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. 3755 of 2007(V) ------------------------- PETITIONER: ------------ 1. C. ASOKAN, S/O.RAMUTTY, ARAPPOYIL HOUSE, NELLIKKODE P.O., CALICUT-16. 2. A. ANEESH KUMAR, S/O.CHANDRAN, HARI NIVAS, KIZHAKKEPARAMBIL, KUTHIRAVATTOM P.O., CALICUT-16. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENTS: ------------- 1. K. PREMARAJ, `VAISHNAVAM' NELLIKODSE P.O., CALICUT-16. 2. NALUPURAYIL VENUGOPALAN, `SUDHARMA', NALUPURAPARAMBA, KUTHIRAVATTOM P.O., CALICUT-16. 3. T. DINESAN, THUVASSERI HOUSE, NELLIKKODE P.O, CALICUT-16. 4. P. SURESH BABU, CHIRAVAKKATH HOUSE, NELLIKKODE P.O., POTTAMMAL, CALICUT-16. 5. ASSISTANT COMMISSIONER, HR & CE (ADMN.) DEPARTMENT, CALICUT-20. 6. THE COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS (HR & CE), ADMINISTRATION DEPARTMENT, CIVIL STATION, KOZHIKODE. 7. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEVASWOM DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN SRI.V.ARUN GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 7-1-2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 3755/07 APPENDIX EXT.P1: TRUE COPY OF THE FORM FOR APPOINTMENT OF NON HEREDITARY TRUSTEES. EXT.P2: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS DATED 24-3-2006 BEFORE THE 6TH RESPONDENT. EXT.P3: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE DEVOTEES DATED 16-12-06 BEFORE THE 6TH RESPONDENT. EXT.P4: TRUE COPY OF THE ORDER PASSED BY THE 5TH RESPONDENT NO.A3-4072/05 DATED 5-1-2007. EXT.P5: TRUE COPY OF REVISION FILED BY THE PETITIOENRS BEFORE THE 6TH RESPONDENT DATED 10-1-2007. EXT.P6: TRUE COPY OF THE INTERIM ORDER PASSED BY THE 6TH RESPONDENTS AS PER ORDER IN IA 3/2007 IN R.P.1/2007 DT.11-1-2007. EXT.P7: TRUE COPY OF THE MEMORANDUM OF ASSOCIATION OF DAIVATHUMKAVU SAMRAKSHANA SAMITHI. EXT.P8: TRUE COPY OF THE ORDER PASSED BY THE 6TH RESPONDENT IN R.P.1/2007 DATED 25-1-2007. //TRUE COPY// P.R. RAMAN & V. K. MOHANAN, JJ. = = = = = = = = = = = = = = = = = = = = W.P.(C) NO. 3755 OF 2007 = = = = = = = = = = = = = = = = = Dated this, the 7th day of January, 2008. J U D G M E N T Raman, J. Petitioners are applicants to the post of non-hereditary trustees in the Sree Ollur Siva Temple, Nellikode, in Kozhikode District. Respondents 1 to 4 also submitted their applications for the same post and the Assistant Commissioner, by Ext.P4 order, appointed them as non-hereditary trustees in the temple. The contention of the petitioners is that the appointment made by the Assistant Commissioner is absolutely without jurisdiction. Petitioners preferred a revision before the 6th respondent Commissioner who by Ext. P8 order considered their objections on merits. However, according to the petitioners, the Commissioner did not consider the jurisdictional aspect of the matter , while passing Ext. P8 order. 2. Before us, the learned counsel Sri. Mohanakannan, appearing on behalf of the petitioners submitted that under Section 39 of the Madras Hindu Religious and Charitable Endowments Act, 1951, appointment to the post of non-hereditary trustees where there are no hereditary trustees shall be made by the Commissioner and not by the Assistant Commissioner. He WP(C) 3755/07 :2: has also pointed out other disqualifications of Respondents 1 to 3, which, however, are denied by them. 3. We are not going into the merits or otherwise of such contentions in this writ petition. Section 39(1) of the Madras Hindu Religious and Charitable Endowments Act, 1951, reads as follows: "39: Trustees and their number and term of Office- (1) Where a religious institution included in the list published under Section 38 or over which no Area Committee has jurisdiction, has no hereditary trustee, the Commissioner shall constitute a Board of Trustees consisting of not less than three and not more than five persons appointed by him." 4. Admittedly, this is a religious institution where there are no hereditary trustees. But, according to the petitioner, this is a religious institution over which the Area Committee has jurisdiction. This contention is not effectively met by the respondents or by the Government. If there is Area Committee which has got jurisdiction over the religious institution, the proper authority to exercise power is such Area Committee. Admittedly, Ext.P4 is passed by the Assistant Commissioner and not by the Area Committee. Even assuming for argument's sake, this is a religious WP(C) 3755/07 :3: institution and Area Committee has no jurisdiction, then also the authority is the Commissioner and not the Assistant Commissioner. In this connection, we may refer to Sub-section (2) of Section 10 which is the provision enabling the Commissioner to delegate the power. "(2) The Commissioner may delegate any of the powers conferred or duties imposed on him by or under this Act (including the powers and duties of an Assistant Commissioner which may be exercised by the commissioner under the proviso to Section 11, sub-section (2), but not including the powers and duties of the Commissioner under Sections 18, 19, 38, 39, 52, 56, 61, 64 or 76 (2) in respect of any area or of any class or group of institutions in the State or any area therein to a Deputy Commissioner subject to such restrictions and control as the (State Government) may, by general or special order, lay down and subject also to such limitations and conditions, if any, as may be specified in the order of delegation." So also under Section 11(3), the Commissioner can delegate to an Assistant Commissioner any of the powers conferred or duties empowered on him by or under the Act other than the powers and duties referred to under Section 39. Therefore, we find that there is force in the contention of the petitioners that the orders of appointment as issued by the Assistant Commissioner WP(C) 3755/07 :4: vide Ext.P4 is without jurisdiction. However, we find from para 2 of Ext.P4 that the Area Committee has taken a decision in the matter of appointment of non hereditary trustees as per the decision dated 26.12.2006. If so, the Area Committee can issue necessary appointment orders instead of the Assistant Commissioner passing an order. 5. In the circumstances, we quash Ext.P4 to this limited extent and direct the Area Committee to pass fresh orders in the matter of appointment of non-hereditary trustees. Since the petitioners have raised some objections pointing out the disqualification of respondents 1 to 4, the Area Committee may consider such contentions and after hearing all concerned, pass appropriate orders. In case it is found that Respondents 1 to 4 are not disqualified, it is open to the Area Committee to make appointment. 6. For the limited purpose as stated above, we set aside Ext.P4 and direct the Area Committee to pass fresh orders as early as possible, at any rate, within a period of two months. In view of the fact that the interim order passed by this Court was vacated and the respondents are continuing in office, they may be allowed to continue as such, for a period of two months and thereafter, continuance of their service will be subject to the WP(C) 3755/07 :5: orders that may be passed by the Area Committee. The writ petition is disposed of as above. P.R. RAMAN, (JUDGE) V. K. MOHANAN, (JUDGE) kvm/-