The Zamorin Raja of Calicut v. Malabar Devaswom Board

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941** ## **WP(C).No.31154 OF 2019(T)** ## **PETITIONER:** **THE ZAMORIN RAJA OF CALICUT** **HEREDITARY TRUSTEE, THIRUNNAVAYA SREE NAVA MUKUNDHA KSHETHRAM, VALAYANAD, KOMMERI.P.O., KOZHIKODE-673002, RESIDENCE AT C-1, AYODHYA APARTMENTS, THIRUVANNUR NADA, KOZHIKODE-673029.** ## **BY ADVS.SRI.SRINATH GIRISH SRI.P.JERIL BABU** ## **RESPONDENTS:** - **1 MALABAR DEVASWOM BOARD, REPRESENTED BY ITS COMMISSIONER, ERANJIPALAM.P.O., KOZHIKODE-673006.** - **2 THE COMMISSIONER, MALABAR DEVASWOM BOARD, ERANJIPALAM.P.O., KOZHIKODE673006.** - **3 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEVASWOM DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **R1 & R2 SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD** **R3 GP-SRI.RENIL ANTO KANDAMKULATHY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.31154 OF 2019 2 ## **JUDGMENT** ## **Ravikumar, J.** The Zamorin Raja of Calicut, the petitioner, seeks for issuance of a writ of certiorari quashing Ext.P4 decision of the first respondent and Ext.P8 notification issued by the 2[nd] respondent and all proceedings taken pursuant thereto. The further prayers are as follows:- - “ii) To declare that all proceedings for appointment of NonHereditary Trustees for the Thirunavaya Sree Navamukunda Kshethram initiated by the 2[nd] respondent without following the mandate of Section 39 of the Madras HR & CE Act are illegal and unsustainable under law; - iii) To issue Writ of Mandamus or any other appropriate Writ, order or direction commanding the 2[nd] respondent to consider Exhibits P7, P9 and P11 and pass orders thereon following due process of law;” However, when the matter is taken up for consideration today, upon finding that Ext.P4 pertains to yet another Devaswom that is, Thrippangodu Devaswom and not in relation to Thirunavaya Devaswom it is submitted by the learned counsel that the challenge against Ext.P4 is not pressed. It is recorded. Ext.P7 would reveal that the opinion in the matter of appointment of Non-hereditary Trustees in Thirunavaya Devaswom was submitted by the petitioner pursuant to the receipt of W.P.(C)No.31154 OF 2019 3 notice bearing No.H.8-2872/18/MDB dated 29.11.18. As per Ext.P7, the petitioner herein opined that there is absolutely no necessity to appoint Non-hereditary Trustees in Thirunavaya Devaswom. Ext.P8 would reveal that the Commissioner of Malabar Devaswom Board invited applications for appointment of Non-hereditary Trustees in Thirunavaya Sree Navamukunda Kshethram. Subsequent to Ext.P8 the petitioner submitted Ext.P9 wherein he had reiterated his views regarding the absolute absence of any necessity to appoint Nonhereditary Trustees in the temple. Despite the receipt of Ext.P9 the respondents went on with the decision to appoint Non-hereditary Trustees in the said temple, as is obvious from Ext.P10. Ext.P10 is a notice requiring the applicants who responded to Ext.P8 to appear for verification of documents regarding the qualification for being appointed as Non-hereditary Trustees. Thereafter, the petitioner again submitted Ext.P11 reiterating his stand revealed under Exts.P7 and P9 and also requiring the Devaswom Board to cancel the steps for appointment of Non-hereditary Trustees as there is absolutely no necessity even for appointment of Non-hereditary Trustees in the said temple. Evidently, it is apprehending that the respondents would continue with the selection process and would effect appointment of Non-hereditary Trustees in Thirunavaya Devaswom without considering his objections W.P.(C)No.31154 OF 2019 4 that the petitioner has filed the captioned writ petition. 2. It is contended by the petitioner that the respondents got no authority to appoint Non-hereditary Trustees in Thirunavaya Sree Navamukunda Kshethram without his consent. It is also submitted therein that the 2[nd] respondent Commissioner of Malabar Devaswom Board has taken steps to effect appointment of Non-hereditary Trustees in the said Devaswom only to wreck vengeance against the petitioner. It is also his contention that the decision and the consequential proceedings to effect appointment of Non-hereditary Trustees in the said temple is violative of Section 10 of the Madras Hindu Religious & Charitable Endowments Act 1951 (for short 'the Act'). It is the further contention that the question of appointment of Non-hereditary Trustees invoking the power under Section 39 of the Act would arise only if the affairs of the temple are not properly being managed by the hereditary trustee/trustees. It is submitted that even in such circumstances, only after recording all the reasons therefor that appointment of Nonhereditary Trustees could be effected in such temples. In the light of the said position he further submitted that the decision in Ext.P8 and the consequential action for effecting appointment of Non-hereditary Trustees are not preceded by any order which carries a reason reflecting the necessity to effect appointment of Non-hereditary W.P.(C)No.31154 OF 2019 5 Trustees. To buttress the aforesaid contentions the petitioner relies on various authorities such as the decisions in **Bhannunni** v. **Commissioner, HR&CE Department (2011 (3) KHC 900)** , **Zamorin Raja** v. **Government of Kerala (2014 (4) KLT 841)** and **Sreedharan Nambissan** v. **Commissioner, Malabar Devaswom Board (2018 (2) KLT 115)** and the decision in **Neelakantan** v. **State of Kerala** in **W.P.(C)No.6718 of 2004** of this Court. 3. The respondents filed a statement wherein they have stated that there is absolutely no illegality in the decision in appointing Non-hereditary Trustees in Thirunavaya Sree Navamukunda Kshethram. It is specifically stated therein that the provisions under Section 39 of the Act, be it under Section 39(2) or Section 39(5), are not applicable in this case and there is specific provision in the scheme approved for the temple in question, providing for appointment of a maximum of four Non-hereditary Trustees. To drive home the point that if there is a scheme for appointment of Non-hereditary Trustees then, taking recourse to Sub-section (2) of Section 39 as also sub-section (5) of Section 39 of the Act is not necessary. The learned Standing Counsel relied on the decision of a Division Bench of this Court in which one among us ( _C.T.Ravikumar, J._ ) is a party viz., in W.P.(C)No.No.9194 of 2012 dated 12.4.2012. The learned standing counsel further relied on W.P.(C)No.31154 OF 2019 6 Ext.P2 which is produced and relied on by the petitioner himself, to buttress his contentions. The learned counsel also drew our attention to paragraph 5 of the said decision. 4. Heard the learned counsel for the petitioner and also the learned Standing Counsel appearing for the respondents. 5. In the light of the rival contentions, we will firstly consider Ext.P1 scheme. The petitioner cannot be heard to contend that there is no provision for appointment of Non-hereditary Trustees in Thirunavaya Sree Navamukunda Kshethram in the said scheme. In that context, it is worthy to extract clause (2) of the said scheme and it reads thus:- “ത�രർ ത�ലക� ത�രന�വ�യ വ�ല�ജ� ത�രന�വ�യ ല�തത�ന�യ� അലത�ടനബന�ചള ശ ല!�വ�ല�ല�യ� അത�ന� വ!യ�യലത� ആ!ന$ട അഥവ� ഇത�നല(ഷ� അത�ന� നൽ!ന$ട�വനലത� സമർ$�കന$ട�വനലത� ധർമ�ർത� ന!�ടക�വനലത� ആയ എ�� സ�വര ജ�ഗമ വസകളലടയ� വസ!ളലടയ� !�ര9�ദ�!ളനട ഭരണ� ഈ പദത�യനട വ9വസ!ൾക വ�ലധയമ�യ� പരമര�ഗത ടസ�യനട കട�ബത�ന� ഈ ഡ�$�ർട�നമ�� ന�യമ�ക�വനതയ� (ന�ല�ൽ !വ�യ�നത) പരമര�ഗതമ�യ�ടളത��ത ടസ�!ള�ല� ന���പമ�യ�ര�കനത�ണ�.” In such circumstances, the question is whether the respondents are justified in issuing notifications for appointment of Non-hereditary Trustees in the said temple. As noticed hereinbefore, as per Ext.P8 notification dated 13.5.2019 applications were invited by the second respondent for appointment of Non-hereditary Trustees. Subsequently, W.P.(C)No.31154 OF 2019 7 Ext.P10 notice was also issued to the applicants who responded to Ext.P8 notification to appear before the Manjeri Division Inspector of Malabar Devaswom Board for the purpose of verification of documents to ascertain whether the applicants are qualified for appointment pursuant to Ext.P8. As noticed earlier, the petitioner has submitted Exts.P7, P9 and P11 objections in the matter, taking up the contention that there is absolutely no necessity for appointment of Non-hereditary Trustees in the said temple. He has also put a contention that in the light of Section 39 of the Act Non-hereditary Trustees could be appointed only after following the procedures contemplated thereunder. 6. As noticed hereinbefore, in support of the contention that for effecting appointment of Non-hereditary Trustees in the temple in question procedures contemplated under Section 39 of the Act is required the petitioner has relied on various decisions. Besides the decisions referred supra, in that context, he has also relied on the decision of a Division Bench of this Court in **Muttil Sree Vishnu Kshetra Samithy** v. **Assistant Commissioner, H.R. & C.E. (admn.) (2010 (4) KLT 654)** as also another Division Bench decision in **Sreedharan Nambissan P. v. Commissioner, Malabar Devaswom Board, Kozhikode (2018 (2) KLT 115).** In the decision in **Sreedharan Nambissan's** case virtually, the Division Bench held that W.P.(C)No.31154 OF 2019 8 the petitioner therein who is the hereditary trustee of Sree Tripuranthaka Devaswom got entitlement to make his views in the matter of appointment of Non-hereditary Trustees and the authority under the Devaswom Board is bound to take into account the opinion and the views of the Hereditary Trustees with respect to the appointment of Non-hereditary Trustees. The learned standing counsel appearing for the Malabar Devaswom Board submitted that the decision reported in **Sreedharan Nambissan's** case (supra) viz., decision in W.P.(C)No.1705 of 2018 was reviewed subsequently. He has handed over a copy of the order passed in the review petition viz., in R.P.No.227 of 2018 in W.P.(C)No.1705 of 2018. After quoting paragraph 11 of the reported judgment in **2018(2) KLT 115** the Division Bench considered the scope of Section 39(5) of the Act in the review petition. In that context, it is relevant to refer to paragraphs 4 and 5 of the order in the said review petition. They read thus:- “4. It was in the backdrop of this particular provision that we said that even though the issuance of a notice to the Hereditary Trustee is not mandated or specifically provided under Section 39(5), it will be desirable, to ensure fairness in procedure, that the Hereditary Trustee is also afforded an opportunity to place his views appropriately before final orders are passed under Section 39(5). As we have already indicated above, our intention was not that the concurrence of the Hereditary Trustee to the proposal of the Commissioner be obtained but merely that he be W.P.(C)No.31154 OF 2019 9 given an opportunity to speak his opinion as to why he feels that there is no necessity to appoint a Nonhereditary Trustee in the Temple. 5. It is needless to say that since it was not the concurrence of the Hereditary Trustee that is required to be obtained, as per our judgment, the only obligation of the Commissioner is to afford the Hereditary Trustee an R.P.No.227/2018 5 opportunity to say why he feels that no necessity exists for an order under Section 39(5) of the Act, so that any vital information, which is within the domain of the Hereditary Trustee can also be placed for his consideration.” 7. It is thus obvious that the Division Bench clarified that the view of the Hereditary Trustee in the matter of appointment of Nonhereditary Trustee is not binding on the Commissioner in terms of the provisions under Section 39(5) of the Act. Such views are elicited only to aid the Commissioner who has to take a final decision in the matter of filling up of the vacancy of Non-hereditary Trustee. We have carefully gone through the various decisions relied on (cited supra) by the learned counsel for the petitioner. Evidently, they are all decisions rendered with reference to Section 39 of the Act. In W.P.(C)No.9194 of 2012 which was disposed of by a Division Bench of this Court on 12.4.2012 this Court dealt with the question of appointment of Nonhereditary Trustees in a temple in respect of which a scheme is governing the Trust attached to the said temple. Paragraph 2 therein is W.P.(C)No.31154 OF 2019 10 relevant. “Admittedly, there is a Scheme governing the Trust. It provides, among other things, for appointment of four non-hereditary trustees. This means that recourse to sub-section (2) of Section 39 of the Madras Hindu Religious and Charitable Endowments Act, 1951 is not necessary to make an “appointment” of a nonhereditary trustee on any ground referable to the conduct of the hereditary trustee, or otherwise.” ## 8. True that, in the decision in **Sreedharan Nambissan's** case (supra) which was reviewed to certain extent as per order in R.P.No.227 of 2018 dated 27.3.2018, the Division Bench held that in the matter of appointment of Non-hereditary Trustees in a temple in respect of which a scheme is provided for appointment of Nonhereditary Trustees, though issuance of a notice to the Hereditary Trustee is not mandatory or specifically provided under Section 39(5) of the Act, it would be desirable. It is taking note of the aforesaid situation specifically and liberally considered in paragraphs 4 and 5 of the said order, extracted hereinbefore, that the Division Bench ultimately came to the conclusion that, in other words, clarified the position that views of Hereditary Trustees is not binding on the Commissioner and further that the views are elicited solely for the purpose of aiding the Commissioner to take a decision regarding the necessity to fill up the vacancies. W.P.(C)No.31154 OF 2019 11 9. In the light of the position of law settled as above, as revealed from the aforesaid decisions and the factual position obtained in this case, the question to be considered is whether the proceedings initiated by the respondents for appointment of Non-hereditary Trustees revealed from Exts.P8 and P10 require interference. In view of the decision in **Sreedharan Nambissan's** case (supra) relied on by the petitioner which was reviewed to certain extent as per order in R.P.No.227 of 2018 issuance of notice for appointment of Nonhereditary Trustees when there is a specific provision under Section 39 for such appointment in the scheme, is not mandatory. But, at the same time, the Division Bench held that it is desirable. Ext.P7 objection raised by the petitioner herein would reveal that he had submitted the same on receipt of notice bearing No.H.8-2872/18/MDB dated 29.11.18. Subsequent to the issuance of Ext.P8 notification inviting applications for appointment of Non-hereditary Trustees the petitioner again submitted Ext.P9. Of late, subsequent to the issuance of Ext.P10 which is a notice to the applicants who responded to Ext.P8, the petitioner again submitted Ext.P11 representation. Thus, it is evident that in Exts.P7, P9 and P11 the petitioner had revealed his opinion rather, his view in the matter of appointment of Non-hereditary Trustees in the temple. A scanning of the objections raised by the W.P.(C)No.31154 OF 2019 12 petitioner in the said representations/objections would reveal that his consistent stand is that in the matter of appointment of Non-hereditary Trustees in the said temple adherence to the procedures under Section 39(5) of the Act is mandatory. We have already taken note of the fact that Ext.P1 is the approved scheme governing the temple in question and there is a specific provision under clause (2) therein for appointment of Non-hereditary Trustees. When that be the circumstance obtained in the case, in the light of the very decision which was relied on by the petitioner in **Sreedharan Nambissan's** case (supra) and modified to the aforementioned extent as per order in R.P.No.227 of 2018 and also taking note of the fact that the petitioner has already expressed his views in the matter of appointment of Nonhereditary Trustees, as revealed from Exts.P7, P9 and P11, we are of the view that the petitioner cannot be heard to contend that the requisite procedures in terms of the decisions are not followed. In other words, though it was not mandatory to issue a notice under Section 39(5) of the Act evidently, the petitioner herein had raised his objections in the matter of appointment of Non-hereditary Trustees through Exts.P7, P9 and P11. His stand revealed thereunder is to the effect that there is no requirement for appointment of Non-hereditary Trustees in the said temple. But then, in the light of the specific W.P.(C)No.31154 OF 2019 13 provisions under the scheme viz., clause (2) of Ext.P1 scheme, the said contention must pale into insignificance. In such circumstances, we do not find any illegality or perversity in the matter of issuance of Ext.P4 and also Ext.P8 for the purpose of effecting appointment of Nonhereditary Trustees in the said temple. The upshot of the discussion is that this writ petition lacks merits and consequently it is liable to be dismissed. 10. The learned counsel for the petitioner submitted that the petitioner has earlier filed W.P.(C)No.16466 of 2018 challenging appointment of Non-hereditary Trustees in Sree Valayanad Devi Temple, which is another temple falling under the trusteeship of the petitioner. A contention that the Commissioner had effected appointment without complying with Section 39 of the Act was also taken up therein. According to the petitioner, without dealing with his contention raised on Section 39 of the Act the said writ petition was disposed of, as per Ext.P2 judgment. The petitioner has filed a Special Leave Petition challenging Ext.P2 judgment and therefore, the learned counsel has conceded that there is no stay in the matter of operation of Ext.P2 judgment. In that regard, it is only appropriate to refer to the decision in **State of U.P.** v. **Mohammad Nooh (AIR 1958 SC 86)** which in turn was rendered relying on a Privy Council decision in **Juscurn Boid** W.P.(C)No.31154 OF 2019 14 v. **Pirthichand Lal (AIR 1918 PC 151)** . The Apex Court held that though an appeal is continuation of the lis, the law is that unless stay is granted, preference of an appeal would not be a ground for holding that the order passed by the original authority ceased to operate. In the light of the said decision of the Apex Court merely because the petitioner has preferred an appeal against Ext.P2 that cannot be a reason for us to interfere with Ext.P8 notification and the further proceeding pursuant thereto. In the aforesaid circumstances, this writ petition carrying challenge against Ext.P8 notification stands dismissed. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **N.NAGARESH Judge** TKS W.P.(C)No.31154 OF 2019 15 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE SCHEME OF ADMINISTRATION DATED 24.12.1971.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 8.10.2018 IN WPC.NO.16466 OF 2018.** - **EXHIBIT P3 TRUE COPY OF THE REPORT OF THE ASSISTANT COMMISSIONER, MALAPPURAM, MALABAR DEVASWOM BOARD DATED 10.4.2018.** **EXHIBIT P4 TRUE COPY OF THE DECISION NO.60 OF MALABAR DEVASWOM BOARD DATED 4.10.2018.** - **EXHIBIT P5 TRUE COPY OF THE LETTER NO.H.8.2872/18/MDS OF THE 2ND RESPONDENT CALLING FOR OBJECTIONS FROM THE PETITIONER REGARDING THE APPOINTMENT OF NON HEREDITARY TRUSTEE IN THE THIRUNNAVAYA TEMPLE DATED 29.11.2018.** **EXHIBIT P6 TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 13.12.2018.** - **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 22.12.2018 SENT BY THE PETITIONER TO THE 2ND RESPONDENT STATING HIS OBJECTIONS REGARDING THE APPOINTMENT OF NON-HEREDITARY TRUSTEE IN THE THIRUNNAVAYA TEMPLE.** - **EXHIBIT P8 TRUE COPY OF THE NOTIFICATION NO.H8/2872/2018/MDB DATED 13.5.2019 OF THE 2ND RESPONDENT INVITING APPLICATIONS FOR THE POST OF NON HEREDITARY TRUSTEE IN THE THIRUNNAVAYA TEMPLE.** W.P.(C)No.31154 OF 2019 16 **EXHIBIT P9 TRUE COPY OF THE LETTER DATED 12.6.2019 SENT BY THE PETITIONER TO THE 2ND RESPONDENT STATING HIS OBJECTIONS REGARDING THE NOTIFICATION NO.H8/2872/2018/MDB DATED 13.5.2019.** **EXHIBIT P10 TRUE COPY OF THE NOTICE NO.316/2019/MDB ISSUED BY THE INSPECTOR, MALABAR DEVASWOM BOARD, MANJERI DATED 30.10.2019.** **EXHIBIT P11 TRUE COPY OF THE LETTER DATED 12.11.2019 SENT BY THE PETITIONER TO THE 2ND RESPONDENT STATING HIS OBJECTIONS REGARDING THE NOTICE NO.316/2019/MDB.** TKS