IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 WP(C).No. 8019 of 2011(B) ------------------------- PETITIONER(S): --------------- ELAYOOR SREE VISHNU KSHETHRA SAMRAKSHANA SAMITHI, REPRESENTED BY ITS SECRETARY P.T.PRADEEP, S/O. LATE SIVADASAN NAIR, THEKKUMTHODIYIL HOUSE, ELAYOOR, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): --------------- 1. MALABAR DEVASWOM BOARD, REPRESENTED BY ITS COMMISSIONER, MALABAR DEVASWOM BOARD, KOZHIKKODE. 2. P.MOHANAN, S/O. C.UNNIKRISHNAN,PULARI, ELAYOOR, IRUVETTY.P.O., MALAPPURAM DISTRICT, PIN-673639. 3. SYAM SUNDAR, S/O. SANKARAN NAIR, NANDANAM, ELAYOOR, IRUVETTY.P.O., MALAPPURAM DISTRICT-673639. 4. BABURAJAN MADATHIL, S/O. KARI, MADATHIL HOUSE, ELAYOOR,IRUVETTY.P.O., MALAPPURAM DISTRICT-673639. 5. PARAMESWARAN.T.V., S/O. CHATHUNNI, VALIYAKAVIL HOUSE, ELAYOOR, IRUVETTY.P.O., MALAPPURAM DISTRICT-673639. R1 BY ADV. SRI.K.MOHANAKANNAN,SC,MDB R2 TO R5 BY ADV.T.K.AJITH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.8.2011, ALONG WITH WPC NO. 14624 OF 2011, THE COURT ON 19/09/2011 DELIVERED THE FOLLOWING: APPENDIX IN W.P(C).8019/11 PETITIONER'S EXHIBITS: EXT.P1:TRUE COPY OF THE REGISTERED DOCUMENT NO.249/07/IV OF THE S.R.O., TANUR DATED 14.12.2007. EXT.P2: TRUE COPY OF THE COMMUNICATION ISSUED BY THE KERALA KSHETHRA SAMRAKSHANA SAMITHI TO THE PRESIDENT OF THE PRESIDENT OF THE PETITIONER SAMITHI DATED 1.4.2010. EXT.P3: TRUE COPY OF THE ORDER ISSUED BY THE FIRST REESPONDENT AS NO.H2/ 2444/2011/MDB (1)(K.DIS.) DATED 1.3.2011. RESPONDENT'S EXHIBITS: EXT.R3(a): TRUE COPY OF THE ORDER DATED 2.8.1956 IN O.A.59/56 OF THE DEPUTY COMMISSIONER FOR HINDU RELIGIOUS AND ENDOWMENTS (ADMINISTRATIONS) DEPARTMENT, COIMBATORE. EXT.R3(b): TRUE COPY OF THE ORDER DATED 12.2.2007 OF THE COMMISSIONER FOR HINDU RELIGIOUS AND ENDOWMENTS (ADMINISTRATIONS) DEPARTMENT, KOZHIKKODE. EXT.R3(c):TRUE COPY OF THE ELECTION NOTIFICATION DATED 19.3.2011. /TRUE COPY/ PA TO JUDGE. THOTTATHIL B.RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. ----------------------------------- W.P(C).Nos.8019 & 14624 OF 2011 ------------------------------------ Dated this the 19th day of September, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.Petitioners in these writ petitions challenge decisions of the authorities under the Malabar Devaswom Board to appoint non-hereditary trustees for two temples which are among those administered in terms of a Scheme dated 2.8.1956, framed in O.A.59/56, by the Deputy Commissioner of Hindu Religious and Endowments (Administration) Department, Coimbatore, under Section 58(6) of the Madras Hindu Religious and Charitable Endowments Act, 1951, hereinafter referred to as 'the Act'. By that Scheme, which came into force from the date of that order, the administration of the affairs of the twelve (12) temples under the Thrikkaikat Math was ordered as vesting hereditarily in the Moopil Swamiyar of Thrikkaikat Math. WPC.8019/11 & 14624/11 2 2.Different contentions on which these writ petitions are filed include the allegation that the action taken is in violation of the provisions of the Act and also bad as having been made after the code of conduct came into force as part of the Elections to the Kerala Legislative Assembly. It is also alleged that no transparent procedure is adopted. 3.The counter affidavit of the first respondent Commissioner, Malabar Devaswom Board states that the administration of the Math and the temples are vested in the Madathipathy and that he created Ext.P1 document in violation of Section 29 of the Act and that transaction is null and void. According to the Commissioner, the trustee has no power to transfer the temple. It appears that it is, fundamentally, on this premise that the impugned action was proceeded with. 4.Hearing the learned counsel for the writ petitioners, the contesting private respondents and for the Board, we see that certain fundamental issues touching the governance of WPC.8019/11 & 14624/11 3 the temples over which Moopil Swamiyar of Thrikkaikat Math had authority as trustee, falls for consideration. 5.Going by the Scheme, administration of twelve (12) temples under the Thrikkaikat Math, including the two in relation to which these writ petitions are filed, stood vested hereditarily in the Moopil Swamiyar of Thrikkaikat Math, subject to provisions of that Scheme and the Act. The trustee was to appoint an Executive Officer with the approval of the Deputy Commissioner. The Executive Officer was to work under the supervision of the trustee. The immovable properties of the temples shall ordinarily be leased out by the trustee and lease deeds and renewal deeds shall be executed by the trustee in the name of, and on behalf of, the temple. The different provisions in the scheme is in conformity with the provisions of the Act. The power of the Commissioner to appoint non-hereditary trustees along with the hereditary trustees, in terms of the Act, is reiterated in the Scheme also. WPC.8019/11 & 14624/11 4 6.With the passage of time, it appears that Sreerama Brahmananda Theerthapadar, the first among the hereditary trustees in the hierarchy became old and feeble. Going by Ext.P1 deed, the second in the hierarchy line, Sreevasudeva Brahmananda Theerthapadar, became the Pushpanjali Swamiyar of Sree Padmanabhaswami temple in Thiruvananthapuram. This situation led Sreekrishna Brahmananda Theertha becoming the hereditary trustee in charge of the affairs of the Thrikkaikat Math and the temples. He, with the passage of time, found it necessary to get support for the administration of the temples under Math, having regard to his different obligations and volume of work in the management of the temples, including giving directions for the administration of the temples apart from taking care of the Math and also the Yoga classes being conducted there. He, therefore, discussed the matter with the office bearers of Kerala Kshethra Samrakshana Samithy having its headquarters in Kozhikode. That Samithy, going WPC.8019/11 & 14624/11 5 by Ext.P1, agreed to take care of the administration of the temples which are enumerated in Ext.P1. Accordingly, that document was executed by Sreekrishna Brahmananda Theertha in favour of the Kerala Kshethra Samrakshana Samithy represented by its President Naduvathu Manackal Sreekadamban Namboodirippad. Following that, it appears that the Kerala Kshethra Samrakshana Samithy started assisting the Mathadipathi, i.e., Sreekrishna Brahmananda Theertha in the administration of the temples which are scheduled to Ext.P1. We see that while the Scheme of 1956 enumerates only 12 temples, Ext.P1 enumerates 15 temples. 7.Going by its clear terms, Ext.P1 deed deals only with the administration of the temples under the Math. By that document, there is no alienation of the trust property by way of exchange, sale or mortgage or even by way of lease, though the provisions of the Scheme authorise the hereditary trustee to grant lease in the name of the temple. The answer to the question whether the hereditary trustee WPC.8019/11 & 14624/11 6 now in office, viz., Sreekrishna Brahmananda Theertha had alienated the properties of the temple or trust in terms of Section 29 of the Act is, therefore, clearly in the negative. He had essentially got the Kerala Kshethra Samrakshana Samithy involved in the management of the temples under his hereditary trusteeship as the Madathipathi of the Thrikkaikat Math. The Moopil Swamiyar of Thrikkaikat Math is the authority in whom the administration of the affairs of the temples governed by the Scheme stands vested hereditarily. Therefore, in carrying out such management, while the hereditary trustee is liable to appoint Executive Officer and to do such things as are required in terms of the Scheme and the Act, the provisions of the Scheme or the Act do not, in any manner, impair the authority of Sreekrishna Brahmananda Theertha, the present Madathipathi/Moopil Swamyar of Thrikkaikat Math, to get the assistance of the Kerala Kshethra Samrakshana Samithy in the management of the affairs of the temple. The only thing is that, even while the management is so carried out in the best interest of the WPC.8019/11 & 14624/11 7 temple and the devotees, the provisions of the Scheme and the Act have to be adhered to. Moopil Swamiyar, as the trustee, has to ensure that the administration, even with the assistance, or through, the Kerala Kshethra Samrakshana Samithy, is only in terms of the Act and the Scheme. 8.The question of appointing non-hereditary trustees in terms of Section 39 would arise only when the Commissioner considers, for reasons to be recorded, that the affairs of the institution are not properly, or, are not likely to be properly managed by the hereditary trustee or trustees. Even that exercise can be done only after carrying out enquiry as he deems adequate. The contention that the hereditary trustee/Mopil Swamiyar of Thrikkaikat Math had alienated the property being unsustainable, the question of appointing non-hereditary trustees would arise only if the present manner in which the hereditary trustee administers the temple with the assistance of the Kerala Kshethra Samrakshana Samithy is found to be not sufficient or that WPC.8019/11 & 14624/11 8 the affairs of the institution are not properly managed thereby. Bereft of any enquiry and finding on that count, it is inappropriate to make any appointment of hereditary trustees. 9.With this, the petitioners are criticized as not the Kerala Kshethra Samrakshana Samithy. They claim to be units under the Kerala Kshethra Samrakshana Samithy, liable to account to that Samithy, which, going by Ext.P1, is a registered organisation with registration No.142/77. If the Commissioner had any doubt about the credentials of the petitioners, that would have been examined with notice to the Kerala Kshethra Samrakshana Samithy with registration No.142/77, described in Ext.P1 document. 10.At any rate, we do not find any ground to hold that the premise on which the non-hereditary trustees are proposed to be appointed stands, particularly when it has been held WPC.8019/11 & 14624/11 9 above that the transactions under Ext.P1 is not hit by Section 29 of the Act. For the aforesaid reasons, these writ petitions are allowed, quashing the proceedings impugned therein. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- K.SURENDRA MOHAN, Judge. kkb.