Edamana Kesavan Vadyan Namboodiri and O.K. Parameswaran Namboodiri, hereditary trustees of Arathil Sree Bhadrapuram Temple v State of Kerala 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** **TUESDAY, THE 15[TH] DAY OF MARCH 2022 / 24TH PHALGUNA, 1943** **WP(C) NO. 22883 OF 2012** ## **PETITIONERS:** - **1 EDAMANA KESAVAN VADHYAN NAMBOODIRI HEREDITARY TRUSTEE, ARATHIL SREE BHADRAPURAM TEMPLE, P.O. NARIKKAMVALLY, KANNUR DISTRICT, PIN-670 501.** - **2 O.K.PARAMESWARAN NAMBOODIRI** **HEREDITARY TRUSTEE, ARATHIL SREE BHADRAPURAM TEMPLE, P.O. NARIKKAMVALLY, KANNUR DISTRICT, PIN-670 501** **BY ADVS.SRI.K.SHRIHARI RAO SRI.K.S.BALAKRISHNAN SMT.N.SHOBHA** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEVASWOM DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM – 695 039** - **2 THE MALABAR DEVASWOM BOARD, REPRESENTED BY ITS PRESIDENT, ERINJIPALAM, HOUSE FED COMPLEX, KOZHIKODE – 673 006** - **3 THE COMMISSIONER, THE MALABAR DEVASWOM BOARD, ERINJIPALAM, HOUSE FED COMPLEX, KOZHIKODE – 673 003.** - **4 THE ASSISTANT COMMISSIONER, THE MALABAR DEVASWOM BOARD, THIRURANGADI, THALASSERY, KANNUR DISTRICT.-679 532.** - **5 P.NARAYANAN NAMBIAR, THE EXECUTIVE OFFICER, SREE MANNAMPURATATH KAVU,** -2- W.P.(C). No.22883 of 2012 **NILESWARAM, KASARAGOD DISTRICT, PO NILESHWAR671 314.** - **6 KODALMANA VAMANAN NAMBOOTHIRI, EBBARA, KUDALMANA ILLOM, HEREDITARY TRUSTEE, ARATHIL SREE BHADRAPURAM TEMPLE, P.O. NARIKKAMVALLY, KANNUR DISTRICT, PIN-670 501.** - **7 KARABATTATHIRI ILLATH SANKARAN BHATTATHIRI, KARABHATATHIRI ILLOM, ARATHIL SREE BHADRAPURAM TEMPLE, P.O. NARIKKAMVALLY, KANNUR DISTRICT, PIN-670 501.** - **8 PAZHICHAYIL KARAKKAT ILLATH KESAVAN NAMBOOTHIRI, KARAKKAT ILLOM, THAMALLAKKAL, P.O.THAMALLAKKAL NORTH, HARIPAD, ALAPPUZHA DISTRICT-690 549.** - **9 KARINKULATHILLATH KRISHNAN NAMBOOTHIRI, SRI.VIDHYA PARAKULAM, KANNADI P.O., PALAKKAD DISTRICT – 678 701.** - **10 MUTHEDATH KARAKKAT ILLATH VISHNU NAMBOOTHIRI, M.K.VISHNU NAMBOOTHIRI, MUTHEDEATH KARAKAT ILLOM, PANDARAKAVU P.O., KUNNATHUMEDU, PALAKKAD DISTRICT – 678 013.** - **11 PURACHERI KARABHATTATHIRI ILLOTH KESAVAN BHATTATHIRI, K.M.KESAVAN BHATTATHIRI, CHIRAKKALKADALAYI, CHIRAKKAL KADALAYI SRI.KRISHNA TEMPLE SANTHI, P.O. CHIRAKKAL, KANNUR DISTRICT – PIN – 670 011.** - **12 PERUNTHANNIYARKARABHATTATHIRI ILLOTH MADHAVAN BHATTATHIRI, KARABHATTATHIRI ILLOM, P.O. KOROM, KANNUR DISTRICT-670 307.** - **13 VADAKKINEDATHIDAMANA ILLOTH SANKARAN NAMBOOTHIRI, VADAKKINEDATHIDAMANA ILLOM, EXHILODE P.O., (VIA) KUNHIMANGALAM, KANNUR DISTRICT-670 309.** - **14 MONKOMBU KULANGARA ILLOTH VAMANAN NAMBOOTHIRI, KULANGARA ILLOM, MONCOMBU P.O., ALAPUZHA** -3- W.P.(C). No.22883 of 2012 ## **DISTRICT-688 502.** - **15 GURUKKAL ILLOTH KRISHNAN NAMBOOTHIRI, GURUKKAL ILLOM (EDAMANA) KARAKKAL, KAVUMBHAGOM, THIRUVALLA, KOTTAYAM DISTRICT, P.O. KAVUBHAGOM670 110.** - **16 THEKKINEDATH EDAMANA ILLOTH NARAYANAN NAMBOODIRI, EDAMANA ILLOM, VAZHAPALLI, CHENGANASSERY-1, KOTTAYAM DISTRICT.** - **17 HARIPATTU KULANGARA ILLOTH GOVINDAN NAMBOOTHIRI, NO.55, 5TH A CROSS, 16TH MAIN METROPOLITIAN BTM, 2ND STAGE, BANGLORE-560 076, KARNATAKA STATE.** - **18 PADIPURA KARAKKAT ILLOTH KESAVAN NAMBOOTHIRI, (VAMANAN KESAVAN NAMBOOTHIRI), ASHAMANNUR P.O., ASHAMANNUR, PIN-683 549.** - **19 KUNJAPPAN KARAKATTILLOTH KESAVAN NAMBOOTHIRI, KARAKKATTILLOM, EZHILODE P.O., KANNUR DISTRICT670 309.** **R1 BY SRI S RAJMOHAN - SR GOVERNMENT PLEADER R2 TO R4 BY SRI.V.KRISHNA MENON, SC, MALABAR DEVASWOM BOARD SRI.K.R.SUNIL, SC, MALABAR DEVASWOM BOARD SRI.N.MANOJ KUMAR, SC R5 BY ADVS.SRI.K.V.MANOJ KUMAR R7, 13 & 16 BY ADV.SRI.P.R.SREEJITH ADV.SRI.M.PROMODH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -4- W.P.(C). No.22883 of 2012 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioners, who are hereditary trustees of Arathil Sree Bhadrapuram Temple at Narikkamvally in Kannur District, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 2 to 5 not to interfere in any manner the administration and management of Arathil Sree Bhadrapuram Temple; and a declaration that the petitioners and respondents 6 to 19 or their nominees as hereditary trustees alone can administer and manage Arathil Sree Bhadrapuram Temple. 2. Going by the averments in the writ petition, Arathil Sree Bhadrapuram Temple is administered under the provisions of the Hindu-Religious and Charitable Endowments Act, 1951. The name of the temple is included in the list published by the Commissioner, Malabar Devaswom Board, the 3[rd] respondent herein, vide notification dated 15.02.1994 under Section 38 of the Act. In the said notification, Arathil Sree Bhadrapuram Kshetram, Cheruthazham is serial No.190 in Appendix I, list A. However, the temple is administered and -5- W.P.(C). No.22883 of 2012 managed by 16 hereditary trustees, namely, the petitioners and respondents 6 to 19. The hereditary trustees appointed Sri.Sankaran Namboodiri, son of the 6[th] respondent, as the Manager of the temple, with effect from 19.11.2007. While working as Manager, he committed grave misconduct including misappropriation of funds and accordingly, he was issued with a show cause notice dated 17.12.2009. He failed to give any explanation and hence, he was removed from service with effect from 17.01.2010. Sri.Sankaran Namboodiri approached this Court in W.P.(C)No.2249 of 2010 and obtained an order of stay and continued in that post. While so, the 3[rd] respondent Commissioner, by Ext.P3 order dated 14.07.2010, appointed the 5[th] respondent herein as the Executive Officer of the temple, invoking the provisions under Section 20 of the Act. Sri.Sankaran Namboodiri challenged Ext.P3 order by filing W.P.(C).No.22556 of 2010, in which this Court granted an interim order of stay. Because of that interim order, the employees of the temple were not paid their salary. The employees moved I.A.No.16767 of 2010 in W.P.(C)No.22556 of 2010. In that interlocutory application, this Court passed an -6- W.P.(C). No.22883 of 2012 order dated 28.02.2011, whereby the officers of the Malabar Devaswom Board were directed to take appropriate steps to see that the employees of the temple are paid their salary. 3. In the writ petition, it is alleged that, respondents 2 to 5 are interfering in the administration of Arathil Sree Bhadrapuram Temple. The officers of the Board are not even listening to the suggestions or discussing any affairs of the temple with the petitioners or other hereditary trustees. If such a situation is continued, no purpose will be served in the petitioners and others continuing as hereditary trustees of the temple. The 5[th] respondent Executive Officer has initiated action for appointing staff in the temple and even made advertisement calling for application for the post of Keezhsanthi. Though, various acts committed by the 5[th] respondent were brought to the notice of respondents 2 to 4, there is no action from their part. Therefore, the petitioners have filed this writ petition seeking the aforesaid reliefs. 4. On 21.11.2012, when this writ petition came up for admission, this Court issued notice before admission to the 5[th] respondent Executive Officer. The learned Standing Counsel -7- W.P.(C). No.22883 of 2012 for Malabar Devaswom Board entered appearance for respondents 1 to 4. 5. During the pendency of this writ petition, the 4[th] respondent Assistant Commissioner issued Ext.P5 proceedings dated 20.05.2013, to the trustees of the temple, directing them to handover Thiruvabharanam (gold and silver ornaments) to the 5[th] respondent Executive Officer. Such a communication has been issued based on a complaint made by one Kunjiraman. Based on Ext.P5 proceedings, the 5[th] respondent Executive Officer issued Ext.P6 proceedings dated 22.06.2013 to the trustees of the temple, whereby they were informed to handover the Thiruvabharanam on 28.06.2013 at 9.00 a.m., in the presence of the Verification Officer. 6. On 31.07.2013, in I.A.No.10168 of 2013, this Court granted an interim order staying all further proceedings pursuant to Exts.P5 and Ext.P6, for a period of one month. The said interim order, which was extended from time to time, was in force till 27.11.2013. 7. The 5[th] respondent Executive Officer has filed a counter affidavit dated 28.08.2013, opposing the reliefs -8- W.P.(C). No.22883 of 2012 sought for in this writ petition, wherein it is stated that, Arathil Sree Bhadrapuram Temple is a religious institution included in the list published by the 3[rd] respondent Commissioner, under Section 38 of the Hindu-Religious and Charitable Endowments Act. The 5[th] respondent has been appointed as the Executive Officer of the temple, under Section 66 of the Act, who is exercising all the powers and duties assigned to him by the 3[rd] respondent, under Section 67 of the Act. 8. Respondents 7, 13 and 16, who are the hereditary trustees of Arathil Sree Bhadrapuram Temple, have filed counter affidavit, wherein it is stated that, the said temple is under the control and administration of Malabar Devaswom Board, which is included in the list published by the 3[rd] respondent Commissioner, under Section 38 of the HinduReligious and Charitable Endowments Act. There is an Executive Officer in the temple, who is exercising the powers and performing the duties in administration of the temple, as provided under Section 67 of the Act. Devotees from all over Kerala worship the deity of the temple and the contention of the petitioners that, as per Exts.P1 and P2 the temple in -9- W.P.(C). No.22883 of 2012 question is a private temple, is not correct and it is a place of public religious worship. Further, the contention raised in the writ petition that respondents 2 to 5 are interfering with the administration of the temple by the hereditary trustees, is without any merit. 9. The petitioners have filed a reply affidavit dated 07.09.2013 to the counter affidavit filed by the 5[th] respondent. They have also filed another reply affidavit dated 07.09.2013 to the counter affidavit filed by respondents 7, 13 and 16. 10. Heard the learned counsel for the petitioners and also the learned Standing Counsel for Malabar Devaswom Board. 11. The learned counsel for the petitioners would contend that Arathil Sree Bhadrapuram Temple is a private temple which is being administered by the petitioners and respondents 6 to 19, who are the hereditary trustees. Respondents 2 to 5 have absolutely no right to interfere with the administration of the temple and as such, the petitioners are entitled to the reliefs sought for in this writ petition. 12. Arathil Sree Bhadrapuram Temple is a temple -10- W.P.(C). No.22883 of 2012 administered under the provisions of the Hindu-Religious and Charitable Endowments Act, which is included in the list published by the 3[rd] respondent Commissioner, under Section 38 of the said Act, vide notification dated 15.02.1994. By Ext.P3 order dated 14.07.2010, the 3[rd] respondent Commissioner appointed the 5[th] respondent as the Executive Officer of the temple, invoking the provisions under Section 20 of the Act. In the writ petition it is alleged that respondents 2 to 5 are interfering in the administration of the temple and the 5[th] respondent Executive Officer has initiated action for appointing staff in the temple and even made advertisement calling for application for the post of Keezhsanthi. 13. When Arathil Sree Bhadrapuram Temple is administered under the provisions of Hindu-Religious and Charitable Endowments Act, as admitted by the petitioners in paragraph 5 of the writ petition, the petitioners cannot seek a writ of mandamus commanding respondents 2 to 5 not to interfere in any manner in the administration and management of the said temple. The 5[th] respondent is the Executive Officer of the temple, who is appointed under -11- W.P.(C). No.22883 of 2012 Section 66 of the Act, who has to exercise all the powers and duties assigned under Section 67 of the Act. Ext.P3 order of the 3[rd] respondent, appointing the 5[th] respondent as Executive Officer of Arathil Sree Bhadrapuram Temple, is not under challenge in this writ petition. The petitioners have also not chosen to challenge Ext.P5 proceedings dated 20.05.2013 of the 4[th] respondent Assistant Devaswom Commissioner, whereby the trustees of the temple were directed to handover Thiruvabharanam (gold and silver ornaments) to the 5[th] respondent Executive Officer and also Ext.P6 proceedings dated 22.06.2013, whereby the trustees of the temple were directed to handover Thiruvabharanam on 28.06.2013 at 9.00 a.m., in the presence of the Verification Officer. 14. Sri.Sankaran Namboodiri, who was appointed as the Manager of the temple, who was terminated from service with effect from 17.01.2010 on grave misconduct including misappropriation of funds, challenged Ext.P3 order dated 14.07.2010 by filing W.P.(C)No.22556 of 2010, in which this Court granted an interim order against his removal from service. By the judgment dated 07.01.2022 that writ petition -12- W.P.(C). No.22883 of 2012 was dismissed as not pressed. In the said judgment, this Court noticed the submission made by the learned Standing counsel for Malabar Devaswom Board that Sri.Sankaran Namboodiri, the petitioner therein, is no more in the service of Arathil Sree Bhadrapuram Temple. By another judgment dated 07.01.2022, W.P.(C)No.2249 of 2010 filed by Sri.Sankaran Namboodiri was also dismissed as not pressed. 15. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that 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. 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 of law and not to pass the orders or directions which are contrary to what has been injected by law. 16. When Arathil Sree Bhadrapuram Temple is admittedly administered under the provisions of Hindu- -13- W.P.(C). No.22883 of 2012 Religious and Charitable Endowments Act, the petitioners cannot seek a writ of mandamus commanding the respondents 2 to 5 not to interfere in any manner in the administration and management of the said temple, since no writ of mandamus can be issued refraining respondents 2 to 5 from exercising their powers and performing their duties under the statute, in the matter of administration of the temple. The question as to whether the temple in question is a place of public worship or whether it is a private religious institution, cannot be decided in writ proceedings under Article 226 of the Constitution of India and as such, the petitioners are not entitled for a declaration that the petitioners and respondents 6 to 19 or their nominees alone can administer and manage Arathil Sree Bhadrapuram Temple as hereditary trustees. In the result, this writ petition fails and the same is, accordingly, dismissed. sd/- ## **ANIL K. NARENDRAN, JUDGE** sd/- ## **P.G. AJITHKUMAR, JUDGE** AV -14- W.P.(C). No.22883 of 2012 ## **APPENDIX OF WP(C) 22883/2012** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE MEMO DATED 10-05-1949 WITH RELEVANT PORTION OF THE PAGES.** **EXHIBIT P2** **TRUE COPY OF THE ADANGAL RELATING TO THE TEMPLE DATED 05-04-2011 ISSUED BY THE VILLAGE OFFICER, CHERUTHZHAM** **EXHIBIT P3** **TRUE COPY OF THE ORDER DATED 14-072010 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P4** **TRUE COPY OF THE REPORT DATED 04-062010 OF THE 4TH RESPONDENT.** **EXHIBIT P5** **TRUE COPY OF THE LETTER DATED 20-052013 OF THE 1ST RESPONDENT TO TRUSTEES OF THE TEMPLE.** **EXHIBIT P6** **TRUE COPY OF THE LETTER DATED 22-062013 OF THE 2ND RESPONDENT TO TRUSTEES OF THE TEMPLE.**