P.C. KUNCHETTANA RAJA S/O NARAYANAN NAMBOODIRI & P.C. KUTTYETTAN RAJA S/O NARAYANAN NAMBOOTHIRI v. STATE OF KERALA, THE COMMISSIONER, MALABAR DEVASWOM BOARD, KOZHIKODE, THE DEPUTY COMMISSIONER MALABAR DEVASWOM BOARD, KOZHIKODE, AND THE EXECUTIVE OFFICER, ERALAPDU RAJA GROUP DEVASWOM, KOZHIKODE

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 20TH DAY OF OCTOBER 2017/28TH ASWINA, 1939 WP(C).No. 17285 of 2015 (I) ---------------------------- PETITIONER(S): ------------1. P.C.KUNCHETTANA RAJA S/O. NARAYANAN NAMBUDIRI, RESIDING AT MAGADHA, TEKKEPATTU, PARAMBU, GOVINDAPURAM, KOZHIKODE 673 016 2. PC KUTTYETTAN RAJA S/O. NARAYANAN NAMBOOTHIRI, 24/1630, AMBADY, NEDUNGADI CORNER, MANKAVU, KOZHIKODE 673007 BY ADV. SRI.ADARSH KUMAR RESPONDENT(S): -------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF DEVASWOMS-H.R & C.E(ADMINISTRATION), THIRUVANANTHAPURAM 2. THE COMMISSIONER, MALABAR DEVASWOM BOARD, KOZHIKODE 673001 3. THE DEPUTY COMMISSIONER MALABAR DEVASWOM BOARD, KOZHIKODE 673001 4. THE EXECUTIVE OFFICER, ERALAPDU RAJA GROUP DEVASWOM, MANKAVU, KOZHIKODE DISTRICT R2,R3 BY SC SRI.R.LAKSHMI NARAYAN R4 BY ADV. SRI.MOHAN C.MENON R1 BY SR. GOVERNMENT PLEADER SRI.P.M.MANOJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17285 of 2015 (I) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1: TRUE COPY OF THE SCHEME FRAMED BY THE DEPUTY COMMISSIONER, HR & CE (ADMN.), DEPARTMENT, KOZHIKODE DATED 5.1.1991 EXHIBIT P2: TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 5.12.2014 EXHIBIT P3: TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST PETITIONER TO THE 2ND RESPONDENT DATED 30.12.2014 EXHIBIT P4: TRUE COPY OF THE DECISION/ORDER OF THE 2ND RESPONDENT DATED 9.4.2015 RESPONDENT(S)' EXHIBITS -----------------------: NIL /TRUE COPY/ PS TO JUDGE ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 17285 of 2015 ----------------------------------------------Dated this the 20[th] day of October, 2017** ## **JUDGMENT** The prayers in this writ petition are as follows: - _“i. to issue a writ of certiorari or other appropriate writ, order or direction, quashing Exhibit P4 decision of the 2[nd] respondent as arbitrary, illegal, irrational, unconstitutional and ultra vires the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951,_ - _ii. to declare that Exhibit P1 scheme is null and void, unconstitutional, invalid, illegal, unilateral, highhanded, ultra vires and unenforceable as against the petitioners and the other members of othe Zamorin Family, insofar as it divests the hereditary trustee of the powers of administration for perpetuity by vesting wide and sweeping powers on the Executrive Officer and to further declare that the hereditary trustee of Sri.Mammiyoor Temple Devaswom, Mammiyoor, Guruvayoor is entitled to exercise all powers of administration and management with respect to the affairs of the said Devaswom and temple, dehors the operation of Exhibit P1 scheme._ - _iii.To issue a writ of certiorari or other appropriate writ, order or direction, quashing Exhibit P4 decision of the 2[nd] respondent as arbitrary, illegal, irrational, unconstitutional and ultra vires the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951.”_ 2 _**WP(C).17285/15**_ 2. Heard learned counsel for the petitioner, learned Government Pleader appearing for the 1[st] respondent, learned Standing Counsel for respondents 2 and 3 and Sri.Mohan C. Menon, learned counsel appearing for the 4[th] respondent. 3. The 1[st] petitioner is the Eralpadu Raja of the Zamorin Family and the hereditary trustee of Sree Mammiyoor Temple Devaswom, Mammiyoor and the 2[nd] petitioner is the fifth in line of succession of 'Sthanis', i.e., the 'Anjam Sthani'. Their contention is that Exhibit P1 scheme of administration was framed under Section 58(1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 (for short, 'the Act') in respect of three temples of which the Eralpadu Raja is the hereditary trustee. Clause 4 of the scheme states that the administration of the Devaswoms shall vest with the hereditary trustee and such other number of non hereditary trustees appointed by the department under Section 39 or 41 of the Act. It is contended that the impugned communications seeking the appointment of non hereditary trustees are in violation of the rights of the hereditary trustees and the members of the Zamorin Family. Relying on the decisions of the Apex Court in _**Sri.Sri.Sri.Lakshamana Yatendrulu and others etc. etc. v. State of Andhra Pradesh and another**_ [AIR 1996 SC _**WP(C).17285/15**_ 3 1414] and in _**Dr.Subramnian Swamy v. State of Tamil Nadu and others**_ (Civil Appeal No.10620 of 2013) and of this Court in _**Bhanunni A.C. and others v. Commissioner, Hindu Religious Charitable Endowment (Admn.) Department, Kozhikode and Others**_ [2011(3) KHC 900], _**Malabar Devaswom Board v. Valliyodan Krishnan Nair**_ [2012(4) KLT 804] and _**Payyannur Sree Subramanya Swami Kshethrodharana Samithi and Another v. Malabar Devaswom Board and Others**_ [2013(3) KHC 849], it is contended that the framing of a scheme for administration of a religious endowment or a temple is only to remedy mismanagement and cannot supercede the rights of administration of a religious denomination in perpetuity. It is further stated that Exhibit P4 decision is contrary to Section 39 (2) of the Act and is illegal, invalid and unenforceable. 4. Statements have been filed by respondents 2 and 3. Later, detailed counter affidavits have also been filed. It is specifically pointed out that appointment of non hereditary trustees was provided for in Exhibit P1 scheme framed as early as in 1991. Non hereditary trustees were initially appointed in 1989 pursuant to steps taken for framing the scheme. Section 39(2) only provides for notice to the hereditary trustees when 4 _**WP(C).17285/15**_ non hereditary trustees are sought to be inducted for the first time on account of lack of proper management or mismanagement by the hereditary trustee. This provision does not apply to the appointment of non hereditary trustees as is proposed by Exhibits P2 and P4, since the said appointment is pursuant to a scheme framed in 1991 under Section 58 of the Act. The appointment of non hereditary trustees in accordance with the provisions of the scheme do not require notice or consultation with the hereditary trustees. It is contended that the scheme framed in the year 1991 under Section 58 of the Act cannot be challenged in a proceedings under Article 226 of the Constitution of India, since appropriate remedies are provided for in the statute itself. In case the hereditary trustees or any person interested in the temple is dissatisfied with any of the provisions of the scheme framed, there is an opportunity for seeking an amendment or modification of the scheme provided in Section 58(6) of the Act. If the modification as sought for is declined by the Deputy Commissioner, the petitioner again has remedies of appeal before the Commissioner under Section 61 of the Act and a further suit under Section 62. It is contended that non hereditary trustees having been continuously appointed since 1989 in the temple 5 _**WP(C).17285/15**_ in question, it is too late in the day for the petitioner to contend that his rights under Article 26 of the Constitution are infringed by such appointment. It is also stated that under the Scheme, the Executive Officer is invested with the powers of administration for and on behalf of the Board of Trustees and the grounds raised in the writ petition are completely inadequate to issue any directions as sought for therein. 5. The learned counsel appearing for the 4[th] respondent has also filed a counter affidavit, contending that non hereditary trustees are appointed in terms of the settled scheme and no notice to the hereditary trustee is required for filling up the vacancies of non hereditary trustees. It was only as a measure of courtesy that the impugned proceedings have been issued to the 1[st] petitioner, since he is the hereditary trustee of the temple in question. The learned counsel appearing for the 4[th] respondent would also submit that the provision relied upon by the petitioners has no application to the instant case, since hereditary trustees have been appointed in the temple right from 1989 and the said appointment is in terms of a Scheme framed under Section 58 of the Act. It is also contended that the decisions relied on have no applicability whatsoever in the light of the specific provisions of 6 _**WP(C).17285/15**_ the Act and the settled legal precedents on the point. 6. I have considered the contentions advanced. Exhibit P2 is a notice issued to the 1[st] petitioner seeking his views on the appointment of non hereditary trustees in the vacancy created by the expiry of the term of the existing incumbents. Exhibit P2 is the reply submitted by the petitioner and Exhibit P4 is the notiice dated 9.4.2015 calling for applications from eligible persons to be appointed as non hereditary trustees It is true that Section 39(2) is referred to in Exhibit P2. This is an evident error, since no notice under Section 39(2) is required, as the appointment is in a vacancy created by the expiry of term of non hereditary trustees appointed under the Scheme. This is correctly understood by the petitioners, since Exhibit P3 reply refers to Section 39(5) of the Act. Section 39(5) of the Act reads as follows: ## “ _**39. Trustees and their number and term of office.-**_ ## _xx xx xx_ _(5) Where a vacancy arises in the office of a non-hereditary trustee appointed under sub-section (2) the Commissioner shall not fill up such a vacancy unless, for reasons to be recorded, he considers it necessary to do so. A non-hereditary trustee appointed in the vacancy shall be deemed to have been appointed under sub-section (2) and the_ 7 _**WP(C).17285/15**_ _provisions of sub-sections (3) and (4) shall apply accordingly.”_ 7. The Madras H R & C E Act is enacted to provide for the proper administration and governance of Hindu Religious Institutions. Section 39(2) of the Act relates to the appointment of hereditary trustees in temples, where there is no scheme framed in terms of Section 58. Section 58 deals with the power of the Deputy Commissioner for settling a Scheme for proper administration of the religious institutions. A Scheme framed can contain provisions for removing any existing trustee, whether hereditary or non hereditary. It can also provide for appointing or directing the appointment of a paid Executive Officer and for defining the powers and duties of such an officer. The Deputy Commissioner is also given the power to order modification or cancellation of any Scheme settled under Sub Section (1). 8. Once a scheme is framed in terms of Section 58(1) of the Act, the Board has to see that the administration of the temple is carried on in accordance with the Scheme. Exhibit P1 Scheme provides for the vesting of the administration of the three Devaswoms of the Eralpadu Raja with hereditary trustee and such number of non hereditary trustees appointed under Section 39 or 41 of the Act. It is pursuant to the Scheme that _**WP(C).17285/15**_ 8 the impugned proceedings have been issued for the appointment of hereditary trustee. After an anxious consideration of the law laid down by the Apex Court and this Court in the decisions cited by the learned counsel for the petitioner, I find nothing stated therein which would affect the powers of the Malabar Devaswom Board to appoint non hereditary trustees in respect of a temple where a settled scheme specifically provides for such appointment. I am fortified in this view by the decisions of the Division Bench of this Court in W.P(C).No.6328 of 2012 dated 20.6.2012 and W.P (C).No. 3253 of 2014 dated 19.3.2014, wherein Division Benches of this Court have held that notice under Section 39(2) is not required for filling up vacancies of non-hereditary trustees where a scheme is operational. It is beyond dispute that pursuant to steps taken for framing of the scheme, non hereditary trustees had been appointed in the temple in question from 1989 onwards. I find no merit in the contention raised by the learned counsel for the petitioners that the appointment of non hereditary trustees along with the hereditary trustee for a proper administration of the temple in accordance with the settled scheme would in any manner infringe on the rights of the hereditary trustee. The mentioning 9 _**WP(C).17285/15**_ of Section 39(2) in Exhibit P2 notice by itself cannot give rise to any presumption that the hereditary trustee is entitled to any further hearing with regard to appointment on non hereditary trustees in terms of the settled scheme in existing vacancies. 9. Since specific provisions are incorporated in the Act for modification of settled schemes in cases of any proven difficulty in the interest of the religious institution as a whole, I find no reason whatsoever to sustain the challenge to the orders impugned. It is open to the petitioners or any other person interested in the affairs of the temple to move the appropriate authority for modification of the Scheme in terms of Section 58(6) of the Act, if so advised. The prayers raised against Ext.P1 scheme are also not sustainable in view of the Scheme of the H R & C E Act and the provisions contained therein. In the result, the writ petition fails and is accordingly dismissed. The respondents are free to proceed with the selection and appointment of non-hereditary trustees in accordance with law. No order as to costs. **ANU SIVARAMAN JUDGE** _vgs_