IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 WP(C).No. 26237 of 2005(W) -------------------------- PETITIONER: ------------ PARASSINIKKADAVU SREE MADAPPURA- MUTHAPPAN SATHANAM, REP.BY P.M.BHASKARAN MADAYAN, THE MADAYAN (CHIEF PRIEST), HEREDITARY TRUSTEE AND GENERAL MANAGER, RESIDING AT PARASSINI MADAPPURA, PARASSINIKKADAVU P.O., KANNUR. BY ADV. SRI.K.P.DANDAPANI (SR.) SRI.DINESH R.SHENOY RESPONDENTS: ------------- 1. THE COMMISSIONER OF HINIDU RELIGIOUS AND CHARITABLE ENDOWMENTS (ADMINISTRATION DEPARTMENT), CIVIL STATION, KOZHIKODE. 2. THE DEPUTY COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS (ADMINISTRATION DEPARTMENT) CIVIL STATION, KOZHIKODE. 3. THE ASSISTANT COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS (ADMINISTRATION DEPARTMENT), CIVIL STATION, KOZHIKODE. ADDL.4. P.M. MUKUNDAN, SON OF KANNAN, AGED 78 YEARS, RESIDING AT ANDOOR AMSOM AND DESOM, PARASSINIKKADAVU, KANNUR DIST. ADDL. 5. P.M. SAHADEVAN, SON OF ANANDAN, RESIDING AT PARASSINI MADAPPURA ANDOOR AMSOM AND DESOM, TALIPARAMBA TALUK, KANNUR DIST. 2 ADDL. 6. PARASSINIKADAVU SREE MUTHAPPAN SEVA SANGAM, P.O.PARASSINIKKADAVU KANNUR DIST, REPRESENTED BY SECRETARY O.V. PREMKUMAR ADDL. R4 AND R5 ARE IMPLEADED AS PER ORDER DATED 27.9.2005 ON IA.NOS. 13807 AND 13976/05 RESPECTIVELY. ADDL.R6 IS IMPLEADED AS PER ORDER DATED 7.12.2005 ON IA 17418/05 R1 TO R3 BY G.P. SMT. SMITHA R4 BY ADV. SRI.A.P.CHANDRASEKHARAN SR. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR R5 BY ADVS.SRI.T.P.KELU NAMBIAR (SR.) SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR SMT.T.RESMI DAMODARAN R6 BY ADV. SRI.T.K.VIPINDAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2008, ALONG WITH WPC NO. 15998 OF 2005 THE COURT ON 04/09/2008 DELIVERED THE FOLLOWING: 3 APPENDIX (WPC 26237/05) PETITIONER'S EXHIBITS: EXT.P1 TRUE PHOTOCOPY OF THE JUDGMENT DATED 9.3.2004 IN OP 5859 OF 2001 EXT.P2 TRUE PHOTOCOPY OF THE JUDGMENT IN OP 42/1988 OF SUB COURT, PAYYANNUR DATED 28.2.1990 EXT.P3 TRUE PHOTOCOPY OF ORDER NO. HRJ 3/1806/2001 DATED 9.7.2004 PASSED BY THE FIRSTRESPONDENT. EXT.P4 TRUE PHOTOCOPY OF JUDGMENT DATED 22.9.2004 IN WPC 23552/2004 EXT.P5 TRUE PHOTOCOPY OF THE INTERIM ORDER ISSUED BY THE HONOURABLE SUPREME COURT IN SLP (C) NO. CC NO. 9352/2005 DATED 19.10.2005 EXT.P6 TRUE PHOTOCOPY OF THE ORDER DATED 24.8.2005 PASSED BY THE FIRST RESPONDENT. EXT.P7 TRUE PHOTOCOPY OF THE NOTICE DATED 27.5.2005 ISSUED IN O.A.NO. 2/2005 INITIATED BY THE DEPUTY COMMISSIONER, KOZHIKODE. EXT.P8 TRUE PHOTOCOPY OF THE ORDER DATED 12.12.2006 IN I.A.NO. 87/2006 IN O.A.NO. 2/2005 OF DEPUTY COMMISSIONER HR & CE (ADMN.) EXT.P9 TRUE PHOTOCOPY OF THE PROCEEDINGS OF THE DEPUTY COMMISSIONER, HR & CE (ADMN.) DEPARTMENT DATED 27.12.2006 EXT.P9(a) TRUE PHOTOCOPY OF THE ORDER DATED 28.3.2007 IN I.A.NO. 6/2007 IN AP NO.11/2007 BEFORE THE FIRST RESPONDENT. EXT.P9(b) TRUE PHOTOCOPY OF THE ORDER DATED 22.9.2007 IN I.A.NO. 44/2007 IN A.P.NO.11/2007 EXT.P10 TRUE PHOTOCOPY OF THE LETTER DATED 18.10.2004 ISSUED BY THE PETITIONER. EXT.P11 TRUE PHOTOCOPY OF THE LETTER DATED 25.10.2004 ISSUED BY THE PETITIONER. EXT.P11(a) TRUE PHOTOCOPY OF LETTER DATED 24.11.2006 ISSUED BY THE PETITIONER TO THE FIRST RESPONDENT. EXT.P12 TRUE PHOTOCOPY OF THE LETTER DATED 22.11.2004 ISSUED BY THE PETITIONER. EXT.P13 TRUE PHOTOCOPY OF THE ADVERTISEMENT PUBLISHED IN THE MATHRUBHOOMI DAILY DATED 25.10.2005 EXT.P14 TRUE PHOTOCOPY OF THE LETTER DATED 25.10.2005 ISSUED BY THE PETITIONER TO THE THIRD RESPONDENT. EXT.P14(a) TRUE PHOTOCOPY OF CIRCULAR DATED 3.7.2007 ISSUED BY THE FIRST RESPONDENT IN THIS REGARD. EXT.P15 TRUE PHOTOCOPY OF THE COINWAR REGISTER OF THE 7 HUNDIYALS DATED 28.10.2005 4 EXT.P16 TRUE PHOTOCOPY OF THE ORDER DATED 15.5.2002 ISSUED BY THE FIRST RESPONDENT. EXT.P17 TRUE PHOTOCOPY OF THE DEMAND NOTICE NO.1872 EXT.P18 TRUE PHOTOCOPY OF LETTER DATED 17.10.2005 ISSUED TO THE FIRST RESPONDENT. EXT.P19 TRUE PHOTOCOPY OF CHELAN NO. 751 ENCLOSING PAYMENT OF AUDIT FEE EXT.P20 TRUE PHOTOCOPY OF THE JUDGMENT DATED 16.12.1997 IN DB NO.3/1994 EXT.P21 TRUE PHOTOCOPY OF THE BUDGET ESTIMATE FOR THE YEAR 2006 DATED 1.6.2006 APPROVED BY THE FIRST RESPONDENT. EXT.P22 TRUE PHOTOCOPY OF THE REMINDER LETTER DATED 4.4.2008 ISSUED TO THE FIRST RESPONDENT REGARDING EXPENSES FOR THE YEAR 2007 EXT.P23 TRUE PHOTOCOPY OF THE AUDITED STATEMENT OF ACCOUNTS FOR THE YEAR ENDED 31.3.2003 (ASSESSMENT YEAR 2003-04) EXT.P24 TRUE PHOTOCOPY OF THE REPLY SUBMITTED TO THE DEPUTY DIRECTOR, HR & CE BY THE PETITIONER DATED 1.6.2007 RESPONDENTS `1 TO 3'S EXHIBITS: EXT.R1(a) TRUE COPY OF THE ORDER DATED 24.8.2005 ISSUED BY THE FIRST RESPONDENT. EXT.R1(b) TRUE COPY OF THE REPORT OF THE SPECIAL OFFICER DATED 2.9.2005 SUBMITTED TO THE FIRST RESPONDENT. EXT.R1(c) TRUE COPY OF THE REPORT OF SPECIAL STAFF DATED 13.10.2005 EXT.R1(d) COPY OF THE REPORT OF THE REVENUE DIVISIONAL OFFICER, THALASSERY IN L.DIS. 4852/52 DATED 20.6.1954 EXT.R1(e) TRUE COPY OF THE JUDGMENT DATED 8.9.1964 OF SUB COURT, THALASSERY IN O.S.NO. 25/1959 EXT.R1(f) TRUE COPY OF THE JUDGMENT DATED 31.5.1965 OF MUNSIFF COURT, THALIPARAMBA, IN OS 111 OF 1963 TRUE COPY P.S. TO JUDGE. C .N. RAMACHANDRAN NAIR & V.K. MOHANAN, JJ. -------------------------------------------- W.P.C. Nos.26237 & 15998 OF 2005 -------------------------------------------- Dated this the 4th day of September, 2008 JUDGMENT Ramachandran Nair,J. These two connected Writ Petitions are filed, one by the present Chief Priest called "Madayan" who is in control of management of famous Parassinikkadavu Sree Muthappan Temple and the other by the person next-in-line to succeed him, for a declaration that the Madayan is entitled to manage the temple and appropriate the temple funds without any control or interference by the Commissioner of Hindu Religious and Charitable Endowments under the Madras Hindu Religious and Charitable Endowments Act, 1951, hereinafter called the "Act". 2. The temple is probably one of the oldest and the important temple in North Malabar attracting thousands of devotees daily and it's annual accounted income and expenditure are in crores of rupees. Even though attempts started years back to at least get the income and 2 expenditure of the temple accounted, it was successfully resisted so far by the Madayan and his family members through litigation in Courts at all levels. The temple was declared as a public temple by the former Hindu Religious and Charitable Endowments Board in 1926 and the said order was passed after detailed enquiry and report of the then Inspector dated 14.1.1926. In fact the finding of the Inspector was that besides Hindus, even Christians and Muslims worship in the temple. Taking into account the large number of devotees reaching the temple, trains terminating at Kannur used to be extended to Azheekkal for conveying the devotees during festival. Presently several buses are operated from various stations basically for the devotees with temple as the destination. Even though the declaration of the temple as a public temple was resisted, the suits filed against such a declaration were dismissed and the High Court concurred with the findings. The temple declared as a public temple under the Act and the Temple Entry Authorisation Act is upheld by all Courts including High Court vide decision reported in RAMUNNI MADAYAN V. STATE OF MADRAS, 1957 KLJ 777. However, the management of the temple 3 has always been with three families who claim to be it's owners and the senior-most member of these families is always the Madayan, the Chief Priest and the seat of all powers. Since there was general allegation of misappropriation and mismanagement of public temples, this Court issued general direction in the judgment in O.P.No. 631 of 1990 directing Commissioner to ensure that temples maintain proper accounts, get the accounts audited, and have the transactions in the temples done in a transperant manner. When complaint was received against Madayan and about management of the Muthappan temple, the said complaint was taken by this Court as DB No. 3 of 1994 wherein direction; mainly sought was for sealing of Hundials. The trustee of the temple then moved this Court for exemption from general directions contained in O.P.No. 631 of 1990 and this Court closed the matter by suspending any action against the temple for 12 months from the date of the order giving an opportunity to the Chief Priest-cum- Trustee to correct himself. The period granted for correction and for improvement of management of the temple by this Court expired on 15.12.1998. However, the problem continued unabated and 4 innumerable complaints were received by the Commissioner pertaining to pilferage, misappropriation and mismanagement of the affairs of the temple. Even though annual collection of the temple is above Rs. 2 crores and the expenditure accounts only for half thereof, there was no justifying reserve in the temple. Admittedly major collections are from two Hundials called Moolabhandharams and at Sopanam, and the petitioners claim that they have absolute right to appropriate these amounts for Madayan and family members and they are not accoutable to anyone for the income received in these three places. The accounted expenditure for feeding devotees annually is above Rs. 75 lakhs and the purchase orders are issued without even calling for quotation. All payments are stated to be made in cash and the supplier is none other than a family member of the Madayan. When complaints reached the Commissioner, the Commissioner initiated steps for enquiry and in the course of enquiry, the present Chief Priest-cum-Trustee called Madayan was also heard. Devotees organisation, which is the sixth respondent in W.P.C.No. 26237 of 2005 filed O.P.No. 5859 of 2001 before this Court wherein this Court vide Ext.P1 judgment directed the 5 Commissioner to conduct enquiry and take appropriate steps for ensuring proper administration of the temple in a fair and reasonable manner. Pursuant to Ext.P1 judgment, the Commissioner got the enquiry conducted and by way of interim arrangement issued orders dated 24.8.2005 produced as Ext.P6 in W.P.C.No. 26237 of 2005, which is under challenge in these two WPCs. As already stated petitioner in WPC 26237 of 2005 is the present Madayan who is over 83 years of age and the fourth respondent, who is the petitioner in the other WPC, is next in line to succeed the present Madayan on his death or disablement. 3. We have heard counsel appearing for the petitioners, counsel appearing for the sixth respondent in WPC 23267 of 2005 which is an organisation representing the devotees and the Government Pleader appearing for the HR & CE department. 4. Even though Ext.P1 judgment is seen challenged in SLP before the Supreme Court and the Supreme Court granted interim orders, the same does not bar the Commissioner's enquiry which led to interim order Ext.P6 impugned herein. Further though prayer for 6 review of Ext.P1 judgment on the ground that no schme framed under Section 57 of the Act as assumed by this Court is pending was allowed by this Court by deleting the said observation, this Court did not interfere with the directions contained in the judgment to Commissioner to conduct enquiry and take appropriate steps to ensure fair and proper management and financial discipline in the temple. 5. From the arguments of counsel for the petitioners, it is clear that they are mainly opposed to accounting of income and expenditure of the temple. Their argument is that cash, jewellery and other collections in two Moolabhandarams and at Sopanam are immune from any check, control, screening or accounting by the HR & CE Department. They claim rights over these collections by relying on the "custom" in the temple. However, it is seen from Ext.P6 proceedings of the Commissioner that there was no custom of maintaining Hundis in the temple as late as in 1954 with the result the Revenue Divisional Officer reported that contribution and audit fee due to Government could not be recovered from the temple as it has no Hundis OR accounted collections. It is obvious that in the course of time, temple 7 started attracting lakhs of devotees, and Hundis were installed in several places for collection of offerings from devotees in the form of gold, silver, cash, etc. Besides Hundi collections the temple is admittedly getting massive funds by remittances through post offices and banks. The Hundis are presently opened at the convenience of the Madayan, and according to him he and his family members are entitled to appropriate the amounts and balance is used for Dana and Dharma. However, we notice from the Commissioner's order that his effort is first to get the collections accounted and then to ensure that there is no misappropriation. His order does not stand in the way of spending the amount for the purpose of temple, devotees, dana and dharma, etc. All what he seeks to achieve by Ext.P6 is to have income and expenditure of the temple accounted in a fair manner so that there is no pilferage, and misappropriation by the Madayan who is always the seniormost member of the family managing the temple. The allegation of misappropriation and misapplication of funds is apparently clear from the fact that inspite of annual income of around Rs. 2 crores, the amount in fixed deposit is only Rs. 38 lakhs and that too retained by 8 former Madayan. The present Madayan, petitioner in WPC 26237 of 2005, has even taken and spent from the fixed deposit, an amount of Rs. 7,50,350/-. Inspite of massive receipt and expenditure, the temple is in default of arrears of Rs. 88,40,630/- due to Govt. towards contribution and audit fee payable under the Act. Financial mis- management is self-evident from this default alone. The question is whether this Court should interfere with the steps initiated by the Commissioner to introduce financial discipline and to establish fair management of the temple for the benefit of the devotees. 6. The first contention raised by the petitioners that temple is not a public temple and is a private family property of the petitioners is only to be rejected because this matter is settled way back in 1954 finally vide decision of this Court above cited. The next contention raised is that the Commissioner has no power under Section 20 of the Act to appoint Special Officer to advise or assist Madayan. In order to consider whether the Commissioner has exceeded his jurisdiction in Ext.P6, we have to consider the scope of the order passed by him. While appointing the Special Officer, the Commissioner has stated the 9 objectives as follows: (i) To ensure that all the income are duly accounted and expenditure met on the basis of proper records. The Special Officer will also ensure that no persons other than authorised is making collection of amounts at Sopanam or other places in the temple. (ii) On the measures to be taken to ensure proper and effective functioning of the employees and especially in the functioning of the vazhipadu counters. In introducing a proper system for ensuring the purchase of articles required at the temple are made in a transparent manner without room for any complaint, taking guidance from the system followed in Sree Kadampuzha temple. (iii) In providing maximum convenience including sanitary requirements to devotees for making worship and in introducing measures for controlling the overcrowding of the premises. (iv) In taking measures to avoid the complaints regarding loss of ornaments and articles received as vazhipadus and for accounting the same properly. (v) In preparing a proper Register u/s. 25 with exhaustive details and getting it approved. According to the petitioners, Commissioner can only appoint Executive Officer on a salary basis and he cannot appoint Special Officer. In 10 order to decide this question, we have to consider the scope of Section 20 of the Act, which is as follows: 20. Powers and duties of the Commissioner in respect of religious endowments.- Subject to the provisions of this Act, the administration of all religious endowments shall be subject to the general superintendence and control of the Commissioner; and such superintendence and control shall include the power to pass any orders which may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist. From the above it is clear that Commissioner has wide powers to ensure that temples are properly administered and their income is duly appropriated for the purposes for which they were founded or exist. The Commissioner can exercise his power of superintendence and control only by engaging delegates, and if required, he has the authority to appoint any person to conduct enquiry or to assist the manager or trustee of the temple for the proper management of the temple. The exercise of such power cannot be said to be derogatory of the powers of the trustee or manager of public temples. In fact, power under Section 20 has to be understood with reference to the general discipline public 11 religious institutions are subjected to, under the provisions of the Act. Section 27 of the Act requires all religious institutions to furnish accounts and returns to the Commissioner. Further Section 28 authorises the Commissioner to arrange for inspection of properties and documents of religious institutions. On going through the directions given by the Commissioner, we do not find anything offending or interfering with the management of the temple by the petitioners. We are of the view that the Commissioner rightly ordered sealing of all the Hundis and accounting of entire income and expenditure. This is the only way to prevent pilferage of temple funds. However, this does not bar payments to Madayan and others employed in the temple. Since goods purchased for feeding devotees and for other purposes of the temple runs into lakhs of rupees, such purchases should be in a transparent manner either by calling for quotation or by making purchases from established institutions like Marketing Federation as ordered by the Commissioner. The entire source of fund in the temple is public contributions in the form of offerings in Hundis or through Post Offices and Banks. Wherever public money is collected, public 12 interest has to be protected. In fact petitioners themselves concede that traditionally and under custom, collections are mainly meant for Dana and Dharma. No one can have doubt that surplus income, after eligible payments to petitioners and other employees, should be utilised for the development of the temple and for the benefit of the devotees. Since petitioners have refused to account the income and expenditure, the only option for the Commissioner is to interfere under Section 20 of the Act to conduct enquiry and to take appropriate steps. We are informed that after cancellation of first scheme by the Sub Court vide Ext.P2 judgment, draft scheme is prepared for the temple. We are of the view that until scheme is finalised, the income and expenditure of the temple should be accounted in fair and transparent manner which is possible only by meticulous accounting. We are of the view that Commissioner is perfectly justified in initiating steps covered by Ext.P6. We direct the Commissioner to appoint another representative, whatever be the designation he may give, since the one already appointed by him is retired from service, so that income and expenditure are accounted and arrangements are made for proper, and fair management of the temple 13 till finalisation of the scheme. If the Commissioner deems fit, he may constitute a committee consisting of Madayan, representatives of three families, and representatives from devotees and departmental officers and other responsible persons of the locality for overseeing the management of the temple in a fair and reasonable manner and for counting of Hundi collections in the presence of representatives. We also direct the Commissioner to arrange recovery of arrears due to Govt. in reasonable instalments from the Temple. We therefore dispose of the Writ Petitions upholding Ext.P6 but with direction to the Commissioner to finalise the proceedings initiated by him after hearing all concerned including petitioners without any delay. (C.N.RAMACHANDRAN NAIR) Judge. (V. K. MOHANAN) Judge. kk 14