IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 7TH JANUARY 2008 / 17TH POUSHA 1929 WP(C).No. 19636 of 2007(K) ----------------------------------- PETITIONER: ---------------- ZAMORIN RAJA OF CALICUT, CHALAPPURAM, CALICUT-2. BY ADV. SRI. M.C. SEN (SR.) SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN RESPONDENTS: ------------------ 1. COMMISSIONER, HR & CE (ADMN.) DEPARTMENT, KOZHIKODE. 2. SRI. CHANDRAN THADATHIL, S/O. IMBICHUNNEERI, 24/1952, VRINDAVAN, KADUPINI, POST MANKAVU. 3. P.PRADEEP KUMAR, S/O. LATE MADHAVAN, PALLIKKARA HOUSE, POST KUMMERI, KOZHIKODE-7. 4. P.K.PRAGEESH, S/O. P.K.GIRISH, POYEERI KUNNATH HOUSE, KONETH PARAMBU, POST KOMMERI, KOZHIKODE-7. 5. V. MURALEEDHARAN, S/O. NARAYANAN NAIR, LAKSHMI NIVAS, POST KOMMERI. BY ADV. SRI. P.V. KUNHIKRISHNAN GOVERNMENT PLEADER SRI. LAKSHMINARAYANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19636/2007(K) A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF THE SCHEME ORDER IN OA No. 3/72 DTD. 9.4.73. EXT. P2 : COPY OF THE NOTICE DTD. 5.3.07. EXT. P3 : COPY OF THE ORDER DTD. 15.6.2007. EXT. P4 : COPY OF THE ORDER No. A1 2052/2005 DTD. 20.2.06. EXT. P5 : COPY OF THE ORDER DTD. 27.3.2007 IN AP 6/2006. EXT. P6 : COPY OF THE GO (Rt) No. 4650/2006/RD dtd. 23.11.2006. EXT. P7 : COPY OF THE COMPLAINT DTD. 18.6.2007. 5TH RESPONDENT'S EXHIBITS: EXT. R5(a) : COPY OF THE ORDER NO. H.R.J6/801/2007 DATED 9.7.2007. // True Copy // P.A. to Judge. sv P.R.RAMAN & V.K.MOHANAN, JJ. --------------------------------- W.P.(c)No.19636 OF 2007 ------------------------------------ Dated this the 7th day of January, 2008 JUDGMENT Raman, J. Ext.P3 is the order passed by the Commissioner appointing non-hereditary trustees in the Valayanad Bhagavadi Kshethram in Komeri, Kozhikode. Petitioner is the sole hereditary trustee. He challenges Ext.P3. According to him, the 5th respondent is disqualified in terms of Ext.P4. As far as the appointment of other three hereditary trustees are concerned, it is contended that they are disqualified to be appointed as they are active political workers or office bearers. It is contested by the party respondent. According to the 5th respondent, Ext.P4 has been set aside by Ext.P6 and hence disqualification based on Ext.P4 no longer exists. As regards others, it is contended that there is no specific plea raised in the writ petition nor no materials produced to show that they are active political workers. It is also contended by the respondent that the original petition is not maintainable since remedy if any open to the petitioner is to file a suit in terms of Section 39(4) of the Hindu Religious and Charitable Endowments WPC.No.19636/07 2 Act. As regards the preliminary objection is concerned, we find that there is no merit in the same. Though in Ext.P3 order, the Commissioner has stated that he has invoked the power under Section39. Admittedly, it is a case where even going by the scheme, there is provision for appointment of non-hereditary trustees by the Commissioner and only in case where a temple is administered by a hereditary trustee and for the reasons stated in Section 39 and after following the procedure thereon can there arise any occasion for the Commissioner to invoke Section 39. In the factual situation therefore, it cannot be treated as an order passed under Section 39. But merely because a wrong section is quoted it cannot be said that an order is bad. Having found that the order cannot be one passed under Section 39, the provision for filing a suit also will not apply. In the circumstances, the preliminary objection is overruled. Heard both sides. Coming to the merits of the case, petitioner has not raised any objection before the Commissioner. True that, he was not given an opportunity of being heard before making appointment. In such circumstances, we direct that if the petitioner files a detailed objection before the Commissioner within a period of two weeks from today and place all the WPC.No.19636/07 3 materials on which he places reliance thereon, the Commissioner after hearing the party respondent and after giving them an opportunity of being heard shall dispose of the objection in accordance with law. The Commissioner shall expeditiously dispose of the matter, at any rate, within a period of two months from the date of receipt of the objection. Since Ext.P3 was stayed by this court by way of an interim order and we are not disposing of the matter on merits, we direct that it will be open to the Commissioner to pass such interim orders also after hearing both sides. (P.R.RAMAN, JUDGE) (V.K.MOHANAN, JUDGE) sv.