IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 7237 of 2009(Y) ------------------------- PETITIONER(S): --------------- A.C. BHANUNNI @ VALLUVANATTUKARA, VALLABHA VALIYA RAJA, TRUSTEE, THIRUMANDAMKUNNU BHAGAVATHY DEVASWOM, ANGADIPURAM, PERINTHALMANNA, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE, A DV. SRI RAMPRASAD UNNI T. & ADV. SMT. SMITHA GEORGE RESPONDENT(S): --------------- 1. THE COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS (ADMN.), DEPARTMENT, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF DEVASWOMS - H.R & C.E (ADMINISTRATION) GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. SRI CHANDRAHASA MENON (RETD. TEACHER), PEACE VILLA, PERINTHALMANNA, MALAPPURAM DISTRICT. ADDL.R4. A.C.VENUGOPALA RAJA, S/O. M. SEKHARAN NAMBOODIRIPPAD, DEVAPADAM, NORTH NADA, ANGADIPPURAM, PERINTHALMANNA, MALAPPURAM DISTRICT (IMPLEADED VIDE ORDER DT. 23/3/2009 ON IA 3607/09.) R2 BY SR. GOVT. PLEADER SRI R. LAKSHMI NARAYANAN ADV. SRI.K.M.SATHYANATHA MENON FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.S. GOPINATHAN, JJ. ----------------------------------- W.P.(C) NO. 7237 of 2009 ----------------------------------- DATED:MARCH 25, 2009. JUDGMENT Raman, J. The challenge in this writ petition is against Ext.P6 order by which the hereditary trustee, Valluvanattukara Vallabha Valiya Raja, who was dismissed from his position as hereditary trustee and in his place a fit person is appointed. It was contended that Ext.P6 order was passed on non-existent grounds which, on the face of it, are flimsy and that at any rate, an order to dismiss the hereditary trustee could not have been passed. 2. The learned Government Pleader submitted that since there is a statutory right of appeal under sec.45 (5) of the Hindu Religious and Charitable Endowments Act, the writ petition is not maintainable. Pending further consideration of the matter, we, by an interim W.P.(C) NO. 7237 of 2009 :2: order dated 5th March 2009, granted a stay of Ext.P6 to the limited extent of appointment of a fit person to manage the affairs of the temple and in that place we directed that Sri M.C. Ravi Varma Raja of Mangala Kovilakam will discharge the functions of the trustee. It was submitted then that Sri M.C. Ravi Varma Raja was the next seniormost member of the family. Subsequently I.A.No.3581/2009 was filed by the petitioner producing Exts.P7 and P8. It is averred in the affidavit filed in support of the petition that Sri Ravi Varma Raja had sent a fax message to the Commissioner, Malabar Devaswom Board, expressing his inability to take charge as trustee and instead somebody who is residing near the temple may look after the affairs of the temple and he authorised Sri A.C.Venugopala Raja, aged 76 years, to act on his behalf. Ext.P7 is the fax message. According to the petitioner, Ext.P7 indicates that Sri Ravi Varma Raja has executed a power-of-attorney in favour of Sri A.C.Venugopala Raja. It is also contended that the W.P.(C) NO. 7237 of 2009 :3: Commissioner has no power to substitute a hereditary trustee of his choice without intimating the same to this Court. Petitioner suggests Sri Kalidasa Raja to act as the hereditary trustee and contends that he is more suitable than Sri A.C.Venugopala Raja. It is alleged that Sri M.C. Ravi Varma Raja is also disqualified, according to the petitioner, since he is facing some enquiry. We are not called upon to decide as to who should be appointed as the next trustee as it is beyond the scope of this proceedings and uncalled for at this stage and in the view we are taking. 3. As against Ext.P6 order, petitioner has a right of appeal under sec.45(5) of the Hindu Religious and Charitable Endowments Act. According to the petitioner this is not an effective remedy in so far as some party members have raised some complaints against the petitioner and the appeal being filed to the Government, the Appellate Authority may not decide the matter independently and may be influenced by extraneous considerations. W.P.(C) NO. 7237 of 2009 :4: 4. Secondly it is contended that the Commissioner has no jurisdiction to pass Ext.P6 order and it virtually takes away the right of the petitioner guaranteed under Arts.25 and 26 of the Constitution of India and since the order is contended to be vitiated by reason of infringement of such fundamental rights, it is contended that the proper forum to consider these matters is only the High Court and not the Appellate Authority. 5. The appeal against Ext.P6 order to the Government is a statutory appeal as we have indicated in the foregoing paragraph. Therefore, the Appellate Authority is exercising a quasi-judicial function and unlike an appeal on the administrative side, merely because there is an allegation that some party worker has made a complaint against the petitioner without naming who he is and what is the nature of the complaint, it is not possible to come to the conclusion that the appellate remedy is ineffective. On the other hand, the appeal being a statutory appeal, we W.P.(C) NO. 7237 of 2009 :5: expect the Appellate Authority to dispose of the appeal in accordance with law considering the merits of the contentions raised independently without being influenced by any other considerations. In the absence of any personal bias, we find that the petitioner cannot be allowed to bypass a statutory right of appeal and invoke the special extraordinary jurisdiction of this Court under Art.226 of the Constitution of India. 6. As regards the contention based on Arts.25 and 26 is concerned, it is to be noticed that the action is taken in exercise of sec.45 of the Hindu Religious and Charitable Endowments Act. Therefore, it is in exercise of a statutory power that the order is passed. So long as the section is beyond challenge, there is no merit in the contention that the petitioner's right under Arts.25 ad 26 are violated. The question that would arise for consideration is as to whether the power has been properly exercised under sec.45 and whether a case has been made out against the W.P.(C) NO. 7237 of 2009 :6: petitioner. We have, in extenso, heard the petitioner on the different charges just to find out whether any jurisdictional question arises for consideration. We find that the contentions were on the merits of the case with reference to the charge and his reply and whether the charge is sustained or not. As such, this is a case where the matter has to be considered on the merits and whether the charges are proved and, if so, whether the punishment of dismissal from the trusteeship is warranted on the proved charges. That is an exercise to be made by the Appellate Authority. Hence we decline to exercise the jurisdiction under Art.226 and relegate the petitioner to invoke the appellate remedy. Since the matter was pending in this Court, we direct that if an appeal is filed within one month from today, the Appellate Authority will consider the matter expeditiously and dispose of the same in accordance with law after hearing the petitioner. 7. Till the appeal is disposed of, an interim arrangement has to be made. We have already passed an W.P.(C) NO. 7237 of 2009 :7: interim direction, but since Sri M.C.Ravi Varma Raja has shown his inability to personally supervise the affairs as a trustee and he himself has nominated Sri Venugopala Raja, who is also a member of the family, aged 76 years, and residing nearby, we think it is appropriate to modify the interim order and substitute the name of Sri Venugopala Raja in the place of Sri M.C. Ravi Varma Raja as a temporary measure to discharge the functions of the trustee till the appeal is disposed of. It is brought to our notice that Utsavam has already started and the hereditary trustee has got certain customary rights. We make it clear that removal of the petitioner from the trusteeship will not disentitle him to exercise his customary right during festival season as the seniormost member of the family. The writ petition is thus disposed of. P.R. RAMAN, JUDGE. W.P.(C) NO. 7237 of 2009 :8: P.S. GOPINATHAN, JUDGE. mt/-