N. K. E. Chandarshekhharan Nampooodiripad v. Commissioner, Malabar Devaswom Board and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 8[TH] DAY OF SEPTEMBER 2023/17TH BHADRA, 1945 WP(C)NO.29279OF 2023 ``` ## **`PETITIONER:`** ``` N. K. E. CHANDARSHEKHARAN NAMPOODIRIPAD AGED 77 YEARS, S/O. LATE KUBERAN NAMPOODIRIPAD, RESIDING AT 'OM NIVAS', KAVINCHAL, PO C. POYIL, PARIYARAM, KANNUR DISTRICT, PIN – 670 502 ``` ``` BY ADVS. M.K.SUMOD VIDYA M.K. RAJ CAROLIN V. THUSHARA.K ``` ## **`RESPONDENTS:`** - **`1 THE COMMISSIONER, MALABAR DEVASWOM BOARD, OFFICE OF THE MALABAR DEVASWOM BOARD COMMISSIONER, PO ERANJIPALAM, KOZHIKODE DISTRICT, PIN – 673 006`** - **`2 THE ASSISTANT COMMISSIONER OFFICE OF THE MALABAR DEVASWOM BOARD ASSISTANT COMMISSIONER, P.O NEELESWARAM, KASARGOD DISTRICT, PIN – 671 314`** - **`3 THE INSPECTOR OFFICE OF THE INSPECTOR, MALABAR DEVASWSOM BOARD, THRICHAMBARAM, THALIPARAMBA, KANNUR DISTRICT, PIN - 670141`** - **`4 THE MALABAR DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY HOUSEFED COMPLEX, ERANHIPALAM P O, KOZHIKODE, PIN – 673003`** - **`BY S.C.MDB, ADV.LAXMI NARAYANAN SRI.S. RAJMOHAN, SR.GOVT. PLEADER`** WP(C) No.29279 of 2023 : 2 : ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.29279 of 2023 : 3 : ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is one among the hereditary trustees of TTK Devaswom, which is a controlled institution under the 4[th] respondent Malabar Devaswom Board, consisting of Sree Rajarajeswara Temple of Taliparamba, Sree Krishna Temple of Trichambaram and Sree Vaidyanatha Temple of Kanjirangad, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 notification dated 10.07.2023 issued by the 1[st] respondent Commissioner, Malabar Devaswom Board for making appointments as nonhereditary trustees in the said Devaswom. The petitioner has also sought for writ of mandamus commanding the 1[st] respondent Commissioner not to appoint any non-hereditary trustee in TTK Devaswom without placing the list of the proposed appointees to the hereditary trustees, including the petitioner, and considering their objections. 2. On 05.09.2023, when this writ petition came up for admission while ordering the matter to be listed on 07.09.2023, this Court passed an interim order directing the respondents to defer appointment pursuant to Ext.P1 notification till then. WP(C) No.29279 of 2023 : 4 : 3. On 07.09.2023, the learned Standing Counsel for Malabar Devaswom Board, on instructions, submitted that the appointment of non-hereditary trustees in TTK Devaswom is governed by the provisions under the scheme framed by the Deputy Commissioner. The learned counsel for the petitioner sought adjournment and the matter was ordered to be listed today for further consideration. The interim order granted on 05.09.2023 was extended, till then. 4. Heard the learned counsel for the petitioner and the learned Standing Counsel for Malabar Devaswom Board for the respondents. 5. The issue that requires consideration in this writ petition is as to whether any interference is warranted on Ext.P1 notification dated 10.07.2023 issued by the 1[st] respondent Commissioner inviting applications for appointment as non-hereditary trustees in TTK Devaswom, which is a controlled institution under the Malabar Devaswom Board. 6. The challenge in this writ petition against Ext.P1 notification dated 10.07.2023 issued by the 1[st] respondent Commissioner is mainly relying on the law laid down by this Court in **Sreedharan Nambeesan P. v. Commissioner** WP(C) No.29279 of 2023 : 5 : **Malabar Devaswom Board and Others [2018 (2) KLT 115]** . 7. In **Sreedharan Nambeesan P. [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 to fill up the vacancies of Nonhereditary 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 WP(C) No.29279 of 2023 : 6 : 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.” 8. 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. 9. In the decision in **Commissioner, Malabar Devaswom Board and others v. Sreedharan Nambeesan** **P. [2018:KER:17236]** the Division Bench clarified that in the WP(C) No.29279 of 2023 : 7 : 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 nonhereditary 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 nonhereditary 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 WP(C) No.29279 of 2023 : 8 : 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 as to whether it is necessary to fill up the vacancy. With the above clarification, the Division Bench closed the review petition. ## 10. 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 nonhereditary trustee on any ground referable to the conduct of the hereditary trustee, or otherwise, when there is a scheme WP(C) No.29279 of 2023 : 9 : governing the trust, which provides, among other things, for appointment of four non-hereditary trustees. 11. 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 subsection (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. WP(C) No.29279 of 2023 : 10 : 12. In the instant case, the appointment of nonhereditary trustees in TTK Devaswom is governed by the provisions under the scheme framed in terms of Section 58 of the Act. Therefore, the challenge made in this writ petition against Ext.P1 notification dated 10.07.2023 issued by the 1[st] respondent Commissioner, relying on the decision of the Division Bench in **Sreedharan Nambissan P. [2018 (2) KLT 115]** , fails in view of the law laid down by this Court in **Chathu Achan K. [2022 (6) KLT 388]** and the petitioner is not entitled to seek a writ of mandamus commanding the 1[st] respondent Commissioner to appoint any non-hereditary trustees in TTK Devaswom without placing the list of proposed appointees to the hereditary trustees including the petitioner and considering their objections. 13. Clause 3 of Ext.P1 notification dated 10.07.2023 issued by the 1[st] respondent Commissioner deals with disqualifications and Clause 4 deals with eligibility of a person for being appointed as non-hereditary trustee of TTK Devaswom. Clauses 3 and 4 of Ext.P1 notification read thus; > “3. ൽ , _താഴെ ്ᩚ്ᩜാവി്ച അയ ാഗ്യതകളി ഏഴത്ᨮിലുഴ ായനാ എ്ᩤായ ാ ഉ്ᩦ ആളുക_ ൾ _്ക് നി ന്തിന് അ_ ർ _ഹതയു്ിാ ിരിക്നത്ᩤ. അതിനാ_ ൽ _അവ_ ർ _അയേ്ᩌിയ്ക്ിതി്ᩤ._ WP(C) No.29279 of 2023 : 11 : a) _സദാചാരദൂഷ്യമു_ ൾ _ഴെടാ്ത വ്ᩤ കു്റ്തിനും നാടുകട്തി_ ൽ , _ശി്ᩌ്ᩄയ്കാ ആറു ാസ്തിലധിക ാ ഒരു കാലയ്തക തടവുശി്ᩌ്ᩄയ്കാ ഒരു ്ᩅി ിന_ ൽ _യകാടതി ശി്ᩌി്ചിട ആളുക_ ൾ _അ്ᨲഴനയു്ᩦ ശി്ᩌ ദു_ ർ _ബലഴെടു്താതിരിക്കയ ാ അഴ്ᩤ്ᨮി_ ൽ _ആറു ാസയ ാ അതി_ ൽ _കുറയവാ ആ ഒരു കാലയ്തക് ചുരു്കാതിരിക്കയ ാ അഴ്ᩤ്ᨮി_ ൽ _ഗ്വ_ ൺ _ഴ ്ᩙ് അ്ᨲഴനയു്ᩦ കു്റും ാൊ്കാതിരിക്കയ ാ വീ്ിും അഴ്ᩤ്ᨮി_ ൽ _ആ ശി്ᩌ ഒരു അയ ാഗ്യത ാ ി്തീരുനതഴ്ᩤന് ഗ്വഴെ്ᩙ് ക_ ൽ _െി്കാതിരിക്കയ ാ ഴചയ്യപാ_ ൾ _._ b) _ദീവാളി ാ ി വിധി ക്ᩜി്കഴെടുകയ ാ അഴ്ᩤ്ᨮി_ ൽ _അ്ᨲിഴന വിധി ക_ ൽ _െിച് കിട്നതിന് അയേ്ᩌിക്കയ ാ ഴച്ᩓിരിക്ന ആളുക_ ൾ c) _മുമ്തഴന വ്ᩤ ക്ടലാ ികളുയടയ ാ യ്ᩌ്ᩔ്തിയനാടു യച_ ർ _്ത് ്ᩚയതയക ദാനസവത ളുഴടയ ാ ്ᩏ᪚➚ികളാ ിട ആളുക_ ൾ _._ d) _മുമ്തഴന വ്ᩤ യ്ᩌ്ᩔ്തിഴ്ᩙയ ്ᩏ᪚➚ികളാ ിരിക്കയ ആ്ᨴ് ്ᩚകാരും ഏ_ ർ _ഴെടു്തഴെ്ട കാരയനി_ ർ _്ᩪാഹക യബാ_ ർ _ഡിനായലാ_ , , _അധികാര്ᩝ്ᩖായരായലാ നീ്കും ഴചയ്കയ ാ േിരി്ച ക്കയ ാ ഴച്യഴെടുകയ ഴച്ᩓ ആളുക_ ൾ _._ e) _ഒരു ്ᩏ᪚➚ിയുഴട ്ᩚവൃ്തിക_ ൾ _നി_ ർ _്ᩪഹിക്നതിന് ത്ᨲഴള_ ർ , _ാനസികയ ാ_ , _കാ ികയ ാ ആ അയ ാഗ്യരാ്കി്തീ ക്ന ചി്ത്ᩝ യ ാ_ , ൾ _. റ് ദൂഷ്യയ ാ യശഷ്ിയകയടാ ഉ്ᩦ ആളുക_ f) _ഴതാെി_ ൽ _േര ാ ി തിരകേിടി്വ_ ർ, g) _സജീവ രാ᪚ീ ്വ_ ർ _്ക_ ർ, _രാ᪚ീ ോ_ ർ _്ികളഴട ഒയദയാഗിക േദവിക_ ൾ _വഹികനവ_ ർ, h) _യദവസവും ്ᩝലും/ഭൂ ി/ ഴക്ടിടും കയ്യറി വ_ ർ, i) _യദവസവ്തിന് താ_ ൽ _േരയമു്ᩦ വയവഹാര്തി_ ൽ _്ᩚതി എതി_ ർ _വ_ ർ, _ക്ᩌി ാ ിട_ ” j) _യദവസവ്തിഴനതിരാ ി വയവഹാരും ഫ_ ൽ _ഴച്ᩓിട വ_ ർ _._ “4. (a) _അയേ്ᩌക_ ൾ _യ്്ു ്ിതിഴചയന താല്ിഴല ്ിരതാ സ്ാരനാ ിരി്ണു_ , ർ _യേയരാ_ , _യവാ്ട േ്ടിക ിഴല യറഷ്_ ൻ _കാ_ ർ _ഡിഴല വിലാസയ ാ ഇതിന് ഴതളിവാ ി അയേ്ᩌയ ാഴടാെും ഹാജരായ്ക്ിതാണ്._ (b) _അയേ്ക_ ൾ _സാധാരണ ാ ി /േതിവാ ി യ്്ു സ്_ ർ _ശികന സവഭാവമ് ആളാ ിരി്ണു. (_ c) _അയേ്ᩌക_ ർ _വി്ᩇഹാരാധന ി_ ൽ _വിശവസിക്ന ആളാ ിരി്കണും. യ്ᩌ്ᩔും/യ്്്ളഴട പയരാഗതികയവ് സജീവ ാ ി ്വ_ ർ _്ി കനവരാ ിരി്ണും. (_ d) _വിദയാഭയാസ യ ാഗ്യത ഴതളി ിക്നതിന്ᩦ യരഖക_ ൾ _അയേ്ᩌയ ാഴടാെും ഹാജരാ്കി ിരി്കണും._ ” WP(C) No.29279 of 2023 : 12 : 14. Clause 4 of Ext.P1 notification, which deals with eligibility of a person for being appointed as non-hereditary trustee of TTK Devaswom, makes it explicitly clear that 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. In view of the provisions in Clause 3 of Ext.P1 notification, active politicians or those holding official positions of political parties or those who are busy with their employment are disqualified from being appointed as non-hereditary trustee of the temple. Sub-clauses (a) to (e) and (i) and (j) of Clause 3 of Ext.P1 notification deals with other disqualifications of a person for being appointed as non-hereditary trustee of the temple. 15. 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 WP(C) No.29279 of 2023 : 13 : 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. ## 16. 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, WP(C) No.29279 of 2023 : 14 : 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. > 17. 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 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 WP(C) No.29279 of 2023 : 15 : 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. ## 18. 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 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- WP(C) No.29279 of 2023 : 16 : 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. 19. In view of the law laid down by this Court in **Chathu Achan K. [2022 (6) KLT 388]** , for appointment as nonhereditary 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 WP(C) No.29279 of 2023 : 17 : 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 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 Ext.P1 notification dated 10.07.2023. It is ordered accordingly. In the above circumstances, leaving open the right of the petitioner to challenge the proceedings pursuant to Ext.P1 notification, in case it is not strictly in terms of the disqualification and eligibility clauses provided therein, this writ petition is disposed of with the direction contained hereinbefore. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **VIJU ABRAHAM, JUDGE** sbk/- WP(C) No.29279 of 2023 : 18 : ## **`APPENDIX OF WP(C) 29279/2023`** ``` PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTIFICATION WITH REF NO. H2/3408/2023/MDB DATED 10.07.2023 OF THE 1ST RESPONDENT Exhibit P2 TRUE COPY OF THE NOTICE WITH REF NO. 247/2023 MDB DATED 24.08.2023 ISSUED BY THE 3RD RESPONDENT Exhibit P3 TRUE COPY OF THE REPORT PUBLISHED IN THE FOURTH PAGE OF THE NEWSPAPER "MAKTAB DAILY" DATED 25/08/2023 ```