IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 WP(C).No. 14303 of 2008(C) -------------------------- PETITIONER(S): --------------- P. RAGHAVANUNNI NAMBIAR SON OF NARAYANAN NAIR, AGED 85 YEARS RESIDING AT AYYAPATH GOKULAM, CHOVVANNUR KUNNAMKULAM, THRISSUR DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.MANU TOM RESPONDENT(S): --------------- 1. THE COMMISSIONER, HR & CE DEPARTMENT COLLECTORATE, KOZHIKODE 2. THE ASSISTANT COMMISSIONER HR & CE DEPARTMENT, MINI CIVIL STATION TIRUR, MALAPPURAM DISTRICT. ADDL.3. K. SURESH, CHAIRMAN, BOARD OF TRUSTEES MALAMAKKAVU AYYAPPA TEMPLE, PALAKKAD DISTRICT (IMPLEADED AS ADDL. R3 VIDE ORDER IN I.A.NO.6017/2008 DATED 5.6.2008) BY ADV. SRI.MOHAN C.MENON FOR ADDL.R3 BY GOVERNMENT PLEADER SRI.R.LAKSHMI NARAYAN FOR R1 & R2 BY ADV. SRI.K.MOHANAKANNAN,SC,MALABAR DEVASWOM FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/10/2009, ALONG WITH WPC NO. 14424 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.14303 OF 2008 EXT.P1 TRUE COPY OF THE ORDER DATED 7.8.2007 ISSUED BY R1 EXT.P2 TRUE COPY OF THE JUDGMENT DATED 16.7.2007 IN W.P.(C) NO.21605 OF 2007 EXT.P3 TRUE COPY OF THE REPRESENTATION DATED 13.1.2008 SUBMITTED BY THE PETITIONER BEFORE R2 EXT.P4 TRUE COPY OF THE ORDER NO.HRH6-2884/08 DATED 28.4.2008 ISSUED BY R1. EXT.P5 TRUE COPY OF THE ORDER NO.A3/3897/2003 DATED 30.4.2008 ISSUED BY R2. RESPONDENT'S EXHIBITS: EXT.R3(a) TRUE COPY OF TRUST DEED DT. 16.7.2008 BY THE PETITIONER IN THE WRIT PETITION. EXT.R3(b) TRUE COPY OF MINUTES OF THE MEETING OF THE PADINJARAPATTU MALAMALKAVU TEMPLE HELD ON 29.8.2008 //TRUE COPY// P.S. To Judge. P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- W.P.(C) Nos.14303 & 14424 of 2008 ------------------------------- Dated this the 1st October, 2009 J U D G M E N T Raman, J. W.P.(C) No.14303 of 2008:- The petitioner is the hereditary trustee of Sree Malamakkavu Ayyappa Temple in Palakkad District. According to him, the temple has been managed by the hereditary trustee without any complaints. While so, the area committee under the HR & CE Department, decided to appoint a non-hereditary trustee without notice to the petitioner. The proceedings which were taken by the Commissioner finally on the basis of the proceedings initiated by the HR & CE Department, according to him, led to an order being passed that the non-hereditary trustee need not be appointed for the present and can be resorted to later, if found necessary, as evidenced by Ext.P1. Meanwhile, he challenged Ext.P1 before this Court, W.P.(C) No.21605 of 2007, and Ext.P2 is the judgment in that regard, by which, this Court held, W.P.(C) Nos.14303 & 14424 of 2008 2 following the decision in Raman Namboothiri v. Chief Commissioner, HR & CE (2004 (1) KLT 945), that the Commissioner can exercise the power under Section 39(2) only after recording reasons and after giving due notice to the hereditary trustees. It was also held that the Commissioner would bear in mind the legal principles. Subsequently, the Commissioner passed Ext.P4 order appointing an Executive Officer to the temple. According to the petitioner, while so, yet another order was passed, Ext.P5, by which the Assistant Commissioner, HR & CE, was directed to take over the administration of the temple. Petitioner, seeking to quash Exts.P4 and P5 orders, has filed this writ petition. 2. The main grounds urged in the writ petition is that the proceedings culminating in Ext.P5, despite the directions issued by this Court, is without notice to the petitioner, and there are no reasons to take over the administration of the temple. If at all, the power under HR & CE Act can be invoked, the exercise W.P.(C) Nos.14303 & 14424 of 2008 3 of the power is alleged to be due to mala fide intention behind the proceedings. 3. In the counter affidavit filed by the first respondent, it is averred that the impugned order is one passed under Section 39 read with Section 41 of the Act, and that the aggrieved person has got a right to institute a suit before the appropriate civil court, and as such, the writ petition is not the proper remedy. It is further contended that the Malamkkavu Ayyappan Temple is a public religious institution coming under the purview of HR & CE Act, and administration of the temple is governed by a scheme of administration and by virtue of Section 103 of the Act, it shall be deemed to be a scheme duly framed under Section 58. As per the scheme, administration of the temple is vested with the hereditary trustees and one of more non-hereditary trustees (not exceeding three) appointed by the Department. Clause 4 also provides for appointment of an Executive Officer by the Department. Earlier, when the appointment of non-hereditary trustees was initiated in 2005, W.P.(C) Nos.14303 & 14424 of 2008 4 one Kesavan Nambiar was in office as the former President, who was permanently settled in Delhi, and the administration was carried on with the power-of-attorney holder, one Jagadeesan, and by the manager appointed by him. It is alleged that they were misappropriating the entire income of the temple without maintaining proper accounts. The petitioner was approved as a trustee from December, 2006, he was aged 85 years and is stated to be bed ridden at Kunnamkulam in Thrissur District. The temple is situated in Malappuram District, a far away place. It is further averred that he cannot walk without assistance of others and not in a position to visit the temple for attending any functions of the trustee or for supervising the employees of the temple as mandated by the provisions of the Act. As directed, the Inspector, Guruvayoor HR & CE visited the residence of the petitioner at Kunnamkulam on 10.6.2008 and submitted a report, as evidenced by Ext.R1(a). As per the report, a discussion with the petitioner trustee showed that he was totally unaware of the state of affairs of the temple and that his signature was obtained and all sorts of irregularities are W.P.(C) Nos.14303 & 14424 of 2008 5 perpetuated. Subsequently, pursuant to Ext.P5 order of the Assistant Commissioner, a meeting was convened by the Inspector and the third respondent was elected as the Chairman and Ext.P5 has been acted upon. The trustee was not present as usual and the Manager though present in the temple, suddenly disappeared. There was also some physical threat and at his instigation, some miscreants brought from outside. Due to such incident, the officials could not take charge of the temple and the matter was reported to the Government. Thus, there was sufficient materials before the Area Committee to satisfy that the administration of the affairs of the temple were not properly managed. It was also stated that this Court had issued various directions in 1997 including that the administration is to be regulated in accordance with law; that a proper inventory register has to be maintained for ornaments and vessels received as Vazhipadu; that the opening of the hundies would be done in accordance with the directions of this Court, etc. But nothing was done in the matter. According to the first respondent, the Assistant Commissioner, Malappuram, on 4.4.08, reported that W.P.(C) Nos.14303 & 14424 of 2008 6 as per the direction in the judgment, enquiry was conducted in the temple on 14.1.2008 and the petitioner sought for an adjournment and on 25.1.2008 also, he did not appear. The The person styling as manager also did not produce accounts stating that he did not get any instructions. Thus, the enquiry was further postponed. Then also the petitioner was not present and no accounts was produced. It was stated that in the factual situation, further notice as contemplated under Section 39(2) was not necessitated and Ext.P1 order was kept in abeyance to watch the situation. It was further stated that the action has been taken pursuant to the notice issued only. 4. The additional third respondent who was impleaded, K.Suresh, has filed a detailed counter affidavit. It was stated that he is the Chairman of the Trustee Board and he has denied all the averments. According to him, he took charge as the Chairman on 3.5.2008. It was stated that by Ext.P1 order, the Hereditary Trustee was already put to notice of the necessity and circumstances prevailing for the formation of a W.P.(C) Nos.14303 & 14424 of 2008 7 Trustee Board, the final order of which was deferred to study the action of the Hereditary Trustee to correct the administration of the temple. 5. I.A.No.3061 of 2009 is an impleading application seeking to implead one P.K.Jagadeesan as additional respondent. According to him, he has become the managing trustee , and therefore, is a party likely to be affected by any decision, if taken without being heard. But now the petitioner is no more. He died during the pendency of the proceedings and before passing any order on the impleading petition. In such circumstances, this I.A. automatically will stand dismissed as infructuous being abated. 6. W.P.(C) No.14424 of 2008 is filed by the Malamelkkavu Devaswom represented by the Chairman, Sri.K.Suresh, who has been impleaded as additional third respondent in W.P.(C) No.14303 of 2008. This writ petition is filed for a writ of mandamus commanding the first respondent to exercise his statutory powers under the HR & CE Act to see that W.P.(C) Nos.14303 & 14424 of 2008 8 the Devaswom activities are conducted freely and fairly, without interference from any one. 7. A counter affidavit has been filed by the second respondent denying the allegation raised against him. He has also denied the statement that he is a nominee of CPM. According to him, he is not making any hindrance to the smooth administration of the temple. 8. As far as the relief claimed for in W.P.(C) No.14424 of 2008 is concerned, the same was posted along with the other writ petition, for the reason that both pertains to the affairs of the same temple. As at present, the administration is smoothly conducted and if at all any mal-administration or unnecessary interference by any person is made, the statutory authority as contemplated under the Act has got ample power and as such a writ of mandamus is not required to be issued. Further, no specific instances of such interference is pointed out in this writ petition. Therefore, if at all any such instances are W.P.(C) Nos.14303 & 14424 of 2008 9 specifically brought to the notice of the administration, they will duly consider the same. 9. As regards the prayer made in W.P.(C) No.14303 of 2008 is concerned, pursuant to the order passed by the Commissioner, Non Hereditary Trustees were appointed and they have already taken charge. The newly appointed Executive Officer, if not already taken charge, will assume charge and proceed with the administration of the temple, in accordance with the directions. However, this will be subject to the outcome of the decision in the Civil Suit, if any, to be filed by the petitioner and we leave his rights open. In such circumstances, it has become unnecessary to go into the merits of the contentions raised in the writ petition, in the view we are taking. 10. Any decision taken by the Commissioner is always subject to the remedy available under the Act, viz., to approach the Civil Court, which is also statutorily recognised and conferred. Going by the age of the petitioner and the factual averments, we cannot find prima facie that the petitioner could W.P.(C) Nos.14303 & 14424 of 2008 10 continue to function as President fully utilising his time and energy for the administration of the temple. However, we need not foreclose his remedies to approach the Civil Court and the prima facie view expressed by us will not stand in the way of the petitioner establishing his right and challenging the order, if any, on valid grounds. In the circumstances, we close these writ petitions, without prejudice to the right, if any, of the petitioners to seek appropriate remedies, as may be advised. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.