IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 RP.No. 1223 of 2007(B) ( AGAINST THE JUDGMENT IN WPC.13871/2007 Dated 18/08/2007) .................... REVIEW PETITIONERS/RESPONDENTS: ----------------------------------------------- 1. STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT, DEVASWOM DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS, THIRUVANANTHAPURAM. 3. THE ASSISTANT COMMISSIONER, HR & CE, ADMINISTRATION DEPARTMENT, MALAPPURAM. BY GOVERNMENT PLEADER SRI.R.LAKSHMINARAYANAN. RESPONDENT/PETITIONER: ---------------------------------- N.M. KADAMBAN NAMBOODIRIPAD, PRESIDENT, TALI TEMPLE KSHETHRA SAMRAKSHANA SAMITHY, ANGADIPURAM, MALAPPURAM DISTRICT, KERALA. BY ADV. SRI.K.RAMAKUMAR (SR.) THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN, JJ. --------------------------------------------- R.P.No. 1223 of 2007 in W.P(C) No.13871 of 2007 --------------------------------------------- Dated this the 29th day of January, 2008 O R D E R Raman,J: The matter relates to the appointment of Non Herditary Trustees in a temple, by name Thali Kshethra. The challenge was against Ext.P1 notice issued by the Assistant Commissioner, H.R & C.E., Administration Department, Malappuram. This Court, by judgment dated 18th August, 2007, quashed Ext.P1 notice holding that as per Section 39 of the Hindu Religious and Charitable Endowment Act, 1951 (for short 'the H.R.& C.E.Act'), where a religious institution included in the list published under Section 38 or over which no Area Committee has jurisdiction, has no hereditary trustee, the Commissioner shall constitute a Board of Trustees consisting of not less than three and not more than five persons appointed by him and hence, the section can be invoked by the Commissioner or the Assistant Commissioner, as the case may be, only if the religious R.P.No. 1223 of 2007 :-2-: institution is included in the list published under Section 38 of the Act. 2. The present review petition is filed by the State, who are respondents in the writ petition, inter alia contending that as per Section 12 read with Section 38 of the Act, the Area Committee has jurisdiction in the temples which are not included in the list published under Section 38. Hence, it is contended that the observations of this Court to the effect that the temple in question is not included in the list prepared under Section 38 of the Act and therefore, the powers under Section 39 can be exercised only if the religious institution is included in the list published as per Section 38 are erroneous. It is also contended that the provisions under Section 12 of the H.R.&C.E.Act could not be brought to the notice of the Division Bench while rendering the judgment. It is also contended that in a temple where the Area Committee has jurisdiction under Section 12 of the Act, the appointments of Non Hereditary Trustees are done by virtue of Section 41 of the Act and the listed temples are specifically excluded R.P.No. 1223 of 2007 :-3-: by virtue of Section 12 of the Act. 3. In the counter affidavit filed in the above review petition, it is contended that the review petition itself is not maintainable and that the review petition ought to have been filed under Article 226 of the Constitution of India instead of filing an application invoking the provisions contained in O.XLVII R.1 of the Code of Civil Procedure, since the provisions contained in the C.P.C. are not applicable. 4. It is also contended that non-consideration of Section 12 of the H.R.&C.E.Act is not a ground for review. According to the respondents, the above provision has no relevance. It is also contended that interpretation of the powers under Section 11 of the Act is also under consideration of this Court and all the other provisions of law have already been considered and hence, there is no scope for reviewing the judgment. 5. We have heard the parties. 6. The writ petition was filed under Article 226 of the Constitution of India. Hence, the mere fact that the Review Petition was filed referring to the provisions R.P.No. 1223 of 2007 :-4-: contained in the Code of Civil Procedure itself is not a reason for contending that the application is not entertainable, because since admittedly it is a matter arising under Article 226 of the Constitution of India, this Court is entitled to consider the review application if there are errors apparent on the face of record. Hence, we hold that the present petition cannot be dismissed on the ground of maintainability. 7. Coming to the merits of the contention raised in the review petition, we find that the finding of this Court was that the Commissioner can exercise the powers under Section 39 of the Act only in cases where religious institution is included in the list published under Section 38 or over which no area committee has jurisdiction. Admittedly, the temple involved in this case is not included in the list. On the other hand, even according to the review petitioners, it is a temple coming within the jurisdiction of the Area Committee. If so, there is no error apparent on the face of record with reference to the interpretation of Section 39 of the Act. R.P.No. 1223 of 2007 :-5-: 8. Section 12 of the Act provides for constitution of the Area Committee for temple situated in the Assistant Commissioner's division or part thereof other than temples included in the list published under Section 38. But, there is no power conferred on the Assistant Commissioner similar to the power conferred on the Commissioner under Section 39. Section 41 of the Act gives power to the Area Committee to appoint Trustees which inter alia provides that in the case of any religious institution over which an Area Committee has jurisdiction, the Area Committee shall have the same power to appoint trustees as is vested in the Commissioner in the case of a religious institution referred to in Section 39. In the case of a temple coming within the jurisdiction of the Area Committee, the same power as is vested in the Commissioner is vested with the Area Committee. Ext.P1 Notice issued does not show that the Assistant Commissioner was acting for and on behalf of the Area Committee. Even though the counter affidavit says that such power was exercised by the Committee and the Assistant R.P.No. 1223 of 2007 :-6-: Commissioner has only issued notice based on the powers of the Committee, Ext.P1 Notice on the face of it does not refer to any such proceedings of the Area Committee. Hence, we find, in the factual situation, that there is no error apparent on the face of record in quashing Ext.P1. However, we clarify that in the case of a temple coming within the jurisdiction of the Area Committee, similar power that is conferred on the Commissioner under Section 39 could be exercised by the said Area Committee. Subject to the above, this Review Petition is dismissed. P.R.RAMAN, Judge Mbs/ V.K.MOHANAN, Judge R.P.No. 1223 of 2007 :-7-: P.R.RAMAN & V.K.MOHANAN, JJ. -------------------------------------------- O.P.NO. OF 2001 ------------------------------------ J U D G M E N T R.P.No. 1223 of 2007 :-8-: DATED: -2007