IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 WP(C).No. 6771 of 2007(F) ------------------------- PETITIONER: -------------------- SREE KORAKKOT BHAGAVATHY TEMPLE, KODAKKAD REPRESENTED BY ITS MANAGER, SRI.P.V.NARAYANAN NAIR, AGED 68 YEARS, KODAKKAD HOUSE, DEVIPURAM, POST BALLA, KAHANGAD, HOSDURG TALUK. BY ADV. SRI.SURESH KUMAR KODOTH SMT.V.SETHUKUTTY AMMA RESPONDENTS: ------------- 1. THE ASSISTANT COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENT DEPARTMENT, KANHANGAD, KASARAGOD DISTRICT. 2. THE DEPUTY COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENT DEPARTMENT, KOZHIKODE. 3. THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENT DEPARTMENT, KOZHIKODE. BY GOVERNMENT PLEADER SRI R.LAKSHMINARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- W.P.(C)NO.6771 OF 2007 -------------------------------- Dated this the 26th day of June, 2008 JUDGMENT Raman,J. Petitioner is a Manager of Korakkot Bhagavathy Temple, Kodakkad. He has filed this writ petition seeking to quash Ext.P2 proceedings initiated for appointment of non-hereditary trustees in the said temple. It is alleged that prior to the initiation of action for appointment of non-hereditary trustees, no enquiry whatsoever is conducted in accordance with the provisions of Section 41 read with Section 39 of the Hindu Religious And Charitable Endowment Act by the area committee. If an occasion arises for invoking power for appointment of non-hereditary trustees, the procedural requirement under Section 39 is to be complied with, since the very reason for appointment of such non-hereditary trustees is improper management by the hereditary trustees as is referred to in Section 39. In this case, admittedly no such enquiry has been conducted till now. A counter -2- WP(C).No.6771/2007 affidavit was filed on behalf of the respondents, in which it is stated that it is only after completing the formalities as contemplated under the provision that the actual appointment pursuant to Ext.P2 will be made. We are not satisfied with the explanation. Unless a ground is made out for appointment of non-hereditary trustees by conducting an enquiry at the first instance, the question of taking steps for such appointment does not arise. If any enquiry is stated to be conducted, such enquiry should be conducted with notice to the petitioner, which has not been done. Therefore, such enquiry which is held behind the back of the petitioner, cannot bind him and hence such enquiry referred to if at all can only be taken as a preliminary enquiry which could be the basis for issuing notice to him and only after giving an opportunity of being heard, a decision could be reached. Even though it is contended that the petitioner has got an alternative remedy, since there is a statutory violation, the alternative remedy is no bar. 2. In the result, we direct that no appointment of non- -3- WP(C).No.6771/2007 hereditary trustees shall be made pursuant to Ext.P2 until an enquiry as contemplated under Section 39 is conducted with due notice to the petitioner and after affording him an opportunity of being heard in the matter. Any finding shall be formulated in writing based on such enquiry and communicate the same to the hereditary trustees and thereafter may proceed in accordance with law. In case any such finding is reached as stated above against the trustees, they have got the remedy by filing a statutory appeal or revision as the case may be. 3. In view of the above direction we are not quashing Ext.P2; but we make it clear that no steps are taken pursuant to Ext.P2 until the enquiry report is received and the finding is reached after compliance of Section 39. Writ Petition is allowed. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.