IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 WP(C).No. 12275 of 2007(J) -------------------------------------- PETITIONERS: --------------------- 1. MUTTIL SREE VISHNU KSHETRA SAMITHY, REP.BY ITS SECRETARY SRI P.ACHUTHAN, VYTHIRI TALUK, WAYANAD DISTRICT. 2. T.K.KERALA VARMA VALIYA RAJA, SREE KAUSTHUBHAM, THAMARASSERY, KOZHIKODE. BY ADV. SRI.M.P.ASHOK KUMAR. RESPONDENT: ---------------------- THE ASSISTANT COMMISSIONER, H.R.& C.E. (ADMINISTRATION), KOZHIKODE. BY SRI.K.MOHANAKANNAN,S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.12275/2007-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTICE DTD. 28/03/2006. EXT.P.2: COPY OF THE REPLY DTD. 08/08/2006 SUBMITTED BY THE P.2. EXT.P.3: COPY OF THE NOTICE DTD. 17/02/2007. EXT.P.4: NIL. EXT.P.5: COPY OF THE REPLY – DTD. 25/03/2008 ISSUED BY THE HR & CE. EXT.P.6: COPY OF THE REPORT FOR THE YEAR 2006-07, 2007-08, 2008-09. EXT.P.7: COPY OF THE AUDITED REPORT FOR THE YEAR 2006- 2007. EXT.P.8: COPY OF THE EXTRACT OF THE STATEMENT OF ACCOUNTS FOR THE YEAR 2006-2007. EXT.P.9: COPY OF THE AUDITED REPORT FOR THE YEAR 2007 – 2008. EXT.P.10: COPY OF THE EXTARCT OF THE STATEMENT OF ACCOUNTS FOR THE YEAR 2007-2008. EXT.P.11: COPY OF THE AUDITED REPORT FOR THE YEAR 2008-2009. EXT.P.12: COPY OF THE EXTRACT OF THE STATEMENT OF ACCOUNTS FOR THE YEAR 2008-2009. RESPONDENTS' EXHIBIT: EXT.R1.A: THE NOTIFICATION (ADMN.) DPT., KOZHIKODE DTD. 15/02/1994. //TRUE COPY// P.A. TO JUDGE. Prv. THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- W.P(C).No.12275 OF 2007 ------------------------------------------- Dated this the 22nd day of October, 2010 JUDGMENT “C.R.” Thottathil B.Radhakrishnan, J. 1. Muttil Sree Maha Vishnu Temple, Wynad, is one which could be included in the list of temples having annual income of less than Rs.1 lakh, in terms of the Hindu Religious & Charitable Endowments Act, 1951, for short the 'Act'. The Area Committee under the Act would then have jurisdiction in relation to that temple. The second petitioner is the hereditary trustee of that temple. Ext.P1 was issued to him by the Assistant Commissioner under the Act, calling for views on the proposal of the Area Committee to appoint a non-hereditary trustee for the temple. He gave Ext.P2 reply to Ext.P1, vividly describing the reasons why a non-hereditary trustee is not to be appointed. Without even making reference to that, Ext.P3 was issued by the Assistant Commissioner inviting applications for appointment of a non-hereditary trustee for the temple. WPC.12275/07 2 The whole exercise is impugned in this writ petition and the matter stands stayed from the stage of admission. 2.During the pendency of the writ petition, Malabar Devaswom Board came into being. The quality of office of the Area Committee has also changed. The Assistant Commissioner is no more the Chairman of the Area Committee, in terms of the statute. Therefore, even the Area Committee's constitution has changed after the issuance of Ext.P1. 3.Even if we were to assume that there is statutory power and authority for the Area Committee to take any action to propose for the removal of the hereditary trustee or for the appointment of a non-hereditary trustee, the formulation of such opinion and the reasons for generating such a view are to be notified to the persons concerned, particularly the hereditary trustee. This is because the formulation of such opinion has a nexus not only to the suggestion to appoint a non-hereditary trustee but also the intention to take certain WPC.12275/07 3 decisions in relation to endowments which fall for governance in terms of the Act. Having regard to the quality, nature and powers of the office of a hereditary trustee, any proposal to appoint a non-hereditary trustee for a temple is a matter of serious and grave consequences in relation to the administration of a temple and the endowments therewith. In that view of the matter, no action can be initiated by merely calling for objections to any proposal or a tentative decision to appoint a non-hereditary trustee without explicitly setting out the grounds or reasons on which such a proposal is being made. Ext.P1 does not disclose any reason or even any apprehension, on the basis of which, the said notice was issued. We find no reason being suggested in Ext.P1 notice for the so-called proposal contained therein. Obviously therefore, we have necessarily to assume that even Ext.P2 objections were filed by the second petitioner only on the basis of his own assumptions, presumptions and speculations as to what would be working in the collective mind of the Area Committee or the Assistant Commissioner and what would have been the WPC.12275/07 4 foundation for the issuance of notice in the form of Ext.P1. Under such circumstances, we find no ground to sustain Ext.P1. The same is only to be quashed. 4.In so far as Ext.P3 is concerned, the invitation for applications for appointment of a non-hereditary trustee could have been issued only after a decision is taken that a non-hereditary trustee is required to be appointed for the purpose of a temple. No such decision is shown to have been taken. The counter affidavit attempts to demonstrate that the matter was considered. The Area Committee is an official institution. It exercises certain powers and is bound by certain duties in terms of the Act. Equally, is the office of the Assistant Commissioner. Regularity of official acts is one of the core foundations of every establishment. That has to be ensured by the regularity in the maintenance of official records. Therefore, application of mind on objections or representations should be found in the files and are not to be generated merely through counter affidavits. Any assertion that a decision, WPC.12275/07 5 statutory or even otherwise, was taken, has to be demonstrated by the availability of such decision in the files. No decision by any authority, institutional or individual, could be off the official files. Any plea of such an 'off the file' decision is only to be deprecated. There is no shred of material in the files to show that the contents of Ext.P2 was looked into or that any decision was taken necessitating the invitation of applications for appointment of a non-hereditary trustee. Though it is suggested in the counter affidavit that Ext.P3 followed a decision on Ext.P2, there is no such decision available on record. Not only that, Ext.P3 is merely an invitation for applications for appointment of a non-hereditary trustee. It does not contain even a syllable in answer to the statements in Ext.P2 by the hereditary trustee. Even if there is jurisdiction for the Area Committee to decide as to whether a non-hereditary trustee has to be appointed and jurisdictional facts exist to make such appointment, no decision to invite applications could have been taken or applications invited without first deciding on the question whether a non- WPC.12275/07 6 hereditary trustee needs to be appointed. It goes without saying that such decision can be taken only after hearing the hereditary trustee, that too, only after notifying the hereditary trustee of the grounds for the proposal. For the aforesaid reasons, this writ petition succeeds. In the result, it is allowed quashing Exts.P1 and P3. We clarify that we have not expressed anything on the quality of the contentions on facts as are raised by the rival parties to this writ petition. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.22/10.