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 12TH NOVEMBER 2009 / 21ST KARTHIKA 1931 WP(C).No. 27048 of 2009(A) -------------------------- PETITIONER(S): --------------- DR.MELETH CHATHUKUTTY NAMBIAR, S/O.KODOTH CHATHU NAIR,AGED 85 YEARS,RESIDING IN KASARAGODE,HEREDITARY TRUSTEE OF SRI.CHANDRAGIRI SASTHA KSHETHRAM,BAKEL,KASARAGOD. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENT(S): --------------- 1. THE COMMISSIONER OF THE MALABAR DEVASWOM BOARD,COMMISSIONERS OFFICE,KOZHIKODE. 2. THE JUNIOR SUPERINTENDENT THE MALABAR DEVASWOM BOARD,COMMISSIONERS OFFICE, KOZHIKODE. 3. STATE OF KERALA,REPRESENTED BY ITS CHIEF SECRETARY,SECRETARIAT,THIRUVANANTHAPURAM. BY ADV. SRI.K.MOHANAKANNAN,SC,MALABAR DEVASWOM FOR R1 & 2 BY GOVT. PLEADER SRI.R.LAKSHMI NARAYAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON ON 12/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.27048 OF 2009 EXT.P1 A TRUE COPY OF NOTICE DATED 18.3.2009 EXT.P2 A TRUE COPY OF THE WRITTEN OBJECTION. EXT.P3 A TRUE COPY OF COMMUNICATION DATED 18.7.2009 EXT.P4 A TRUE COPY OF THE GENERAL NOTICE DATED 18.7.2009. //TRUE COPY// P.A. TO JUDGE. P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- W.P.(C) No.27048 of 2009 ------------------------------- Dated this the 12th November, 2009 J U D G M E N T Raman, J. The petitioner is the hereditary trustee in management of Sri.Chandragiri Sastha Kshethram at Bekel in Kasargod District. The said Sri.Chandragiri Sastha Kshethram along with Sri.Trikkanad Trimbekeshwara Temple at Bekel, are the two ancient temples managed by an ancient Tarawad. These temples are managed under a scheme framed in 1955 in proceedings O.A.No.46 of 1955. It is submitted that the temple is a public temple under the Hindu Religious and Charitable Endowments Act, 1951. Earlier, the Commissioner, by order dated 7.9.2004, sought to appoint five non-hereditary trustees and to constitute a Board of trustees for the administration of the temple, and that was the subject matter of challenge before the Sub Court, Kasargod, as O.P.No.30 of 2004. It is stated that Sub Court, by order dated 28.2.2005, allowed the Original W.P.(C) No.27048 of 2009 2 Petition holding that the order impugned cannot be sustained in law. It is submitted that now by yet another notice, dated 18.3.2009, proceedings are commenced for appointment of non- hereditary trustees, as evidenced by Ext.P1. Ext.P2 is the objection filed thereto and Ext.P3 is the further communication received on this behalf by the petitioner, wherein, it is stated that so many complaints are received against the administration of the temple. Further, in the larger interest of the temple also, it is necessary to appoint non-hereditary trustees. Thereafter, the first respondent, Commissioner, proceeded to take steps for appointment of non-hereditary trustees, as evidenced by Ext.P4. 2. Pursuant to the notice issued, respondents 1 and 2 have filed a statement. But no counter affidavit is seen filed. It is stated that as per Clause 3(a) of the Scheme for the administration of the temple, the authority has the power of appoint non-hereditary trustees not exceeding five. Further, it is stated that though the petitioner has approached the Sub Court, Kasargod, by filing O.P.No.27/1999, the Sub Court declined to W.P.(C) No.27048 of 2009 3 interfere with the matter and directed the Commissioner to proceed with the process of selection. It is further averred that the present steps were taken without affording an opportunity of hearing to the petitioner, and the petitioner will be given an opportunity for hearing, before the final orders are passed in this regard. 3. The appointment of non-hereditary trustees, if it is in accordance with the scheme, notice of the same has to be given. Admittedly Ext.P3 would show that the appointment is not done based on the Scheme, but because of the allegation raised by the public against the administration. If so, the proceedings under Section 39 of the HR & CE Act should have been taken. Necessarily, notice will have to be issued to the trustee and the further proceedings under the said provision can be initiated, only after conducting an enquiry and hearing him. In the present case, neither of these things has been done. Accordingly, the proceedings now initiated to appoint non-hereditary trustees by Exts.P3 and P4 is quashed. However, W.P.(C) No.27048 of 2009 4 this will not stand in the way of the respondents, Malabar Devaswom, in taking fresh steps, if so advised, but strictly in accordance with law. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.