Saseendran Mundakkal v. Malabar Devaswom Board

# **`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 30[TH] DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA, ``` ``` 1944 ``` ## **`W.P.(C)NO.26414 OF 2022`** ## **`PETITIONER:`** ``` SASEENDRAN MUNDAKKAL, AGED 72 YEARS, S/O.APPUKUTTY NAIR, 'DEVIKA', P.O. KOLLAM, KOYILANDY, KOZHIKODE DISTRICT, PIN - 673 307. ``` ``` BY ADV V.N.RAMESAN NAMBISAN ``` ## **`RESPONDENTS:`** |**`1`**|**`THE COMMISSIONER, MALABAR DEVASWOM BOARD,`**| |---|---| ||**`COMMISSIONER'S OFFICE, P.O.CIVIL STATION, CALICUT,`**| ||**`KOZHIKODE DISTRICT, PIN - 673 020.`**| |**`2`**|**`THE DEPUTY COMMISSIONER,`**| ||**`MALABAR DEVASWOM BOARD, KOZHIKODE DISTRICT, PIN -`**| ||**`673 020.`**| |**`3`**|**`THE CHAIRMAN,`**| ||**`BOARD OF TRUSTEES, PISHARIKAVU DEVASWOM, KOLLAM`**| ||**`P.O., KOYILANDY, KOZHIKODE DISTRICT, PIN - 673`**| ||**`307.`**| |**`4`**|**`THE EXECUTIVE OFFICER,`**| ||**`PISHARIKAVU DEVASWOM, KOLLAM P.O., KOYILANDY,`**| ||**`KOZHIKODE DISTRICT, PIN - 673 307.`**| |**`5`**|**`ADDL R5,`**| ||**`THE MALABAR DEVASWOM BOARD, REPRESENTED BY ITS`**| ||**`SECRETARY, HOUSEFED COMPLEX, ERANHIPPALAM P.O,`**| ||**`KOZHIKIDE-673 003.`**| ||**`ADDL R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED`**| ||**`17-08-2022 IN WP(C)26414/2022`**| 2 W.P.(C)No.26414 of 2022 ## **`BY ADVS.`** ``` SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD MAHESH V RAMAKRISHNAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.26414 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is one of the eight hereditary trustees of Pisharikavu Devaswom in Koilandy, which is a controlled institution under the additional 5[th] respondent Malabar Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 notification dated 14.07.2022 issued by the 1[st] respondent Commissioner, Malabar Devaswom Board, inviting applications for the post of nonhereditary trustees in Pisharikavu Devaswom; to declare that the 1[st] respondent Commissioner has initiated selection process by issuing Ext.P5 notification for the post of nonhereditary trustees in Pisharikavu Devaswom without complying with any of the mandatory requirements under Section 39(2) of the Madras Hindu Religious and Charitable Endowments Act, 1951, and therefore, any selection made pursuant to the above notification is not maintainable by law; to declare that the Board of Trustees of Pisharikavu Devaswom consists of eight hereditary trustees and in view of Sections 39(1) and (2) of the Madras Hindu Religious and 4 W.P.(C)No.26414 of 2022 Charitable Endowments Act no more non-hereditary trustees can be appointed, so long as the contingency mentioned in Section 39(2) of the said Act does not arise; a writ of mandamus commanding the 1[st] respondent Commissioner to take any further action with respect to the appointment of non-hereditary trustees in respect of Pisharikavu Devaswom, strictly in accordance with the provisions contained in Sections 39(1) and (2) of the Act; and a writ of mandamus commanding the 2[nd] respondent Deputy Commissioner to finalise the new scheme, which is pending in Ext.P2 Original Application, i.e., O.A.No.7 of 2018, forthwith; 2. On 17.08.2022, when this writ petition came up for admission, the learned Standing Counsel for Malabar Devaswom Board took notice on admission for respondents 1 and 2 and also for additional 5[th] respondent. Respondents 3 and 4 entered appearance through counsel. The learned Standing Counsel for Malabar Devaswom Board and also the learned counsel for respondents 3 and 4 were directed to get specific instructions on the allegations contained in paragraphs 9 and 10 of the writ petition, wherein it is alleged that for the last few years, appointment to the post of non- 5 W.P.(C)No.26414 of 2022 hereditary trustees in Pisharikavu Devaswom is made purely on political basis, by appointing active members of the ruling political party. The details of such appointments are furnished in paragraph 9 of the writ petition. In paragraph 10 of the writ petition it is alleged that, on account of political appointment of non-hereditary trustees, the hereditary trustees are not able to discharge their role in the Board of Trustees. The Executive Officer of the Temple is not even consulting the hereditary trustees. On two occasions, due to interference from non-hereditary trustees and the Malabar Devaswom Board, the hereditary trustees could not exercise their power of appointment of non-hereditary employees, as a result of which, the hereditary trustees and the affected candidates have to approach this Court and obtain necessary orders. In paragraph 10 of the writ petition, it is alleged that by spending Rs.10 Crores from the temple fund and fixed deposit, a building was constructed as comfort station (toilet block) for the devotees. The comfort station is kept locked for the last more than two years. The construction of the said building was entrusted to Uralunkal Labour Contract Society, without inviting tenders. The five-storied building constructed 6 W.P.(C)No.26414 of 2022 is not in accordance with the building Rules and therefore, no occupancy certificate is issued by the Municipality. Huge amounts of Pisharikavu Devaswom are siphoned towards the supervision of the construction of the building. The document marked as Ext.P4 is a complaint dated 02.07.2022 of the petitioner before the 1[st] respondent Commissioner, Malabar Devaswom Board. 3. On 23.08.2022, when this writ petition came up for consideration, the learned counsel, who entered appearance on 17.08.2022 for respondents 3 and 4, submitted that there is a conflict of interest between the said respondents and therefore, notice may be ordered to the 4[th] respondent Executive Officer. Based on the aforesaid submission, this Court ordered notice on admission to the 4[th] respondent, by special messenger, returnable by 29.08.2022. By the order dated 23.08.2022, this Court granted stay of further proceedings pursuant to Ext.P5 notification dated 14.07.2022 issued by the 1[st] respondent Commissioner for selection and appointment of non-hereditary trustees in Pisharikavu Devaswom, for a period of one month. The learned Standing Counsel for Malabar Devaswom Board was 7 W.P.(C)No.26414 of 2022 directed to make available for the perusal of this Court the applications received pursuant to Ext.P5 notification. 4. On 29.08.2022, the learned Standing Counsel for Malabar Devaswom Board sought time to make available for the perusal of this Court the applications received pursuant to Ext.P5 notification. The learned counsel for respondents 1 and 4 sought time to file counter affidavit. The interim order granted on 23.08.2022, staying further proceedings pursuant to Ext.P5 notification, was extended for a further period of one month. 5. The 1[st] respondent has filed a counter affidavit dated 26.10.2022, opposing the reliefs sought for in this writ petition. The 4[th] respondent has also filed a counter affidavit dated 06.11.2022. 6. Heard the learned counsel for the petitioner and also the learned Standing Counsel for Malabar Devaswom Board for respondents 1, 2 and 3. 7. The administration of Pisharikavu Temple under Pisharikavu Devaswom is governed by the provisions under Ext.P1 Scheme framed by the order dated 28.09.1977 in O.A.No.19 of 1976 of the Deputy Commissioner for Hindu 8 W.P.(C)No.26414 of 2022 Religious and Charitable Endowments (Administration) Department, Calicut, a copy of which is placed on record as Ext.P1 along with the writ petition, which is also marked as Ext.R4(a) in the counter affidavit filed by the 4[th] respondent Executive Officer of Pisharikavu Devaswom. As per clause 2 of the said Scheme, the administration of the affairs of Pisharikavu Temple, shrines attached thereto and all the properties, movable and immovable, which belong to or have been or may hereafter be given, dedicated or endowed shall be subject to the provisions of the Scheme vest in the families of eight hereditary trustees and non-hereditary trustees appointed by the Commissioner. The hereditary trustees shall be entitled to the customary honours of respect in the temple. 8. During the course of arguments, the learned counsel for the petitioner would submit that, in view of the aforesaid provision contained in Ext.P1 Scheme, which is one approved under the provisions of sub-section (4) of Section 58 of the Madras Hindu Religious and Charitable Endowments Act, 1951, the petitioner is not pressing the declaratory reliefs, i.e., relief Nos.(ii) and (iii), and also the writ of mandamus, 9 W.P.(C)No.26414 of 2022 relief No.(iv), sought for in this writ petition relying on the provisions under Section 39 of the said Act. However, placing reliance on the decision of this Court in **K. Chathu Achan v.** **State of Kerala [ILR 2022 (4) Kerala 199]** , the learned counsel for the petitioner would submit that active politicians or those indulging active participation in the activities of a political party cannot aspire appointment as a non-hereditary trustee in Pisharikavu Devaswom. 9. In **K. Chathu Achan v. State of Kerala and others [ILR 2022 (4) Kerala 199]** in the context of a notification issued by the Commissioner, Malabar Devaswom Board, in the matter of selection of non-hereditary trustees in temples which are controlled institutions under the Malabar Devaswom Board, this Court held 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. 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 the temple. 10 W.P.(C)No.26414 of 2022 10. The learned Standing Counsel for Malabar Devaswom Board would submit that the 1[st] respondent Commissioner, Malabar Devaswom Board is legally bound by the law laid down by this Court in **K. Chathu Achan [ILR 2022 (4) Kerala 199]** and the process of selection of nonhereditary trustees in terms of Ext.P5 notification will be strictly in terms of the law laid down by this Court in the said decision. Therefore, there is absolutely no basis for the apprehensions raised by the petitioner in this writ petition. 11. Having considered the submissions made by the learned counsel on both sides, we hold that selection of nonhereditary trustees in terms of Ext.P5 notification of the 1[st] respondent Commissioner, Malabar Devaswom Board has to be in accordance with the law laid down by this Court in **K. Chathu Achan [ILR 2022 (4) Kerala 199]** . Therefore, for appointment as non-hereditary trustee of Pisharikavu Devaswom, in terms of clause 2 of Ext.P1 Scheme, the applicant should be a regular worshipper of Pisharikavu Temple, who is prepared to actively work for the betterment of that temple. Persons who are busy with their employment, office bearers of political parties, active politicians or those 11 W.P.(C)No.26414 of 2022 indulging in active participation in the activities of a political party cannot aspire appointment as non-hereditary trustee of Pisharikavu Temple. In case the process of selection conducted by the 1[st] respondent Commissioner based on Ext.P5 notification is in violation of the law laid down in **K.** **Chathu Achan [ILR 2022 (4) Kerala 199]** , the petitioner, who is one among the hereditary trustees of Pisharikavu Devaswom can point out the said fact to the notice of the 1[st] respondent Commissioner, by submitting a proper representation, in which event, the 1[st] respondent shall consider the same, before proceeding further with the process of selection. 12. Another grievance of the petitioner is regarding the construction of a comfort station (toilet block) in Pisharikavu Temple by spending Rs.10 Crores from the temple fund and fixed deposit. Pointing out the said issue, the petitioner has submitted Ext.P4 complaint dated 02.07.2022 before the 1[st] respondent Commissioner, Malabar Devaswom Board. In the said complaint, it is alleged that the said building constructed spending Rs.10 Crores is kept locked for the last two years. If as a matter of fact, the construction of 12 W.P.(C)No.26414 of 2022 the said building was entrusted to Uralunkal Labour Contract Society, without inviting the tender, it is a serious irregularity which requires detailed enquiry. In Ext.P4 complaint, it is alleged that no occupancy certificate has been issued by the Municipality since the building has been constructed in violation of the building Rules and also the requirements regarding the fire safety. Since Ext.P4 complaint is now pending consideration before the 1[st] respondent Commissioner, Malabar Devaswom Board, it is for the said respondent to consider that complaint and take appropriate action, strictly in accordance with law, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. The petitioner, the 3[rd] respondent Board of Trustees and the 4[th] respondent Executive Officer shall submit written submissions before the 1[st] respondent raising appropriate legal and factual contentions, which shall be dealt with by the 1[st] respondent, after affording both sides a reasonable opportunity of being heard. The decision taken by the 1[st] respondent shall be a ‘reasoned order’, after adverting to the legal and factual contentions raised by both sides, which shall be brought to 13 W.P.(C)No.26414 of 2022 the notice of this Court by the learned Standing Counsel for Malabar Devaswom Board, by filing a memo in this writ petition, with copy to the learned counsel for the petitioner, the learned counsel for the 3[rd] respondent Board of Trustees and the learned counsel for the 4[th] respondent Executive Officer. With the directions contained hereinbefore at paragraphs 11 and 12, this writ petition is disposed of. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** MIN 14 W.P.(C)No.26414 of 2022 ## **`APPENDIX OF WP(C) 26414/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE 1ST SCHEME APPROVED UNDER SECTION 58(4) OF THE H.R. & C.E. ACT, 1951 DATED 28/9/1977. ``` ``` Exhibit P2 ``` - **`TRUE COPY OF THE O.A.NO.7 OF 2018 PENDING BEFORE THE 2ND RESPONDENT, DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD.`** - **`Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 20/3/2020 IN WP(C) NO.8907 OF 2020 OF THE HON'BLE COURT.`** ``` Exhibit P4 ``` - **`TRUE COPY OF THE COMPLAINT DATED 2/7/2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.`** ``` Exhibit P5 ``` ``` TRUE COPY OF THE NOTIFICATION NO.J6- 2088/2022/MDB DATED 14/7/2022 ISSUED BY THE 1ST RESPONDENT. ``` ## **`RESPONDENT EXHIBITS`** ``` EXHIBIT R4(A) TRUE TYPED COPY OF THE SCHEME OF ADMINISTRATION OF THE 4TH RESPONDENT TEMPLE. ```