Bharath Bhooshan K. v. State of Kerala and Malabar Devaswom Board and Others

1 W.P.(C)No.30773 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` THURSDAY, THE 11[TH] DAY OF JANUARY 2024 / 21ST POUSHA, 1945 W.P.(C) NO.30773OF 2023 ``` ## **`PETITIONER:`** ``` BHARATH BHOOSHAN K. AGED 40 YEARS S/O. K P NARAYANA MENON, POOTHODIYIL HOUSE, KOZHAKKOTTUR, AREEKODE P.O. MALAPPURAM, PIN - 673639 ``` ``` BY ADVS. R.KRISHNA RAJ E.S.SONI ``` ## **`RESPONDENTS:`** |**`1`**|**`STATE OF KERALA`**| |---|---| ||**`REPRESENTED BY ITS SECRETARY TO GOVERNMENT,`**| ||**`REVENUE(DEVASWOM) DEPARTMENT, KERALA GOVERNMENT`**| ||**`SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`**| |**`2`**|**`MALABAR DEVASWOM BOARD`**| ||**`REPRESENTED BY ITS SECRETARY HOUSEFED COMPLEX,`**| ||**`ERANHIPALAM KOZHIKODE, PIN - 673006`**| |**`3`**|**`THE COMMISSIONER`**| ||**`MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX,`**| ||**`ERANHIPALAM KOZHIKODE, PIN - 673006`**| |**`4`**|**`THE ASSISTANT COMMISSIONER`**| ||**`MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX,`**| ||**`ERANHIPALAM KOZHIKODE, PIN - 673006`**| |**`5`**|**`AREA COMMITTEE`**| ||**`KOZHIKODE DIVISION, MALABAR DEVASWOM BOARD,`**| 2 W.P.(C)No.30773 of 2023 ## **`REPRESENTED BY ITS CHAIRMAN, PIN - 678013`** - **`6 EXECUTIVE OFFICER THRIKKALAYOOR MAHADEVA TEMPLE, AREEKODE VIA, VALILLAPPUZHA P.O., MALAPPURAM, PIN - 673639`** - **`7 SAJITH V. NAMBOOTHIRIPAD KIRANGATTUMANA, OLLOOR P.O., THRISSUR, PIN - 680306`** - **`8 RAJAN PALATHINGAL S/O KARAPPAN (LATE), AALUKANDI VEEDU, KEEZHUPARAMBU, MALAPPURAM, PIN - 673639`** - **`9 PRAKASHAN PADIPURAVAN S/O KELU (LATE), PADIPURAVAN HOUSE, VALILLAPUZHA, AREEKODE, MALAPPURAM, PIN - 673639`** - **`10 CHERUNNI PEZHNGATTIL S/O KOTTAN (LATE), PEZHNGATTIL VEEDU, THRIKKLAYOOR, KEEZHUPARAMBU, MALAPPURAM, PIN - 673639`** ``` 11 KRISHNAN KUNOOR S/O CHANJU (LATE) KUNOOR HOUSE, VALILLAPUZHA AREEKODE, MALAPPURAM, PIN - 673639 ``` ``` BY ADVS. MAHESH V RAMAKRISHNAN RAJEESH V.R. ``` ## **`OTHER PRESENT:`** ## **`SRI S.RAJMOHAN – SR. GOVERNMENT PLEADER`** ## **`SRI R.LAKSHMI NARAYAN - STANDING COUNSEL- MALABAR DEVASWOM BOARD`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.30773 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is a devotee of Thrikkalayoor Sree Mahadeva Temple, which is a controlled institution under the Malabar Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 order dated 11.09.2023 of the 4[th] respondent Assistant Commissioner, Malabar Devaswom Board, Kozhikode, whereby respondents 8 to 11 have been appointed as non-hereditary trustees of that temple. The petitioner has also sought for a writ of mandamus commanding respondents 2 to 6 not to appoint respondents 8 to 11 as non-hereditary trustees of Thrikkalayoor Sree Mahadeva Temple. 2. On 20.09.2023, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for the 1[st] respondent. The learned Standing Counsel for Malabar Devaswom Board took notice on admission for respondents 2 to 5. Urgent notice on admission was ordered to respondents 6 to 11 by special messenger, returnable by 28.09.2023. The learned Standing Counsel for Malabar Devaswom Board was directed to make available for the perusal of this Court the applications made pursuant to Ext.P1 notification dated 02.02.2023 for appointment as non-hereditary 4 W.P.(C)No.30773 of 2023 trustees in the temple in question. 3. On 30.09.2023, when this writ petition came up for consideration, the learned Standing Counsel for Malabar Devaswom Board has made available for the perusal of this Court the applications made pursuant to Ext.P1. On 05.10.2023 the 6[th] respondent Executive Officer and respondents 8 to 11 entered appearance through counsel and sought time to file counter affidavit. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for 1[st] respondent, the learned Standing Counsel for Malabar Devaswom Board for respondents 2 to 5, the learned counsel for the 6[th] respondent Executive Officer, the learned counsel for the 7[th] respondent hereditary trustee and also the learned counsel for respondents 8 to 11, the non-hereditary trustees appointed as per Ext.P5. 5. The grievance of the petitioner is that, respondents 8 to 11, who are appointed as non-hereditary trustees of Thrikkalayoor Sree Mahadeva Temple by Ext.P5 order dated 11.09.2023 of the 4[th] respondent Assistant Commissioner, are active politicians and as such they are disqualified from being appointed as non-hereditary trustees. In addition to that, respondents 8 and 10 were the members of the festival committee of Thrikkalayoor Sree Mahadeva Temple for the year 2022-23. There were serious allegations raised against that committee. 5 W.P.(C)No.30773 of 2023 Till date, no audited accounts are filed before the Devaswom. It is also alleged that at the instance of the 9[th] respondent, third parties have encroached upon the Devaswom land. 6. Respondents 8 to 11 have filed counter affidavit dated 10.11.2023, pointing out the statutory remedy available to the petitioner against Ext.P5 order, by filing the petition before the Commissioner under Section 18 of the Madras Hindu Religious and Charitable Endowments Act, 1951. They have also denied the allegations levelled against them. ## 7. In **Sreedharan Nambeesan P. v. Commissioner Malabar Devaswom Board and Others [2018 (2) KLT 115]** the issue raised before a Division Bench of this Court was whether the hereditary trustee of a temple would have any right to be given notice before a non-hereditary trustee is being appointed by the Commissioner, Malabar Devaswom Board, under Section 39(5) of the Madras Hindu Religious and Charitable Endowments Act, 1951. In paragraph 11 of the said judgment, the Division Bench held as follows; “11. This is not to say that when the Commissioner invokes his power under Section 39(5) the Hereditary Trustee is completely divested of any say. The power vested with the Commissioner is to act fairly, judiciously and in a manner that behooves his office, being the seneschal of the various temples and institutions under his command. The power of the Commissioner being bridled by the section itself, not to act unless there is an imminent necessity 6 ## W.P.(C)No.30773 of 2023 to fill up the vacancies of Non-hereditary Trustee or Trustees and that too after recording such reasons in writing, show the implicit care to be invested while acting under its sanction. The vacancies are not to be filled under his whim or fancy but the Commissioner is clearly obligated to first conclude if it is necessary to do so, which can only mean to be a situation in which he thinks that the Hereditary Trustee will not be sufficient on his own to manage the affairs of the temple/institution. The competence and capability of the Hereditary Trustee or Trustees thus becomes absolutely relevant and germane when vacancies are sought to be filled up in the posts of Non-hereditary Trustees under Section 39(5) of the Act and, therefore, the issuance of a notice of such intention by the Commissioner to the Hereditary Trustee or Trustees, though not specifically mentioned in Section 39(5), will be apposite if not to be read into its provisions as a concomitant necessity to ensure fairness in procedure. The submission of the learned Standing Counsel that the Hereditary Trustee need not be consulted at all, while acting under Section 39(5), therefore, does not appear to be on terra firma forensically.” 9. Seeking review of the judgment in **Sreedharan** **Nambeesan P. [2018 (2) KLT 115]** , the Commissioner Malabar Devaswom Board and others filed R.P.No.227 of 2018 [ **neutral Citation No: 2018:KER:17236** ], contending that the words in paragraph 11 of the said judgment would give an impression that before acting under Section 39(5) of the Act, the competent authority is obligated to obtain the concurrence of the hereditary trustee. 10. In the decision in **Commissioner, Malabar Devaswom Board and others v. Sreedharan Nambeesan P.** 7 W.P.(C)No.30773 of 2023 **[2018:KER:17236]** the Division Bench clarified that in the judgment, what was intended was that the hereditary trustee be offered an opportunity to place his view regarding the necessity of filling up the vacancy in the office of the non-hereditary trustee. The judgment did not say that the concurrence of the hereditary trustee is necessary but only that he may be given the opportunity to state why he thinks that there is no necessity for the Commissioner to appoint a non-hereditary trustee. The Division Bench found this apposite since as per the provisions of Section 39(5) of the Act the Commissioner shall not fill up a vacancy of a non-hereditary trustee unless he considers it necessary to do so. It was in the backdrop of this particular provision that the Division Bench said that even though the issuance of a notice to the hereditary trustee is not mandated or specifically provided under Section 39(5) of the Act, it will be desirable, to ensure fairness in procedure, that the hereditary trustee is also afforded an opportunity to place his views appropriately before final orders are passed under Section 39(5). The intention was not that the concurrence of the hereditary trustee to the proposal of the Commissioner be obtained but merely that he be given an opportunity to speak his opinion as to why he feels that there is no necessity to appoint a non-hereditary trustee in the temple. It is needless to say that since it was not the concurrence of the hereditary trustee that is required to be obtained, as per the 8 ## W.P.(C)No.30773 of 2023 judgment, the only obligation of the Commissioner is to afford the hereditary trustee an opportunity to say why he feels that no necessity exists for an order under Section 39(5) of the Act, so that any vital information, which is within the domain of the hereditary trustee can also be placed for his consideration. The Division Bench further clarified that the views of the hereditary trustee are not binding on the Commissioner, as per the provisions under Section 39(5) of the Act, but merely that such views can also be elicited to aid the Commissioner while he takes a decision as to whether it is necessary to fill up the vacancy. With the above clarification, the Division Bench closed the review petition. ## 11. In **Gopinatha Menon (Kenathachan) v. Malabar** **Devaswom Board [2012:KER:16515]** a Division Bench of this Court held that recourse to sub-section (2) of Section 39 of the Act, is not necessary to make an appointment of a non-hereditary trustee on any ground referable to the conduct of the hereditary trustee, or otherwise, when there is a scheme governing the trust, which provides, - among other things, for appointment of four non hereditary trustees. 12. In **Chathu Achan K. v. State of Kerala [2022 (6) KLT 388]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party noticed that the decision of the Division Bench in **Parameshwaran Namboothiri P.M. v. Commissioner,** 9 W.P.(C)No.30773 of 2023 **Malabar Devaswom Board [2011 (2) KHC 719]** and **Sreedharan Nambissan P. v. Commissioner, Malabar Devaswom Board [2018** **(2) KLT 115]** are in the context of the provisions under sub-section (2) of Section 39 of the Act, which deals with the appointment of nonhereditary trustees in the circumstances stated in the sub-section (2), - which has no application when the appointment of non hereditary trustees in a temple is governed by the provisions under the scheme framed under Section 58 of the Act. Sub-section (2) of Section 39 of the Act relates to the appointment of non-hereditary trustees in temples, where there is no scheme framed in terms of Section 58 of the Act. Once such a scheme is framed, the Malabar Devaswom Board has to see that the administration of the temple is carried on in accordance with that scheme. 13. In **Gopinatha Menon [2012:KER:16515]** the Division Bench noticed that the complaint of the petitioner, who is the Managing Trustee of the temple in question was that, the persons who are appointed as non-hereditary trustees are disqualified, as they are active politicians or those clouded by allegations referable to financial misconduct. The Division Bench observed that, even if the persons who have been selected and appointed as non-hereditary trustees have any such disqualifications, it may be open to the petitioner to move the Commissioner by pointing out such disqualifications. The Commissioner 10 ## W.P.(C)No.30773 of 2023 will then have to hear the petitioner and the persons against whom such allegations are made and conclude whether any such disqualification exists, warranting the removal of those persons. Therefore, the Division Bench dismissed the writ petition _in limine_ , leaving that issue open. 14. In **V. Sudharsanan v. Malabar Devaswom Board and others [2012:KER:24089]** , the Division Bench of this Court was dealing with a case in which one of the contention raised by the petitioners was that, the persons elected are disqualified from being appointed as non-hereditary trustees of the temple in question, on account of their alleged political allegiance and the fact that they are active political workers. The Division Bench noticed that the said question is essentially a question of fact, which has to be decided, if any - such objection is raised. Such decision making process has to be undertaken by the appointing authority. Therefore, if any one among the petitioners has any objection or complaint in that regard, he may place it before the Malabar Devaswom Board, within a period of one month. If any such objection or complaint is received, the competent authority will issue notice to the non-hereditary trustees concerned and give him an opportunity of being heard and take a decision on that issue, in accordance with law. 15. In **Suresh K. v. State of Kerala and others [2021 (2) KLT 885]** , a Division Bench of this Court observed that temple or its 11 W.P.(C)No.30773 of 2023 precincts cannot be made a place where political parties should look forward to give political asylum to their workers. The Division Bench noticed that ours being a highly politically sensitive State, hardly any person can be traced, who is completely apolitical or who may not have his own independent political views. There may be persons having permanent political ideologies or views whereas there may be equal number of persons who hold views according to the issues involved. Perhaps that may be the reason why Kerala has become a State of political swinging. The Division Bench made it clear that holding political views or sympathizing with a political denomination cannot be held a disqualification for nominating anyone to such a post. On the facts of the case on hand, the Division Bench held that “even assuming that respondents 7 to 9 have some political leaning or rather they are sympathizers of a political party, that fact will not disentitle them to be considered for appointment as non-hereditary trustees. There is clear distinction between sympathizing with a political party and indulging in active participation in the activities of the party. The taboo under subclause (g) of clause 3 of the notification issued by the Commissioner will be attracted only if respondents 7 to 9 are active politicians or are office bearers of a political party, for which absolutely no evidence is forthcoming. 16. In **Chathu Achan K. [2022 (6) KLT 388]** , this Court held 12 ## W.P.(C)No.30773 of 2023 that the provisions of Clauses 3 and 4 of the notification issued by the Commissioner, make it explicitly clear that, for appointment as nonhereditary trustee of the temple, the applicant should be a regular worshipper of the temple, who is prepared to actively work for the betterment of the temple. He should be a permanent resident of the Taluk in which the temple situates, who believe in idolatry. Persons who are busy with their employment, office bearers of political parties, active politicians or those indulging in active participation in the activities of a political party cannot aspire appointment as non-hereditary trustee of the temple. Therefore, it is for the Commissioner to take necessary steps to ensure that any appointment made as non-hereditary trustee of the temples under the control of Malabar Devaswom Board is strictly in terms of the disqualification and eligibility clauses provided in similar notifications. If found necessary, the format of the application for appointment as a non-hereditary trustee in the temple under the control of Malabar Devaswom Board has to be modified in an appropriate manner, by requiring the applicant to furnish particulars in terms of the disqualification and eligibility clauses in similar notifications. The Commissioner was directed to take necessary steps in this regard, if found necessary, after placing before the Malabar Devaswom Board, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of that judgment. 13 ## W.P.(C)No.30773 of 2023 17. In judgment dated 08.09.2023 in W.P.(C)No.29279 of 2023 this Court held that, in view of the law laid down by this Court in **Chathu Achan K. [2022 (6) KLT 388]** , for appointment as non-hereditary trustee in TTK Devaswom, which are controlled institutions under the Malabar Devaswom Board, the applicant should be a regular worshipper of the temple, who is prepared to actively work for the betterment of the temple. He should be a permanent resident of the Taluk in which the temple situates, who believe in idolatry. Persons who are busy with their employment, office bearers of political parties, active politicians or those indulging in active participation in the activities of a political party cannot aspire appointment as non-hereditary trustees of TTK Devaswom. Therefore, the 1[st] respondent Commissioner has to ensure that any appointments made as non-hereditary trustee in TTK Devaswom, which is a controlled institution under the Malabar Devaswom Board, are strictly in terms of the disqualification and eligibility clauses provided in the notification dated 10.07.2023 (Ext.P1). 18. In **Anantha Narayanan and another v. Malabar Devaswom Board and others [2023 KLT OnLine 1195 : 2023 SCC** **OnLine Ker 1022]** , a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party, held that when clause 3(7) of Ext.R6(a) notification [clause 5(2) in Ext.P1 notification dated 02.02.2023] issued by the Commissioner for appointment as non- 14 W.P.(C)No.30773 of 2023 hereditary trustees in the temples, which are controlled institutions under the Malabar Devaswom Board, is considered in the light of the interpretation given by this Court in **Chathu Achan K. [2022 (6) KLT 388]** , no person actively involved in politics is eligible to be appointed as a non-hereditary trustee in a temple. 19. In **Anantha Narayanan [2023 KLT OnLine 1195]** the Division Bench noticed that the _Oxford Advanced Learners Dictionary_ defines ‘politician’ as “a person whose job is concerned with politics, especially as an elected member of the Parliament, etc.” Such a technical meaning of the word ‘politician’ cannot be accepted to understand clause 3(7) in Ext.R6(a) notification which says that active politicians or persons holding official posts in any political party are ineligible. The terms are used disjunctively. So persons who are actively involved in politics, whether or not they hold any post in a political party, are ineligible. On the facts of the case on hand, the Division Bench noticed that respondents 6 to 8 therein have no case that they have any other profession. It is a matter of common knowledge that the functioning of a political party and selection/election of its office bearers is not similar to public employment. Whichever be the political party, one who is actively involved in the activities of that political party alone is ordinarily selected/elected as an office bearer. Having been selected as office bearers of the political party/DYFI before or soon after the 15 ## W.P.(C)No.30773 of 2023 appointment as non-hereditary trustees, respondents 6 to 8 cannot contend that they were not active politicians. In constitution of DYFI [Ext.R6(e)], it is stated that a member of the DYFI can work in any political party. That does not mean that the DYFI does not have any political colour. Whether or not it has any affiliation to any particular political party, what is evident from the constitution is that the area of activities of DYFI is politics and related activities. As such it cannot be said that the activities of DYFI are non-political. 20. In **Anantha Narayanan [2023 KLT OnLine 1195]** the Division Bench noticed that, going by the parameters prescribed in notification [Ext.R6(a)], persons who are convicted for more than six months for offences involving moral turpitude are alone ineligible to be non-hereditary trustees. It is, however, specifically prescribed in Ext.R6(a) that persons who apply to be appointed as non-hereditary trustees shall be idol worshippers and persons having an interest in the advancement of the temple. They should also be persons used to be involved in the affairs of the temple. A person having reverence and adoration for a deity can alone be treated as a worshipper. A person facing criminal prosecution for an offence involving moral turpitude cannot be considered a true worshipper of that standard required for a person to be appointed as a trustee in a temple. A trustee is a person obligated to conduct temple affairs in accordance with custom or usage. 16 W.P.(C)No.30773 of 2023 In **A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]** a Three-Judge Bench of the Apex Court explained the diligence and devotion a trustee of a temple should have. When those are the necessary qualifications required for a person to be appointed as a non-hereditary trustee, and the danger of appointing unqualified and untrustworthy persons as trustees, the Malabar Devaswom Board shall stipulate the eligibility criteria in consonance with that. Therefore, the Malabar Devaswom Board was directed to take a decision in that regard before proceeding with any new appointment of non-hereditary trustees in the temples under it. 21. Having considered the submissions made at the Bar, we deem it appropriate to dispose of this writ petition, leaving open the legal and factual contentions raised by the petitioner, with the following directions; (1) Within three weeks from the date of receipt of a certified copy of this judgment, the petitioner shall file a revision petition before the 3[rd] respondent Commissioner, Malabar Devaswom Board, invoking the provisions under Section 18 of the Madras Hindu Religious and Charitable Endowments Act, 1951, challenging the appointment of respondents 8 to 11 as Non-Hereditary Trustees, along with an application for interim stay. (2) The 3[rd] respondent Commissioner shall consider and pass appropriate orders on the application for interim stay, with notice to the petitioner, respondents 6 and 7 and also respondents 8 to 11, as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of that application. Thereafter, the 17 ## W.P.(C)No.30773 of 2023 3[rd] respondent shall finally dispose of that revision petition, as expeditiously as possible, at any rate, within a further period of two months; after adverting to the legal and factual contentions raised by both sides and also the law laid down in the decisions referred to supra. (3) The order passed by the 3[rd] respondent Commissioner shall be a ‘reasoned order’. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** MIN 18 W.P.(C)No.30773 of 2023 ## **`APPENDIX OF WP(C) 30773/2023`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P-1 ``` ``` TRUE COPY OF THE NOTIFICATION NO. 1248/2020/MDB(1) REGARDING APPOINTMENT OF NON HEREDITARY TRUSTEES IN THE TEMPLE DATED 02.02.2023 ``` ``` EXHIBIT P-2 TRUE COPY OF THE PHOTOGRAPH SHOWING THAT RESPONDENTS 8 TO 11 ARE ACTIVE POLITICIANS DATED NIL ``` ``` EXHIBIT P-3 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 23.08.2023 ``` ``` EXHIBIT P-4 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 23.08.2023 ``` ``` EXHIBIT P-5 ``` ``` TRUE COPY OF THE ORDER NO. ``` ``` A2/1360/2020/MDB (KDS) OF THE ASSISTANT COMMISSIONER MALABAR DEVASWOM BOARD DATED 11.09.2023 ```