Kunhiraman K. v. Commissioner HR&CE (Administration) Department, Kozhikode 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 23[RD] DAY OF AUGUST 2022 / 1ST BHADRA, 1944 W.P.(C) NO. 18181 OF 2014** ## **PETITIONER:** **K.KUNHIRAMAN, S/O.KELAPPAN, NON HEREDITARY TRUSTEE, KOTTIYOOR DEVASWOM,RESIDING AT SARAVANA, EDAKKAD P.O, KOZHIKODE,PIN 673 005.** **BY ADVS.** **SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY,SECRETARIAT,THIRUVANANTHAPURAM, PIN-695 001.** - **2 SECRETARY, DEVASWOM DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM, PIN-695 001.** - **3 COMMISSIONER MALABAR DEVASWOM BOARD, KOZHIKODE, PIN-673 020.** - **4* KOLANGARATH SANKARAN NAIR S/O.KRISHNAN NAMBOOTHIRI, AGED 81 YEARS, KOLANGARETH HOUSE, KELAKAM, KELAKOM.P.O., KANNUR DIST, HEREIDTARY TRUSTEE OF SREE KOTTIYUR DEVASWOM.** 2 W.P.(C) No.18181 of 2014 **5** P.P.MUKUNDAN S/O.N.K.KRISHNAN NAIR, NADUVILE VEEDU, MANATHANA POST, KANNUR DISTRICT -670 674.** ***ADDL.R4 IMPLEADED AS PER ORDER DATED 11.08.2014 IN I.A.NO.10162 OF 2014.** ****ADDL.R5 IMPLEADED AS PER ORDER DATED 11.08.2014 IN I.A.NO.10860 OF 2014.** **BY ADVS. R1-R2 BY S.RAJMOHAN, SR.GP R3 BY SRI.K.R.SUNIL, SC, MALABAR DEVASWOM BOARD R4 BY SRI.K.MOHANAKANNAN R4 BY SMT.A.R.PRAVITHA R5 BY SRI.C.P.KUNJHIKANNAN R5 BY SRI.S.K.MADHU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 23.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 W.P.(C) No.18181 of 2014 ## **JUDGMENT** ## Anil K.Narendran, J. The petitioner, who is a non-hereditary trustee of Sree Kottiyoor Devaswom, has filed this Writ Petition under Article 226 of the Constitution of India, to declare Section 22(b) of the Madras Hindu Religious and Charitable Endowments Act, 1951 as illegal, arbitrary and violative of Article 14 of the Constitution and to strike down Section 22(b) of the Act as being unconstitutional. ## 2. In **Kunhiraman K. v. Commissioner HR&CE (Administration) Department, Kozhikode and others** **[2015 (3) KHC 626]** , a Division Bench of this Court held that even though the scheme governing the Temple does not provide any upper age limit for non-hereditary trustee, The Act provides so. Therefore, the age limit of 70 will apply to the petitioner herein. Paragraph Nos.30 to 36 and also the last paragraph of that judgment read thus,- “30. The decision of Madras High Court relied upon by the learned counsel for the second respondent will show 4 W.P.(C) No.18181 of 2014 that the learned Judge had considered the provisions under Sections 26(1)(b) and 54(3) of the Tamil Nadu Hindu Religious and Charitable Endowments Act ( XXII of 1959). Section 26(1) of the said Act reads as follows : “Section 26(1) : A person shall be disqualified for being appointed as, and for being, a trustee of any religious institution. (b) except in the case of a hereditary trustee if he is less than twenty-five and more than seventy years of age.” The learned Single Judge has held as follows in paragraph 4: “It is thus seen that Section 26 provides that in the case of non-hereditary trustee, the qualification to be appointed as a trustee for a temple coming under the operation of the provisions of the said Act is between those who got the age above 25 and below 70 years, and those who got the age below 25 and after 70 being a non-hereditary trustee he comes under the teeth of the embargo provided therein. In this case, there is no controversy or dispute with regard to the age of the first respondent as he having crossed 78 years. If this is so, it is made very clear that the first respondent clearly comes within the ambit of Section 26, clause 1 (b) of the Act as claimed by and on behalf of the petitioner/appellant.” 5 W.P.(C) No.18181 of 2014 31. In that case the person was aged 78 years and his appointment as fit person was under challenge. 32. The other decisions relied upon by **Sri.K.Mohanakannan in Raman Namboothiri v. Chief Commissioner, H.R.&C.E. [2004 (1) KLT 945] and Parameswaran Namboothiri v. Malabar Devaswom Board [2011 (2) KLT 988]** relate to the interpretation of Section 39(2) of the Act and the procedure to be undertaken for appointment of non hereditary trustee, which we are not concerned. 33. The learned Senior Counsel for the petitioner submitted that merely because the petitioner had filed a petition before the Commissioner to challenge the continuance of another non hereditary trustee as the said person had crossed 70 years cannot be taken against the petitioner since there is no estoppal against the statute also. What is emphasized by Sri.K.Mohanakannan is the impropriety of the petitioner, in trying to escape from the rigour of Section 22 and in trying to rely upon the Scheme for continuance. 34. The Commissioner in his order was of the view that the petitioner is not a hereditary trustee and as far as the President and Secretary of the Kottiyoor Perumal Seva Sanghom are concerned, they cannot be equated to the position and status of the Kottayam Raja and Thanthri. Kottayam Raja is a former ruler having connection with the legend of Sree Kottiyur Temple and 6 W.P.(C) No.18181 of 2014 other is the Thanthri or the head of the rituals and ceremonies of the temple. It is also observed that in the case of nominee of Kottayam Raja, age limit is applicable. 35. While considering the contentions of the petitioner it was also found that Kottiyur Perumal Seva Sangh is an organization of devotees registered under the Societies Registration Act. Membership to the Sangh and election of the office bearers including President and Secretary are governed by the byelaws. The office bearers and executive committee members including President and Secretary are to be elected by members in the general body annually. The byelaw does not provide that the President and Secretary has to be one or two particular persons of two particular families, who can be nominated as trustees without any age limit, which is the case of the Kottayam Raja and Thanthri. The Commissioner therefore was of the view that the succession to the office of the President and Secretary of Kottiyur Perumal Seva Sangh is not governed by any custom or usage and at any time a new qualified Secretary or President can be elected. It was also observed that the Societies Registration Act cannot have any applicability in the affairs of the temple which is governed by the scheme and the provisions of the HR&CE Act, 1951. Even though the scheme does not provide any upper age limit for non hereditary trustee, 7 W.P.(C) No.18181 of 2014 the Act provides so. Accordingly, it was concluded that the age limit of 70 will apply to the petitioner. 36. We are also of the view that the petitioner cannot equate himself to hereditary trustees. The Kottiyoor Perumal Seva Sanghom is free to elect a person qualified under its byelaws to be the President or Secretary. Even by re-election the petitioner can come, but that cannot dilute the impact of Section 22 of the Act. He could have continued only upto the age of 70. For all these reasons, we find that the petitioner is not entitled to succeed in the writ petition and hence the writ petition is dismissed, but without any order as to costs.” 3. In view of the law laid down by this Court in the decision referred to above, which is rendered by a Division Bench of this Court in a subsequent Writ Petition filed by the petitioner herein, this Writ Petition fails and the same is accordingly dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 8 W.P.(C) No.18181 of 2014 ## **APPENDIX OF WP(C) 18181/2014** **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 6-41994 IN MFA NO 74 OF 1988, 208 OF 1988 AND 923 OF 1988 EXHIBIT P2 TRUE COPY OF THE ORDER IN MP NO 8 OF 2006.** ## **RESPONDENT EXHIBITS** **EXHIBIT R5A PHOTOCOPY OF THE DEVAPRASNOM EXHIBIT R5B PHOTCOPY OF THE LETTER IN 1967-68 (DATED NIL)**