far been appointed as provided in Clause -15 of Ext.P1, scheme and if at all anybody is appointed, learned Sub Judge has not ascertained whether the appointee is competent to function as thanthri. Learned counsel has invited my attention to the decision of Apex Court in Adithyan v. Travancore Devaswom Board (2002 (3) KLT 615) and in particular, paragraphs 9, 10 and 17. 4. Learned counsel for respondents contend that a thanthri has already been appointed as revealed from Clause-15 of Ext.P1, scheme and that on 31.07.2009 one Sunil who is a member of Paderi Illom has given in writing to the Secretary of the temple committee of his willingness to act as thanthri. OP(C)No.895/2010 3 5. In the decision relied by learned counsel, the Supreme Court referred to the qualifications which an archaka (I am told, a poojari) should have. In paragraph 10, referring to the importance of rituas and agamas, it is stated that in all the temples (involved in that case) in which images are consecrated, the agamas insist that only qualified archaka or poojari shall step inside the sanctum sanctorum and that too, after observing the daily disciplines which are imposed upon him by the agamas, that as an archaka he has to touch the image in the course of the worship and it is his sole right and duty to touch the image, the touch of anybody else would defile the image and that it is manifest that the archaka of such a temple besides being proficient in the rituals appropriate to the worship of particular deity must also belong, according to the agamas to a particular denomination. In paragraph 17, it is stated that only a qualified person well versed and properly trained for the purpose alone can perform poojas in the temple since he has not only to enter into the sanctum sanctorum but also touch the idol installed therein. Hence what is required and expected of one to perform the rituals and conduct poojas is to know the rituals to be performed and mantras necessary to be recited for the particular deity and the method of worship ordained or fixed therefor, the Supreme Court observed. OP(C)No.895/2010 4 6. According to the learned counsel for respondents, the above principles are not applicable since the decision was rendered in the case of a minority institution and that it concerned archaka or poojari. But it is explained by the learned counsel for petitioners that thanthri is the person who is to decide what is to be done in the temple and that he is treated as father of the idol. 7. I have gone through Ext.P3, order under challenge and I do not find anything in the said order whether, a thanthri has been appointed and if so, he is competent to function as such. Instead, learned Sub Judge has only stated that meeting of the trustee board shall be presided by the thanthri with a right to cast vote in the case of tie. Though learned counsel for respondents has produced a copy of letter dated 31.07.2009 from one Sunil of Paderi Illom (the tharwad referred in Clause-15 of Ext.P1, scheme wherefrom the thanthri is to come) the order does not show that the said letter was seen or considered by the learned Sub Judge. 8. Since there is dispute whether a thanthri has been appointed as thanthri and if so he is competent to act as such, I think that it is appropriate that learned Sub Judge goes into that question. Learned Sub Judge has to decide whether a thanthri has been appointed and if so he is competent to function having regard to the function he is required and expected to perform. If OP(C)No.895/2010 5 no such thanthri has been appointed necessarily, learned Sb Judge has to take necessary steps in the matter in accordance with Ext.P1, scheme modified by this Court in the judgment in R.F.A.No.123 of 2006. Resultantly this Original Petition is disposed of as follows: i. Ext.P3, order to the extent it concerned appointment of thanthri is set aside. Learned Sub Judge is directed to look into the question whether thanthri is already appointed and if so he is qualified to perform the functions he is required to do in accordance with Ext.P1, scheme. If thanthri has not been appointed or, the thanthri said to be appointed is not fit to discharge duties as above stated, learned Sub Judge has to appoint other suitable person from Paderi Illom in accordance with Clause-15 of Ext.P1, scheme as thanthri of the temple in question. ii. Since the matter is of much urgency, learned Sub Judge is directed to carry out the above exercise as early as possible. THOMAS P.JOSEPH, Judge. cks