Pallippuram Grama Samudhayam v. President, Malabar Devaswom Board, Palakkad & Commissioner, Malabar Devaswom Board, Palakkad

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA WEDNESDAY, THE 12TH DAY OF FEBRUARY 2014/23RD MAGHA, 1935 WP(C).No. 1612 of 2009 (P) --------------------------- PETITIONER(S): -------------------------- P.V.RAMAN PALLIPPURAM GRAMA SAMUDHAYAM, A SOCIETY REGISTERED UNDER SOCIETIES REGISTRATION, ACT PALLIPPURAM , PALAKKAD -6. BY ADVS.SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN RESPONDENT(S): ---------------------------- 1. PRESIDENT, MALABAR DEVASWOM BOARD PALAKKAD. 2. COMMISSIONER, MALABAR DEVASWOM BOARD, PALAKKAD. R1 BY ADV. SRI.KRISHNA MENON,SC FOR MALABAR DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-1-2014, THE COURT ON 12/2/2014 DELIVERED THE FOLLOWING: ## APPENDIX PETITIONER'S EXTS: EXT.P1-TRUE COPY OF ORDER DATED 6.1.2004 EXT.P2-TRUE COPY OF ORDER DATED 14.10.04 EXT.P3-TRUE COPY OF JUDGMENT IN WPC3642/05 DT.7.9.2007 EXT.P4-TRUE COPY OF LETTER DT.28.12.64 EXT.P5-TRUE COPY OF LETTER DT.31.1.65 EXT.P6-TRUE COPY OF LETTER DT.9.3.65 EXT.P7-TRUE COPY OF NEWS ITEM IN MATHRUBHUMI DATED 28.12.2008 EXT.P8-TRUE COPY OF COUNTER AFFIDAVIT IN WPC NO.3642/2005 EXT.P9-TRUE COPY OF ORDER DT.1.9.2010 RESPONDENTS' EXTS: EX.R2(A)-TRUE COPY OF RELEVANT PAGES OF THE CONTRIBUTION AND DEMAND REGISTER SHOWING REMITTANCE OF AMOUNTS BY SREE LAKSHMI NARAYANA SWAMY TEMPLE, PALLIPPURAM ON 29.2.56, 5.2.82, 5.7.86 AND 16.7.94 // TRUE COPY // P.S. TO JUDGE ## **T.R.RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No.1612 of 2009** **- - - - - - - - - - - - - - - - - - - - - - - - - - DATED THIS THE 12[th] DAY OF FEBRUARY, 2014** ## **JUDGMENT** ## Ramachandran Nair, J. The substantial challenge in this writ petition is against Ext.P7 advertisement inviting application for appointment of non hereditary trustee in Sri Lakshmi Narayana Swamy Temple in Pallippuram Gramam, Palakkad. The petitioner is the President representing Pallippuram Grama Samudayam. It is contended that the Temple is situated in the Agraharam, where Brahmins belonging to Vaishnava sect are residing. The Temple was founded by Tamil Vaishnava Brahmins who originally came to Kerala from Narmada Basin via Tamil Nadu. The poojas are conducted according to Tamil Agama sasthram. It is further averred that the residents of the agraharam are the Sishyas of Ahobila Math established by Sri Ramanuja Acharya, according to Vishishta Advaita Philosaphy based on Viashanava Sidhaantham. It is submitted that the present followers of Vishishta Advaita doing the customary religious ceremony according to Vaishnava principles are only a few persons who are residents confined to Pallippuram Wpc No.1612/2009 -2- Gramam in Palakkad. They are living in small line buildings with the Temple in the centre of the cluster of the buildings. To have access to the Temple, the public will have to enter the agraharam where only the small group of Vaishnava Tamil Brahmins are residing. Thus, it is contended that the Temple was built exclusively for the worship of Vishnavite Tamil Brahmins who belong to a religious denomination, which is protected under Article 26 of the Constitution of India. 2. Reliance is placed on Ext.P1 order passed by the Deputy Commissioner by which the denominational character of the Temple and the rights of the Samudayam under Article 26 of the Constitution of India and Section 92 of the Hindu Religious and Charitable Endowments Act (for short 'the Act') have been recognised. By the said order, the Deputy Commissioner removed one Shri Sadasivan who was appointed as fit person by the department. Ext.P2 is the order passed in the appeal filed by the said Sadasivan whereby Ext.P1 order has been confirmed. On a later occasion the petitioner society filed W.P.(C) No.3642/2005 challenging another order passed by the Deputy Commissioner. The above writ petition was allowed as per Ext.P3 judgment. Later, the Assistant Commissioner Wpc No.1612/2009 -3- (HR & CE) Department had directed the society to produce the accounts for the period from 1.11.1956 to 30.6.1964. Ext.P4 is the reply given by the petitioner stating that the Temple is not subject to supervision and control of HR & CE Department. Later, a communication was received as per Ext.P5 requesting the petitioner to produce the order of the Deputy Commissioner under Section 57(a) of the Act. The petitioner gave a reply as per Ext.P6 stating that the Temple was never treated as a public temple. 3. We heard learned Senior Counsel for the petitioner, Shri M.C.Sen and learned Standing Counsel for the Devaswom Board, Shri V. Krishna Menon. 4. It is submitted by the learned Senior Counsel for the petitioner that Ext.P1 order passed by the Deputy Commissioner has become final by which it has been held that the Temple is having denominational character and the Samudayam is entitled to get the protection under Section 92 of the Act and Article 26 of the Constitution of India. It is therefore submitted that by the operation of the said order which has been confirmed in appeal, there cannot be any interference with the administration of the Temple by the Department. In Ext.P2 order, after adverting to the contention of the Wpc No.1612/2009 -4- petitioner that the temple is a public temple, it has been held that the appellant has not produced any evidence to support the plea. 5. Our attention was invited to Ext.P3 judgment of a Division Bench of this Court wherein all the earlier orders have been mentioned. Therein, after noticing Ext.P8 order produced therein (Ext.P1 herein) the Bench was of the view that a fit person cannot be appointed as application for framing a scheme was rejected by the said order. It is therefore submitted that in the light of Exts.P1 and P2 orders and Ext.P3 judgment of this Court, the department cannot invite applications to appoint non hereditary trustees which interferes with the rights of the Temple and Samudayam under Article 26 of the Constitution of India. Learned Senior Counsel also relied upon a judgment of this Court reported in **Gangadharan Nair v. Commissioner, Malabar Devaswom Board** (2013 (3) KLT 1017). 6. A counter affidavit has been filed by the first respondent to which a reply has been filed by the petitioner. 7. In the reply affidavit the petitioner has produced as Ext.P8, the counter affidavit filed in the earlier writ petition which culminated in Ext.P3 judgment, i.e. W.P.(C) No.3642/2005. The same is produced to show that all Wpc No.1612/2009 -5- the contentions taken in the counter affidavit to the present writ petition are verbatim reproduction of the earlier counter affidavit. 8. What is pleaded in the counter affidavit is that Ext.P7 notification was issued as decided by the Area Committee, Palakkad under Section 41 read with Section 39 of the Act for providing a lawful administrative body as provided under the Act. 9. It is clear from the counter affidavit filed that the Temple in question is not a listed temple for the purpose of applicability of Section 38 of the Act. Therefore, the question is whether the power under Section 39 of the Act could be invoked. We hereinbelow extract Section 39(1) of the Act: **“39. Trustees and their number and term of office.-** (1) Where a religious institution included in the list published under section 38 or over which no Area Committee has jurisdiction, has no hereditary trustee, the Commissioner shall constitute a Board of Trustees consisting of not less than three and not more than five persons appointed by him.” The effect of Sections 39, 63 and 64 of the Act has been considered in **Gangadharan Nair's case** (2013 (3) KLT 1017) rendered by a Division Wpc No.1612/2009 -6- Bench wherein one of us (Ramachandran Nair, J.) was a party. Going by Section 38 of the Act, the Commissioner will have to publish a list in the prescribed manner, of religious institutions whose annual income as calculated for the purposes of the levy of contribution under Section 76 is not less than one lakh rupees. The Bench has held in para 24 of the said judgment as follows: “24. It is clear from Section 39(1) of the Act that it is in respect of religious institutions included in the list published under S.38, or over which no area committee has jurisdiction, that the Commissioner can constitute a board of trustees where there is no hereditary trustee. Therefore, listing under S.38 gives power for the Commissioner to act under S.39(1) of the Act.” Herein, going by the averments in the counter affidavit, the Temple in question is not a listed temple. In that view of the matter, the question is whether the respondents can proceed with the further steps for completing the formalities under the relevant provisions of the Act, as claimed. 10. Ext.P1 order clearly shows that the Deputy Commissioner has relied upon Article 26 of the Constitution of India and Section 92 of the Act. Section 92 of the Act states that “nothing contained in this Act shall Wpc No.1612/2009 -7- be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof any clauses (a), (b) and (c) of Article 26 of the Constitution.” Accordingly, it was held that the Samudayam is entitled to get the protection of Section 92 of the Act and Article 26 of the Constitution. Therefore, the framing of a scheme was not sanctioned. It was also directed that the Samudayam and the committee constituted by the members are expected to take appropriate steps to protect the properties of the Devaswom and to keep all the funds collected for the Devaswom in the name of the Devaswom and the administration will be conducted by the committee selected by the members of the Samudayam instead of a fit person hailing from another cult. It was also clarified that a competent person from the same community could be appointed as fit person for conducting the administration of the Devaswom of the Temple. In the light of the above, we find that Ext.P1 cannot confer any power on the respondents to appoint a non hereditary trustee. The Division Bench, while considering a similar plea by the petitioner, has held that in the light of Ext.P1 order herein, the Commissioner has no power to invoke Section 45 of the Act. Wpc No.1612/2009 -8- 11. In the light of the fact that the Temple is not a listed one evidently, the power under Section 39 of the Act cannot be invoked. Section 92 of the Act restricts the invocation of provisions of the Act and in the light of Ext.P1 order, Section 92 will come to the aid of the petitioner and the Temple. 12. Learned Senior Counsel for the petitioner further submitted that the petitioner can very well prove that it is not a public temple and on that score also the petitioner is entitled to succeed. Learned Standing Counsel for the Board submitted that the said question has not been addressed by the authorities below. In the light of the legal position explained above, we are of the view that the petitioner is entitled to succeed. Therefore, the writ petition is allowed and Ext.P7 is quashed. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(B. KEMAL PASHA, JUDGE)** ## **kav/**