Manikandan M.P. v. State of Kerala and others

1 WP(C) No.7713 of 2024 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ## **`WP(C) NO. 7713 OF 2024`** ## **`PETITIONER:`** ``` MANIKANDAN M.P., AGED 51 YEARS, S/O.RAGHAVA PISHARADI, REGHU NIVAS, THALAYANNAKKAD, KADAMPUR P.O., PALAKKAD DISTRICT, PIN – 679515. ``` ``` BY ADVS. ``` ``` K.MOHANAKANNAN D.S.THUSHARA ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, IST FLOOR - ANNEXE-II. THIRUVANANTHAPURAM, PIN – 695009.`** - **`2 MALABAR DEVASWOM BOARD REP.BY ITS SECRETARY HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE, PIN – 673003.`** - **`3 THE COMMISSIONER MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE, PIN – 673003.`** - **`4 THE DEPUTY COMMISSIONER (ADMINISTRATION) MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX ERANHIPALAM KOZHIKODE, KERALA, PIN – 673003.`** - **`5 THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, PALAKKAD DIVISION, KENTHU PARAMBU, KUNNATHUR MEDU, PALAKKAD DISTRICT, PIN – 678013.`** - **`6 *MALABAR DEVASWOM BOARD *(CORRECTED), KENATHU PARAMBU, KUNNATHUR MEDU, PALAKKAD, REPRESENTED BY ITS CHAIRMAN, PIN – 678013. *(CORRECTED AS 'MALABAR DEVASWOM BOARD PALAKKAD DIVISION AREA COMMITTE', SUO MOTU AS PER ORDER DATED 29-02-2024).`** - **`7 THE DIVISIONAL INSPECTOR MALABAR DEVASWOM BOARD, OTTAPALAM,`** 2 WP(C) No.7713 of 2024 ``` OFFICE AT PUTHANALKKAL TEMPLE, CHERPLASSERY, PALAKKAD, PIN – 679503. ``` - **`8 THE EXECUTIVE OFFICER SREE THALAYANAKKAD SIVA TEMPLE KADAMBUR P.O., OTTAPALAM PALAKKAD, PIN – 679515.`** - **`9 SURESHBABU K.K., S/O.ACHUTHAN NAIR, KOLANCHERY HOUSE,`** - **`PUNCHAPADOM P.O., PALAKKAD, PIN – 678633.`** - **`10 K.CHANDRAN S/O.LATE AYYAPPAN, KOODATHINGAL HOUSE, THALAYANNAKKAD, KADAMBUR PO, PALAKKAD, PIN – 679515.`** - **`11 GIREESAN`** - **`S/O.LATE RAMAN, PULAKOOTTATHIL HOUSE,`** - **`KATTUKULAM SOUTH P.O., PALAKKAD, PIN – 678514.`** - **`12 PRABHAKARAN.K`** - **`S/O.LATE GOVINDAN, KULAKUZHI HOUSE, THALAYANNAKKAD, KADAMBUR PO, PALAKKAD, PIN – 679515.`** ``` BY ADVS. ``` ``` CHITRA JOHNSON MAHESH V RAMAKRISHNAN ``` ## **`OTHER PRESENT:`** ``` SR. GP-SRI. S. RAJMOHAN; SC, MDB-SMT. R. RANJANIE; SRI. R LAKSHMI NARAYANAN-SR. COUNSEL ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 WP(C) No.7713 of 2024 ## **JUDGMENT** ## **Anil K. Narendran, J** . The petitioner, who is a devotee of Sree Thalayanakkad Siva Temple, Kadampur in Ottappalam, which is a controlled institution under the 2[nd] respondent Malabar Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent Commissioner, Malabar Devaswom Board, to issue an appropriate order/circular constituting a selection committee for the appointment of non-hereditary trustees in the temples, which are controlled institutions under the Board, consisting of a nominee of the Commissioner, the Executive Officer, the Tanthri, the Melsanthi and one hereditary trustee of that temple, for making such appointments. The petitioner has also sought for a writ of certiorari to quash Ext.P2 order dated 14.02.2024 of the 5[th] respondent Assistant Commissioner, Palakkad, as authorised by the 6[th] respondent Area Committee of Malabar Devaswom Board, Palakkad, whereby respondents 9 to 12 have been appointed as non-hereditary trustees of Sree Thalayanakkad Siva Temple, for a period of two years; and a writ of mandamus commanding the 5[th] respondent Assistant Commissioner to fill up the post of nonhereditary trustees in Sree Thalayanakkad Siva Temple from 4 WP(C) No.7713 of 2024 among the qualified persons in Ext.P1 list, including the petitioners herein, within a time frame to be fixed by this Court. 2. On 29.02.2024, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for the 1[st] respondent State and the learned Standing Counsel for Malabar Devaswom Board for respondents 2 to 7, i.e., the Board and its officials. Notice on admission by special messenger was ordered to respondents 8 to 12, returnable by 07.03.2024. The learned Standing Counsel for Malabar Devaswom Board was directed to get instructions. 3. The 8[th] respondent Executive Officer and respondents 9 to 12, who are the non-hereditary trustees appointed in terms of Ext.P2 order, have entered appearance through their respective counsel. 4. Along with I.A.No.1 of 2024, the petitioner has placed on record Ext.P8 order dated 23.10.2013 of the 4[th] respondent Deputy Commissioner, Malabar Devaswom Board, Kozhikode. 5. On 24.03.2024, respondents 9 to 12 have filed a counter affidavit opposing the reliefs sought for in this writ petition. Paragraphs 3 to 7 of the counter affidavit read thus:- “3. The above Writ Petition as framed is not maintainable. Regarding any grievance raised in the writ petition, the 5 WP(C) No.7713 of 2024 petitioner has got effective and equally efficacious remedy under Section 18 of the Madras HR & CE Act before the Commissioner, Malabar Devaswom Board and further before the Government by way of revision under Section 99. Without availing such statutory remedies, no Writ Petition would be maintainable under Article 226 of the Constitution of India. 4. I respectfully submit that the contention raised by the Petitioner in para-6 of the Writ petition are not fully correct. The Ext.P5 order was issued on a false complaint by the petitioner herein. The said order was stayed in Appeal by the Commissioner and later no further actions were taken in the matter. Ext.P4 report shows that there is no allegation of financial misappropriation, but certain procedural lapses were pointed out, which were later clarified by the then Trustee Board. That was the reason why further proceedings were dropped. I respectfully submit that suspension on baseless allegations by itself cannot be termed as a disqualification, when the order of suspension was stayed and further actions were dropped. The contention raised in Para-7 of the writ petition that the 12[th] Respondent has a criminal back ground is incorrect and hence denied. It is true that the 12th Respondent was falsely hooked in a criminal case. But after trial, he was acquitted. The 12th Respondent has already submitted application for getting a certified copy of the order of acquittal. I respectfully submit that the entire criminal case was a cooked up story against the 12th Respondent. 5. I respectfully submit that the Respondents 10, 11 and 12 were appointed as non-hereditary trustees as per 6 WP(C) No.7713 of 2024 Ext.P7 in the previous term. Their efforts and sincerity as NH Trustees were highly appreciated by the worshippers as well as the Malabar Devaswom Board. There is no legal bar for appointing for a further term as NH Trustees. Therefore the reason that the Respondents 10 to 12 have acted as NH Trustees in the previous term by itself cannot be taken as a disqualification. The contention raised in Para-10 of the writ petition are incorrect and hence denied, The contention that the Respondents 10 to 12 were appointed without considering the comparative merits of the other applicants and that the successive appointments of very same persons is improper and illegal etc. are incorrect and hence denied. 6. I respectfully submit that the application for appointment of non- hereditary trustees was invited as per a notification dated 14.02.2023 by the 5th Respondent. As per the notification, the persons who are busy professionals, active political workers and those who is presently an office bearer of any political party are not qualified for submitting application for appointment as a nonhereditary trustee. These Respondents are not active politicians and these Respondents are not office bearers of any political party. These Respondents are not busy professionals. They have got sufficient time to actively engage in the administration of the temple as nonhereditary trustees. Ext.P2 order was issued after strictly complying with the procedural formalities. The allegations raised in the writ petition are to be established by the Petitioner by adducing evidence. The mere allegation alone will not be sufficient to challenge Ext.P2 order of a statutory authority. 7 WP(C) No.7713 of 2024 7. I respectfully further submit that Ext.P2 order by the 5th Respondent has been issued by strictly following the principles of law settled by this Hon'ble Court in Chathu Achan v. State of Kerala [2022 (6) KLT 388], Anantha Narayanan and others v. Malabar Devaswom Board [2023 SCC Online Kerala 1022] and Suresh K. v. State of Kerala and others [2021 (2) KLT 885]. There is no violation of any of the directions in the said judgements. There is no dictum laid down to the effect of appointment as NH Trustees earlier, by itself, is a disqualification for subsequent appointment. On that score also, the contentions raised by the Petitioner will not legally sustain.” 6. On 27.03.2024, when this matter came for consideration, this Court passed a detailed order after hearing the learned counsel for the petitioner, the learned Senior Government Pleader for the 1[st] respondent State, the learned Standing Counsel for respondents 2 to 7, the learned counsel for the 8[th] respondent Executive Officer and the learned counsel for respondents 9 to 12. Paragraphs 5 to 17 of that order read thus:- "5. Regarding the appointment of non-hereditary trustees in the temples, which are controlled institutions under the Malabar Devaswom Board, a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party, has rendered the decision in **Chathu Achan K. v. State of Kerala [2022 (6) KLT 388]** which was followed by the decision in **Anantha Narayanan and another v. Malabar Devaswom Board and others [2023 KLT** 8 WP(C) No.7713 of 2024 **OnLine 1195 : 2023 SCC OnLine Ker 1022]** . The decisions referred to supra were rendered after referring to the law laid down by another Division Bench of this Court in **Suresh K. v. State of Kerala and others [2021 (2) KLT 885]** . 6. In **Anantha Narayanan [2023 KLT OnLine 1195]** this Court held that when clause 3(7) of the notification dated 08.02.2023 issued by the Commissioner, Malabar Devaswom Board for appointment as non-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. 7. 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) of the notification issued by the Commissioner, Malabar Devaswom Board 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 9 WP(C) No.7713 of 2024 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 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. 8. In **Anantha Narayanan [2023 KLT OnLine 1195]** the Division Bench noticed that, going by the parameters prescribed in the notification issued by the Commissioner, Malabar Devaswom Board, 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 the said notification 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 10 WP(C) No.7713 of 2024 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. 9. In the instant case, the document marked as Ext.P1 is a copy of the report dated 27.11.2023 of the 7[th] respondent Divisional Inspector, Malabar Devaswom Board addressed to the 5[th] respondent Assistant Commissioner, Palakkad. A perusal of Ext.P1 would show that when reports are called for from the Divisional Inspectors on the applications made for appointment as non-hereditary trustees in temples, which are controlled institutions under the Malabar Devaswom Board, reports are being submitted in a ‘cyclostyled format’ without dealing with the eligibility and disqualification of the individual applicants. 10. In Ext.P1 report of the Divisional Inspector, specific reference was made on the complaint made by the petitioner against the 12[th] respondent, with reference to the criminal proceedings initiated against him for an offence punishable under Section 55(A) of the Abkari Act, 1077 and the proceedings in M.P.No.2 of 2012 before the Deputy Commissioner, Kozhikode, which was closed as per Ext.P8 order dated 23.10.2013, with a direction to the 5[th] respondent Assistant Commissioner to prosecute the 12[th] respondent as to the charge of financial misappropriation before appropriate court. The document marked as Ext.P5 is an order dated 14.05.2012 of the Deputy Commissioner in M.P.No.2 of 2012 and Ext.P5 is a copy of the order dated 05.08.1998 of the Judicial First Class Magistrate Court, Ottapalam, whereby the 11 WP(C) No.7713 of 2024 application for bail filed by the 12[th] respondent in Crime No.26/1998 of Cheruplucherry Excise Range stands dismissed. 11. The counter affidavit filed on behalf of respondents 9 to 12 is one sworn to by the 9[th] respondent on behalf of others. The 12[th] respondent has not chosen to file an individual counter affidavit, denying the specific allegations levelled against him in relation to the proceedings referred to hereinbefore. 12. Insofar as respondents 9 to 11 are concerned, the grievance of the petitioner is that despite of availability of 10 eligible applicants for appointment as non-hereditary trustees, the 6[th] respondent Area Committee has chosen to reappoint the said respondents, who have already completed their two years term, based on their earlier appointment in the year 2021. 13. The learned counsel for the party respondents and the learned Standing Counsel for the Malabar Devaswom Board would point out the order of stay granted by this Court in W.P.(C)No.12189 of 2021, against the appointments made in the year 2021, which has also been pointed out in Ext. P1 report of the Divisional Inspector. 14. Having considered the pleadings and the materials on record and also the submissions made at the Bar, we deem it appropriate to grant an interim order staying the operation of Ext.P2 order dated 14.02.2024 of the 5[th] respondent Assistant Commissioner, which is one issue on behalf of the 6[th] respondent Area Committee, to the extent it relates to the appointment of the 12[th] respondent as non-hereditary trustee of Sree Thalayanakkad Siva Temple, for a period of three months. 12 WP(C) No.7713 of 2024 15. A large number of writ petitions are being filed before this Court challenging the appointment of non-hereditary trustees in temples, which are controlled institutions under the Malabar Devaswom Board. In most of the writ petitions, the ground of challenge is that persons who are active politicians or persons who are involved in misappropriation of Devaswom funds, etc., are being appointed as non-hereditary trustees. In most of the cases, the devotees have a common grievance that the process of selection is not conducted in a fair and transparent manner, even without proper publication of the notification inviting applications for appointment as non-hereditary trustees. 16. In such circumstances, we deem it appropriate to direct the 1[st] respondent State and also the 2[nd] respondent Malabar Devaswom Board to file affidavits explaining the procedure that is being followed in the selection process for appointment of non-hereditary trustees in the temples, which are controlled institutions under the Malabar Devaswom Board. The orders/circulars governing the field shall be placed on record along with the affidavit. 17. Pending consideration of this writ petition, we deem it appropriate to direct the 2[nd] respondent Malabar Devaswom Board to give wide publicity to the notifications issued for making appointments to the post of nonhereditary trustees in the temples, which are controlled institutions under the Board. Such a notification shall be published in a local daily having wide circulation. The notification shall also be published in the notice board of the temple, at a prominent place, for the information of 13 WP(C) No.7713 of 2024 the devotees, and also in the notice boards of the concerned Local Self Government Institution and the Village Office. Once applications are received, the details of the applicants shall be exhibited in the notice board in the temple premises, so as to enable the devotees to point out the disqualifications, if any, of any one among the applicants, by submitting written objections before the Area Committee, furnishing therewith their name, address and mobile number. Those objections shall also be dealt with appropriately by the Area Committee, after obtaining individual reports on those complaints from the Divisional Inspector, before making any such appointments." 7. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for the 1[st] respondent State, the learned Standing counsel for respondents 2 to 7, the learned counsel for the 8[th] respondent Executive Officer and the learned counsel for respondents 9 to 12. 8. In **Sreedharan Nambeesan 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. 14 WP(C) No.7713 of 2024 ## 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 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 15 WP(C) No.7713 of 2024 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, 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.** **[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. 16 WP(C) No.7713 of 2024 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 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 17 WP(C) No.7713 of 2024 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, 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 non-hereditary 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 18 WP(C) No.7713 of 2024 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 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. 19 WP(C) No.7713 of 2024 ## 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 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 20 WP(C) No.7713 of 2024 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 sub-clause (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 that the provisions of Clauses 3 and 4 of the notification issued by the Commissioner, make it explicitly clear that, for 21 WP(C) No.7713 of 2024 appointment as non-hereditary 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. 22 WP(C) No.7713 of 2024 17. In Ext.P4 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 nonhereditary 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 Ext.P1 notification dated 10.07.2023. ## 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 23 WP(C) No.7713 of 2024 clause 3(7) of Ext.R6(a) notification [clause 3(g) in Ext.P1 notification dated 10.07.2023] issued by the Commission for appointment as non-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 24 WP(C) No.7713 of 2024 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 appointment as non-hereditary trustees, respondents 6 to 8 cannot contend that they were not active politicians. In Ext.R6(e) constitution of DYFI, 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 Ext.R6(e) 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 Ext.R6(a) notification, 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 25 WP(C) No.7713 of 2024 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. 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 nonhereditary trustees in the temples under it. 21. The learned counsel for the petitioner would submit that the petitioner shall file a statutory revision against Ext.P2 order dated 14.02.2024 issued by the 5[th] respondent Assistant Commissioner, as authorised by the 6[th] respondent Area Committee, based on decision No.32 dated 09.02.2024 of the 6[th] 26 WP(C) No.7713 of 2024 respondent Area Committee, 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. 22. In such circumstances, leaving open the legal and factual contentions raised by the petitioner and respondents 9 to 12, this writ petition is disposed of 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 9 to 12 as Non-Hereditary Trustees. - (2) The 3[rd] respondent Commissioner shall consider and pass appropriate orders on that revision petition, with notice to the petitioner, respondents 9 to 12, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of that revision petition, after adverting to the legal and factual contentions raised by both sides and also the law laid down in the decisions referred to supra. Till a decision is taken on the revision petition as above, the interim order granted on 27.03.2024 staying the operation of Ext.P2 order will continue. - (3) The order to be passed by the 3[rd] respondent Commissioner shall be a ‘reasoned order’. 27 WP(C) No.7713 of 2024 The directions contained in paragraph No.17 of the order dated 27.03.2024, quoted hereinbefore in paragraph 6 at page Nos.12 and 13, whereby the 2[nd] respondent Malabar Devaswom Board is directed to give a wide publicity to the notifications issued for making appointments to the post of non-hereditary trustees in temples, which are controlled institutions under the Board, and the further directions that have to be followed while processing such applications, are made absolute. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **HARISANKAR V. MENON, JUDGE** Skk//05.06.2024 28 WP(C) No.7713 of 2024 ## **`APPENDIX OF WP(C) NO.7713/2024`** ## **`’ PETITIONER S EXHIBITS:-`** ``` EXHIBIT P1TRUE COPY OF THE COMMUNICATION SENT BY THE 7TH RESPONDENT TO THE 5TH RESPONDENT DATED 27-11-2023 WITH SCHEDULE ``` ``` EXHIBIT P2TRUE COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT DATED 14-2-2024 NO.A5/579/2023/MDB(K.DIS) DATED 14-2-2024 ``` ``` EXHIBIT P3TRUE COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT NO.A5 3465/08 DATED 8-9-2009 ``` ``` EXHIBIT P4TRUE COPY OF THE REPORT NO.A5-2734/2011/MDB DATED 24-4-2012 OF THE ASSISTANT COMMISSIONER ``` - **`EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 3RD RESPONDENT VIDE ORDER NO.MP2/12/MDB/DATED 14-5-2012`** - **`EXHIBIT P6 TRUE COPY OF THE ORDER IN CMP NO.4179/98 OF JUDICIAL FIRST CLASS MAGISTRATE, OTTAPALAM DATED 5-8-1998 WITH TYPED COPY`** - **`EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS OF THE 6TH RESPONDENT DATED NO.A5/24/2021/MDB(D.DIS) DATED 26-2-2021`** - **`EXHIBIT P8 TRUE COPY OF THE ORDER IN MP 2/2012 DATED 23-10-2013 OF THE DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD, KOZHIKODE`**