IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 WP(C).No. 23149 of 2009(K) --------------------------------- PETITIONER(S): ------------------- A.C.BHANUNNI @ VALLUVANATTUKARA, VALLABHA VALIYA RAJA, TRUSTEE, THIRUMANDHAMKUNNU BHAGAVATHY DEVASWOM, ANGADIPURAM, PERINTHALMANNA, MALAPPURAM DISTRICT. BY ADVS. SRI.T.RAMPRASAD UNNI SRI.J.R.PREM NAVAZ RESPONDENT(S): --------------------- 1. THE COMMISSIONER,HINDU RELIGIOUS & CHARITABLE ENDOWMENTS(ADMN.) DEPARTMENT, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF DEVASWOMS- H.R. & C.E.(ADMINISTRATION)(THE ADDL. CHIEF SECRETARY), GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE ADDITIONAL SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE (DEVASWOMS) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. * ADDL. R4 IMPLEADED 4. PRESIDENT, SREE VALLABHA KSHEMA SAMITHI, AAYIRANAZHI KOVILAKOM, ANGADIPPURAM P.O., VELLILA MALAPPURAM DISTRICT. * IS IMPLEADED AS PER ORDER DATED 24/09/2009 IN I.A. NO.11519/2009. R1 BY ADV. SRI.K.MOHANAKANNAN,SC,MALABAR DEVASWOM R4 BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.SMITHA S.PARAKKAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2011, ALONG WITH WPC NO. 36839 OF 2010 WPC NO. 34920 OF 2010 WPC NO. 1934 OF 2011 THE COURT ON 01/09/2011 DELIVERED THE FOLLOWING: svs W.P.(C). NO. 23149/2009 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SCHEME EVOLVED IN THE MATTER OF SRI. THIRUMANDHAM KUNNU BHAGAVATHY TEMPLE, ANGADIPPURAM P2: COPY OF THE NOTICE DATED 04/04/2008 ISSUED BY THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS (ADMINISTRATION) DEPARTMENT. P3: COPY OF THE EXPLANATION DATED 28/04/2008 SUBMITTED BY THE PETITIONER. P4: COPY OF THE MEMO OF CHARGES/ORDER NO.A1/874/07 DATED 13/07/2007 ISSUED BY THE DEPUTY COMMISSIONER, HR & CE. P5: COPY OF THE OBJECTION/EXPLANATION SUBMITTED BY THE PETITIONER BEFORE R1 DATED 07/03/2008. P6: COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE R1 IN FEBRUARY, 2009. P7: COPY OF THE ORDER DATED 02/03/2009 PASSED BY THE COMMISSIONER, MALABAR DEVASWOM BOARD. P8: COPY OF THE JUDGMENT DATED 25/03/2009 IN WPC. NO.7237/2009. P9: COPY OF THE APPEAL DATED 20/04/2009 FILED BY THE PETITIONER BEFORE THE SECRETARY TO DEPARTMENT OF DEVASWOMS, GOVERNMENT OF KERALA. P10: COPY OF THE STATEMENT DATED 27/05/2009 FILED BY THE PETITIONER BEFORE THE ADDITIONAL CHIEF SECRETARY. P10(a):COPY OF THE STATEMENT DATED 27/05/2009 FILED BY THE PETITIONER BEFORE THE SECRETARY, DEPARTMENT OF DEVASWOMS. P11: COPY OF THE PETITION DATED 07/08/2009 FILED BEFORE THE ADDITIONAL CHIEF SECRETARY. P12: COPY OF THE ORDER NO.G.O.(Rt)2764/2009/RD DATED 07/08/2009 PASSED BY R3. P13: COPY OF COMMUNICATION SENT BY THE VALLABHA KESHEMA SAMITHI. svs ..........2/-.... ...2... WPC. NO.23149/2010 RESPONDENT'S EXHIBITS: R1(a):COPY OF THE ENQUIRY REPORT DATED 13/07/2007. R1(b):COPY OF THE NOTIFICATION DATED 14/03/2006. R1(c):COPY OF THE GENERAL CIRCULAR OF MALABAR DEVASWOM BOARD. /TRUE COPY/ P.A. TO JUDGE. svs THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P(C) Nos. 23149 of 2009, 34920, 36839, of 2010 & 1934 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of September, 2011. C.R. JUDGMENT P.Bhavadasan, J, All these writ petitions, in one way or other are related to the administration and management of Thirumandhamkunnu Bhagavathy temple. 2. In W.P.(C) 23149 of 2009, the petitioner who was holding the post of hereditary trustee of the temple challenges his dismissal from that post, covered by Exts. P7 and P12 orders in the said writ petition. 3. W.P.(C) 36839 of 2010 is by the Secretary of Sree Vallabha Kshema Samithi, Angadipuram. That is a Samithi constituted from among the members of the families which hold WPC. 23149/09 & con.cases. 2 hereditary trusteeship of Thirumandhamkunnu Bhagavathy temple. Samithi challenges Ext.P10 order by which, after the dismissal of Bhanunni Raja, who is the petitioner in W.P.(C) 23149 of 2009, Sri.Kalidasa Raja was appointed as the fit person as per Section 20 of the Hindu Religious and Charitable Endowment Act, 1951 (hereinafter referred to as the Act) on a temporary measure. 4. W.P.(C) 34920 of 2010 is by the trustee in charge of Thirumandhamkunnu Bhagavathy Devaswom challenging Ext.P15 order by the Deputy Commissioner refusing to approve certain appointments made by him. 5. W.P.(C) 1934 of 2011 is also by the Samithy, who is the petitioner in W.P.(C) 36839 of 2009, challenging the appointment and the functioning of Sri.T.T.Vijayakumar as the Manager of the temple. 6. It is agreed to by all the counsel appearing for the parties that the fate of the other three writ petitions will depend upon the WPC. 23149/09 & con.cases. 3 outcome of W.P.(C) 23149 of 2009. If the petitioner in that case succeeds in his challenge to the orders already made mention of, then the other writ petitions become almost academic. 7. Since the principal issue involved is the one in W.P.(C) 23149 of 2009, the facts in the said writ petition are being referred to in detail. 8. Sree Thirumandhamkunnu Bhagavathy temple is a public religious institution covered by the Act. As a result of various amendments brought to the Act, Malabar Devaswom Board has been constituted. Ext.P1 is the scheme framed as per the provisions of the Act. The petitioner as well the Board are governed by the terms of the said scheme. The administration of the temple is vested with the hereditary trustee and currently, the petitioner, who is the senior most member of the family is entitled to exercise that authority. The petitioner alleges that recently, there has been some concerted efforts on the part of some interested persons to somehow remove the WPC. 23149/09 & con.cases. 4 hereditary trustee and place the temple in the hands of politicians with ulterior motive and in furtherance thereof, anonymous petitions were sent to the Commissioner raising false allegations against the petitioner. An enquiry was initiated by the Deputy Commissioner under the Act. Those proceedings were challenged before this court in W.P.(C) 29014 of 2007 and W.P.(C) 22046 of 2007. Those petitions were disposed of by directing that the enquiry be conducted by the Commissioner and till final orders are passed in the proceedings, the petitioner is entitled to continue as the hereditary trustee. Inspite of the specific direction issued from this court, the Commissioner directed the Deputy Commissioner to conduct the enquiry which was the subject matter of challenge in W.P.(C) Nos. 37760 of 2007, 5580 of 2008 and 30469 of 2008. In W.P.(C) 5580 of 2008 the petitioner was directed to furnish a reply to the notice and the petitioner did so, copy of which is produced as Ext.P3. Presumably dissatisfied with Ext.P3, the Deputy Commissioner framed 18 charges and issued memo of charges to the petitioner, which is marked as Ext.P4. This court in the writ petition relating to the subject matter directed that the petitioner be heard on all WPC. 23149/09 & con.cases. 5 the matters including the jurisdiction of the Commissioner to initiate proceedings against the hereditary trustee. True copy of the objection is produced as Ext.P5. By way of abundant caution, the petitioner claims that he put forward further contentions as per Ext.P6. According to the petitioner, without giving an opportunity of establishing his case, on 2.3.2009, an order was passed under Section 40 of the Madras Hindu Religious and Charitable Endowment Act. The said order is produced as Ext.P7. In furtherance thereof, the third respondent in the writ petition was appointed as the fit person. 9. Ext.P7 was challenged before this court in W.P.(C)7237 of 2009. Finding that the petitioner has a statutory remedy by way of an appeal, this court directed him to avail of the said remedy. The petitioner did so and Ext.P9 is the appeal filed by him. This court also made arrangements for the administration of the temple by appointing one Venugopal Raja on temporary basis till the appeal was disposed of by the second respondent. The appeal before the second respondent was heard by the Secretary to Government, Department of Devaswom WPC. 23149/09 & con.cases. 6 and thereafter, it was posted before the Additional Secretary. According to the petitioner, the Additional Secretary had no jurisdiction to hear the matter. The petitioner was asked to appear before the Additional Secretary and he did so. He also filed two detailed statements, copies of which are Exts.P10 and P10(a). The petitioner would allege that without fixing any date for hearing, the Additional Secretary contacted the Commissioner over phone and took a statement through phone. Strangely enough, thereafter the file disappeared and the petitioner had to present an application before the Additional Chief Secretary pointing out the said fact. Copy of the said application is produced as Ext.P11. Thereafter the appeal was disposed of as per Ext.P12 order. The petitioner attacks Exts.P7 and P12 orders on several grounds. 10. The first respondent has chosen to file a counter affidavit. According to the first respondent, on receiving complaints regarding the functioning of the petitioner as the hereditary trustee, a special team was constituted under the Junior Superintendent of WPC. 23149/09 & con.cases. 7 Commissioner's office and a detailed enquiry was conducted. The enquiry report is produced as Ext.R1(a). It was thereafter that disciplinary proceedings were initiated against the trustee as per Ext.P4, suspending him pending enquiry and appointing Sri.Chandrahasa Menon as the fit person. 18 charges were levelled against the petitioner and the memo of charges was served on him. The first respondent thereafter mentions about the various proceedings filed before this court and the results thereof. It is claimed by the first respondent that in respect of the listed institutions under Section 38, the power of the Commissioner under Section 45 was delegated to the Deputy Commissioner under Section 10(2) of the Act, and it was under those circumstances that the Deputy Commissioner had initiated proceedings against the petitioner. It is contended on behalf of the first respondent that the petitioner has been filing petitions after petitions before this court with the sole intention of protracting and forestalling the proceedings against him. In the enquiry conducted, witnesses were examined and the petitioner cross-examined them and it was after considering all the circumstances and the evidence in the case that WPC. 23149/09 & con.cases. 8 Ext.P7 order came to be passed. The contention of the first respondent is that the charges levelled against the trustee consisted of violation of the lawful orders issued by the State and the Commissioner, neglect of duty on his part, breach of trust and several misdeeds causing loss to the temple. In support of these contentions, it is pointed out that the trustee misappropriated temple funds by purchase of sandal wood for personal gain, drew house rent for the trustee and manager and various other matters were also stated, which are not very relevant for the present purpose. In the counter affidavit, the first respondent has made attempts to justify Exts. P7 and P12 orders on the ground that in the enquiry the misdeeds of the petitioner had been proved. It is therefore contended on behalf of the first respondent that the petition is without any merit and it is only to be dismissed. 11. A reply affidavit has been filed by the petitioner wherein he refuted the stand taken by the first respondent in the counter affidavit and asserted that the charges are cooked up and ill-motivated and that there was no mal-administration by the hereditary trustee. It is WPC. 23149/09 & con.cases. 9 also asserted by him that neither the Commissioner nor the Board has the power to remove the hereditary trustee on such flimsy grounds and claimed that the act now committed by the respondents amounts to violation of the rights guaranteed under Articles 25 and 26 of the Constitution of India. 12. Standing Counsel for the first respondent has filed a statement producing certain Government Orders. 13. In W.P.(C) 34920 of 2010, as already stated, filed by the trustee in charge, he challenges Ext.P15 order. It is alleged that administration of the temple is governed by a Scheme and Clause 7 of the Scheme is referred to by the petitioner. The notification of the Scheme is produced as Ext.P2. It is pointed out that Ext.P2 was challenged before this court in Original Petition No. 261 of 1954. Ext.P3 is the order in the said writ petition. It is claimed by the petitioner that the administration and management of the temple are to be carried on in accordance with the Scheme and no one has any WPC. 23149/09 & con.cases. 10 authority to by-pass the Scheme. As time passed by, it is pointed out by the petitioner that there was considerable increase in the number of devotees coming to the temple and certain facilities necessarily had to be made. It became necessary to provide a waste water treatment plant. On bringing the matter to the notice of the authorities concerned, a report was obtained by them, which is produced as Ext.P5. In the meanwhile, the Health Inspector issued a notice demanding that immediate steps be taken to abate the nuisance. That notice is produced as Ext.P6. Subsequently, an order under Section 133(1) of the Code of Criminal Procedure was passed, copy of which is produced as Ext.P7. Immediately, steps were taken by the temple authorities and the estimate and plan submitted were approved by the Commissioner. The plant was erected. However, the plant was not commissioned and the petitioner was constrained to move the Commissioner for necessary steps. A communication to that effect was sent to the Commissioner and that is produced as Ext.P8. Ext.P9 is the communication sent to the Commissioner requesting to make arrangements to have the service of an Executive Engineer from Kerala WPC. 23149/09 & con.cases. 11 State Electricity Board. Thereafter, it is pointed out that, for the purpose of operating the plant, employees were required and it was decided to conduct an interview on 18.11.2009. The details of the procedures followed are given in the statement. However, it is claimed that some queries were made by the Deputy Commissioner as per Ext.P12. A reply was given as per Ext.P13 and it was pointed out that appointment of two persons was purely on temporary basis. Subsequently two posts were sanctioned and Ext.P14 communication was sent to the Commissioner. The complaint of the petitioner is that the Deputy Commissioner insisted that appointments could be made only with the previous approval of the Commissioner in view of Section 100(2)(r) 10(y) of the HR & CE Rules. It was also emphasized that as per Section 24 of the Act, the trustee is bound to obey the orders issued by the Board. Various other provisions were also pointed out and objection was taken to the appointment. The order issued by the Deputy Commissioner is produced as Ext.P15. According to the petitioner Ext.P15 is clearly unsustainable in law. WPC. 23149/09 & con.cases. 12 14. W.P.(C) 36839 of 2010 is by Sree Vallabha Kshema Samithi represented by its Secretary. The Samithi claims to be a body registered under the Societies Registration Act with Registration No.187/1995. The Samithi is constituted from among the members of four Kovilakams, namely, Ayiranazhi, Kadannamanna, Mankada and Aripra Kovilakam. It is claimed by the petitioner that due to the effective and efficient management by the trustees at various points of time, with the active assistance of the members of the Samithi, staff and devotees, the temple has gained prominence. The temple is notified as per the Act. This writ petition also makes mention of the challenge to the notification and the consequences thereof. The Samithi mentions about the Scheme referred to in W.P.(C) 23149 of 2009, which is marked as Ext.P5. It is claimed by the Samithi that the administration and management and other affairs of the temple are being carried out in a most transparent manner and there was a practice among the members of the family to form an Advisory Committee to help the hereditary trustee for the effective management of the temple. The petitioner in W.P.(C) 23149 of 2009 became the senior most WPC. 23149/09 & con.cases. 13 member qualified to be the trustee of the temple and he took charge. It is pointed out that after his assumption of charge he created an additional post namely P.A. to the Trustee and his son-in-law Krishna Kumar was appointed. The Samithi would allege that thereafter things went astray and there was maladministration and several other misconducts in respect of the administration of the temple. Complaints were forwarded to the H.R. & C.E. Commissioner and an enquiry was conducted. It was found that the trustee was at fault and the P.A. to the Trustee had an equal role to play in the misdeeds and therefore he was removed from service. It is pointed out by the Samithi that the charges levelled against the second respondent, who is the petitioner in W.P.(C) 23149 of 2009, were found proved and he was removed. Under such circumstances, as is the practice, the next senior most member of the Kovilakam, Sri. M.C. Ravi Varma Raja is to be appointed as the hereditary trustee. Even though Sri. Bhanunni Raja was found guilty of the charges levelled against him, he was reluctant to vacate the post. Sri.Bhanunni Raja challenged his order of dismissal in W.P.(C) 7237 of 2009. On the basis of the decision in that writ petition, Sri. Ravi WPC. 23149/09 & con.cases. 14 Varma Raja who was the next senior most member issued an authorisation in favour of Sri. A.C. Venugopala Raja. He is a retired Headmaster and more over he is residing very near to the temple. He was actively involved in the various activities of the temple. According to the Samithi, Sri. Venugopala Raja is a competent person to administer the affairs of the temple in the light of the fact that Sri. Bhanunni Raja was found guilty of the charges levelled against him and has been dismissed from the post. However, it is pointed out that Sri.Bhanunni Raja suggested Sri. Kalidasa Raja to function as the Trustee. The Samithi would point out that Sri.Kalidasa Raja was an undesirable person for various reasons which are not very relevant for the present purpose. After Sri.Bhanunni Raja, the next senior most member Sri.M.C.Ravi Varma Raja, who had given authorisation to Sri.Venugopala Raja to function as Trustee. Sri. Venugopala Raja had functioned as Trustee of the temple on an earlier occasion. Sri.M.C.Ravi Varma Raja passed away on 22.11.2009 and the next in line was Sri. Kunjunni Raja, who is settled at Bangalore. Therefore sometime was required to make arrangements for the administration of WPC. 23149/09 & con.cases. 15 the temple. A request to that effect was made and Ext.P8 is the said communication. The power of attorney letter issued by Sri.Kunjunni Raja in favour of Sri.Venugopala Raja is produced as Ext.P9. The allegation is that taking advantage of the delay in making arrangements, the second and third respondents in the writ petition made an application on 1.2.2010 itself. A report was submitted in haste and the first respondent issued an order appointing Sri.Kalidasa Raja as the trustee of the temple on a temporary basis. The said order is produced as Ext.P10. In this writ petition Ext.P10 is assailed on various grounds. 15. The first respondent has filed a statement. In the statement it is pointed out that Sri.Venugopala Raja was entrusted with the management of the temple as an interim measure as directed by this court in W.P.(C)7237 of 2009 on the basis of the power of attorney given by Sri.Ravi Varma Raja. Sri.Ravi Varma Raja died on 22.11.2009 and thereafter the power of attorney ceased to be in operation. Sri.Bhanunni Raja had complained to the petitioner about WPC. 23149/09 & con.cases. 16 the unauthorised continuance of Sri.Venugopala Raja as acting on behalf of the hereditary trustee, who is no more. The third respondent Kalidasa Raja also staked his claim. The statement would disclose that Sri. Kunjunni Raja was not willing to take over the office of the Trustee and under Section 47(3) of the Act the Deputy Commissioner is to decide the dispute after conducting enquiry. The first respondent would say that Sri.Kalidasa Raja, the third respondent was appointed as trustee only on temporary basis subject to the decision of this court in the writ petition filed by the second respondent. Pointing out the circumstances under which Sri.Kalidasa Raja came to be appointed as the fit person, the first respondent pointed out that no interference is called for with the said order of the first respondent. 16. In the counter affidavit filed by the second respondent it is pointed out that the writ petition is nothing but a gross abuse of the process of court. It is contended that if at all the petitioner is aggrieved by Ext.P10 order, he has got statutory remedies available and he has to avail of the same before approaching this court. It is also pointed out WPC. 23149/09 & con.cases. 17 that a reading of the petition will leave one in no doubt that the petition has been instigated by Sri.Venugopala Raja, who has a desire to function as the Trustee though he is incompetent do so. It is pointed out that the petitioner is not entitled to any relief. 17. In the counter affidavit filed by the third respondent, it is pointed out that his appointment on a temporary basis, is fully justified. The petitioner has filed a reply to the statement filed by the first respondent. 18. W.P.(C) 1934 of 2011 is also filed by the petitioner in W.P.(C) 36839 of 2010. The complaint in this writ petition appears to be that the second respondent, who was appointed on a temporary measure has appointed the third respondent as the Manager, which according to the petitioner is illegal and is contrary to the provisions of the Act. Apart from the fact that the third respondent, who is appointed as Manager is over aged, he is also incompetent to act as Manager. Competency of the second respondent to appoint a Manager is also WPC. 23149/09 & con.cases. 18 challenged. Third respondent was appointed as Manager as per Ext.P6 order. The petitioner challenges Ext.P6 order. 19. From the above facts as disclosed in various writ petitions, the core issue that arises for consideration is whether the dismissal of Bhanunni Raja, which gave rise to W.P.(C) 23149 of 2009 is justified and whether he is entitled to succeed in his challenge of the order of his dismissal. If he is successful in doing so, then the there may not be much to decide in the other writ petitions as they will have to take the consequences of the result in W.P.(C) 23149 of 2009. 20. Sri. P.G.Rajendran in his work titled 'കത വജനക ശ ' (Kshethra Vigyanakosam) refers to the temple involved in these writ petitions. The temple is situate in Malappuram District. The temple is an ancient one. The main diety is Bhadrakali and the diety faces north. The temple is on the top of a hill. According to the author, the myth that is in vogue is that Sivalinga worshiped by Goddess Parvathy was obtained by Mandhathav Maharshi, by WPC. 23149/09 & con.cases. 19 observing penance and meditation, from Lord Siva. It is believed that Goddess Parvathy, who came to know about the same merged in that Sivalinga. At that time Sree Parvathy was accompanied by daughter Kali and son Ganapathy. It is also believed that Maharshi Mandhathav obtained salvation in that place. There are two other myths with regard to the temple. There is also a belief that Thirumandhankunnu Bhagavathy is the sister of Kodungallur Bhagavathy. The author would state that initially the rituals and ceremonies in both the temples were same. Later the rituals and ceremonies underwent change and modification. Initially the poojas were conducted by അടമ ള ( ) Adimakal from Kodungallur temple. Later when സതക (Swathika)form of rituals and ceremonies were adopted, the prominence of അടമ ള (Adimakal) faded away. There is also a belief that when the legendary Poonthanam suffered from smallpox, he rendered ഘനസ ഘ സ ത