IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 WP(C).No. 30470 of 2008(B) -------------------------- PETITIONER ----------------- A.C.BHANUNNI @ VALLUVANATTUKARA VALLABHA VALIYA RAJA, TRUSTEE, THIRUMANDHAMKUNNU BHAGAVATHY DEVASWOM, ANGADIPURAM, PERINTALMANNA, MALAPPURAM DISTRICT. BY ADVS. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SMT.SMITHA GEORGE SRI.MANU TOM RESPONDENT(S): ------------------------- 1. THE COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS (ADMN.) DEPT., KOZHIKODE. 2. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. STATE INFORMATION COMMISSION, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SMT.R.LAKSHMINARAYAN R3 BY ADVS. SRI.M.AJAY, SC, STATE INFORMATION COMMN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2011, ALONG WITH WPC NO. 31034 OF 2008 WPC NO. 36894 OF 2008 WPC NO. 14355 OF 2009 WPC NO. 33448 OF 2008 WPC NO. 32520 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30470 of 2008(B) ------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF THE CIRCULAR DATED 14.8.08 ISSUED BY THE COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS (ADMN.) DEPT., KOZHIKODE. RESPONDENT'S EXHIBITS : NIL ------------------------------------- / TRUE COPY / P.A. TO JUDGE VK Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).Nos.30470/2008-B, 31034/2008-T, 32520/2008-U, 33448/2008-F, 36894/2008-P & 14355/2009-L = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 11th day of March, 2011. Judgment “CR” Thottathil B.Radhakrishnan, J. 1. These writ petitions are filed challenging an order of the Commissioner of the Malabar Devaswom Board, hereinafter referred to as the “MDB”, designating Executive Officers/ Managers/ Trustees/ Chairmen/ Madathipathis/ Managing Trustees/ Presidents/ Secretaries or any other authority, of whatever designation, carrying out the administration of temples which fall under the jurisdiction of the MDB as State Public Information Officers under section 5(1) of the Right To Information Act, WPC30470/08 & Con.cases -: 2 :- 2005, hereinafter referred to as the “RTI Act”. Also impugned in one of the writ petitions, is an appellate decision rendered under the provisions of the RTI Act, repelling the contentions of one of the petitioners, who stood relegated to that authority by an order of this Court. 2. The petitioners are different Devaswoms/ Hereditary Trustees/ Trustees/ Executive Officers of different Devaswoms which administer different temples to which the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951, hereinafter referred to as the “HR & CE Act”, apply. They contend that they do not fall within the expression "public authority" under the RTI Act and therefore they do not have any obligation to act in terms of the provisions of that Act. The impugned order is criticized as issued without jurisdiction or authority of law and one that impinges the fundamental rights guaranteed under Articles 25 & 26 of the WPC30470/08 & Con.cases -: 3 :- Constitution of India. The said order is impeached as amounting to unauthorized fetter on the powers of the hereditary trustee and one affecting the right to administer the religious institution in accordance with the customary beliefs. The petitioners point out that Hereditary Trustees, Trustees and Executive Officers of different Devaswoms are not servants in the employment of the MDB or the HR & CE Department. They plead that the impugned order proceeds on the erroneous premise and basis that the temple office is an administrative unit of the MDB. It is contended that the RTI Act does not apply to Devaswoms represented by the petitioners and such Devaswoms are not public authorities within the purview of the RTI Act. It is specifically contended that no such Devaswom is a body owned, controlled or financed, directly or indirectly, by the appropriate Government. It is pointed out that in many temples, the administration is regulated by schemes framed as enjoined by law and carries no element of WPC30470/08 & Con.cases -: 4 :- “public authority” as defined in the RTI Act. Making specific reference to section 91 of the HR & CE Act, it is contended that the said provision by itself is abundant material to show that the Devaswoms are not public authorities for the purpose of the RTI Act. Petitioners impeach the impugned order as unconstitutional, void, inoperative and unenforceable. 3. The Commissioner of MDB has filed counter affidavits pointing out that in terms of the provisions of the HR & CE Act, the trustees are bound to administer the trust and its affairs, funds and properties in accordance with the terms of the trust, usage of the institution and all lawful directions as may be issued by the competent authority. On that premise, it is contended that certain registers are to be maintained in terms of the provisions of section 25 of the HR & CE Act, as regards salaries, allowances and perquisites. It is contended that under section 18 of the HR & CE WPC30470/08 & Con.cases -: 5 :- Act, the Commissioner has the power to examine the regularity, legality and propriety of any act or omission of the trustees in respect of the administration of the temple and the Commissioner is authorized to annul, reverse or modify any decision, or remit any matter for consideration. Reference is made to section 20 of the HR & CE Act to state that the Commissioner has the power of superintendence and control over the religious institutions and such power includes the power to pass any order for ensuring that the funds and properties of a temple are duly appropriated for the purpose for which that temple is founded. On this premise also, it is pointed out that the MDB and the temples coming under its control are not excluded from the purview of the RTI Act. It is contended that since MDB comes under the purview of the RTI Act, the records of the temples and institutions coming under the control of MDB are public records. It is pointed out that section 23 mandates obedience to lawful orders of MDB authorities and WPC30470/08 & Con.cases -: 6 :- therefore it is imperative that the petitioners obey the contents of the impugned order. The plea of the petitioners that the impugned order infracts the fundamental rights guaranteed under Articles 25 & 26 of the Constitution of India is contested as unsustainable. 4. Heard learned Sr. Adv. M.C.Sen, Sr. Adv. K.Ramkumar and Adv. K.Lakshminarayanan on behalf of the petitioners, the learned Senior Government Pleader R.Lakshmi Narayan and the learned standing counsel for MDB, K. Mohanakannan. 5. Reiterating the petitioners’ contentions noticed above, the learned senior counsel appearing for them argued that the temples and the trustees or other office bearers of the trust including the Executive Officer cannot fall within the purview of the RTI Act inasmuch as the institutions in question are not public authorities for the purpose of that Act. It is argued that the MDB or the Commissioner does WPC30470/08 & Con.cases -: 7 :- not exercise any control beyond the scope of the concept of supervision in terms of the provisions of the RTI Act. It is further argued that no fund is received by the temple from the Government and the Government has no involvement in the affairs of the temples. The impugned action infracts Articles 25 & 26 of the Constitution and would amount to unauthorized interference with the affairs of the temple and its management, argued the learned counsel. The definition of “public authority” under section 2 (h) of the RTI Act is referred to point out that the Devaswoms to which the HR & CE Act applies do not fall within the scope of that term and hence information cannot be accessed from them invoking the provisions of the RTI Act and there could be no action as has been done through the impugned order. 6. Per contra, the learned Government Pleader argued that it cannot but be conceded by the petitioners that the temples are public temples WPC30470/08 & Con.cases -: 8 :- and the Temple Advisory Committees are constituted as per the provisions of the HR & CE Act and therefore, are public authorities for the purpose of the RTI Act. He said that whatever may be the quality of office of trustees, in so far as Temple Advisory Committees are concerned, they would be amenable to the provisions of the RTI Act and that, this needs to be ensured because those committees are predominantly involved in raising funds by collection from the public, for the purpose of various matters in connection with the temples. He argued that the revisional power of the Government under section 99 of the HR & CE Act is not merely a quasi-judicial power but is a power to control the institutions to the lowest level in the hierarchy of administration, that is to say, to reach down to the level of the office of the temple to ensure that all is well. 7. The learned standing counsel for MDB pointed out that the Executing Officer is one appointed WPC30470/08 & Con.cases -: 9 :- under a statutory provision, to wit, section 66 of the HR & CE Act and that being so, there is nothing wrong in the Executing Officer of the temple being notified as information officer under the RTI Act. Making reference to the RTI Act, its preamble, objects and reasons and the purpose of its coming into being, it is pointed out that transparency in the administration of the temples has to be ensured since public make offerings and such funds are essentially funds belonging to the public. 8. The substance of the impugned decision issued by the Commissioner is that the authority that carries out the administration of the temple under the HR & CE Department is designated as State Public Information Officer under section 5(1) of the RTI Act. In cases where the administration is vested with Madathipathi/ Managing Trustee/ Chairman or President and there is also an Executive Officer under the provisions of the HR & CE Act, the Executive Officer shall be the State Public Information WPC30470/08 & Con.cases -: 10 :- Officer. Provision is also made to the effect that any officer in the temple office, next senior in hierarchy, to the administrative authority or any temple servant in temple or office shall be the Assistant Public Information Officer in a temple and the Assistant Commissioner of the Division shall be the Appellate Authority to Public Information Officers in temples. 9. Section 5(1) of the RTI Act provides, among other things, that every public authority shall designate information officers in all administrative units or offices under it. The impugned order is issued on the premise that the temple or its office is an administrative unit or office under the MDB, which is a public authority. The question that, therefore, arises for determination is as to whether a temple falling under the provisions of the HR & CE Act or the office of such a temple is an administrative unit or office under a public authority. If the answer to this query is in WPC30470/08 & Con.cases -: 11 :- the affirmative, as a necessary corollary, “information”, in terms of the RTI Act, in relation to such temples and offices, ought to be available for access under the provisions of that Act. 10.To answer the aforesaid, the first issue to be decided is as to whether a temple falling under the provisions of the HR & CE Act or the office of such a temple is an administrative unit or office under the MDB or its Commissioner. We therefore proceed to consider, to the extent relevant, the quality of relationship between the MDB and its Commissioner on the one hand, and the temples and their offices, on the other. The clue to this issue lies in the HR & CE Act. 11.MDB is constituted by a notification of the Government under section 7 of the HR & CE Act. It is a body corporate, having perpetual succession and common seal, with power to acquire, hold and dispose of properties and to WPC30470/08 & Con.cases -: 12 :- enter into contracts and may sue and be sued in its name. Its constitution is in terms of the statutory provision. It has different standing committees as provided in section 7L. Section 8C provides for the appointment of officers and employees of the MDB. The Commissioner of MDB is appointed by the Government. He shall also function as the Secretary of the MDB. Section 8 provides that all powers and duties under the HR & CE Act, in respect of various religious institutions of the Malabar area, that have been exercised or performed by the Commissioner, Deputy Commissioners, Assistant Commissioners and Area Committees before the commencement of the amending Act of 2008, shall vest in the MDB, on its constitution. Section 8A provides that, subject to the other provisions of the HR & CE Act and supervision and control by the MDB, the Commissioner, Deputy Commissioners, Assistant Commissioners and Area Committees exercising any power or performing any duty under that Act, before the commencement of the amending Act of 2008, shall WPC30470/08 & Con.cases -: 13 :- continue to exercise such powers and perform such duties, as officers of MDB, as if those powers are delegated to them by the MDB. Under section 8B, the MDB shall have the power to assume the direct management of any religious institution, provided the trustees request the MDB to take over its management unconditionally. The MDB shall have the power to fix and regulate the service conditions and pay structure of the officers and employees of the temples from time to time and to supervise its implementation. The MDB may maintain a welfare fund scheme for the benefit of the officers and employees of the temples in the manner as may be prescribed. Section 8D enjoins that all appointments of officers and employees of the MDB, except the Commissioner, for which direct recruitment is resorted to, shall be made from a select list of candidates belonging to Hindu religion, furnished by the Kerala Public Service Commission in accordance with the law made for the exercise of this additional function by the Public Service WPC30470/08 & Con.cases -: 14 :- Commission. Thus, the MDB is an institution which is constituted under the provisions of the HR & CE Act. It is therefore a “public authority” for the purpose of the RTI Act. It is an establishment, a juristic person and a body corporate, having perpetual succession and common seal. 12.Section 4 of the HR & CE Act empowers the Government to exempt from the operation of any of the provisions of that Act or rules framed thereunder; any religious or charitable institution or endowment of the categories mentioned in that section. Section 1 of the Act provides, among other things, that the Act applies to all Hindu public religious institutions and endowments of the whole of the Malabar District, but does not apply to Jain religious institutions and endowments. “Malabar District” is to be understood with reference to Section 5(2) of the States Re-organization Act, 1956 and “Malabar area” means the area comprised in Malabar District - See Section 6 WPC30470/08 & Con.cases -: 15 :- (9a) of HR & CE Act. 13.Charitable endowment, Math, religious charity, religious endowment, religious institution, specific endowment, temple, trustee, are all terms defined in section 6 of the HR & CE Act. Those definitions do not contain any semblance of any manner of jural relationship between any of those entities and the MDB as if any of them is an administrative unit or office under the MDB establishment, which is a public authority for the purpose of the RTI Act. There is no umbilical link between the MDB and the temples or offices of the temples in the Malabar district, either statutory or otherwise. The power to supervise, regulate and control such establishments under the authority of the HR & CE Act does not make those establishments, the administrative units and offices, of, or, under, the MDB. As already noticed above, section 5 (1) of the RTI Act operates only as regards the administrative units and offices under a public authority. Therefore, section 5 WPC30470/08 & Con.cases -: 16 :- (1) of the RTI Act does not authorize MDB or its Commissioner to treat the temples and temple offices as administrative units or offices of the MDB and thereby appoint or designate Madathipathi/ Managing Trustee/ Chairman or President or Executive Officer of the temples as information officers under the RTI Act. 14.Incidentally, an issue which needs to be considered along with the aforesaid, is as to whether the appointment of an Executive Officer for a temple under Section 66 of the HR & CE Act is decisive on the point. Under that provision, a salaried Executive Officer is appointed for every institution notified under Chapter VI and such appointment is made by the Commissioner. The conditions and reasons on which the religious institution could be notified to be subject to the provisions of Chapter VI are provided in section 63. The primary intention is to enable appropriate control in cases of mismanagement. The WPC30470/08 & Con.cases -: 17 :- appointment of salaried Executive Officer for such an institution, though made by the Commissioner, the salary and allowances of that Executive Officer shall be paid from the funds of the religious institution. Therefore, the mere fact that the appointment of Executive Officer under section 66 is made by the Commissioner does not enable the Government or the MDB to contend that the Executive Officer so appointed, is an employee of the MDB or is in charge of the affairs of an administrative unit or office of the MDB. 15.For the aforesaid reasons, in any view of the matter, the temples and offices of the temples falling under the HR & CE Act are not establishments, administrative units or offices of, or under, the MDB. Therefore, neither the MDB nor its Commissioner has the authority to issue any order under section 5 (1) of the RTI Act, in relation to those establishments. The impugned order proceeds by treating the temples and offices of the temples falling under the HR WPC30470/08 & Con.cases -: 18 :- & CE Act as administrative units or offices of the MDB. The order impugned is therefore issued without the authority of law. 16.Now, are the temples and their offices public authorities for the purpose of the RTI Act? 17.The temples and their offices are not established or constituted by or under the Constitution of India or by or under any other law made by, either the Parliament or a State Legislature. They are also not established or constituted by notification issued or order made by any Government. They are not bodies owned by any Government. The fact that some of them are notified or listed temples in terms of the provisions of the HR & CE Act does not make them institutions established or constituted by or under any law or notification or order issued by any Government. 18.Insofar as the question of control is concerned, while the Government has the power WPC30470/08 & Con.cases -: 19 :- to supersede the MDB, it cannot substitute itself for the MDB and it cannot be the MDB. The governmental control, if any, as part of the revisional power or otherwise, is only statutory control, the exercise of which always depends upon the existence of the jurisdictional facts which would trigger the exercise of such statutory control. Such statutory controls, which are regulatory or even adjudicatory in nature, do not, in any manner, confer on the Government such control as would transform the temples and their offices as administrative units or offices of the MDB which is a statutory body; juristic person, with perpetual succession and common seal. Having regard to the power of the MDB and the Commissioner to frame any scheme in relation to any Hindu public religious and charitable institution or endowment to which the HR & CE Act applies, such authority and the power of supervision or control by the Commissioner or MDB is strictly confined to the provisions of the HR & CE Act, limited and WPC30470/08 & Con.cases -: 20 :- regulated by jurisdictional facts in conformity with a regulatory statute. That is not a power to control, but one only to regulate. Any manner of expansion of the limits of such authority would invade the freedom and protection guaranteed under Articles 25 and 26 of the Constitution of India as laid down by the Division Bench of this Court in Padmanabha Shenoi v. Srimad Anantheswar Temple, 1984 (2) ILR Kerala 734. 19.A search of the statutory provisions contained in HR & CE Act would show that the temples or temple offices are not financed by any Government. As rightly pointed out by Sr. Adv. M.C.Sen on behalf of the petitioners, section 76 of the HR & CE Act would show that the temples have to contribute; not vice versa. That Act also provides sufficient teeth to ensure such payment by the temples and for recovery on failure. The Executive Officer, if any appointed, has to be paid salary etc from the funds of the temple. The amount equivalent WPC30470/08 & Con.cases -: 21 :- to that which may be spent by the MDB for exercising its supervisory control over the religious establishment has also to be paid by that establishment. These provisions categorically show that there is no financing for the temples and religious establishments by the Government. 20.This takes us to the further submission of the learned Senior Government Pleader that the temples to which HR & CE Act applies are public temples and the Temple Advisory Committees are public authorities for the purpose of the RTI Act since they are constituted as per the statutory provisions in HR & CE Act and it needs to be ensured that they are amenable to the provisions of the RTI Act as they are predominantly involved in raising funds by collection from public, for the purpose and matters in connection with the temples. The Temple Advisory Committees are conceived and constituted in terms of the statutory provisions. Section 14 of the HR & CE Act WPC30470/08 & Con.cases -: 22 :- provides that Temple Advisory Committees may be constituted for each temple, not inconsistent with the existing custom and practices, for the purpose of ensuring adequate participation of Hindu devotees. Therefore, the provision is only an enabling one and the purpose of such a provision is to generate adequate participation of Hindu devotees. It is further provided that the composition of the Temple Advisory Committee shall be in such manner as may be prescribed and the Committees formed under that provision shall be approved by the Board. Therefore, the Temple Advisory Committee is not an extended limb or office of the MDB. It is also not constituted by the MDB, but gets constituted as a committee ensuring adequate participation of Hindu devotees. That process shall not be inconsistent with any existing custom or practice. A committee so constituted shall be approved by the Board. This is the provision in sub-section 2 of Section 14 of the HR & CE Act. Such provisions are insufficient to make any Temple Advisory Committee fall WPC30470/08 & Con.cases -: 23 :- within the definition of “public authority” in Section 2(h) of the RTI Act, by virtue of its constitution and composition. Now, the question would be regarding the funds. Managing or dealing with funds collected from public is not, by itself, a statutory indicia to classify any authority or body or institution as a public authority under Section 2(h) of the RTI Act. There is substantial difference between the concept of funds raised by collection from public contribution and funds provided by the appropriate