Aithappa Shetty and others v. Commissioner, Malabar Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 WP(C) NO. 17731 OF 2021** ## **PETITIONER/S:** - **1 AITHAPPA SHETTY AGED 55 YEARS S/O.BANTAPPA SHETTY, RESIDING AT DEVANDAPADPU HOUSE, VORKADY POST AND VILLAGE, MANJESHWARA TALUK, KASARAGOD DISTRICT, PIN - 671 323.** - **2 SEETHARAMA B. S/O.POOVAPPA POOJARY, BERINJA HOUSE, VORKADY P.O., KASARAGOD DISTRICT, PIN - 671 323.** - **3 PRABHAKARA RAI K. S/O.AITHAPPA RAI K., KALPANE HOUSE, VORKADY P.O., KASARAGOD DISTRICT, PIN - 671 323.** **4 JAGADEESHA C. S/O.PADMANABHA, CHANDLA HOUSE, VORKADY P.O., MANJESHWAR (VIA), KASARAGOD DISTRICT, PIN - 671 323.** - **5 M.VASUDEVA S/O.SANKARA NARAYANAYYA, MARIKAPU BANDASALE HOUSE, VORKAY P.O., MANJESHWAR (VIA), KASARAGOD DT., PIN - 671 323.** **BY ADVS. PUSHPARAJAN KODOTH K.JAYESH MOHANKUMAR VANDANA MENON VIMAL VIJAY** ## **RESPONDENT/S:** - **1 COMMISSIONER, MALABAR DEVASWOM BOARD HOUSEFED COMPLEX, P.O.ERANHIPALAM, KOZHIKODE, PIN - 673 006.** W.P(C).No.17731 of 2021 -2- - **2 THE ASSISTANT COMMISSIONER MALABAR DEVASWOM BOARD, KASARAGOD, NILESHWARAM, P.O.NILESHWARAM, KASARAGOD, PIN - 671 314.** **3 BALAKRISHNA AGED 53 YEARS S/O.SHANKARANARAYANAPPA, EX-CHAIRMAN, SREE MADIKATHAYA DOOMAVATHI TEMPLE, VORKADY POST AND VILLAGE, MANJESHWARA TALUK, KASARAGOD DISTRICT, PIN - 671 323.** - **4 LAXMINARAYANA HOLLA AGED 59 YEARS S/O.LATE M.SHESHAPPA, HOLLA, MARIKAPU HOUSE, VORKADY VILLAGE AND POST, MANJESHWARA TALUK, KASARAGOD DISTRICT, PIN - 671 323.** **5 CIRCLE INSPECTOR MANJESHWARA POLICE STATION, MANJESHWARA TALUK, KASARAGOD DISTRICT - 671 323.** **BY ADVS.** **SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD P.B.KRISHNAN K.SHRIHARI RAO N.SHOBHA P.B.SUBRAMANYAN SABU GEORGE MANU VYASAN PETER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.01.2022 AND THE COURT ON 02.03.2022 DELIVERED THE FOLLOWING:** W.P(C).No.17731 of 2021 -3- ## **JUDGMENT** ## Anil K. Narendran, J. The petitioners 1 to 3 are appointed as non-hereditary trustees of Sree Madikathaya Doomavathy Temple, Manjeswar, Kasaragod, vide Resolution No.38 dated 22.06.2019 of the Area Committee, Malabar Devaswom Board, Kasaragod Division, for a period of two years with effect from the date of taking charge as trustees. The 2[nd] respondent Assistant Commissioner, Malabar Devaswom Board, Kasaragod approved the decision of the Area Committee, vide order No.A2-162/2019(MDB) dated 22.06.2019, and directed the Inspector, Malabar Devaswom Board, Kasaragod Division, to convene a special meeting of the newly appointed trustees to elect Chairman of the Board of Trustees, within 15 days. By Ext.P1 proceedings dated 03.07.2019 of the 2[nd] respondent, the ongoing Chairman of the Temple was directed to handover charge of all movable and immovable properties of the Temple, including gold and silver articles owned by the Devaswom, to the newly elected Chairman and submit a report with copy of the charge list duly signed by the ongoing Chairman and the newly elected W.P(C).No.17731 of 2021 -4- Chairman. Based on Ext.P1 proceedings, the 1[st] petitioner was elected as the Chairman of the Temple. Later, petitioners 4 and 5 were appointed as non-hereditary trustees of the said Temple, for a period of two years with effect from the date of taking charge as trustees, vide Resolution No.4 dated 09.01.2020 of the Area Committee. The 2[nd] respondent, vide Ext.P2 proceedings dated 03.02.2020, approved the decision of the Area Committee and directed the Inspector, Malabar Devaswom Board, Kasaragod Division, to convene a special meeting of the newly appointed trustees, within 15 days. Based on Ext.P2 proceedings, a special meeting with the newly elected trustees was convened, with notice to all the members. 2. The petitioners have filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P18 notification dated 06.08.2021 issued by the 2[nd] respondent inviting applications for the post of non-hereditary trustees, with 15.09.2021 as the last date for submission of application and permit the petitioners to - continue as non hereditary trustees of the Temple for two years from the date of handing over charge of the Temple by W.P(C).No.17731 of 2021 -5- respondents 3 and 4. The petitioners have also sought for a writ of mandamus commanding the 1[st] respondent Commissioner, Malabar Devaswom Board to implement Ext.P14 order dated 19.07.2021, whereby respondents 3 and 4 were directed to handover the keys of ‘bandara veedu’ where gold and silver ‘thiruvabharanam’ are kept and also the movable and immovable properties of the Temple to the newly elected Chairman, and permit the petitioners to continue as non-hereditary trustees of the Temple for two years from the date of handing over the charge as non-hereditary trustees of the Temple; to declare that the petitioners are entitled to continue as non-hereditary trustees of the Temple for a period of two years from the date of handing over the charge to the petitioners by respondents 3 and 4; and for a writ of mandamus commanding respondents 1 and 2 to consider Ext.P16 petition dated 06.08.2021 submitted by the Chairman of the Temple seeking an order to re-appoint the petitioners - herein as non hereditary trustees of the Temple, since respondents 3 and 4 are yet to handover charge of the Temple, and to direct respondents 1 and 2 not to proceed with Ext.P18 notification till such time. In the writ petition, the W.P(C).No.17731 of 2021 -6- grievance of the petitioners is that, though they were appointed as non-hereditary trustees of the Temple based on Exts.P1 and P2 proceedings of the 2[nd] respondent Assistant Devaswom Commissioner, the 3[rd] respondent, who is the outgoing Chairman of the Temple, has not handed over them the charge of the Temple. 3. On 02.09.2021 when this writ petition came up for admission, the learned Standing Counsel for Malabar Devaswom Board took notice on admission for respondents 1 and 2 and the learned Senior Government Pleader took notice on admission for the 5[th] respondent. Urgent notice on admission by speed post was ordered to respondents 3 and 4, returnable within 3 weeks. 4. A statement dated 27.10.2021 has been filed by the learned Standing Counsel for Malabar Devaswom Board, on behalf of the 1[st] respondent, opposing the reliefs sought for in this writ petition. 5. On 28.09.2021, when this writ petition came up for consideration, this Court observed that, the movable and the immovable properties, including gold and silver articles, referred to in this writ petition belongs to the deity Sree W.P(C).No.17731 of 2021 -7- Madikathaya Doomavathi, a perpetual minor. As borne out from the pleadings and materials on record there are some disputes between the petitioners and respondents 3 and 4, as to possession of those properties. The status of the petitioners and respondents 3 and 4 are that of trustees, since the deity is a perpetual minor. 6. The petitioners have filed a reply affidavit dated 06.11.2021. The 3[rd] respondent has filed a counter affidavit dated 18.11.2021. The 4[th] respondent has filed a counter affidavit dated 23.11.2021. The petitioners have filed a reply affidavit dated 26.11.2021 to the counter affidavit filed by the 4[th] respondent. 7. On 25.11.2021, when this writ petition came up for consideration, the learned counsel for the petitioner submitted that Ext.P13 petition filed by the petitioners, invoking the provisions under Section 87 of the Hindu Religious and Charitable Endowments Act, 1951 is now pending consideration before the 1[st] respondent, Commissioner, which is being adjourned at the instance of the 4[th] respondent, pointing out the pendency of this writ petition. W.P(C).No.17731 of 2021 -8- 8. On 20.12.2021, the learned Standing Counsel for Malabar Devaswom Board submitted that the Temple festival was already over on 18.12.2021 and that, petitioners 4 and 5 are required to be present in the Temple on 23.12.2021. Along with I.A.No.1 of 2021, the petitioners have produced Ext.P19 order dated 14.12.2021 issued by the 1[st] respondent. The said interlocutory application was allowed by the order dated 20.12.2021. 9. On 03.01.2022, when this writ petition came up for consideration, the learned counsel for the petitioners and also the learned Standing Counsel for Malabar Devaswom Board submitted that, on 23.12.2021, the 4[th] respondent has handed over the jewellery and other articles of the deity to petitioners 4 and 5 and also to three newly elected non-hereditary trustees. On 20.01.2022, the learned Standing Counsel for Malabar Devaswom Board has filed an additional statement on behalf of the 1[st] respondent. 10. Heard the learned counsel for the petitioners, the learned Standing Counsel for Malabar Devaswom Board for respondents 1, 2 and 5, the learned counsel for the 3[rd] respondent and also the learned counsel for the 4[th] W.P(C).No.17731 of 2021 -9- respondent. 11. As per sub-section (2) of Section 1 of the Madras Hindu Religious and Charitable Endowments Act, 1951, the provisions under the said Act extends to the whole of the Malabar District and applies to all Hindu public religious institutions and endowments. Section 39 of the Act deals with trustees and their number and term of office. As per subsection (1) of Section 39, 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. As per sub-section (2) of Section 39, where, in the case of any such institution having a hereditary trustee or trustees; the Commissioner after notice to such trustee or trustees, and after such enquiry as he deems adequate, considers for reasons to be recorded, that the affairs of the institution are not, and are not likely to be, properly managed by the hereditary trustee or trustees, the Commissioner may, by order appoint such number of nonhereditary trustees as he thinks necessary, so however that W.P(C).No.17731 of 2021 -10- the total number of trustees does not exceed five. As per subsection (3) of Section 39, every trustee appointed under subsection (1) and, subject to the result of an application, if any, - filed under sub-section (4), every non hereditary trustee - appointed under sub section (2) shall hold office for a term of two years, unless in the meanwhile the trustee is removed or dismissed or his resignation is accepted by the Commissioner or he otherwise ceases to be a trustee. As per sub-section (4) of Section 39, where the Commissioner by order appoints a non-hereditary trustee or trustees the hereditary trustee or trustees may, within thirty days of the receipt of the order, file an application to the Court to set aside or modify such order. As per sub-section (5) of Section 39, where a vacancy arises in the office of a non-hereditary trustee appointed under subsection (2) the Commissioner shall not fill up such a vacancy unless, for reasons to be recorded, he considers it necessary to do so. A non-hereditary trustee appointed in the vacancy shall be deemed to have been appointed under sub-section (2) and the provisions of sub-sections (3) and (4) shall apply accordingly. W.P(C).No.17731 of 2021 -11- 12. In the statement filed on behalf of the 1[st] respondent Commissioner, it is stated that, non-hereditary trustees are appointed for a term of 2 years, as provided under sub-section (3) of Section 39 of the Act, and there is no provision for granting extension of their term of appointment. Petitioners 1 to 3 were appointed as non-hereditary trustees based on Ext.P1 proceedings of the 2[nd] respondent and they took charge on 20.07.2019. The term of appointment of - petitioners 1 to 3 as non hereditary trustees of the Temple had expired on 19.07.2021. As such, the prayer in the writ petition for their continuance as non-hereditary trustees of the Temple is unsustainable. On the other hand, petitioners 4 and 5, who were appointed as non-hereditary trustees of the Temple, based on Ext.P2 proceedings of the 2[nd] respondent are still continuing as non-hereditary trustees, since their term has not expired. 13. The learned counsel for the petitioners contended that, though petitioners 1 to 3 and petitioners 4 and 5 took charge as non-hereditary trustees of the Temple based on Ext.P1 and P2 proceedings of the 2[nd] respondent, the movable and immovable properties of the Temple were not handed W.P(C).No.17731 of 2021 -12- over to them, by respondents 3 and 4, and as such they are entitled for extension of their term of appointment or for reappointment as non-hereditary trustees of the Temple for a further period of two years. The learned Standing Counsel for the Travancore Devaswom Board pointed out that, as evidenced by Ext.P10 notice dated 16.02.2021, Ext.P11 communication dated 16.02.2021 and Ext.P14 communication dated 19.07.2021, respondents 1 and 2 have taken steps to handover the petitioners the movable and immovable properties of the Temple, by issuing necessary directions to respondents 3 and 4. 14. Section 87 of the Act provides for p utting trustee or Executive Officer in possession of the property. As per Section 87, where a person has been appointed (a) as trustee or executive officer of a religious institution or, (b) to discharge the functions of a trustee of a religious institution in accordance with the provisions of this Act, or (c) in any scheme framed by the Board before the commencement of this Act, and such person is resisted in, or prevented from, obtaining possession of the religious institution or of the records, accounts and properties thereof, by a trustee, office- W.P(C).No.17731 of 2021 -13- holder or servant of the religious institution who has been dismissed or suspended from his office or is otherwise not entitled to be in possession or by any person claiming or deriving title from such trustee, office-holder or servant, not being a person claiming in good faith to be in possession on his own account or on account of some person not being such trustee, office holder or servant, or any Magistrate of the first class in whose jurisdiction such institution or property is situated shall, on application by the person so appointed, and on the production of the order of appointment, and where the application is for possession of property, of a certificate by the Commissioner in the prescribed form setting forth that the property in question belongs to the religious institution, direct delivery to the person appointed as aforesaid of the possession of such religious institution, or the records, accounts and properties thereof, as the case may be. 15. As per the first proviso to Section 87 of the Act, before issuing any such certificate in respect of any property, the Commissioner shall give notice to the trustee, officeholder or servant of the religious institution, as the case may be, of his intention to issue the certificate and consider the W.P(C).No.17731 of 2021 -14- objections; if any, of such trustee, office-holder or servant. As per the second proviso to Section 87, for the purpose of proceedings under this Section, the certificate aforesaid shall be conclusive evidence that the properties to which it relates belong to the religious institution. As per the third proviso to Section 87, nothing contained in this Section shall bar the institution of a suit by any person aggrieved by an order under this Section for establishing his title to the said property. As per Explanation to Section 87, a person claiming under an alienation contrary to the provisions of Section 29 or 35 shall not be regarded as a person claiming in good faith within the meaning of this Section. 16. On 09.02.2021, the petitioners herein filed W.P. (C)No.3497 of 2021 before this Court, seeking a writ of mandamus commanding respondents 1 and 2 to implement Ext.P1 order dated 03.07.2019 to the extent it directed the 3[rd] respondent, who is the outgoing Chairman of the Temple, to handover the charge of all movables and immovable properties of the Temple, including gold and silver articles owned by the Devaswom, to the newly elected Chairman forthwith. The petitioners have also sought for other W.P(C).No.17731 of 2021 -15- consequential reliefs, including a writ of mandamus commanding the 1[st] respondent to consider Ext.P9 representation dated 20.01.2021 made by the petitioners forthwith. That writ petition was disposed of by Ext.P12 judgment dated 23.03.2021, with liberty to the petitioners to approach the 1[st] respondent appropriately for invocation of the power under Section 87 of the Act. 17. In Ext.P12 judgment dated 23.03.2021 in W.P. (C)No.3497 of 2021 this Division Bench noticed that, a bare perusal of Section 87 of the Act would reveal that it provides the procedures for putting trustee or executive officer in possession, certainly, of all articles belonging to any particular Devaswom. Going by the same, any decision invoking the provisions thereunder can be taken only after putting notice to the affected parties or parties likely to be affected and also after affording them an opportunity to raise objections. Despite the existence of such a provision, even after assuming charge as early as on 03.07.2019, the petitioners have not, so far, approached the 1[st] respondent seeking invocation of the power under Section 87 of the Act to redress grievance regarding failure on the part of respondents 3 and 4 to W.P(C).No.17731 of 2021 -16- handover the movable and immovable properties of the temple, in accordance with law. Ext.P9 representation would reveal that, even after assuming charge as early as on 03.07.2019, the petitioners made such a complaint with respect to the failure to hand over the charge of the aforementioned articles and properties, by respondents 3 and 4, only on 20.01.2020. 18. Taking into account the nature of prayers sought for in W.P.(C)No.3497 of 2021 and also the time lapse in making Ext.P9 representation and also in view of the existence of specific power under Section 87 of the Act, the Division Bench found that it is not a fit case where the High Court should decide the issues involved invoking the jurisdiction under Article 226 of the Constitution of India and therefore, the parties can be relegated to avail the remedy under Section 87 of the Act. In the aforesaid view of the matter, without making any observation regarding the claims and contentions raised by the petitioners against respondents 3 and 4, the Division Bench disposed of W.P.(C)No.3497 of 2021 with liberty to the petitioners to approach the 1[st] respondent appropriately for invocation of the power under W.P(C).No.17731 of 2021 -17- Section 87 Act, and the 1[st] respondent was directed to consider the same and take appropriate steps in accordance with law, as expeditiously, with notice to respondents 3 and 4 and any other person legally entitled to notice in such a proceedings. 19. As noticed in Ext.P12 judgment of the Division Bench in W.P.(C)No.3497 of 2021, even after assuming charge as early as on 03.07.2019, petitioners 1 to 3 have not chosen to invoke the statutory remedy provided under Section 87 of the Act to redress their grievance regarding failure on the part of respondents 3 and 4 to handover the movable and immovable properties of the temple, including gold and silver articles owned by the Devaswom. They moved the representation, which was marked as Ext.P9 in W.P. (C)No.3497 of 2021, before the 1[st] respondent only on 20.01.2021. Having failed to invoke the statutory remedy provided under Section 87 of the Act at appropriate time, the petitioners cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 2 to permit them to continue as non-hereditary trustees of the temple for W.P(C).No.17731 of 2021 -18- a period of two years, as sought for in this writ petition. 20. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC** **145]** , a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. 21. In **Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280]** the Apex Court held that in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to W.P(C).No.17731 of 2021 -19- enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. 22. **In State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. 23. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule W.P(C).No.17731 of 2021 -20- of law and not to pass the orders or directions which are contrary to what has been injected by law. 24. In the instant case, the term of appointment of a non-hereditary trustees is for two years, as provided under sub-section (3) of Section 39 of the Act, and there is no provision for granting extension of their term of appointment. In such circumstances, the petitioners cannot seek a writ of mandamus commanding respondents 1 and 2 either to extend their term of appointment as non-hereditary trustees of the temple, beyond the term of two years prescribed in Exts.P1 and P2 proceedings of the 2[nd] respondent, or to re-appoint them as non-hereditary trustees for a further period of two years after the expiry of their term of appointment, since no mandamus can be issued directing respondents 1 and 2 do something which is contrary to law. In that view of the matter, the petitioners cannot raise a valid challenge against Ext.P18 notification issued by the 2[nd] respondent inviting applications for the post of non-hereditary trustees in the temple in question. The petitioners are not entitled to a writ of certiorari to quash Ext.P18 notification issued by the 2[nd] respondent and to permit the petitioners to continue as non-hereditary W.P(C).No.17731 of 2021 -21- trustees of the temple for further term of two years. Therefore, the challenge made in this writ petition against Ext.P18 notification fails. 25. Section 24 of the Act deals with c are required of trustee and his powers. As per sub-section (1) of Section 24, subject to the provisions of the Madras Temple Entry Authorisation Act, 1947, the trustee of every religious institution is bound to administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of the institution and all lawful direction which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence would deal with such affairs, funds and properties if they were his own. As per sub-section (2) of Section 24, a trustee shall, subject to the provisions of this Act be entitled to exercise all powers incidental to the provident and beneficial administration of the religious institution and to do all things necessary for the due performance of the duties imposed on him. As per sub-section (3) of Section 24, a trustee shall not be entitled to spend the funds of the religious institution for meeting any costs, charges or expenses incurred by him in any suit, appeal or W.P(C).No.17731 of 2021 -22- application or other proceeding for, or incidental to, his removal from office or the taking of any disciplinary action against him. As per the proviso to sub-section (3) of Section 24, the trustee may reimburse himself in respect of such costs, charges or expenses if he is specifically permitted to do so by an order passed under Section 88. 26. Clause (y) of sub-section (2) of Section 100 of the Act deals with the rule making power of the State Government to make rules with reference to the qualifications to be possessed by the officers and servants for appointment to non-hereditary offices in religious institutions, the qualifications to be possessed by hereditary servants for succession to office and the conditions of service of all such officers and servants. Vide G.O.(Ms.)No.584 Rural Welfare dated 28.05.1952, the State Government made Rules under clause (y) of sub-section (2) of Section 100 with reference to the qualifications to be possessed by the officers and servants for appointment to non-hereditary offices in religious institutions, the qualifications to be possessed by hereditary servants for succession to office and the conditions of service of all such officers and servants. W.P(C).No.17731 of 2021 -23- 27. Admittedly, Sree Madikathaya Doomavathy Temple, Manjeswar, is a religious institution coming under the purview of the Madras Hindu Religious and Charitable Endowments Act, as amended as by Act No.31 of 2008, and hence, under the supervisory control of the 1[st] respondent Malabar Devaswom Board. In view of the provisions under Section 24 of the Act, referred to hereinbefore, the trustees of every religious institution are bound to administer its affairs and funds and properties in accordance with the terms of the trust, usage of the institution and as per all lawful directions, which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence would deal with such affairs, funds and properties, if they were his own. As such, in the management of temples and endowments, the role of trustee has much significance. 28. Section 45 of the Act deals with p ower to suspend, remove or dismiss trustees. As per sub-section (1) of Section 45, the Deputy Commissioner in the case of any religious institution over which an Area Committee has jurisdiction, and the Commissioner in the case of any other religious institution, may suspend, remove or dismiss any hereditary or W.P(C).No.17731 of 2021 -24- non-hereditary trustee or trustees thereof (a) for persistent default in the submission of budgets, accounts, reports or returns, or (b) for wilful disobedience of any lawful order issued under the provisions of this Act by the Government, the Commissioner or Deputy Commissioner, the Area Committee or the Assistant Commissioner, or (c) for any malfeasance, misfeasance, breach of trust or neglect of duty in respect of the trust, or (d) for any misappropriation of, or improper dealing with, the properties of the institution, or (e) for unsoundness of mind or other mental or physical defect or infirmity which unfits him for discharging the functions of the trustee. As per sub-section (2) of Section 45, when it is proposed to take action under sub-section (1), the Commissioner or the Deputy Commissioner, as the case may be, shall frame charges against the trustee concerned and give him an opportunity of meeting such charges, of testing the evidence adduced against him and of adducing evidence in his favour; and the order of suspension, removal or dismissal shall state the charges framed against the trustee, his explanation and the finding on each charge with the reasons therefor. As per the proviso to sub-section (1), the W.P(C).No.17731 of 2021 -25- Deputy Commissioner shall also consult the Area Committee before passing the final order under sub-section (1). 29. As per sub-section (3) of Section 45 of the Act, pending the disposal of the charges framed against the trustee, the Commissioner or the Deputy Commissioner may place the trustee under suspension and appoint a fit person to discharge the functions of the trustee. As per sub-section (4) of Section 45, it shall be open to an Assistant Commissioner to move the Deputy Commissioner to take action under subsection (1) in respect of any trustee of an institution over which an Area Committee has jurisdiction, and to place the trustee under suspension pending the orders of the Deputy Commissioner under sub-section (3). As per sub-section (5) of Section 45, a trustee who is suspended, removed or dismissed under sub-section (1), may, within one month from the date of the receipt of the order of suspension, removal or dismissal, appeal against the order to the Commissioner if it was passed by a Deputy Commissioner, and to the Government if it was passed by the Commissioner. 30. The learned Standing Counsel for Travancore Devaswom Board submitted that the provisions under Section W.P(C).No.17731 of 2021 -26- 45 of the Act could not be taken against respondents 3 and 4 since they are not continuing as trustees. Even though, strict directions were issued to respondents 3 and 4 to handover the charge of the movable and immovable properties, including gold and silver articles of the temple to the newly elected Chairman, respondents 3 and 4 have not complied with that direction. Invoking the provisions under Section 87 of the Act, the petitioners have filed Ext.P13 petition before the 1[st] respondent Commissioner, pursuant to the directions contained in Ext.P12 judgment of this Court in W.P. (C)No.3497 of 2021, and that petition is now pending consideration before the 1[st] respondent. 31. The learned counsel for the 3[rd] respondent submitted that, as stated in the counter affidavit, the 3[rd] respondent was the Chairman of the Temple from the year 1996 till 2019. Based on Ext.P1 proceedings of the 2[nd] respondent dated 03.07.2019, the 3[rd] respondent handed over whatever documents that were available with him, at that time, to petitioners 1 to 3. The 4[th] respondent forcibly took away the key of the trust office, ‘bandara veedu’, key of the locker and others records relating to movable and immovable W.P(C).No.17731 of 2021 -27- properties of the Temple. The 3[rd] respondent had informed the said fact to petitioners, vide Exhibit R3(a) complaint dated 03.12.2020 and the said fact was also informed to respondents 1 and 2 and also to the concerned Inspector, as evidenced by Exts.R3(b) to R3(d) postal receipts dated 07.12.2020, 08.12.2020 and 09.12.2020. The main key of the Temple is also with the 4[th] respondent. In spite of Ext.R3(a) complaint, neither the petitioners nor the Malabar Devaswom Board took any steps to recover the movable and immovable properties of the Temple from the 4[th] respondent. 32. In the counter affidavit filed by the 3[rd] respondent, it is stated that, on coming to know about the efforts taken by the 3[rd] respondent to recover the articles, the 4th respondent came to the house of the 3rd respondent on 12.09.2021 and threatened him of dire consequences, if he continues in his pursuit. Immediately, the 3[rd] respondent preferred Ext.R3(e) complaint dated 13.09.2021 before the Sub Inspector of Police, Manjeshwar Police Station, as evidenced by Ext.R3(f) receipt. According to the 3[rd] respondent, he has been associated with Temple for the past more than two decades, and there has never been any allegations raised against him. W.P(C).No.17731 of 2021 -28- He is interested only in the welfare of the Temple. 33. The learned counsel for the 4[th] respondent submitted that, as stated in the counter affidavit, the Temple is administered and managed by the people of the locality and the administration is through the Trustee, who are appointed by the Area Committee, Kasaragod, and the Board has only supervisory control. On 22.05.1994, in the meeting of the people of the locality, who are the devotees and beneficiaries of the Temple, it was unanimously decided that, all the ornaments of the Temple including the Treasury be kept in Vorkady Kapanamogaru, Banta Chavadi. From 23.05.1994 onwards one of the keys of Treasury was kept by Sri.Shankaranarayana, S/o. Maricapu Sheshapayya, Bandsale, and another key was kept by Sri.V. Devappa Shetty, S/o.Doomanna Shetty, Chavadi Bailu. On 03.06.1999 Sri.Shankaranarayana submitted a letter to the 2[nd] respondent to appoint Sri.Balakrishna, the 3[rd] respondent herein, as the non-hereditary Trustee of the Temple and the above matter was placed before the Area Committee, Kasaragod, in its meeting held on 30.06.1999. The Area Committee, vide Resolution No. 169, resolved to accept the resignation of W.P(C).No.17731 of 2021 -29- Sri.M.Shankaranarayana and appointed Sri.Balakrishna, the 3[rd] respondent herein, as the non-hereditary Trustee of the Temple and the above said appointment was until further orders and directed Sri.Shankaranarayana to hand over the Temple accounts, records and valuables to the 3[rd] respondent. Thus, the 3[rd] respondent become the single non-hereditary Trustee of the Temple. The 3[rd] respondent sent a letter dated 04.06.2005 to the 2[nd] respondent, stating that, due to personal problems he is resigning from the post of single nonhereditary trustee of the Temple. He made a further request that the 4[th] respondent may be appointed as the single nonhereditary trustee of the Temple. The 3[rd] respondent and the 4[th] respondent are from Maricapu family. The 4[th] respondent sent a letter dated 04.06.2005 to the 2[nd] respondent stating that he is ready and willing to discharge the duty as the trustee of the Temple and requested the 2[nd] respondent to appoint him in the place of the 3[rd] respondent. According to the 4[th] respondent, after tendering letter dated 04.06.2005, the 3[rd] respondent was relieved from all the duties and responsibilities of the trustee. The 3rd respondent had given the keys of the Treasury keeping the ornaments of the deity W.P(C).No.17731 of 2021 -30- to 4th respondent. Accordingly, the 4[th] respondent is holding one of the keys of the Treasury of the Temple. Till date the devotees or the beneficiaries of the temple or the officials of the Board has not questioned any action taken by the 4[th] respondent as the Managing Trustee of the Temple. As per custom and tradition, the members of Maricapu family alone can hold the charge of the Trustee of the Temple. Relying on various documents produced along with the counter affidavit, the 4[th] respondent would submit that, in between the years 2008 - 2019 he was holding the above post in the Temple in question, with the full knowledge and without any objection from the part of the Malabar Devaswom Board and the Area Committee. Relying on Exhibit R4(e) letter dated 01.03.2021, the 4[th] respondent would contend that he became the Administrative Trustee of the Temple as per the wish of the people in the locality. Till date nobody from the locality raised any objection or opposition against the 4[th] respondent holding the above post and holding one of the keys of the Treasury. 34. On 20.01.2022, the learned Standing Counsel for Malabar Devaswom Board has filed an additional statement on behalf of the 1[st] respondent, wherein it is stated that, as per W.P(C).No.17731 of 2021 -31- proceedings dated 03.12.2021, the Assistant Commissioner, Malabar Devaswom Board, Kasargod, appointed three nonhereditary trustees in place of petitioners 1 to 3 as their term has expired. The newly appointed non-hereditary trustees are Sri. Seetharama B., Sri. Prabhakara Rai K. and Sri. Praveena Shetty. As per the said proceedings, the Inspector, Malabar Devaswom Board, Kasargod Division, was directed to convene a meeting of the newly appointed trustees along with petitioners 3 and 4, the present trustees to elect the Chairman of the Board of Trustees. The Assistant Commissioner, Malabar Devaswom Board, by letters dated 09.09.2020 and 19.07.2021 respectively, directed respondents 3 and 4 to hand over all movables and immovables properties to petitioners 4 and 5. But those directions were not complied with. Appreciating gravity of the situation, it was decided to assume charge and accordingly order has been issued to petitioners 4 and 5 to assume charge, jointly in the presence of Verification Officer of the Malabar Devaswom Board, Thalassery, Division Inspector, Kasaragod and Village Officer. The 1[st] respondent Commissioner has issued Ext.P19 order dated 14.12.2021 for W.P(C).No.17731 of 2021 -32- assuming charge of gold and valuables of the Temple from the Chairman and Members of the previous Trustee Board, in the presence of Verification Officer, Thalassery, Division Inspector, Kasargod and Village Offer, with necessary Police assistance. In compliance of Ext.P19 order, the 2[nd] respondent Assistant Commissioner, the Verification Officer and other staff of the Board accompanied by the Village Officer, Vorkadi, Civil Police Officers of the station were present in the Temple on 15.12.2021 at 11.30 am. The present Trustees, namely, Sri. Jagadeesa and Sri.Vasudeva, were also present there, as required. The gold and valuables of the Temple are being kept in the specially designed quadrangles ‘bhandara mana’ which is worshipped as ‘moolastana’ of the Temple, where a lamp is being lighted daily and worshipped with devour. 35. In the additional statement, it is stated that, Sri Lakshmi Narayana Holla and Sri Balakrishna, who are the illegal custodians of gold and valuables have stated their stand that the keys of the ‘bhandara mana’ can be handed over only at the time of festival, after ‘Theyyam’ (Oracle) order the same. They also stated that only if it is so ordered, it is possible to hand over the keys, otherwise it will affect the W.P(C).No.17731 of 2021 -33- customs, rituals and practices of the Temple. Considering the fact that the upcoming festival was on 18.12.2021, the gold and silver articles kept in the locker custody have been verified with the assistance of locally availed goldsmith and duly recorded by the Board officials led by the 2[nd] respondent and after the verification process is over, the locker and the quadrangle (Chavadi) were sealed again. It was decided to defer the assumption of charge to 23.12.2021, soon after the end of festival. On 23.12.2021 the Board officials led by 2[nd] respondent, with the help of Police and Revenue Officers reached the temple. Then it was learnt that, even during the festival, the 4[th] respondent had handed over the keys of locker of gold and silver items. The 3[rd] respondent also had handed over the keys which were kept by him. A thorough verification was conducted to ascertain the gold and silver items and other valuables by the Verification Officer and it was confirmed that everything is intact as per the list. On that day, as one of the Trustees, Sri.Jagadeesha, the 4[th] petitioner was not available, as he had been admitted to the hospital. In view of that, the Trustee Board was convened with the newly appointed non-hereditary trustees and petitioners 4 and 5 and W.P(C).No.17731 of 2021 -34- a Chairman was elected. All the materials and valuables which were verified and found intact in the locker, along with a list of the items, which was handed over to the Chairman of the Trustee Board, Sri. Prabhakara Rai, and he assumed charge of the same. Accordingly, the charge of gold, silver and all other valuable items belonging to Madikathaya Doomavathy Temple was assumed by the present Trustee Board duly constituted by Malabar Devaswom Board. The 2[nd] respondent Assistant Commissioner, vide letter dated 24.12.2021, informed the above aspects to the 1[st] respondent Commissioner and also requested a thorough verification to confirm the genuineness or otherwise of gold, silver through the Verification Officer of the Board. The charge list prepared at the time of handing over of these materials including valuables to the present Board of Trustees is also submitted to the Commissioner by the Assistant Commissioner. 36. Section 36 of the Act provides that o ffice holders and servants of religious institutions not to be in possession of jewels, etc., except under conditions. As per Section 36, notwithstanding anything contained in any scheme settled or deemed to be settled under this Act or in any decree or order W.P(C).No.17731 of 2021 -35- - of a court, or any custom or usage to the contrary, no office holder or servant of a religious institution shall have the right to be in possession of the jewels or other valuables belonging to the religious institution except under such conditions and safeguards as the Commissioner may, by general, or special order, direct. 37. In the instant case, the appointment of Sri.Balakrishna, the 3[rd] respondent herein, as the nonhereditary Trustee of the Temple was approved by the Area Committee, vide Resolution No. 169 dated 30.06.1999. Though the 4[th] respondent would contend that, the 3[rd] respondent sent a letter dated 04.06.2005 to the 2[nd] respondent for resigning from the post of non-hereditary trustee of the Temple, due to personal problems, with a request that the 4[th] respondent may be appointed as the nonhereditary trustee of the Temple, there was no order by the competent authority appointing the 4[th] respondent as the nonhereditary trustee of the Temple. Therefore, the 3[rd] respondent had absolutely no authority to hand over the keys of the Treasury in which the ornaments of the deity are kept to the 4[th] respondent. Similarly, the 4[th] respondent, who has W.P(C).No.17731 of 2021 -36- not been appointed as the non-hereditary trustee of the Temple, has absolutely no authority to keep in his custody the keys of the Treasury in which the ornaments of the deity are kept. It is pertinent to note that, the specific stand taken in the counter affidavit filed by the 3[rd] respondent is that, the 4th respondent forcibly took away the key of the trust office, ‘bandara veedu’, key of the locker and others records relating to movable and immovable properties of the Temple. On coming to know about the efforts taken by the 3[rd] respondent to recover the articles, the 4[th] respondent came to the house of the 3[rd] respondent on 12.09.2021 and threatened him of dire consequences, if he continues in his pursuit. 38. As already noticed, in view of the provisions under sub-section (1) of Section 24, the trustee of every religious institution is bound to administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of the institution and all lawful direction which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence would deal with such affairs, funds and properties if they were his own. In view of the provisions under sub-section (1) of Section 45, the W.P(C).No.17731 of 2021 -37- Deputy Commissioner has ample power to suspend, remove or dismiss a non-hereditary trustee of the Temple in question for wilful disobedience of lawful orders issued under the provisions of this Act by the 2[nd] respondent Assistant Commissioner, or for any malfeasance, misfeasance, breach of trust or neglect of duty in respect of the trust, or for any misappropriation of, or improper dealing with, the properties of the institution. Such a course was not taken by the concerned Deputy Commissioner, at the appropriate time. The inaction on the part of the concerned Deputy Commissioner is _per se_ arbitrary and patently illegal. 39. In view of the provisions under Section 36 of the Act, no office-holder or servant of a religious institution shall have the right to be in possession of the jewels or other valuables belonging to the religious institution except under such conditions and safeguards as the Commissioner may, by general, or special order, direct. The inaction on the part of the 1[st] respondent Commissioner in taking action against the 4[th] respondent for keeping in his custody the keys of the Treasury keeping the ornaments of the deity is also _per se_ arbitrary and patently illegal. For reasons best known to the W.P(C).No.17731 of 2021 -38- petitioners, they have not chosen to invoke the provisions under Section 87 of the Act, against respondents 3 and 4, till the submission of Ext.P13 petition dated 15.04.2021 before the 1[st] respondent Commissioner, though petitioners 1 to 3 took charge as early as on 03.07.2019. Inaction on the part of the 1[st] respondent-Commissioner and also the 2[nd] respondentAssistant Commissioner in taking steps at appropriate time to ensure compliance of Section 36 of the Act in letter and spirit in the matter of possession of jewellery and other valuables belonging to the Temple in question cannot be viewed lightly. It is for respondents 1 and 2 to take necessary action for strict compliance of the provisions under Section 36 of the Act. 40. As already noticed hereinbefore, Ext.P13 petition filed by the petitioners, pursuant to the direction contained in Ext.P12 judgment of this Court dated 23.03.2021 in W.P. (C)No.3497 of 2021, invoking the provisions under Section 87 of the Act against respondents 3 and 4, is pending consideration before the 1[st] respondent-Commissioner. 41. In such circumstances, this writ petition is disposed of, declining interference on Ext.P18 notification, and by W.P(C).No.17731 of 2021 -39- directing the 1[st] respondent to consider and pass appropriate orders on Ext.P13 petition filed by the petitioners, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment, with notice to the petitioners, respondents 3 and 4 and other affected parties, if any. **Sd/ANIL K. NARENDRAN, Judge** **Sd/P.G. AJITHKUMAR, Judge** bkn/- W.P(C).No.17731 of 2021 -40- ## **APPENDIX OF WP(C) 17731/2021** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE ORDER DT. 03/07/2019 ISSUED BY THE 2ND RESPONDENT.** **Exhibit P2 TRUE COPY OF THE ORDER DT. 03/02/2020 ISSUED BY THE 2ND RESPONDENT.** **Exhibit P3 TRUE COPY OF REGISTERED LETTER SENT BY 1ST PETITIONER TO THE 3RD RESPONDENT DT. 25/10/2019.** **Exhibit P4 TRUE COPY OF REGISTERED LETTER WITH ACKNOWLEDGMENT SENT BY 1ST PETITIONER TO THE 3RD RESPONDENT DATED 08/11/2019.** **Exhibit P5 TRUE COPY OF ACKNOWLEDGMENT CARD ISSUED BY THE POSTAL DEPARTMENT (RECEIPT OF EX.P4 RECEIVED BY R3).** **Exhibit P6 TRUE COPY OF THE COMPLAINT FILED BY 1ST PETITIONER TO THE 2ND RESPONDENT ON 20/08/2020. Exhibit P7 TRUE COPY OF THE COMPLAINT FILED BY PETITIONERS BEFORE 2ND RESPONDENT DT. 12/11/2020. Exhibit P8 TRUE COPY OF THE REQUEST MADE BY 1ST PETITIONER TO THE 2ND RESPONDENT DT. 25/11/2020. Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED 20/1/2021 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT. Exhibit P10 TRUE COPY OF THE NOTICE DATED 16/02/2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS. Exhibit P11 TRUE COPY OF THE NOTICE DATED 16/02/2021 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER. Exhibit P12 TRUE COPY OF THE JUDGMENT IN WPC NO.3497/2021 DATED 23/03/2021 OF THIS HON'BLE COURT.** W.P(C).No.17731 of 2021 -41- |**Exhibit P13**|**TRUE COPY OF THE PETITION FILED BY**|**THE**| |---|---|---| ||**PETITIONERS BEFORE THE 1ST RESPONDENT**|| ||**DATED 15/04/2021.**|| |**Exhibit P14**|**TRUE COPY OF THE ORDER DATED**|| ||**19/07/2021**<br>**ISSUED**<br>**BY**<br>**THE**|**1ST**| ||**RESPONDENT TO THE RESPONDENTS 3 AND**|**4.**| |**Exhibit P15**|**TRUE COPY OF THE PETITION DATED**|| ||**07/08/2021 FILED BY THE 1ST PETITIONER**|| ||**BEFORE THE 5TH RESPONDENT SEEKING**|| ||**POLICE PROTECTION.**|| |**Exhibit P16**|**TRUE COPY OF THE PETITION FILED BY**|**THE**| ||**1ST PETITIONER DATED 06/08/2021 BEFORE**|| ||**THE RESPONDENTS 1 & 2 AND ALSO**|**THE**| ||**AREA COMMITTEE.**|| |**Exhibit P17**|**TRUE COPY OF THE REGISTERED NOTICE**|| ||**SENT BY THE 1ST PETITIONER **|**TO**| ||**RESPONDENTS 1 AND 2 ON 17/08/2021.**|| |**Exhibit P18**|**TRUE COPY OF THE ORDER DT. 06/08/2021**|| ||**ISSUED BY THE 2ND RESPONDENT.**|| |**Exhibit P19**|**TRUE COPY OF THE ORDER DTD. 14.12.2021**|| ||**ISSUED BY THE 1ST RESPONDENT.**|| |**RESPONDENT EXHIBITS**||| |**Exhibit R3(a)**|**DATED 3-12-2020, TRUE COPY OF LETTER**|| ||**SEND BY THE 3RD RESPONDENT TO**|**THE**| ||**PETITIONERS.**|| |**Exhibit R3(a)(1)**|**DATED**<br>**3-12-2020,**<br>**TRUE**<br>**ENGLISH**|| ||**TRANSLATION OF EXT. R3(a)**|| |**Exhibit R3(b)**|**DATED 7-12-2020, TRUE COPY OF **|**THE**| ||**POSTAL ACKNOWLEDGEMENT CARD.**|| |**Exhibit R3(c)**|**DATED 8-12-2020, TRUE COPY OF **|**THE**| ||**POSTAL ACKNOWLEDGEMENT CARD.**|| |**Exhibit R3(d)**|**DATED 9-12-2020, TRUE COPY OF **|**THE**| ||**POSTAL ACKNOWLEDGEMENT CARD.**|| |**Exhibit R3(e)**|**DATED 13-9-2021 TRUE COPY OF **|**THE**| ||**COMPLAINT MADE TO THE SUB INSPECTOR**|**OF**| ||**POLICE, MANJESHWAR POLICE STATION**|| W.P(C).No.17731 of 2021 -42- **Exhibit R3(f)** **Exhibit R4(a)** **Exhibit R4(b)** **Exhibit R4(c)** **Exhibit R4(d)** **Exhibit R4(e)** **DATED 13-9-2021, TRUE COPY OF THE RECEIPT ISSUED BY THE MANJESHWAR POLICE STATION.** **TRUE COPY OF THE INVITATION LETTER DTD. 01.01.2006 IN KANNADA LANGUAGE ALONG WITH ENGLISH TRANSLATION REGARDING THE MARI POOJA OF THE TEMPLE.** - **TRUE COPY OF THE INVITATION LETTER DTD. 01.01.2007 IN KANNADA LANGUAGE ALONG WITH ENGLISH TRANSLATION REGARDING THE MARI POOJA OF THE TEMPLE.** - **TRUE COPY OF THE INVITATION LETTER DTD. 16.01.2020 IN KANNADA LANGUAGE ALONG WITH ENGLISH TRANSLATION REGARDING THE MARI POOJA OF THE TEMPLE.** - **TRUE COPY OF THE INVITATION LETTER DTD. 10.04.2021 IN KANNADA LANGUAGE ALONG WITH ENGLISH TRANSLATION REGARDING THE MARI POOJA OF THE TEMPLE.** **TRUE COPY OF THE LETTER DTD. 01.03.2021 ADDRESSED BY THE 14 FAMILIES OF THE LOCALITY DULY ATTESTED OF THE KANNADA LETTER TRANSLATED IN MALAYALAM LANGUAGE BY A NOTARY PUBLIC.**