IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 WP(C).No. 25947 of 2007(L) -------------------------- PETITIONER(S): --------------- BATHERY MAHA GANAPATHY TEMPLE, REPRESENTED BY THE SECRETARY, K.M. BALAKRISHNAN, BATHERY MAHA GANAPATHY KSHETHRA SAMITHY, SULTHAN BATHERY, WAYANAD DISTRICT. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENT(S): ------------------------ THE COMMISSIONER, HR & CE (ADMINISTRATION), KOZHIKODE. (ADDL. R2 IMPLEADED) 2. V. KRISHNAN, S/O. VELAYUDHAN CHETTY, AGED 70 YEARS, VALATHUR HOUSE, P.O. CHEERAL, SULTHAN BATHERI, WAYANAD DISTRICT. (ADDL. R3 IMPLEADED) 3. A.C. ANUP KUMAR, “PALLAVI', NEDUNGADI LANE, P.O., MANKAVU, KOZHIKODE-7. ADDL. R2 IMPLEADED AS PER ORDER IN I.A.7739/09 ON 25/06/2009. ADDL. R3 IMPLEADED AS PER ORDER IN I.A.2368/09 ON 30/07/2009. BY SR. GOVT. PLEADER SRI. R. LAKSHMI NARAYAN. SRI.K.SASIKUMAR FOR ADDL.R3 SRI.K.M.SATHYANATHA MENON FOR ADDL.R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2009, ALONG WITH WPC.1276 OF 2009 THE COURT ON 30/07/2009 DELIVERED THE FOLLOWING: WPC. 25947/2007. APPENDIX PETITIONER'S EXTS: EXT. P1 : PHOTOCOPY OF THE REGISTRATION CERTIFCATE EXT. P2 : PHOTOCOPY OF THE DEED DATED 16.11.1972. EXT. P3 : PHOTOCOPY OF THE NOTICE DATED 10.06.1986. EXT. P4 : PHOTOCOPY OF THE ORDER DATED 18.11.2006 ISSUED BY THE GOVERNMENT. EXT. P5 : PHOTOCOPY OF THE JUDGMENT IN WP(C) 31406/06 DATED 18.6.2007. EXT. P6 : PHOTOCOPY OF THE ORDER NO.HRJE3-9369/06 DATED 16.08.2007. RESPONDENTS' EXTS: EXT. R1(a) : LETTER OF DISTRICT REGISTRAR, CALICUT DTD. 28.11.2007. EXT. R1(b) : LETTER OF DISTRICT REGISTRAR DTD.13.3.2008. EXT. R2(a) : TRUE COPY OF THE COMMUNICATION SENT BY THE COMMISSIONER, H.R.& C.E. DEPARTMENT DATED 1.2.2007. (I.A.7739/09) P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 25947 of 2007 & 1276 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of July, 2009. JUDGMENT Bhavadasan, J, Bathery Maha Ganapathy Temple, a famous and glorious temple in Kerala has been drawn to this court by the Bathery Maha Ganapathy Kshethra Samithy seeking certain reliefs. 2. The Samithy is one registered under the Societies Registration Act 12 of 1860. The temple is situated in Wayanad District. It is not in dispute that the temple originally belonged to Wayanadan Chetty Family and according to the Samithy the family entrusted the temple to them on 16.11.1972 as per Ext.P2 dated 16.11.1972. According to the Samithy, at the time when the temple was entrusted to them, the temple was in ruins and in a dilapidated condition. The temple was not properly taken care of and poojas were not being done. Under the guidance of Swami WPC.25947/07 & 1276/09. 2 Guruvaranadaji, the Samithy renovated the temple. Punapratishta was done in 1976 and in 1986 Dwaja Pratishta was also done. In the year 2000 Parivara Pratishta was also conducted by the Samithy. Several other structures were also put up by the Samithy near the temple and deities were installed in all those places. Using the funds made available by the public, the Samithy had purchased lands for the temple. When the temple was thus renovated and the income swelled into lakhs, according to the Samithy, H.R. & C.E., Kozhikode set their eye on the temple. Ext.P3 notice dated 10.6.1986 was issued by the Assistant Commissioner inviting applications for the appointment of Executive Officer for the temple. The Samithy would say that H.R. & C.E. Board had nothing to do with the temple and the notification was uncalled for. 3. The Samithy contended that this temple was never brought under the H.R. & C.E. Act and the Board could exercise no control or supervision over the temple. No Executive Officer WPC.25947/07 & 1276/09. 3 had ever been appointed for the temple. There is no order passed either by the Board or by the Government bringing the temple under the H.R. & C.E. Act. No enquiry has ever been conducted in that regard also. It was without following the procedures as contemplated under the H.R. & C.E. Act (hereinafter referred to as the Act) and the Rules the Assistant Commissioner has sought to take steps to appoint an Executive Officer. 4. It is pointed out by the Samithy, that earlier W.P.(C) No.31406 of 2006 had been filed by the Samithy and this court had occasion to observe that the Government, under the then circumstances, was not justified in giving a direction to the Commissioner to take over the administration of the temple. The said judgment is marked as Ext.P5. Annoyed by the said direction, Samithy would claim that the first respondent sent three officers to inspect the affairs of the temple. The Samithy would contend that Ext.P6 has no value and cannot be sustained in law. WPC.25947/07 & 1276/09. 4 Later, it is pointed out that the second respondent in W.P.(C) 1276 of 2009 issued a notification inviting applications from the general public for appointment of a trustee to the temple. Earlier, the Assistant Commissioner had issued a notice to the Samithy and Samithy had filed its reply. According to the Samithy no orders were passed thereafter nor were they made aware of any action taken by the Assistant Commissioner. It is said that the temple does not fall within the jurisdiction of H.R. & C.E. Act and they have no right to interfere with the administration and management of the temple. Challenging the various orders passed by the Board and Assistant Commissioner, the writ petitions were filed. 5. The first respondent resisted the petition. It is pointed out by them that most of the averments in the petitions are untrue. The temple involved in these proceedings have been brought under the control of the Act long ago and the claim of the petitioner in both the petitions that the Act has no application is WPC.25947/07 & 1276/09. 5 without any basis. The first respondent would also say that their enquiry revealed that socalled Samithy, which claims to have been registered under the Societies Registration Act had not filed any of the statutory papers before the Registrar. According to this respondent, the temple is a public temple and falls within the ambit of the Act, namely H.R. & C.E. Act of 1926. A Scheme had already been framed for the administration of the temple and the temple is being administered in accordance with the scheme. The scheme was drawn up under the earlier Act and that survives even after the passing of the present Act of 1951. The first respondent therefore claims powers under the H.R. &C.E. Act to do whatever is necessary and fit for the proper administration and management of the temple. 6. It is seen that a few persons had filed petitions for impleading them as additional respondents. Even though the impleading petitions as such have not been allowed, counsel WPC.25947/07 & 1276/09. 6 appearing for the petitioners in those petitions were also heard and they made their submissions. The counsel appearing in one of the petitions pointed out that the Samithy cannot maintain a writ petition of the present nature and also that the temple is a public one. According to learned counsel, the Samithy has no locus standi and the orders and communications issued by the Assistant Commissioner and the Board are in accordance with law, whereas another party sought to be impleaded supports the Samithy's stand. 7. There can be no dispute regarding the fact that Bathery Maha Ganapathy Temple is a reputed temple and attract devotees from all places. 8. It is an admitted fact that the temple originally belonged to Wayanadan Chetty family. The petitioners rely on Ext.P2 in W.P.(C) No.25947 of 2007 to claim rights over the temple. That is dated 16.11.1972. The said document is seen to have been executed by one Velyudhan Chetty in favour of one Sri. WPC.25947/07 & 1276/09. 7 N.K. Gopalankutty Nair representing the Samithy. Most of the details contained in the document are not very relevant and hence are not mentioned. The document says that the entire rights over the temple was being assigned to the Samithy and that thereafter the Samithy was carry on the administration and management of the temple. It is based on this document that the Samithy lays its claim. 9. the main contention of the petitioners in these writ petitions are i) Ext.P6 is not in accordance with law. ii) The temple is not a public temple. iii) H.R. & C.E. Board has no right to remove the Samithy, and therefore the action taken by the Board and the Assistant Commissioner are without jurisdiction. 10. The petitioner refers to the earlier writ petition, namely, W.P.(C) 31406 of 2006 and says that in the light of the WPC.25947/07 & 1276/09. 8 judgment in the said writ petition neither the Board nor the Assistant Commissioner has any manner of control over the temple. 11. That judgment in fact leaves open the right of H.R. & C.E. Board to follow such procedures as are necessary. 12. While the Samithy would say that it is in control over the temple and nobody else had any manner of right over the same, the respondent contended that the temple is a public temple and had already been brought under the Act. It is also pointed out by them that the Samithy has not filed any of the statutory documents necessary before the authority concerned as per Societies Registration Act. The Samithy, according to them, has no right to maintain this petition and since the temple is a non- listed one, as per the provisions of the Act, the Area Committee is in control of the temple. They would also contend that Section 41 of the Madras Hindu Religious and Charitable Endowments Act, WPC.25947/07 & 1276/09. 9 1951 (herein after referred to as Act XIX of 1951) enables the Board to appoint non-hereditary trustees. While the Samithy would contend that none of the procedures contemplated under the Statute have been followed, the respondents say otherwise. 13. If as a matter of fact there are records to show that the temple had been brought under the ambit of the Act before the Samithy came into control over the temple, necessarily the petitions will have to fail. 14. Counsel appearing in one of the petitions for impleading placed before this court the decisions reported in Teki Venkat Ratnam v. Dy. Commissioner, Endowments ((2001) 7 SCC 106), C.R. Jayaraman v. M. Palaniappan ((2009) 3 SCC 425) and the decision in Gopinthan v. Raman (2004(2) KLT 511) and contended for the position that the authorities under the H.R. & C.E. Act have the power to declare the temple as a public temple. WPC.25947/07 & 1276/09. 10 15. In the decision reported in Teki Venkat Ratnam v. Dy. Commissioner, Endowments ((2001) 7 SCC 106), it was held as follows: “ Section 1(3)(b), Section 2(23), Sections 43 and 44 of the 1987 Act correspond to Sections 1(3)(b), 2 (22), 38 and 39 of the 1966 Act respectively. Section 87 of the 1987 Act corresponds to Section 77 of the 1966 Act. Sub-sections (5) and (6) already extracted above are added to Section 87 of the Act. Under Section 87(1) of the Act, the Deputy Commissioner having jurisdiction shall have the power to enquire into and decide after giving notice to the person concerned, any dispute as to the question (a) whether an institution or endowment is a charitable institution or endowment; and (b) whether an institution or endowment is a religious institution or endowment; besides other disputes covered by clauses (c) to (g). It is clear from the Preamble and provisions of the 1987 Act that it applies inter alia to all Hindu religious institutions or endowments including public temples. When a dispute WPC.25947/07 & 1276/09. 11 arises as to whether an institution is a religious institution or, to put it straight for the present purpose,whether a temple is a public or a private temple, under Section 87 looking to the definitions contained in Section 2(22) and 2(27) as to religious institution and temple the Deputy Commissioner has power and jurisdiction to enquire into and decide such a dispute. If the argument of the learned counsel for the appellants that the Act dos not apply to private temples is to be accepted, then it is enough for any person or body to claim a temple as a private one so as to take away the power and jurisdiction otherwise conferred on the Deputy Commissioner under Section 87 of the 1987 Act. A merely self-serving design of a party to claim a temple as a private one cannot defeat a specific statutory provision conferring power on an authority to decide a question. It is a different matter, if there is no dispute that a particular temple is a private temple; in that case perhaps the argument could be accepted. When there arises a dispute as to whether a temple is a public temple or not, basically it becomes necessary to WPC.25947/07 & 1276/09. 12 decide that question, If Section 87 is read carefully in its entirety, it will be clear that the Deputy Commissioner exercises quasi-judicial power while holding enquiry and deciding a dispute under Section 87(1). Under sub-section (3), every decision or the order of the Deputy Commissioner on confirmation by the Commissioner shall be published in the prescribed manner. Under sub-section (4), the Deputy Commissioner, while recording his decision under sub- section (1) pending implementation of such decision, can pass appropriate interim order safeguarding the interests of the institution or endowment. It is also made clear under sub-section (5) that any decision or order of the Deputy Commissioner deciding whether an institution or endowment is not a public institution or endowment, shall not take effect unless such decision or order is confirmed by an order of the Commissioner. Sub-section (6) raises a presumption in respect of the matters covered by clauses (a) to (e) of sub-section (1) that the institution or the endowment is a public one and that burden of proof in all such cases shall lie on the WPC.25947/07 & 1276/09. 13 person claiming the institution or the endowment to be private. Thus, it is amply clear that the Deputy Commissioner has jurisdiction to enquire into and decide the dispute covered by clauses (a) to (g) of sub- section (1). Sub-section (6) has sufficient indication that in such an enquiry, there will be presumption that the institution or endowment is a public one and burden lies on the person claiming the institution or endowment to be private. Thus, when there is a dispute as to whether a temple is a public or a private one, the same falls within the purview of Section 87 for the purpose of enquiry and decision. It may also be recalled that as early as on 24.11.1976, in Writ Petition No.5480 of 1976, a submission was made on behalf of the appellants that an application would be made under Section 77 of the 1966 Act before the Deputy Commissioner to decide as to the character and status of the Temple as public or private. We have no good reason or valid ground to take a view other than the one taken by the Division Bench of th High Court in this regard. Thus, having due regard to all aspects, we are WPC.25947/07 & 1276/09. 14 of the view that the Deputy Commissioner has power and jurisdiction to decide whether the Temple in question is a public temple or private one.” 16. In the decision reported in C.R. Jayaraman v. M. Palaniappan, ((2009) 3 SCC 425), it was held as follows: “Learned counsel appearing on behalf of the appellants contended that the Board was not empowered under the Madras Hindu Religious and Charitable Endowments Act, 1959 to declare a private temple as a public temple. W are not in agreement with this argument of the learned counsel for the appellants. A perusal of the relevant provisions of the ct would clearly show that there is no bar for the Board to declare a particular temple as a public one. However, the suit that was filed by the appellants which gave rise to filing of this appeal in this Court was for a declaration that the aforesaid temples were private in nature and not public temples. Therefore, it was for the appellant-plaintiffs to prove on evidence that such temples were private in nature.” WPC.25947/07 & 1276/09. 15 17. The issue was considered in the decision reported in Gopinathan v. Raman (2004(2) KLT 511), wherein it was held as follows: “The trustees could manage private religious as well as public religious institution. Religious institutions managed by the Commissioner would invariably be public religious institutions. Mere fact that public are allowed for worship would not make a private religious institution a public religious institution. Section 6(17) states that temple means a place by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of or used as of right by the Hindu community or any section thereof, as a place of public religious worship. Private temple owned by a family can also be a place for public worship but do not make such a private religious institution into a public religious institution. Going by the Act, Deputy Commissioner has got the power to decide WPC.25947/07 & 1276/09. 16 whether the institution is a private religious institution or public religious institution but only subject to the rights of suit or appeal provided under Ss.61 and 62. Mere fact that public were allowed to worship in the temple will not make private temple a public temple.” 18. There can be no dispute in the cases regarding the fact that the temple is open to the public and that public have a right to worship in the temple. The Samithy has collected funds from the public and utilised for the purpose of the temple. Merely because the Samithy came into administration and management as per Ext.P2, it cannot be said that the temple is a private one. 19. In order to ascertain whether a temple is a public or private one shall see whether the public has as a matter of right to worship and take part in the festivals conducted in the temple. If as a matter of fact money is being collected from the public and utilised for the day today affairs of the temple and festivals, and WPC.25947/07 & 1276/09. 17 worshiped by all and offered “Vazhipadus” (offerings) by the public as of right, one is left with no doubt that the temple is a public temple. The present cases answer the above tests. 20. The claim of the Samithy therefore that the temple continued to be a private temple of Wayanadan Chetty Family and later they assigned the same in favour of the Samithy cannot be accepted in the light of the facts already mentioned above. 21. The next contention taken is that even assuming that the temple is a public temple, the respondents have not followed the various provisions of the Act, 1951 in issuing several communications like Ext.P6 etc. In both the writ petitions, it is pointed out that proceedings under Section 39 have not been initiated by the authorities under the Act. There is no declaration that the temple is a public temple. No Area Committee has been appointed and no enquiry contemplated under Chapter V of the Act have also been done. It is further pointed out that the statutory WPC.25947/07 & 1276/09. 18 authorities cannot take recourse to Sections 63, 64 etc. without following the procedures contemplated under the provisions of the Act. 22. If the above argument can be accepted, it will repell the contentions taken by the respondents. But unfortunately for the petitioner in both these petitions it is seen that Ext.P3 in W.P.(C) 1276 of 2009 produced by the petitioner shows that a scheme had been framed and provisions of earlier act applied with regard to the administration of the temple. 23. A perusal of Ext.P3 shows that that was issued under Section 57(1) of the Madras Hindu Religious Endowment Act, 1926 (Madras Act II of 1927). The order clearly states that proceedings under Section 57(1) of the said Act has been invoked and a scheme is framed for the administration of the temple under that provision. In the light of the said communication, it is idle for the petitioner to contend now that the temple is a private one so WPC.25947/07 & 1276/09. 19 also that the H.R. & C.E. Board has no control over the temple. It is true that earlier Act has been repealed by Act 19 of 1951. However, a look at Act 19 of 1951 shows it came into force on 27.8.1951. Obviously the scheme is prior to the coming into force of Act 19 of 1951. However, in such cases Section 103 of Act 19 of 1951 came into play. The said provision reads as follows: “103. Effect of repeal of the Madras Hindu Religious Endowments Act, 1926.- Notwithstanding the repeal of the Madras Hindu Religious Endowments Act, 1926 (hereinafter in this Section referred to as the said Act) (a) all rules made, notifications or certificates issued, orders passed, decisions made, proceedings or action taken, schemes settled and things done by the (State Government), the Board or its President or by any Assistant Commissioner under the said Act, shall, insofar as they are not inconsistent with this Act, be deemed to have been made, issued, passed, taken, settled or done by the appropriate authority under the WPC.25947/07 & 1276/09. 20 corresponding provisions of this Act and shall, subject to the provisions of clause (b), have effect accordingly. xxxxx xxxxx” In the light of the above provision, a scheme framed under the prior Act continues to be in force until it is shown that there is anything inconsistent in the scheme with reference to the provisions of Act 19 of 1951. 24. It is significant to notice that the only attack regarding Ext.P3 scheme is that five years elapsed and it is not in force now. There is no challenge to the scheme as such or the right of the Board to make arrangements for administration of the temple. As per Ext.P3, it is seen that the Board is entitled to appoint trustees and also Executive Officer. The scheme contains elaborate provisions for the appointment of officers, trustees etc., for the proper management and administration of the temple. There is nothing to indicate that any member of the Wayanadan Chetty Family ever challenged the proceedings by which the Board WPC.25947/07 & 1276/09. 21 came into control of the temple. One may have a look at the notification issued on 15.2.1994 by the Board showing the listed and non-listed temples. A schedule shows listed temples and B schedule shows non-listed temples. Serial No.500 in B schedule is the temple involved in these proceedings. The inclusion of the temple in the B schedule is also not challenged. Even assuming that the Scheme can be in existence only for five years, still the Board retains control over the temple. The mere fact that they might not have appointed an Executive Officer or trustee in accordance with the provisions of the Act earlier does not mean that the temple ceases to be a public temple and the Board loses its control over the temple. 25. In the above facts and circumstances, the claim of the petitioner Samithy, that H.R. & C.E. Board cannot exercise any of the powers under the Act with regard to the temple in question cannot be countenanced. It appears that from 1951 till 1972 there WPC.25947/07 & 1276/09. 22 appears to have been no arrangement as such evidenced by records to show the manner in which the management and administration of