IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 WP(C).No. 26865 of 2007(W) -------------------------- PETITIONERS: ------------ 1. K.N.KRISHNAN NAMBOOTHIRI, KAVUMPURATH NADUVATH MANA, KALLADATHOOR, KUMARANELLOOR, PALAKKAD DISTRICT - 679 552. 2. PROF.K.VIJAYAKUMAR, SECRETARY, KERALA KSHETHRA SAMRAKSHANA SAMITI NO.644, RESIDING AT BALACHANDRA NIVAS, KALLADATHOOR, KUMARANELLOOR, PALAKKAD DISTRICT - 679 552. 3. K.N.NARAYANAN NAMBOOTHIRI, S/O.K.N.KRISHNAN NAMBOOTHRIRI, JOINT SECRETARY, KERALA KSHETHRA SAMRAKSHANA SAMITI NO.644, RESIDING AT KALLADATHOOR, KUMARANELLOOR, PALAKKAD DISTRICT - 679 552. BY ADV. SRI.GOVIND K.BHARATHAN (SR.) RESPONDENTS: ------------- 1. THE COMMISSIONER, HR & CE (ADMN) DEPARTMENT, KOZHIKODE. 2. THE ASSISTANT COMMISSIONER, HE & CE (ADMN) DEPARTMENT, TIRUR, MALAPPURAM DISTRICT. BY GOVERNMENT PLEADER SHRI LAKSHMI NARAYANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF SAKHA REGISTRATION CERTIFICATE ISSUED BY THE KSHETRA SAMRAKSHANA SAMITHI EXT.P2-3 PHOTOGRAPHS SHOWING THE ORIGINAL STATE OF THE TEMPLE IN 1982 AND ITS PRESENT STATE AFTER RENOVATION AND RECONSTRUCTION OF SEVERAL PORTIONS OF THE TEMPLE. EXT.P3-TRUE COPY OF A LETTER FROM BRAHMA SREE PATTAMBI ANDALADY MANAKKAL NRAYANAN NAMBOODIRIPAD EXT.P4- PHOTO COPY OF THE RELEVANT PAGES OF THE S/B ACCOUNT OF DISTRICT CO-OP. BANK, PADINJARANGADI. EXT.P5-TRUE COPY OF RELEVANT PORTION OF THE BOOKLET OF THALAPPOLI AND SIVARATHRI CELEBRATIONS FOR THE YEAR 2007 (16.2.2007) EXT.P6-TRUE COPY OF THE RELEVANT PORTION OF THE BOOKLET OF THE DWAJAPRATHISHTA AND DRAVYAKALASAM OF THE SIVA, VISHNU, DEVI TEMPLES ON JANUARY 2007. EXT.P7-TRUE COPY OF NOTICE DATED 7.5.2007 EXT.P8-TRUE COPY OF LETTER DATED 31.5.2007 SENT TO R2 BY SECOND PETITIONERS EXT.P9-TRUE COPY OF ADVERTISEMENT IN THE MALAYALA MANORAMA DATED 11.8.2007 EXT.P10-TRUE COPY OF PETITION SIGNED BY 292 DEVOTEES, ADDRESSED TO THE ASST. COMMISSIONE, 2ND RESPONDENT. RESPONDENTS' EXTS: EXT.R1(A) NOTICE OF HR & CE COMMISSIONER EXT.R1(B)- JUDGMENT IN MFA 230/87 DATED 17.1.97 // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.26865 of 2007-W - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2008. JUDGMENT Raman, J. The petitioners seek for a declaration that the respondents have no manner of right to appoint non-hereditary trustees for Sree Kalladathoor Devi Kshethram by invoking the provisions of Section 39(2) of the Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as 'the Act'), to call for the records relating to Ext.P7 and to quash the same by the issuance of a writ of certiorari or such other appropriate order, etc. and for other consequential reliefs. The respondents are the Commissioner, H.R. & C.E. Department, Kozhikode and the Asst. Commissioner, H.R. & C.E. Department, Tirur, Malappuram District. The first petitioner is stated to be the Ooralan of the above said temple. The temple is being administrated by the Kshetra Samrakshana Samithi. The Samithi is stated to be a registered society. According to them, the temple is being managed properly, conducting rituals as per custom including Utsavam. While so, the Asst. Commissioner issued Ext.P7 notice stating that the hereditary trustee of the temple has ceased to have any interest in the temple affair and Wpc 26865/2007 -2- he is not giving proper care and attention in the matter of administration of the temple. Hence, invoking the provisions contained in Section 39(2) of the Act, the Asst. Commissioner proposed to appoint non-hereditary trustees. It is further stated in Ext.P7 that objection, if any, is required to be submitted within 15 days of the notice. Ext.P8 is the reply submitted by the Secretary of the Samithi. According to the first petitioner, the Samithi consists of all the hereditary trustees and its Joint Secretary is none other than his son and therefore a separate reply as such was not given by the first petitioner trustee. But, without even considering Ext.P8 reply submitted, the authorities are proceeding to make appointments pursuant to Ext.P7 by inviting applications for appointment to the post of Non-hereditary Trustees. The newspaper advertisement contained in the Malayala Manorama Daily dated 11.8.2007 is produced as Ext.P9 in this behalf. Various members of the public have got strong objection in the matter of taking over the administration of the temple and vesting the same with the non-hereditary trustees, as is evidenced by the objection submitted by the public, a copy of which is produced as Ext.P10. 2. It is contended that Ext.P9 notice inviting applications for the post of Non-hereditary Trustees is in violation of the mandatory provision contained in Section 39(2) of the Act in so far as no enquiry or finding is Wpc 26865/2007 -3- entered into by the authority concerned. It is contended that in order to invoke the powers under Section 39(2), a finding has to be recorded with reasons stated and communicated to the trustees before which no steps could be taken for appointment of non-hereditary trustees in a temple where a hereditary trustee is already there in the administration of the same. 3. Respondent No.2 has filed a counter affidavit, wherein it is stated that despite notice issued under Ext.P7, no specific reply has been submitted by the hereditary trustee and the reply has only been submitted by the Samithi. Therefore, they proceeded to issue notice under Ext.P9. Further, it is stated that before making actual appointment, any objection filed to Ext.P7 will also be considered. Being only at the notice stage, it is prayed that no interference is called for. 4. Heard both sides, Admittedly, the temple is not a religious institution but not included in the list published under Section 38 of the Act. By virtue of Section 41 read with Section 39 of the Act, the power to appoint trustees as is vested with the Commissioner, is vested with the Area Committee under Section 41 of the Act. Therefore, in the present case the powers of the Commissioner is vested with the Area Committee. 5. Then, the question is whether the Area Committee has exercised the power in accordance with the procedure as contemplated under Section Wpc 26865/2007 -4- 39(2) of the Act. There is a finding recorded against the trustee that he is not giving proper care and attention to the administration of the temple. According Mr. Govind Bharathan, learned Senior Counsel appearing for the petitioners, no reasons are stated in Ext.P7 before it reached the conclusion that there is any lack of interest or proper care in the matter of administration of the temple by the hereditary trustee. In the view we are taking, we are not at present entering into the merit of the case. It is true that a reply has been submitted by the Samithi. May be that the hereditary trustee or his family members may also be members of the Samithi, but as contemplated under Section 39(2) of the Act, a notice is required to be issued only to the hereditary trustee, since it directly affects his right when a non-hereditary trustee is sought to be appointed. Such a notice has been given. Therefore, the first petitioner herein may submit his objection to Ext.P7 raising all his contentions before the Area Committee within a period of two weeks, whereupon the Area Committee will consider such objection and pass appropriate orders. If the Area Committee rejects the contention raised by the petitioner and comes to a conclusion that circumstances warrant appointment of a non-hereditary trustee, needless to say that it should record its reasoning and communicate the same to the first petitioner. Till such time these proceedings are completed, no appointment Wpc 26865/2007 -5- to the post of a Non-hereditary Trustee pursuant to Ext.P9 shall be made. In the result, the Writ Petition is allowed as above. We leave open all the contentions raised in the Writ Petition since we have not entered a finding on merits. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/