Pradeep Kumar T.V. and Akhil K.M. v. State of Kerala 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 ``` ``` TUESDAY, THE 1[ST] DAY OF AUGUST 2023 / 10TH SRAVANA, 1945 W.P.(C)NO.35042 OF 2018 ``` ## **`PETITIONERS:`** - **`1 PRADEEP KUMAR T.V S/O.KUNJAPPAN NAIR (LATE), SARADAS PUTHIYANKAVU ROAD, ANNUR P.O PAYYANNUR, KANNUR -670332`** - **`2 AKHIL K.M, S/O.GANGAGHARAN, GOKULAM HOUSE, NEAR GHSS, VELLUR P.O, PAYYANNUR, KANNUR DISTRICT-670307.`** ``` BY ADVS. ``` - **`J.JULIAN XAVIER SRI.FIROZ K.ROBIN`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REP. BY ITS SECRETARY, REVENUE (DEVASWOM) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001`** - **`2 COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSE FED COMPLEX, ERANHIPALAM P.O, KOZHIKODE, PIN-673006.`** - **`3 DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSE FED COMPLEX, ERANHIPALAM P.O, KOZHIKODE, PIN-673006.`** - **`4 ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, KASARGOD DIVISION, KASARGOD,PIN-671120.`** - **`5 P.K. BALAKRISHNAN NAMBIAR,`** ``` 2 ``` W.P.(C) No.35042 of 2018 ``` CHAIRMAN, BOARD OF TRUSTEE, CHAMAKKAVU BHAGAVATHI TEMPLE, VELLUR P.O, VELLUR, KANNUR DISTRICT,PIN- 670307. ``` - **`6 P.T. MADHAVAN NAMBIAR, (PERIYADAN THAYYIL THARAVADU) THAYYIL HOUSE, VELLUR P.O, PAYYANNUR, KANNUR-670307.`** - **`7 P.P.MADHAVAN NAMBIAR, (PERIYADAN THAYYIL THARAVADU),POOTHALATH, PADINJAREKKARA, VELLUR P.O, PAYYANNUR, KANNUR670307.`** - **`8 P.K. KUNJIKANNAN NAMBIAR, (PERIYADAN KANGATTIL THARAVAD),KANDANATTIL, ERAMOM DESOM, ERAMOM, P.O,. PAYYANNUR, KANNUR - 670307`** - **`9 EXECUTIVE OFFICER, CHAMAKKAVU SREE BHAGAVATHI TEMPLE, VELLUR P.O, PAYYANNUR, KANNUR-670307.`** ``` BY ADVS. SRI.M.P.SREEKRISHNAN for R5 to R8 SRI.MAHESH V RAMAKRISHNAN for R9 SRI.A.MUHAMMED MUSTHAFA for R5 to R8 ``` ``` SRI S.RAJMOHAN- SR GOVERNMENT PLEADER for R1 SRI R.LAKSHMI NARAYAN- STANDING COUNSEL- MALABAR DEVASWOM BOARD for R2 to R4 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` W.P.(C) No.35042 of 2018 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioners are devotees of Chamakkavu Bhagavathi Temple, which is a controlled institution under the Malabar Devaswom Board, and governed by the provisions of the scheme formulated vide Ext.P1 order dated 04.12.1959 in O.A.No.5 of 1959 of the 3[rd] respondent Deputy Commissioner, Malabar Devaswom Board, which was later modified vide the order dated 27.01.1965 of the said respondent in O.A.No.6 of 1964. The petitioners have filed this writ petition, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P13 order dated 27.12.2016 of 3[rd] respondent Deputy Commissioner in M.P.No.1 of 2015 and Ext.P15 order dated 31.07.2018 of the 1[st] respondent State in an appeal filed by respondents 5 to 8 against Ext.P13 order. The petitioners have also sought for a writ of mandamus commanding the 3[rd] respondent to conduct a de novo enquiry into the allegations raised against respondents 5 to 8, untrammeled by Exts.P13 and P15 orders, within a time frame to be fixed by this Court. 2. Ext.P13 order dated 27.12.2016 in M.P.No.1 of 2015 is one passed by the 3[rd] respondent Deputy Commissioner on a complaint made by the petitioners along with three others, invoking ``` 4 ``` W.P.(C) No.35042 of 2018 the provisions under Section 45 of the Madras Hindu Religious and Charitable Endowments Act, 1951 to take action against the respondents 5 to 8, who are the hereditary trustees of Chamakkavu Bhagavathi Temple. The 5[th] respondent is the Chairman of the Trustee Board and respondents 6 to 8 are its members. In the complaint, it was alleged that out of 7.14¼ acres of Devaswom land, 1.70½ acres is under encroachment. Despite Ext.P5 report dated 06.07.2011 of the 4[th] respondent Assistant Commissioner, Kasaragod Division, no action was taken against the encroachers. As per Ext.P4 report of the Protection of Land Properties Wing of the Hindu Religious and Charitable Endowment Administration Department, the 5[th] respondent is one among the encroachers. Various other allegations were also made against respondents 5 to 8 in the said complaint. The 3[rd] respondent issued Ext.P8 memo of charges dated 09.06.2015, under sub-section (2) of Section 45 of the Act, to respondents 5 to 8 and another. The complaint made by the petitioners along with others was registered as M.P.No.1 of 2015, in which the 3[rd] respondent issued Ext.P9 notice dated 13.11.2015 to both sides. Before the 3[rd] respondent, the 9[th] respondent Executive Officer filed Ext.P10 statement dated 05.07.2016. On behalf of the complainants, the 1[st] petitioner herein filed Ext.P11 proof affidavit dated 26.08.2016. On behalf of ``` 5 ``` W.P.(C) No.35042 of 2018 respondents 5 to 8, the 5[th] respondent filed Ext.P12 proof affidavit. By Ext.P13 order dated 27.12.2016, the 3[rd] respondent dismissed the complaint, i.e., M.P.No.1 of 2015, holding that no grounds are made out to take action against the hereditary trustees under Section 45 of the Act. Challenging Ext.P13 order, the petitioners and others filed Ext.P14 appeal dated 15.02.2017 before the 2[nd] respondent Commissioner, Malabar Devaswom. Since the officer who passed Ext.P13 order was holding the charge of the Commissioner, Malabar Devaswom Board, Ext.P14 appeal was forwarded to the 1[st] respondent State. The said appeal ended in dismissal by Ext.P15 order dated 31.07.2018 of the 1[st] respondent State. Being aggrieved, the petitioners have filed this writ petition seeking a writ of certiorari quashing Exts.P13 and P15 orders. 3. On 29.10.2018, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for the 1[st] respondent. The learned Standing Counsel took notice for respondents Nos.2 to 5. Notice was ordered to other respondents. 4. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader for the 1[st] respondent and the learned Standing Counsel for Malabar Devaswom Board for respondents 2 to 4 and the learned counsel for respondents 5 to 9. ``` 6 ``` W.P.(C) No.35042 of 2018 5. Section 45 of the Madras Hindu Religious and Charitable Endowments Act, 1951 deals with power to suspend, remove or dismiss trustees. As per sub-section (1) of Section 45, the Deputy Commissioner in the case of any religious institution over which an Area Committee has jurisdiction, and the Commissioner in the case of any other religious institution, may suspend, remove or dismiss any hereditary or non-hereditary trustee or trustees thereof (a) for persistent default in the submission of budgets, accounts, reports or returns, or (b) for wilful disobedience of any lawful order issued under the provisions of this Act by the State Government, the Commissioner or Deputy Commissioner, the Area Committee or the Assistant Commissioner, or (c) for any malfeasance, misfeasance, breach of trust or neglect of duty in respect of the trust, or (d) for any misappropriation of, or improper dealing with, the properties of the institution, or (e) for unsoundness of mind or other mental or physical defect or infirmity which unfits him for discharging the functions of the trustee. As per sub-section (2) of Section 45, when it is proposed to take action under sub-section (1), the Commissioner or the Deputy Commissioner, as the case may be, shall frame charges against the trustee concerned and give him an opportunity of meeting such charges, of testing the evidence in his favour; and the order of suspension, removal or dismissal shall ``` 7 ``` W.P.(C) No.35042 of 2018 state the charges framed against the trustee, his explanation and the finding on each charge with the reasons therefor. As per the proviso to sub-section (2) of Section 45, the Deputy Commissioner shall also consult the Area Committee before passing the final order under sub-section (1). 6. As per sub-section (3) of Section 45, pending the disposal of the charges framed against the trustee, the Commissioner or the Deputy Commissioner may place the trustee under suspension and appoint a fit person to discharge the functions of the trustee. As per sub-section (4) of Section 45, it shall be open to an Assistant Commissioner to move the Deputy Commissioner to take action under sub-section (1) in respect of any trustee of an institution over which an Area Committee has jurisdiction and to place the trustee under suspension pending the orders of the Deputy Commissioner under sub-section (3). As per sub-section (5) of Section 45, a trustee who is suspended, removed or dismissed under sub-section (1) may, within one month from the date of the receipt of the order of suspension, removal or dismissal, appeal against the order to the Commissioner if it was passed by a Deputy Commissioner, and to the State Government if it was passed by the Commissioner. 7. Ext.P15 order, which is under challenge in this writ ``` 8 ``` W.P.(C) No.35042 of 2018 petition, is one passed by the 1[st] respondent State in Ext.P14 appeal filed by the petitioners and others against Ext.P13 order dated 27.12.2016 of the 3[rd] respondent Deputy Commissioner, whereby the complaint, i.e., M.P.No.1 of 2015 was dismissed holding that no grounds are made out to take action against the hereditary trustees of Chamakkavu Bhagavathi Temple. Ext.P14 appeal is one filed invoking the provisions under Section 45 of the Madras Hindu Religious and Charitable Endowments Act. Since the Officer, who passed Ext.P13 order was holding the charge of Commissioner, Malabar Devaswom Board, Ext.P14 appeal was forwarded to the 1[st] respondent State, which ended in dismissal by Ext.P15 order dated 31.07.2018. The remedy open to the petitioners to challenge Ext.P15 order is to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India. 8. In **Breen v. Amalgamated Engineering Union [1971 (1) All. E.R. 1148]** Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration. In ## **Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR** **120]** it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision - taker to the controversy in question and the decision or ``` 9 ``` W.P.(C) No.35042 of 2018 ## conclusion arrived at. ## 9. In **Commissioner of Police, Bombay v. Gordhandas** **Bhanji [AIR 1952 SC 16]** the Apex Court has held that, public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Following the principle laid down in **Gordhandas Bhanji’s case (supra)** , the Apex Court has reiterated in **Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405]** that, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, gets validated by additional grounds later brought out. 10. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and Managing** ``` 10 ``` W.P.(C) No.35042 of 2018 ## **Director, United Commercial Bank v. P.C. Kakkar [(2003) 4** **SCC 364]** held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The ‘inscrutable face of a sphinx’ is ordinarily incongruous with a judicial or quasi - judicial performance. 11. A Constitution Bench of the Apex Court has laid down in **Krishna Swami v. Union of India [(1992) 4 SCC 605]** that, undoubtedly, in a parliamentary democracy governed by rule of law, any action, decision or order of any statutory/public authority/functionary must be founded upon reasons stated in the order or staring from the record. Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and ``` 11 ``` W.P.(C) No.35042 of 2018 synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21 of the Constitution of India. ## 12. In **B.A. Linga Reddy v. Karnataka State Transport** **Authority [(2015) 4 SCC 515]** the Apex Court after referring to its earlier judgments on the subject has reiterated that, the rule of reason is anti-thesis to arbitrariness in action and is a necessary concomitant of the principles of natural justice. If a statutory or public authority/functionary does not record the reasons, its decision would be rendered arbitrary, unfair, unjust and violating Article 14 and Article 21 of the Constitution of India. It is the duty of such authority/functionary to give reasons and to pass a speaking order that excludes arbitrariness in action. Referring to the facts of that case, the Apex Court noticed that, there is no consideration of the objections except mentioning the arguments of the rival parties and that objections both factual and legal have not been considered much less reasons assigned to overrule them. 13. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of ``` 12 ``` W.P.(C) No.35042 of 2018 decisions making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same time, it is not the requirement that, the reasons should be as elaborate as in the decision of a Court of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority. 14. In the instant case, in Ext.P14 appeal filed against Ext.P13 order dated 27.12.2016 of the 3[rd] respondent Deputy Commissioner, the petitioners have raised various legal and factual contentions, with specific reference to the Rules framed under Sections 100(2)(m), 100(2)(p) and (x)(ii) and 100(2)(y) of the Madras Hindu Religious and Charitable Endowments Act. None of the aforesaid contentions were properly dealt with by the 1[st] respondent while passing Ext.P15 order. The said fact is not in serious dispute during the course of arguments. 15. During the course of arguments, the learned counsel for the petitioners and also the learned counsel for respondents 5 to 8 raised various contentions touching the merits of the matter. We do ``` 13 ``` W.P.(C) No.35042 of 2018 not propose to consider those contentions in this writ petition, since we find that an interference is warranted on Ext.P15 order dated 31.07.2018 of the 1[st] respondent State. Since Ext.P15 order is one passed without properly adverting to the rival contentions, it can only be treated as an order passed in violation of the principles of natural justice. 16. In such circumstances, this writ petition is disposed of by setting aside Ext.P15 order dated 31.07.2018 of the 1[st] respondent State and by directing the said respondent to pass fresh orders in Ext.P14 appeal filed by the petitioners and others, after adverting to the legal and factual contentions raised by both sides and after affording both sides an opportunity of being heard. A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a certified copy of this judgment. It would be open to both parties to make written submissions before the 1[st] respondent State, raising appropriate legal and factual contentions. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** PV ``` 14 ``` W.P.(C) No.35042 of 2018 ## **`APPENDIX OF WP(C) 35042/2018`** ``` PETITIONER EXHIBITS ``` - `EXHIBIT P1 TRUE COPY OF THE ORDER DATED 4.12.1959 IN OA.NO.5/1959 ISSUED BY THE 3RD RESPONDENT.` - `EXHIBIT P2 TRUE COPY OF THE COMPLAINT DATED 4.10.2010 FILED BY THE SECRETARY, CHAMAKKAVU BAGAVATHY TEMPLE SEVA SAMITHI.` - `EXHIBIT P3 TRUE COPY OF THE REPORT SUBMITTED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT.` - `EXHIBIT P4 TRUE COPY OF THE REPORT SUBMITTED BY THE HR AND CE (ADMINISTRATION) DEPARTMENT OF PROTECTION OF LAND PROPERTIES WING.` - `EXHIBIT P5 TRUE COPY OF THE LETTER DATED 6.7.2011 ISSUED BY THE 4TH RESPONDENT TOT HE CHAIRMAN, TRUSTEE BOARD OF CHAMAKKVU BHAGAVATHI TEMPLE.` - `EXHIBIT P6 TRUE COPY OF THE PETITION DATED 28.6.2014 FILED BY THE PETITIONERS AND OTHERS BEFORE THE MINISTER FOR DEVASWOM BOARD.` - `EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 24.2.2016 IN WPC.NO.35527/2015.` - `EXHIBIT P8 TRUE COPY OF THE CHARGE MEMO DATED 9.6.2015 ISSUED BY THE 3RD RESPONDENT.` - `EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 13.11.2015 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT.` - `EXHIBIT P10 TRUE COPY OF THE STATEMENT DATED 5.7.2016 SUBMITTED BY THE 9TH RESPONDENT.` - `EXHIBIT P11 TRUE COPY OF THE PROOF AFFIDAVIT FILED` ``` 15 ``` W.P.(C) No.35042 of 2018 ``` BY THE 1ST PETITIONER I MP.NO.1/2015 DATED 26.8.2016. EXHIBIT P12 TRUE COPY OF THE PROOF AFFIDAVIT FILED B THE RESPONDENTS 5 TO 8. ``` ``` EXHIBIT P13 TRUE COPY OF THE ORDER DATED 27.12.2016 IN MP.NO,1/2015. EXHIBIT P14 TRUE COPY OF THE APPEAL DATED 15.2.2017 FILED BY THE PETITIONERS AND OTHERS BEFORE THE 2ND RESPONDENT. ``` ``` EXHIBIT P15 TRUE COPY OF THE ORDER DATED 31.7.2018 ISSUED BY THE 1ST RESPONDENT. ```