Naduvil Madom Swamiyar (Hereditary Trustee) vs 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 P.G. AJITHKUMAR** **WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022/16TH AGRAHAYANA,** **1944** ## **WP(C) NO.19403 OF 2022** ## **PETITIONER:** **NADUVIL MADHOM MOOPPIL SWAMIYAR H.H.MARAVANCHERI THEKKEDATH NEELAKANTA BHARATHIKAL AGED 86 YEARS** **S/O.CHITHRAN NAMBOOTHIRIPAD, PAZHAYANADAKKAVU, THEKKEMADOM ROAD, THRISSUR (HEREDITARY TRUSTEE OF NADUVILMADHOM GROUP OF DEVASWOMS).** **BY ADVS. K.MOHANAKANNAN BERIN BABY** ## **RESPONDENTS:** - **1 MALABAR DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE - 673 006.** - **2 THE COMMISSIONER MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE - 673 006.** - **3 THE ASSISTANT COMMISSIONER MALABAR DEVASWOM BOARD, PALAKKAD DIVISION, CIVIL STATION, PALAKKAD - 678 001.** - **4 R.RADMESH EXECUTIVE OFFICER,SREE MULAYANKAVU BHAGAVATHI DEVASWOM, MULAYANKAVU P.O., KULUKALLUR, PALAKKAD DISTRICT - 679 337.** - **5 ADDL. R5, N.PRAMOD AGED 43 YEARS** - **S/O.K.A.NARAYANAN EMBRANTHIRI, VADAKKE GRAMAM,** 2 W.P.(C) No.19403 of 2022 **PUTHUKKODE, PALAKKAD DIST-678 687. ADDL R5 IS IMPLEADED AS PER ORDER DATED 12-082022** **BY ADVS. SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD V.M.KRISHNAKUMAR MAYA M.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 16.11.2022, THE COURT ON 07.12.2022 DELIVERED THE FOLLOWING:** 3 W.P.(C) No.19403 of 2022 ## **J U D G M E N T** ## P.G.Ajithkumar, J The petitioner is the hereditary trustee of Naduvil Madom group of temples, which consists of 18 temples situate at various places in Malabar area. Naduvil Madom Devaswom is a 'math'. The temples are controlled institutions under the Hindu Religious and Charitable Endowments Act, 1951. These temples are administered under Ext.P1 scheme which was approved by the Board of Commissioners in the year 1934. 2. Sree Annapoorneswari Temple, Pudukkodu in Palakkad district is one of the said 18 temples. On 16.12.2021, the 3[rd] respondent issued a notice to the Manager of the temple pointing out certain defects in the administration of the temple. The Manager has submitted a reply, Ext.P3 explaining that all the necessary records have been properly maintained. The reason for omission to audit was also explained. The 3[rd] respondent however issued Ext.P4 dated 30.05.2022 appointing the Executive Officer of Sree Mulayankavu Bhagavathi temple, 4[th] respondent as the Manager of Sree Annapoorneswari temple. As a sequel to it, 4 ## W.P.(C) No.19403 of 2022 Ext.P5 proceedings was issued asking the Manager of the temple to hand over charge to the 4[th] respondent. The petitioner has sought time for compliance till 14.06.2022 for which he submitted Ext.P6. It was thereafter, the petitioner filed this writ petition seeking a writ of certiorari to quash Ext.P4. Subsequently, the 2[nd] respondent issued Ext.P7 dated 13.06.2022 ratifying Ext.P4. Therefore the writ petition was amended by adding a relief seeking a writ of certiorari quashing Ext.P7 also. 3. A statement was filed on behalf of the 2[nd] respondent where it was contended that the Trustee was not exercising due diligence in the administration of the temple and the Manager was not personally overseeing the matters connected to the day-to-day affairs of the temple. In fact the administration was entrusted with a Samithi namely Sree Annapoorneswari Pooja Co-ordinators Trust (SAPCO). When an inspection was conducted, the Manager was not present in the temple and it was found that SAPCO has been running the temple since 1982. Several illegalities were found in the inspection which have been narrated in the statement. 5 W.P.(C) No.19403 of 2022 4. Additional 5[th] respondent got impleaded by filing I.A. No.2 of 2022. The 5[th] respondent alleges that the committee which manages the temple has been collecting huge amounts and there has not been any audit of its accounts. Under the guise of Navarathri festival, collection of huge amounts has been done in the previous years, but statement of accounts has not been maintained. Many instances of malfeasance and misfeasance in the administration of the temple have been pointed out. The 5[th] respondent produced Ext.R1(a) to R5 (h) and later products Ext. R5(i). 5. The petitioner has filed a reply affidavit controverting the allegations leveled against him by the respondents. 6. Following a query made by this court, the learned counsel appearing for the petitioner placed on record an affidavit of the petitioner narrating the details of accounts relating to all the 14 temples. 7. Heard the learned counsel appearing for the petitioner and also the learned Standing Counsel appearing 6 W.P.(C) No.19403 of 2022 for the Malabar Devaswom Board and also the learned Counsel appearing for the 5[th] respondent. 8. As per Ext.P4, an Executive Officer was appointed to oversee the management of Sree Annapoorneswari temple, Pudukkodu. This is a temple under the supervisory control of the 1[st] respondent Board. The petitioner at the outset would contend that Naduvil Madom Devaswom is a 'math' coming under the HR and CE Act and therefore the 1[st] respondent or its officials cannot interfere with the matters relating to the administration of the temples under it. The question whether the temples under the petitioner are math or temple was considered by a Division Bench of this Court in W.P.(C) No.15269 of 2021. Para 21 of that judgment dated 10.06.2022 reads thus; “21. On 31.05.2022, during the course of arguments, on a specific query made by this Court, the learned counsel for the petitioner submitted that, Sree Prayangod Siva Temple is not a place of religious worship, which is appurtenant to a ‘math’ as defined under clause (10) of Section 6 of the Madras HR&CE Act. As already noticed, Ext.P1 Scheme covers 18 temples under Naduvil Madom Devaswoms spread over in Malabar area. In the writ petition, the petitioner has stated that the 18 temples under Naduvil 7 W.P.(C) No.19403 of 2022 Madom in Malabar area are famous temples having sufficient landed properties. In the light of the pleadings and materials on record, we find no force in the contention of the petitioner that Sree Prayangod Siva Temple under Naduvil Madom Devaswoms is not a place of religious worship (temple), which is appurtenant to a ‘math’ as defined under clause (10) of Section 6 of the Madras HR&CE Act. It is a 'temple', as defined in clause (17) of Section 6 of the said Act, which is used as a place of public religious worship and dedicated for use as of right by the Hindu Community as a place of public religious worship. The contentions to the contra raised by the learned counsel for the petitioner can only be rejected as untenable and we do so.” 9. Therefore the contention of the petitioner that Naduvil Madom Devaswom is a 'math' and therefore the 1[st] respondent Board does not have administrative control over it cannot be accepted. 10. Sree Annapoorneswari Temple, Pudukkodu as well as other temples under the management of the petitioner are administered as per Ext.P1 scheme. From the recitals in itself it is clear that the Trustee is bound to submit accounts before the Board. The provisions contained in the Chapter VII of the HR and CE Act make it mandatory for every religious institutions to submit its accounts and any lapse in that regard 8 W.P.(C) No.19403 of 2022 entails interference by the 2[nd] respondent Commissioner. The 1[st] respondent Board, 2[nd] respondent or other officers in the Board, in such circumstances, have every authority under Section 21 of the HR&CE Act to enter the premises of the religious institution under its control and take steps to ensure proper management of the institution and maintenance of proper accounts with the required audit. 11. The Apex Court in **Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [AIR 1954 SC 282]** held; "The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no Legislature can take away, whereas the former can be regulated by laws which the Legislature can validly impose. It is clear, therefore, that questions merely relating to the administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the article applies." 12. In **Sri Adi Visheshwara of Kashi Vishwanath** ## **Temple, Varanasi and others v. State of U.P. and others** **[(1997) 4 SCC 606]** , the Apex Court drew the distinction 9 W.P.(C) No.19403 of 2022 between religious and non - religious activities in the context of Articles 25 and 26 of the Constitution of India as follows: "Right to religion guaranteed by Article 25 and Article 26 is not absolute or unfettered right to propagate religion which is subject to legislation by the State limiting or regulating every non religious activity. The right to observe and practise rituals and right to manage in matters of religion are protected under these Articles. But right to manage the Temple or endowment is not integral to religion or religious practice or religion as such which is amenable to statutory control. These secular activities are subject to State regulation but the religion and religious practices which are integral part of religion are protected. It is well settled law that administration, management, and governance of the religious institution or endowment are secular activities and the State could regulate them by appropriate " legislation. (emphasis supplied) 13. This Court in **The Zamorin Raja Calicut and** ## **others v. State of Kerala and others [2022 (3) KLT 601]** after referring to the law laid down by the Apex Court in the aforesaid decisions held that although the State cannot interfere with the freedom of person to profess, practice and propagate his religion, the State can control the secular matters connected with religion. 10 W.P.(C) No.19403 of 2022 14. In that view of the matter, the petitioner cannot contend that the 1[st] respondent Board should not have interfered with the administration of the temple. Once it is revealed that there has been irregularity or impropriety in the matters connected to the administration of the temple, the 2[nd] respondent or other officers in the Board can certainly take steps to ensure proper management of the institution. Those authorities can also insist on maintenance of proper accounts and make available the accounts for audit. In the light of the provisions under Section 76 of the HR and CE Act, every such religious institution is bound to make its contribution to the Board as well. 15. In the reply affidavit filed by the petitioner, it is admitted that accounts of the Annapoorneswari temple, Pudukkodu have not been audited for many years. From the affidavit dated 09.11.2022 filed by the petitioner, it can be seen that the annual income from the Annapoorneswari Temple, Pudukkodu was Rs.22,55,888.67 in the year 2021. Excuses stated by the petitioner for not submitting the accounts for audit are totally insufficient. 11 W.P.(C) No.19403 of 2022 16. Having considered the materials on record, it is quite evident that only on convincing in the inspection that the administration of the temple was not transparent and there has not been proper accounting of the income and expenditure, the 3[rd] respondent, Assistant Commissioner issued Ext.P4 appointing a Manager in the temple subject to ratification by the Commissioner. The 2[nd] respondent Commissioner in due course issued Ext.P7 ratifying Ext.P4. The contention of the learned Counsel appearing for the petitioner is that the power of the Board to supervise does not include the power for appointment of a Manager. The learned Counsel in this regard placed reliance on the decision in **Parakkad Sree Bhagavathi Devaswom v. Malabar Devaswom Board [2010 (4) KLT 568].** In that decision, this Court held that when the power to appoint Manager is with the trustee as per the scheme, the provisions of the HR and CE Act enables the competent authority only to supervise the affairs of the temple. The board does not wield the power of appointment of a Manager. As per Ext.P1 scheme, under which the temples under the petitioner are administered, it is 12 ## W.P.(C) No.19403 of 2022 the prerogative of the petitioner as the trustee to appoint the manager of the temple. The Board, however, has been given, as per Clause 4 in Ext.P1, the authority to remove the Manager if there is sufficient reason. Going by the provisions of Section 63 of the HR & CE Act also whenever there is mismanagement of the religious institution, which is governed by a scheme the Board can initiate action for bringing the temple under the administrative control of the Board. However, as held in **Parakkad Sree Bhagavathi Devaswom** (supra) it is not possible for the Board to appoint a Manager thereby to totally take over the administration of the temple from the Trustee, unless a notification under Section 64 of the HR & CE Act is issued by the State Government. 17. In Ext.P4, it is stated that in order to ensure proper administration of the temple and to give necessary instructions to the Manager in the Annapoorneswari Temple, the 4[th] respondent was appointed as the Manager. Such an appointment cannot have the effect of displacing the powers of the Manager appointed by the Trustee. Therefore, the appointment of the 4[th] respondent as a Manager is for the 13 ## W.P.(C) No.19403 of 2022 purpose of assisting the Manager appointed by the Trustee in the matters of administration of the Temple and to see that the management of the Temple is being done in a proper way. Therefore the appointment as per Ext.P4 cannot be termed as a paid full time Manager in the temple by the Board. Therefore the appointment as per Ext.P4 is not against the law laid down in **Parakkad Sree Bhagavathi Devaswom** (supra). 18. In the circumstances, we hold that the petitioner is not entitled to get Ext.P4 or Ext.P7 quashed. We however, make it clear that the administration of Sree Annapoorneswari Temple shall strictly be done in accordance with Ext.P1 scheme and the role of the Manager appointed as per Ext.P4 is only to assist the Manager of the Temple appointed by the Trustee, and not to replace him. Writ petition is accordingly dismissed. ## **Sd/-** ## **ANIL K.NARENDRAN** ## **JUDGE** **Sd/-** ## **P.G. AJITHKUMAR JUDGE** PV 14 W.P.(C) No.19403 of 2022 ## **APPENDIX OF WP(C) 19403/2022** ## **PETITIONER EXHIBITS** - **Exhibit P1** - **TRUE COPY OF THE SCHEME FOR ADMINISTRATION OF NADUVILMADOM GROUP OF DEVASWOMS (18 IN NUMBER) WITH TYPED COPY.** - **Exhibit P2 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 16/12/2021.** - **Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 14/1/2022 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **Exhibit P4 TRUE COPY OF THE PROCEEDINGS NO.A33042/2021/MDB(1) DATED 30/5/2022 OF THE 3RD RESPONDENT.** - **Exhibit P5 TRUE COPY OF THE COMMUNICATION SENT BY THE 4TH RESPONDENT TO THE MANAGER OF THE PETITIONER DATED 4/6/2022.** - **Exhibit P6 TRUE COPY OF THE COMMUNICATION SENT BY PETITIONER TO THE 4TH RESPONDENT DATED 6/6/2022.** - **RESPONDENT EXHIBITS** - **ANNEXURE R2(A) THE TRUE COPY OF THE LETTER NO.H5/3141/2022/MDB DATED 13/06/2022** - **Exhibit R5A** - **TRUE COPY OF THE NOTICE REGARDING NAVARATRI MAHOLSAVAM PUBLISHED BY THE PUTHUCODE ANNAPOONNESWARI SEVA SAMITHI FOR THE YEAR 2019** - **Exhibit R5B TRUE COPY OF THE PROCEEDINGS DATED 26.12.2019 OF THE ASSISTANT COMMISSIONER OF MALABAR DEVASWOM BOARD.** - **Exhibit R5C TRUE COPY OF THE JUDGMENT DATED 17.8.2020 IN WPC.NO.16806/2020** - **Exhibit R5D TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER HEREIN DATED 24.8.2020** **Exhibit R5E TRUE COPY OF THE ANSWER GIVEN BY THE** 15 W.P.(C) No.19403 of 2022 **STATE PUBLIC INFORMATION OFFICER, MALABAR DEVASWOM BOARD TO EXT. R5(D) DATED 22.9.2020.** **Exhibit R5F TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER HEREIN DATED 28.10.2020** **Exhibit R5G TRUE COPY OF THE JUDGMENT IN WPC.NO.26295/2020 DATED 20.1.2021** - **Exhibit R5H TRUE COPY OF THE REPORT SUBMITTED BY THE INSPECTOR TO THE ASSISTANT COMMISSIONER DATED 11.11.2021** - **Exhibit R5 I TRUE COPY OF THE LIST OF MEMBERS OF THE PUTHUCODE ANNEPOORNESWARI TEMPLE PUNARUDHARANA SAMITHY.** - **Exhibit R5 J TRUE COPY OF THE BROCHURE ISSUED BY THE PUTHUCODE EAST VILLAGE FOR THE CONDUCT OF NAVARATRI FESTIVAL 2022** **PETITIONER EXHIBITS** - **Exhibit P7 TRUE COPY OF THE ORDER NO.H5 3141/2020/MDB DATED 13.6.2022 PASSED BY THE COMMISSIONER.** - **Exhibit P8 TRUE COPY OF THE PROCEEDINGS OF THE ASSISTANT COMMISSIONER DATED 26-122019.** - **Exhibit P9 TRUE COPY OF THE PROCEEDINGS OF THE ASSISTANT COMMISSIONER DATED 11-102021.** - **Exhibit P10 TRUE COPY OF THE COMMUNICATION SENT BY THE PETITIONER TO THE ASSISTANT COMMISSIONER DATED 22-8-22.** - **Exhibit P11 TRUE COPY OF THE BROCHURE PUBLISHED BY THE TEMPLE REGARDING THE FESTIVAL FROM THE 26-9-2022 TO 5-10-2022.**