WP(C) 24771/2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 WP(C).No. 24771 of 2007(Y) PETITIONER: V.MANI, VAVULLYPPATHY VEEDU, KAZHANI- CHUNGAM, KAVASSERI, PALAKKAD DISTRICT. BY ADV. SRI.C.E.UNNIKRISHNAN RESPONDENTS: 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE (DEVASWOMS) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS (ADMINISTRATION), CIVIL STATION, KOZHIKODE. 3. THE MANAGER, SREE PARAKKAT SRI.BHAGAVATHI TEMPLE, KAVASSERY P.O. ADDL. RESPONDENT NOS:- 4. SRI. K. JAYAPRAKASH, S/O. LATE KUNCHUMANIAN, KOODARAM VEEDU, ANAMARI, KAVASSERI (P.O.), PALAKKAD 5. SRI. P. KUTTYKRISHNAN, S/O. K. PAZHANI, ERNAKULAM, KAVASSERY P.O., ALATHUR, PALAKKAD DISTRICT. (ADDL. 4TH RESPONDENT IS IMPLEADED AS PER ORDERS ON I.A. NO. 11290/2007 DATED 17.8.2007.) (ADDL. 5TH RESPONDENT IS IMPLEADED AS PER ORDERS ON I.A. 12128/2007 DATED 7.2.2008. WP(C) 24771/2007 :2: BY GOVERNMENT PLEADER SRI. LAKSHMINARAYANAN. SRI.P.N.KRISHNANKUTTY ACHAN(SR.) SRI.K.MOHANAKANNAN SRI.BINOY VASUDEVAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) 24771/2007 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE LETTER DATED 8.7.2006 SENT TO THE INFORMATION OFFICER OF THE 2ND RESPONDENT. EXT.P2 TRUE COPY OF THE LETTER DATED 20.7.2006 SENT BY THE INFORMATION OFFICER OF THE 2ND RESPONDENT. EXT.P3 TRUE COPY OF THE JUDGMENT IN WP(C) NO. 21154/2006, DATED 28.8.2006. EXT.P4 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT VIDE NO. HRJ5-1858/2006 DATED 26.9.2006. EXT.P5 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT VIDE NO. HRJ5-1858/21006 DATED 24.11.2006. EXT.P6 TRUE COPY OF THE MINUTES PREPARED BY THE 3RD RESPONDENT ON 3.8.2007. EXT.P7 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPODNENT VIDE GO(RT) NO. 3363/2007/RD/DATED 4.8.2007. EXT.P8 TRUE COPY OF THE LETTER DATED 15.11.2006, ISSUED BY THE PRESIDENT OF THE INTUC ALATHUR REGIONAL COMMITTEE. EXT.P9 TRUE COPY OF THE NOTICE NO. 88/07 DATED 16.5.2007 ADDRESSED TO THE PETITIONER. EXT.P10 TRUE COPY OF THE LETTER DATED 1.9.2007 ISSUED BY THE PRESIDENT, JANATHA DAL (S), ALATHUR LEGISLATIVE CONSTITUENCY. EXT.P11(a) & P11(b) TRUE COPIES OF THE MINUTED PROCEEDINGS OF THE JANATHA DAL (S) PARTY. EXT.P12 TRUE COPY OF THE LETTER OF THE PUBLIC INFORMATION OFFICER, KAZHANI SERVICE CO- OPERATIVE BANK LTD. WP(C) 24771/2007 :2: RESPONDENTS' EXHIBITS: EXT.R3(a) TRUE COPY OF THE ORDER NO. HRJ.5/1858/206/K.DIS. DATED 16.8.2007 ISSUED BY THE HR & CE. EXT.R3(b) TRUE COPY OF THE RELEVANT PAGE OF THE MINUTES OF THE DEVASWOM. EXT.R5(a) TRUE COPY OF THE ORDER NO. HRJ 5/1858/2006 (K.DIS) DATED 16.8.2007. EXT.R5(b) TRUE COPY OF THE PROCEEDINGS DATED 20.8.2007 BY WHICH THE 5TH RESPONDENT ASSUMED CHARGE. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & V. K. MOHANAN, JJ. = = = = = = = = = = = = = = = = = = = = W.P.(C) NO. 24771 OF 2007 = = = = = = = = = = = = = = = = DATED THIS, THE 7TH DAY OF MARCH, 2008. J U D G M E N T Raman, J. Petitioner was an aspirant for the post of a non hereditary trustee in the Parakkat Sree Bhagavathi Temple, Kavassery, near Alathoor, in Palakkad District. Though there were hereditary trustees, they were disinterested in continuing to manage the affairs of the temple. Under Section 139 of the Hindu Religious and Charitable Endovements Act, 1951, three non hereditary trustees were appointed by the Commissioner. In 2005, the term of that non hereditary trustees so appointed, expired. No fresh appointments were made immediately. Hence one person was appointed as a fit person till the posts were filled up in accordance with law. Some times in March, 2006, three non hereditary trustees were accordingly appointed after considering those persons who were found eligible from out of the list prepared for the same. On a complaint made by a third party, two of them were disqualified. At that time, 21 persons including the petitioner were there in the list of eligible persons for appointment. But it appears that the authorities called for a fresh list. Petitioner was not considered which lead WP(C) 24771/2007 :2: to the filing W.P(C) 21154/2006 which was disposed of by this Court by Ext.P3 judgment produced herein. It was the contention of the petitioner that a fresh selection was not called for and he requested the Commissioner to inform him as to whether there was any ineligibility as far as he is concerned. It was found that the petitioner was justified in contending that a re-notification is not necessary or expedient as the recent selection had not been found as wrought by any mistake or irregularity. Since there are two vacancies the Board has to appoint two persons from the select list which has already been prepared. It was also observed that one of such persons should be the petitioner since he had agitated the issue and no others had shown interest or preparedness to accept the responsibility of a trustee. The remaining one vacancy was directed to fill up from the list at their discretion. Subsequently, by Ext.P4 order dated 26.9.2006 petitioner was duly appointed as one of the non hereditary trustee of the temple. While so, it appears that a complaint was made by the Additional 4th respondent herein alleging that the petitioner and one another person by name T.K. Haridasan were disqualified to hold the post alleging that they were active politicians. That complaint was enquired into and by Ext.P5 order, the Commissioner under the Hindu Religious and Charitable Endowments (Administration), by his order dated 24.11.2006, found that the allegations WP(C) 24771/2007 :3: against the petitioner herein that he is an active politician was not substantiated by producing cogent and material evidence in the case and the complaint as against him was dismissed and petitioner was permitted to continue as trustee. However, the allegation as against Mr. Haridasan was found to be correct and he was ordered to be removed. Challenging the said order, a revision was preferred before the Government under Section 99 of the Act by the 4th respondent herein. The Government, by Ext.P7 order, reversed the order of the Commissioner and held that there is substance in the argument of the revision petitioner that the petitioner herein who is holding the post as a non-hereditary trustee , is an active politician and not eligible to hold the post. It is challenging Ext.P7 order that this writ petition is filed. 2. In the absence of any stay order passed by this Court, the order Ext.P7 was implemented and in the place of the petitioner, Additional 5th respondent was appointed as non-hereditary trustee. Though the petitioner would allege certain disqualification as against the Additional 5th respondent, the subject matter of this writ petition being the challenge against the disqualification of the petitioner, in the absence of any complaint raised by the petitioner before appropriate authorities, we leave open that question. We do not think it will be appropriate or necessary to go into the WP(C) 24771/2007 :4: allegation as against the Additional 5th respondent in this case. As regards the challenge made to Ext.P7 is concerned, the main contention of the learned counsel appearing for the petitioner is that there is absolutely no material whatsoever to hold that the petitioner is an active politician. The only piece of evidence referred to and relied on by the Government is only some photographs and nobody was examined to show as to what was the occasion when those photographs were taken and what was the role of the petitioner in the said occasion and as to when such photographs were taken. It is the contention even without admission that mere presence in any procession by itself will not show that petitioner is an active politician and according to him, to show that a person is an active politician, mere allegiance to a known political party is not sufficient but something more is to be proved either holding some post in the political party or other materials or other evidence to show such circumstance where he would have been a polling agent for a particular candidate belonging to a particular party or atleast as a member of a particular party, during the relevant time, when his name was under consideration for appointment as a non-hereditary trustee. 3. Per contra, the learned Government Pleader appearing on behalf of the State would submit that the Government has considered the report of WP(C) 24771/2007 :5: the Inspector as also the photographs produced, which will go to show that the petitioner was an active politician disqualifying himself to be a member of the non-hereditary trustee. 4. We have gone through the report of the Inspector from the file made available to us. As per the report of the Inspector, he made an enquiry into the allegations made against the petitioner and another person by name Haridas. As regards Haridas, he admitted that he was a counting agent in one of the panchayat election for a particular candidate and therefore he was disqualified. But as against the petitioner, he recorded the statement of the petitioner that at present he is not an active politician. He also denied the press report produced along with the complaint. But no further enquiry with the political party or with the mandalam committee was made by the Inspector to find out whether as a matter of fact, petitioner was an active politician belonging to a particular party or not. As a matter of fact, the Inspector was more carried away by the information of the manager in the temple. But what is the basis on which the manager had given such information is, however, not referred to in the report. Obviously, there is nothing. It is not the information from a particular person that matters in deciding as to whether a person was an active politician or not. True that local people who may know a particular person as belonging to a particular WP(C) 24771/2007 :6: party could be examined in the presence of the petitioner and such statements unless repudiated would be a piece of evidence. But the Devaswom Manager who should be an independent person, in the absence of any special knowledge with him regarding the political affiliation of the non-hereditary trustees, should not have given undue weightage for the same, in the absence of further support for the same. The Commissioner, on the other hand, did not accept the report of the Inspector and he came to an independent conclusion that the petitioner is not proved to be an active politician. Therefore, when the Government reversed such an order, there should have been some reason based on which a reasonable man could come to a conclusion that the petitioner was an active politician. Except the photographs produced, there is no available evidence on record to substantiate this contention. 5. In the circumstances, we set aside Ext.P7 and direct the Government to reconsider the matter and pass fresh orders after giving opportunity of being heard to all concerned. Such orders shall be passed as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. We make it clear that since the 5th respondent was appointed in the mean time and a final decision has to be taken by the Commissioner, we do not want to disturb the WP(C) 24771/2007 :7: said arrangement. But we make it clear that in case it is found that the petitioner is a qualified person then the 5th respondent will give way to the petitioner to be appointed as a non-hereditary trustee. The writ petition is disposed of as above. P.R. RAMAN, (JUDGE) V. K. MOHANAN, (JUDGE) knc/-