A.R. Ramanathan & Ramachandran S. v. State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` THURSDAY, THE 24[TH] DAY OF AUGUST 2023 / 2ND BHADRA, 1945 ``` ## **`W.P.(C)NO.24881 OF 2023`** ## **`PETITIONERS:`** - **`1 A.R.RAMANATHAN, AGED 60 YEARS, S/O.LATE RAMAKRISHNA IYER 9/447, ALAMPALLAM P.O., CHITTUR TALUK, PALAKKAD DISTRICT, PRESENTLY RESIDING AT MAYOORA PRIYA, DOUBLE STREET KODUVAYOOR, PALAKKAD DISTRICT, PIN - 678501`** - **`2 RAMACHANDRAN S., AGED 62 YEARS, S/O.SUBRAMANIAN, DOOR NO. IX/446, AALLAMPALLAM GRAMAM, CHITTUR TALUK, PALAKKAD DISTRICT -, PIN - 678101`** ``` BY ADVS. ``` - **`K.MOHANAKANNAN` H.PRAVEEN (KOTTARAKARA)`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEVASWOM (B) DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE, PIN - 673003`** - **`3 MALABAR DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, HOUSEFED COMPLEX, ERANHIPPALAM, KOZHIKODE, PIN - 673003`** - **`4 THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, PALAKKAD DIVISION, PALAKKAD DISTRICT, PIN - 678001`** 2 W.P.(C)No.24881 of 2023 - **`5 THE EXECUTIVE OFFICER, SREE BHOOMIDEVI SAMEDA VARADARAJA PERUMAL TEMPLE, AALAMPALLAM, CHITTUR TALUK, PALAKKAD, PIN - 678006`** - **`6 A.L.VARADARAJAN, AGED 50 YEARS, S/O.LAKSHMANA IYER, CHAIRMAN, TRUSTEE BOARD OF BHOOMIDEVI SAMEDA VARADARAJA PERUMAL TEMPLE, AALAMPALLAM, CHITTUR TALUK, PALAKKAD 9/34, AALAMPALLAM, CHITTUR TALUK, PALAKKAD, PIN – 678006`** - **`7* THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001`** - **`8* THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 675 001`** ``` ADDITIONAL RESPONDENTS 7 AND 8 ARE SUO MOTU IMPLEADED BY THE ORDER DATED 24/08/2023 ``` ``` BY ADVS. KRISHNAN P. B MAHESH V RAMAKRISHNAN P.B.SUBRAMANYAN(K/1145/2009) SABU GEORGE(K/000711/1998) MANU VYASAN PETER(K/000652/2013) ``` ``` SRI.S. RAJMOHAN (SR.G.P.) ``` ## **`SRI.LAKSHMI NARAYAN (SC MALABAR DEVASWOM BOARD)`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.24881 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioners are devotees of Sree Bhoomidevi Sameda Varadaraja Perumal Temple in Palakkad District, which is a controlled institution under the 3[rd] respondent Malabar Devaswom Board. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P9 order - G.O.(Rt)No.2364/2023/RD dated 27.06.2023 - issued by the 1[st] respondent State in Revision Petition No.1 of 2023, whereby R.P.No.11 of 2022 filed by the 6[th] respondent against Ext.P7 order dated 26.12.2022 of the 2[nd] respondent Commissioner, Malabar Devaswom Board was remitted for fresh consideration by the 2[nd] respondent, in the exercise of the powers under Section 99 of the Madras Hindu Religious and Charitable Endowments Act, 1951. By Ext.P9 order, the 1[st] respondent stayed the operation of Ext.P7 order of the 2[nd] respondent, whereby the appointment of the 6[th] respondent as non-hereditary trustee of Sree Bhoomidevi Sameda Varadaraja Perumal Temple stands set aside, on condition that the 6[th] respondent shall not do anything adversely affecting the interests of the said temple or 4 W.P.(C)No.24881 of 2023 Bhaktajanasabha. 2. The petitioners along with others have approached this Court in W.P.(C)No.8316 of 2020 alleging misappropriation of funds by the members of the committee constituted for conducting the chariot festival of Sree Bhoomidevi Sameda Varadaraja Perumal Temple. In that writ petition, the 6[th] respondent herein along with three others, who were the members of the said committee, were arrayed as respondents 6 to 9. The 6[th] respondent and one Sree Ram were subsequently appointed as non-hereditary trustees of the said temple. W.P.(C)No.8316 of 2020 was disposed of by Ext.P1 judgment dated 17.03.2020, whereby the 4[th] respondent Assistant Commissioner was directed to conduct an enquiry and take action in the matter. Pursuant to the direction contained in Ext.P1 judgment, the 4[th] respondent passed Ext.P2 order dated 24.02.2021, whereby the 6[th] respondent and other members of the aforesaid committee were directed to return the assets, money, etc. to the 5[th] respondent Executive Officer of Sree Bhoomidevi Sameda Varadaraja Perumal Temple. 3. In the year 2021, a festival committee was constituted, 5 W.P.(C)No.24881 of 2023 consisting of 16 members, in which the 6[th] respondent and six others, who were members of the previous committee, were included. The 1[st] petitioner along with another filed W.P.(C)No.9942 of 2021, which was disposed of by Ext.P3 judgment dated 16.04.2021, directing the 2[nd] respondent Commissioner to consider their representation dated 13.04.2021 and pass orders before the temple festival. By Ext.P4 order dated 22.04.2021, the 2[nd] respondent Commissioner, in the exercise of powers under Section 20 of the Madras Hindu Religious and Charitable Endowments Act, directed the 5[th] respondent Executive Officer to conduct the temple festival under the supervision of the Divisional Inspector, Palakkad. Subsequent to Ext.P4 order, the 2[nd] respondent by the order dated 31.12.2021 appointed the 6[th] respondent and another as non-hereditary trustees of Sree Bhoomidevi Sameda Varadaraja Perumal Temple for a period of two years. Based on the said order, the 4[th] respondent Assistant Commissioner issued Ext.P5 proceedings dated 13.04.2022. 4. The appointment of the 6[th] respondent as a nonhereditary trustee of Sree Bhoomidevi Sameda Varadaraja Perumal Temple was challenged by the petitioners along with three 6 ## W.P.(C)No.24881 of 2023 others by submitting Ext.P6 revision petition dated 21.04.2022 before the 2[nd] respondent Commissioner. By Ext.P6(a) judgment dated 20.10.2022 in W.P.(C)No. 14885 of 2022, this Court directed the 2[nd] respondent to consider and pass appropriate orders on Ext.P6 revision petition within a period of six weeks, with notice to both sides. The 2[nd] respondent by Ext.P7 order dated 26.12.2022 allowed R.P.No.11 of 2022, setting aside Ext.P5 proceedings dated 13.04.2022 of the 4[th] respondent Assistant Commissioner to the extent of appointing the 6[th] respondent as non-hereditary trustee of the temple, and the matter of filing up the vacancy of non-hereditary trustee was remanded to the Area Committee. 5. The 6[th] respondent challenged Ext.P7 order dated 26.12.2022 of the 2[nd] respondent Commissioner by filing W.P.(C)No.2542 of 2023. The said writ petition was dismissed on the question of maintainability, by Ext.P8 judgment dated 08.02.2023, without prejudice to the right of the 6[th] respondent to invoke the statutory remedy of revision before the 1[st] respondent State, under Section 99 of the Madras Hindu Religious and Charitable Endowments Act. Accordingly, the 6[th] respondent 7 W.P.(C)No.24881 of 2023 filed Revision Petition No.1 of 2023 before the 1[st] respondent State, in which the said respondent passed Ext.P9 order dated 27.06.2023, whereby R.P. No.11 of 2022 filed by the 6[th] respondent was remitted for fresh consideration by the 2[nd] respondent Commissioner, after staying the operation of Ext.P7 order of the 2[nd] respondent, on condition that the 6[th] respondent shall not do anything adversely affecting the interests of Sree Bhoomidevi Sameda Varadaraja Perumal Temple or the Bhaktajanasabha. 6. On 01.08.2023, when this writ petition came up for admission, this Court admitted the matter on file. The learned Senior Government Pleader took notice for the 1[st] respondent State. The learned Standing Counsel for Malabar Devaswom Board took notice for respondents 2 to 4. Urgent notice by speed post was ordered to respondents 5 and 6, returnable within four weeks. By the order dated 01.08.2023, this Court granted an interim stay of the operation and implementation of Ext.P9 order dated 27.06.2023 for a period of two months. 7. On 22.08.2023, when this writ petition came up for consideration, the learned Senior Government Pleader was 8 ## W.P.(C)No.24881 of 2023 directed to get instructions as to whether Ext.P9 order is one passed by the 1[st] respondent State with notice to the petitioners. 8. By a separate order dated this date, the Chief Secretary to Government and the Principal Secretary to Government, General Administration Department are _suo motu_ impleaded as additional respondents 7 and 8 and the learned Senior Government Pleader entered appearance for the said respondents. 9. Heard the learned counsel for the petitioners, the learned Senior Government Pleader for the 1[st] respondent and also for additional respondents 7 and 8, the learned Standing Counsel for Malabar Devaswom Board for respondents 2 to 4, the learned counsel for the 5[th] respondent Executive Officer and the learned counsel for the 6[th] respondent. 10. Section 99 of the Madras Hindu Religious and Charitable Endowments Act, deals with the power of the State Government to call for records and pass orders. As per sub-section (1) of Section 99, the State Government may call for and examine the record of the Board or Commissioner or any Deputy or Assistant Commissioner, of any Area Committee or of any trustee in respect of any proceeding, not being a proceeding in respect of 9 W.P.(C)No.24881 of 2023 which a suit or an appeal to a court is provided by the Act, to satisfy themselves as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and, if, in any case, it appears to the Government that any such decision or order should be modified annulled reverse or remitted for reconsideration, they may pass orders accordingly. As per the proviso to sub-section (1) of Section 99, the Government shall not pass any order prejudicial to any party unless he has had a reasonable opportunity of making his representations. As per sub-section (2) of Section 99, the Government may stay the execution of any such decision or order, pending the exercise of their powers under sub-section (1) in respect thereof. 11. In the instant case, the 2[nd] respondent Commissioner by Ext.P7 order dated 26.12.2022 allowed R.P.No.11 of 2022 filed by the petitioners and three others, thereby setting aside Ext.P5 proceedings dated 13.04.2022 of the 4[th] respondent Assistant Commissioner to the extent of appointing the 6[th] respondent as non-hereditary trustee of Sree Bhoomidevi Sameda Varadaraja Perumal Temple, and the matter of filing up the vacancy of non- 10 ## W.P.(C)No.24881 of 2023 hereditary trustee was remanded to the Area Committee. Challenging the said order, the 6[th] respondent filed Revision Petition No.1 of 2023 before the 1[st] respondent State, invoking the provisions under Section 99 of the Madras Hindu Religious and Charitable Endowments Act. 12. The 1[st] respondent State passed Ext.P9 order dated 27.06.2023 in Revision Petition No.1 of 2023, whereby R.P.No.11 of 2022 filed by the 6[th] respondent was remitted for fresh consideration by the 2[nd] respondent Commissioner, after staying the operation of Ext.P7 order dated 26.12.2022 of the 2[nd] respondent, on condition that the 6[th] respondent shall not do anything adversely affecting the interests of Sree Bhoomidevi Sameda Varadaraja Perumal Temple or the Bhaktajanasabha. 13. On a query made by this Court as to whether Ext.P9 order is one passed by the 1[st] respondent State with notice to the petitioners, the learned Senior Government Pleader, on instructions, would submit that the 6[th] respondent revision petitioner alone was heard by the State before passing Ext.P9 order. No notice was issued to the writ petitioners and others, who were the petitioners in R.P.No.11 of 2022 before the 2[nd] 11 W.P.(C)No.24881 of 2023 respondent Commissioner, though the order passed in R.P.No.11 of 2022 was under challenge in Revision Petition No.1 of 2023 filed by the 6[th] respondent before the 1[st] respondent State. 14. As already noticed hereinbefore, as per the proviso to sub-section (1) of Section 99 of the Madras Hindu Religious and Charitable Endowments Act, the Government shall not pass any order prejudicial to any party unless he has had a reasonable opportunity of making his representations. 15. The twin anchors on which the principles of natural justice rest in the judicial process, whether quasi-judicial or administrative in nature, are _nemo judex in causa sua_ , i.e., no person shall be a judge in his own cause as justice should not only be done, but should manifestly be seen to be done, and _audi_ - _alteram partem_ , i.e., a person affected by a judicial, quasi judicial or administrative action must be afforded an opportunity of hearing before any decision is taken. 16. In the instant case, Ext.P9 order passed by the 1[st] respondent State is vitiated not only on account of the violation of the rule of _audi alteram partem_ but also for the contravention of the mandatory requirement contained in the proviso to sub- 12 ## W.P.(C)No.24881 of 2023 section (1) of Section 99 of the Madras Hindu Religious and Charitable Endowments Act, referred to hereinbefore, since the 6[th] respondent revision petitioner alone was heard by the State before passing the said order. 17. In **Breen v. Amalgamated Engineering Union** **[1971 (1) All. E.R. 1148]** Lord Denning, M.R. Observed that the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120]** it was observed that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. 18. In **Commissioner of Police, Bombay v. Gordhandas Bhanji [AIR 1952 SC 16]** the Apex Court held that public orders publicly made, in the exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct 13 ## W.P.(C)No.24881 of 2023 of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Following the principle laid down in **Gordhandas Bhanji’s case (supra)** , the Apex Court reiterated in **Mohinder** ## **Singh Gill v. Chief Election Commissioner [(1978) 1 SCC** **405]** that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, gets validated by additional grounds later brought out. 19. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and Managing** ## **Director, United Commercial Bank v. P.C. Kakkar [(2003)** **4 SCC 364]** held that reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to 14 W.P.(C)No.24881 of 2023 perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. The right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, speaking out. The ‘inscrutable face of a sphinx’ is ordinarily incongruous with a judicial or quasijudicial performance. 20. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same time, it is not the requirement that, the reasons should be as elaborate as in the decision of a court 15 W.P.(C)No.24881 of 2023 of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority. 21. In the result, this writ petition is allowed by setting aside Ext.P9 order dated 27.06.2023 of the 1[st] respondent State in Revision Petition No.1 of 2023 and the said respondent is directed to reconsider Revision Petition No.1 of 2023 and pass ‘reasoned order’, in accordance with law, with notice to both sides, i.e., the writ petitioners and others, who were the petitioners in R.P.No.11 of 2022 before the 2[nd] respondent Commissioner, the 5[th] respondent Executive Officer and the 6[th] respondent revision petitioner, 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. 22. It would be open to both sides to submit written submissions before the 1[st] respondent State, within a period of three weeks from the date of receipt of a certified copy of this 16 ## W.P.(C)No.24881 of 2023 judgment, after serving a copy of the same to the opposite side. Registry to forward a certified copy of this judgment to the additional 8[th] respondent Principal Secretary to Government, General Administration Department, for information and necessary action to ensure that the decision-making process by all quasi-judicial authorities in the State is strictly in conformity with the law laid down hereinbefore. The orders shall be passed after affording the affected persons a reasonable opportunity of being heard and the quasi-judicial authorities shall pass a ‘reasoned order’, after adverting to the legal and factual contentions raised by both sides. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** MIN 17 W.P.(C)No.24881 of 2023 ## **`APPENDIX OF WP(C) 24881/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 TRUE COPY OF THE JUDGMENT IN WRIT PETITION (C)8316/2020 DATED 17-3-2020 Exhibit P2 TRUE COPY OF THE PROCEEDINGS NO. A5/3692/2020/M.D.B.(3), OF THE 3RD RESPONDENT DATED 24-2-2021 WITH NOTICE AND REPORT Exhibit P3 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.9942/2021 DATED 16-4-2021 Exhibit P4 TRUE COPY OF THE ORDER NO.H5- 2046/2021/MDB DATED 22-4-2021 PASSED BY THE COMMISSIONER Exhibit P5 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT NO.A1/2672/2020/MDB(K.DIS) DATED 13- 4-2022 Exhibit P6 TRUE COPY OF THE REVISION SUBMITTED BY THE PETITIONERS AND OTHERS BEFORE THE 1ST RESPONDENT DATED 21-4-2022 Exhibit P6(a) TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.14885/2022 DATED 20-10-2022 Exhibit P7 TRUE COPY OF THE ORDER OF RP 11/2022 DATED 26- 12-2022 PASSED BY THE 2 ND RESPONDENT Exhibit P8 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.2542/2023 DATED 8-2-2023 Exhibit P9 TRUE COPY OF THE GO(RT)NO.2364/ 2023/RD DATED 27-6-2023 Exhibit P10 TRUE COPY OF THE REPORT OF THE INSPECTOR, MALABAR DEVASWOM BOARD DATED 25-8-2021 ```