WP(C).34594 of 2016 & 16110 of 2019: V. Gopalan & K.G. Santhosh v Malabar Devaswom Board; Sree Murikkanmar Temple represented by its Executive Officer v Malabar Devaswom Board & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941** **WP(C).No.34594 of 2016** ## **PETITIONERS:** > **1 V.GOPALAN, S/O.V.NARAYANA GOWDER VAZHAKANDY HOUSE,PANAMARAM, WAYANAD DIST.** - **2 K.G.SANTHOSH,S/O.K.GOPALA KRISHNAN, KOTTOOR HOUSE,PANAMARAM PANCHAYATH, PANAMARAM VILLAGE, WAYANAD DISTRICT** **BY ADVS. SRI.M.P.ASHOK KUMAR SMT.BINDU SREEDHAR** ## **RESPONDENTS:** **1 MALABAR DEVASWOM BOARD,REP. BY ITS SECRETARY, KOZHIKODE DISTRICT-673 001 2 THE ASSISTANT COMMISSIONER,MALABAR DEVSWOM BOARD, THALASSERY, KANNUR DISTRICT.-670 101** - **ADDL.R3 EXECUTIVE OFFICER-IN-CHARGE, MURIKKANMAR TEMPLE,PANAMARAM, WAYNAD** **(IS IMPLEADED AS PER ORDER DATED 30.7.2018 IN IA.NO.13800/2018 IN WPC)** - **ADDL.R4 SECRETARY,PANAMARAM GRAMA PANCHAYAT, PANAMARAM, WAYANAD** **(IS IMPLEADED AS PER ORDER DATED 04.4.2019 IN IA.NO, 1/2019 IN WP(C))** **BY ADVS.** **SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD SRI.MAHESH V.RAMAKRISHNAN, SC, MDB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.07.2019, ALONG WITH WP(C).16110/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941** **WP(C).No.16110 of 2019** ## **PETITIONER:** **SREE MURIKKANMAR TEMPLE REPRESENTED BY ITS EXECUTIVE OFFICER, PANAMARAM P.O., PANAMARAN WAYANAD 670 721.** **BY ADVS. SRI.MAHESH V RAMAKRISHNAN SMT.MARY LIYA SABU** ## **RESPONDENTS:** |**1**|**THE MALABAR DEVASWOM BOARD,**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**HOUSEFED COMPLEX,**| ||**ERANHIPALAM P.O., KOZHIKODE 673 006**| |**2**|**THE COMMISSIONER,**| ||**MALABAR DEVASWOM BOARD,**| ||**REPRESENTED BY ITS SECRETARY,**| ||**HOUSEFED COMPLEX, ERANHIPALAM P.O.,**| ||**KOZHIKODE 673 006**| |**3**|**THE ASSISTANT COMMISSIONER,**| ||**MALABAR DEVASWOM BOARD,**| ||**THALASSERY DIVISION,**| ||**THIRUVANGAD, THALASSERY, KANNUR 670 101.**| |**4**|**THE COMMITTEE BY NAME,**| ||**PANAMARAM SHRI MURIKKANMAR TEMPLE,**| ||**REPRESENTED BY ITS PRESIDENT,**| ||**PANAMARAM P.O., WAYANAD 670 671.**| |**5**|**PANAMARAM SREE MURIKKANMAR KSHEHTHRA**| ||**NAVEEKARANAN COMMITTEE,**| ||**REPRESENTED BY ITS CHAIRMAN,**| **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 3 **PANAMARAM SREE MURIKKANMAR TEMPLE, PANAMARAM P.O., WAYANAD 670 671.** - **6 VASUDEVAN,VADOCHAL HOUSE, PANAMARAM P.O., WAYANAD 670 671.** - **7 NISSAR.V.,VALOPPIL HOUSE, PANAMARAM P.O., WAYAND 670 671.** - **8 DR. UTHARA SIVARAMAN, AYURVEDIC DOCTOR, PANAMARAM P.O., WAYANAD 670 671.** - **9 ABUDL RAHMAN, VARIYIL HOUE, PANAMARAM P.O.,WAYANAD 670 671.** - **10 SOUPAN.P.K., PUNATHI KANDI HOUSE, PANAMARAM P.O., WAYANAD 670 671.** - **11 THE PANAMARAM SERVICE CO-OPERATIVE BANK LTD. NO. C. 6643, PANAMARAM P.O., WAYANAD 670 671** - **12 PANAMARAM GRAMA PANCHAYATH REPRESENTED BY TIS SECRETARY, OFFICE OF THE PANAMARAM GRAMA PANCHAYATH PANAMARAM P.O., WAYANAD 670 671** - **13 V.GOPALAN, S/O.V.NARAYANA GOWDER VAZHAKANDY HOUSE,PANAMARAM, WAYANAD DIST.** - **14 K.G.SANTHOSH,S/O.K.GOPALA KRISHNAN, KOTTOOR HOUSE,PANAMARAM PANCHAYATH, PANAMARAM VILLAGE, WAYANAD DISTRICT** **(ARE IMPLEADED AS ADDL. R13 AND R14 AS PER ORDER IN IA NO. 1/2019 DATED 10.07.2019) BY ADVS. SRI.M.P.ASHOK KUMAR SRI.ZAKEER HUSSAIN SHRI.ASIF N SMT.BINDU SREEDHAR SMT.K.A.SANJEETHA SRI.P.C.GOPINATH** ## **SRI R. LAKSHMI NARAYAN-SC ,MDB.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.07.2019, ALONG WITH WP(C).34594/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 ## **WP(C).NoS.34594 of 2016 & 16110 OF 2019** ## **JUDGMENT** **[ WP(C) 34594/2016 ,WP(C).16110/2019 ]** ## **Ravikumar, J** The petitioners in the writ petition claim to be the hereditary trustees of the Murikkanmar temple, Panamaram in Wayanad District. In the writ petition they stated that the temple building was constructed jointly by the families of the petitioners and Karimbummel family. We may hasten to add that on scrutiny of the pleadings in the writ petition we do not find any statement regarding the whereabouts of the heridiraty trustees from the family of the Karimbummel family. Be that as it may, the grievance of the petitioners in the former writ petition, who claim to be the heridiraty trustees of the temple, is against Ext.P2, whereby applications are invited for appointment of nonheridiraty trustees in the temple in question. Pending the said writ petition the Malabar Devaswom Board appointed the third respondent as the Executive Officer in charge of the said temple as per Ext.P3. The petitioners got amended the writ petition to bring in challenge against Ext.P3. Thus, in this writ petition the **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 5 petitioners seek prayers for quashment of Exts.P2 and P3 and for a declaration that the Malabar Devaswom Board or any of its officers got no jurisdication to interfere with the affairs of the Murikkanmar Temple in Wayanad District as it is a family temple. They also seek for a further declaration that heriditary trustees alone got the right to administer and manage the Murikkanmar Temple in Wayanad Taluk and appointment of non-hereditary trustees from the temple is unjustifiable. It is to be noted that, admittedly, pursuant to Ext.P2 so far, no person was appointed as non-heriditary trustee for the temple concerned. Raising various contentions, legal and factual, it is submitted by the learned counsel for the petitioners that the actual attempt on the part of the MDB is to take over the administration of the temple. The latter writ petition is filed by the appointee under Ext.P3 viz., the person put in full additional charge of the temple in question, seeking various reliefs. 2. We have heard the learned counsel appearing for the petitioners, the learned standing counsel for the MDB and the learned counsel appearing for the third respondent. There is no appearance for the 4[th] respondent. **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 6 3. We will firstly deal with the former writ petition. The circumstances that necessitated the petitioners to approach this Court seeking quashment of Exts.P2 and P3 virtually germinated from the issuance of Ext.P1. As per Ext.P1 the hereditary trustees of the temple in question were asked whether they got any objection or opinion regarding the proposal to appoint non-heridiraty trustees to the temple. The petitioners would contend that immediately on receipt of the said notice they raised twin objections. Essentially their first objection was that the temple in question is not a notified temple or in otherwords, it is not included in the list given in 'A' schedule, published as per notification bearing No.HR 3/5691/93 dated 15.02.1994. Secondly, it is contended that, for listing a temple in terms of the provisions under Section 38 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (MHR&CE Act) the procedures contemplated under Section 57 are to be complied with and as far as following the procedures under Section 57 of MHR&CE Act it was not included as a listed temple in terms of the provisions under Section 38, and hence the MDB got no control or supervision ## **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 7 over the temple in question. In short, the temple in question even now continues to be purely a family temple. It is subsequent to Ext.P1 that Ext.P2 was issued by the Board inviting application for appointment of non-heridiraty trustees to the temple. Later, as per Ext.P3, holding the view that for the smooth functioning of the temple in question someone having full time charge is required, the Executive Officer of the Thirunelli Devaswom was given full additional charge as its Executive Officer. As noticed hereinbefore, Ext.P3 is also under challenge in this writ petition. It is challenged on the ground that when MDB got no jurisdiction at all over the temple in question, owing to it being only a family temple, MDB lacks power to put the third respondent in full additional charge as Executive Officer of the said temple. The learned counsel for the petitioners contended that the mere fact that public are allowed to worship in the temple in question would not convert the temple, which is a private religious institution and a family temple, into a public religious institution. To fortify the said contention, the learned counsel relied on the decision of this Court in **Gangadharan Nair v. Commissioner, Malabar** ## **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 8 **Devaswom Board** (2013 (3) KLT 1017). That apart, it is contended that for the purpose of enlistment of a temple in terms of the provisions under Section 38 of MHR&CE Act, the procedures contemplated under Section 57 of MHR&CE Act are to be complied with. In the case on hand, no such procedures have been followed. It is further submitted that in such circumstances Section 39(2) of MHR&CE Act is not available for invocation and that apart, it is contended that no grounds for invocation of the power under Section 39(2) of MHR&CE Act are existing in the case on hand. As regards Ext.P2, it is further contended that a scanning of the same would reveal that there is no reason for taking a decision to appoint a non-hereditary trustee. It is further submitted that, in such circumstances, Ext.P2 is liable to be interfered with on the ground of nonapplication of mind as well. 4. The first respondent has filed a counter affidavit essentially, refuting the claims and contentions of the petitioners. Their precise case is that, the temple in question is a public religious institution coming under the purview of MHR&CE Act as amended as Act 31 of 2008 and it is under the **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 9 jurisdiction of the Area Committee, Thalassery. They have also stated that the temple was declared as public one under the said Act and included in the consolidated list of temple published in 1994. As per the said notification dated 15.02.1994 the temple in question is included at Serial No.337 amongst the non-listed temple in Mananthawadi Taluk. It is also stated that in such circumstances by virtue of operation of the said Act, the administration of the temple in question is to be regulated in accordance with the provisions of MHR&CE Act and therefore, the authorities under the MDB are empowerd to interfere with the affairs of the temple in discharging of the duties and functions under the said Act, to the extent it is permissible thereunder. The contention advanced by the learned standing counsel appearing for the MDB also seems relevance in the context of the situation. It is contended that a perusal of the notification dated 15.2.1994 whereunder temples listed and non-listed are enlisted and in Schedule II therein, the temple in question was included at Serial No.337. The contention is that though the temple in question was included in the list of nonlisted temples, such inclusion was not at all assailed by the ## **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 10 petitioners at any point of time. This contention was raised by the learned counsel to canvass the position that in respect of temples included in 'B' Schedule to the said notification, those are all non-listed temples. It cannot therefore be said that MDB got no jurisdiction at all in the light of the provisions under MHR&CE Act as regards such a temple included in the list of 'non-listed temples'. 5. In the decision in **Gangadharan Nair'** s case (supra) a Division Bench of this Court held that the mere fact that because public were allowed to worship is not to hold that it is a public religious institution. Essentially, this Court held that the relevant factor which would decide whether it is a public religious institution or a family temple is whether there is clear and strong proof of subsequent dedication to the public and in that regard various aspects have also to be assessed based on the intention of the propounder. There can be little doubt with regard to the position that merely because public are allowed to worship in a temple, which is a family temple, that by itself could not be a conclusive reason to hold that it is a public religious institution. **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 11 ## 6. Section 12 of MHR&CE Act, which deals with the ## Area Committees, require reference to consider the rival contentions appropriately. It reads thus: “ **12.Area committees** .-(1) The State Government- - (a) shall, as soon as may be after the commencement of this Act, by notification in the Kerala Government Gazette, constitute an Area Committee for all temples situated in an Assistant Commissioner's division or part thereof other than temples included in the list published under Section 38; and - (b) may likewise abolish any Area Committee constituted under clause (a), provided that before doing so, a reasonable opportunity shall be given to the Committee to show cause against its abolition (2) An area Committee shall have jurisdiction over specific endowments attached to the temples for which it is constituted, other than specific endowments included in the list published under Section 38; Provided that where a specific endowment is attached to two or more temples comprised within the jurisdiction of two or more Area Committees, the Commissioner shall decide as to which of the Area Committees shall have jurisdiction over the specific endowment: Provided further that where a specific endowment is attached partly to one or more temples included in the list published under Section 38 and partly to one or more temples not so included, only the Commissioner shall have jurisdiction over the specific endowment and no Area Committee shall have such jurisdiction.” ## 7. It is submitted that a bare perusal of Section 12(1)(a) of ## MHR&CE Act would reveal that going by the same Area 12 ## **WP(C).NoS.34594 of 2016 & 16110 OF 2019** Committee could be constituted for all temples situated in an Assistant Commissioner's division or part thereof, other than temples included in the list published under Section 38 of MHR&CE Act. Section 12 (2) of MHR&CE Act would reveal that an Area Committee would have jurisdiction over specific endowments attached to the temples for which it is constituted, other than specific endowments included in the list published under Section 38 of MHR&CE Act. Section 41 of MHR&CE Act deals with the powers of Area Committee to appoint trustees. The said provisions reads as follows: **“41.Power of Areas Committee to appoint Trustees** .- (1) In the case of any religious institution over which an Area Committee has jurisdiction, the Area Committee shall have the same power to appoint trustees as is vested in the Commissioner in the case of a religious institution referred to in Section 39: Provided that the Area Committee may, in the case of any institution which has no hereditary trustee, appoint a single trustee. (2) The provisions of Section 39, sub-section (3), and Section 40, shall apply to the trustee or trustees appointed, or the Board of Trustees constituted, by the Area Committee as they apply in relation to the trustee or trustees appointed, or the Board of Trustees constituted, by the Commissioner.” ## A bare perusal of Section 41 of MHR&CE Act would reveal that in respect of any religious institution over which an ## **WP(C).NoS.34594 of 2016 & 16110 OF 2019** ## 13 Area Committee got jurisdiction, it shall have the same power to appoint trustees, as has been vested in the Commissioner in the case of a religious institution refereed to in Section 39 of MHR&CE Act. 8. In the light of the aforesaid provisions, the learned counsel for MDB would contend that the fact that a temple or a religious institution is not one listed under Section 38 of MHR&CE Act by itself cannto be a ground to canvass that the MDB got no jurisdiction at all over it. In respect of any such religious institution or temple included in 'B' Schedule to the notification dated 15.2.1994 viz., non-listed temples, in the light of the aforesaid provisions, MBD got jurisdiction on matters specifically mentioned under the MHR&CE Act, it is submitted to support and to get sustained Exts.P2 and P3. The learned counsel drew our attention to Section 18 of MHR&CE Act dealing with the power of Commissioner to call for records and pass orders. It reads thus:- **“18. Power of Commissioner to call for records and pass orders** .-- (1) The Commissioner may call for and examine the record of any Deputy or Assistant Commissioner, of any Area Committee, or of any trustee not being the trustee of a math or of a specific endowment attached **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 14 to a math, in respect of any proceeding under this Act (not being a proceeding in respect of which a suit or an appeal to a Court is provided by this Act), to satisfy himself as to the regularity of such proceeding, or the correctness, legality or propriety of any decision or order passed therein. (2) If any such decision or order has been passed by any Deputy or Assistant Commissioner, or by the trustee of any religious institution other than one included in the list published under Section 38, and it appears to the Commissioner that the decision or order should be modified, annulled, reversed or remitted for reconsideration, he may pass orders accordingly. (3)(a) If any such decision or order has been passed any Area Committee or by the trustee of any religious institution included in the list published under Section 38, the Commissioner may, if he thinks fit, remit the matter together with his observations in regard thereto, to the Committee or trustee for reconsideration of the decision or order and report to the Commissioner within a time to be specified by him in this behalf. (b) On receipt of, and after considering, such report, it shall be open to the Commissioner to modify, annul or reverse the decision or order, or the decision or order as revised after such reconsideration, as the case may be. (c) If the report is not received by the Commissioner within the time specified or such further time as may be granted by him the Commissioner may modify, annul or reverse the decision or order of the Area Committee or trustee, as the case may be. (4) The Commissioner shall not pass any order prejudicial to any party under sub-section (2) or clause (b) or clause (c) of sub-section (3), without hearing him or giving him a reasonable opportunity of being heard. (5) The Commissioner may stay the execution of any decision or order of the nature referred to in subsection (1), pending the exercise of his powers under sub-section (2) or sub-section (3) in respect thereof. “ ## **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 15 9. In view of the provisions under Section 18 of MHR&CE Act, it is submitted that if the petitioners are aggrieved by Ext.P2, the statutory remedy open to the petitioners is to take up the matter appropriately before the Commissioner. This submission is made especially in the light of Section 18(2) of MHR&CE Act. Going by Section 18(2) of MHR&CE Act, if a decision or order passed by the Deputy or Assistant Commissioner or by the trustee of any religious institution other than the one included in the list published under Section 38 of MHR&CE Act, the Commissioner could pass orders on satisfying that the decision or order requires modification, annulment, reversal or remittance for re-consideration. It is also submitted that the provisions under sub-section (2) and 3(a) of Section 18 of MHR&CE Act, above all, suggest the existence of authority with the Commissioner in respect of religious institutions other than the one included in the list published under Section 38 of MHR&CE Act as well. 10. While considering the rival contentions, we are of the considered view that the aforesaid provisions are to be borne in mind. Certain other aspects also require a reference in the ## **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 16 context of the contentions. The fact is that consequent to the appointment under Ext.P3, the person named thereunder had assumed full additional charge of Executive Officer of the temple is not under dispute. The learned counsel appearing for the petitioners submitted that though the person named had taken full additional charge as Executive Officer the valuable belongings to the temple including gold ornaments were not handed over to the Executive Officer. Ext.P15 would reveal the documents and the materials which were actually handed over to the possession of the fourth respondent immediately on his assumption of full additional charge as Executive Officer. Another aspect which assume relevance is the facts discernible from Ext.P4. It would reveal that the temple in question was being under the management of an Administrative Committee and further that owing to the reasons specifically mentioned in Ext.P4, its members 18 in numbers, named therein, had resigned from the Administrative Committee of the temple on their own. 11. As noticed herein before, the specific case of the petitioners is that the temple in question is not listed under **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 17 Section 38 of MHR&CE Act after following the mandatory procedures under Section 57 of the said Act. In that context it is to be noted that the MDB also got no case that the temple in question is listed under Section 38 of MHR&CE Act. On the contrary, the contention of the first respondent is only to the effect that the temple in question is included in 'B' Schedule to the notification dated 15.2.1994 'described as 'non-listed temples' and based on such inclusion, the MDB got control to the extent specifically provided under the MHR&CE Act . The learned counsel appearing for the petitioners would contend that in respect of non listed temples, merely because such a temple is included in the list of non listed temples in the Schedule given under notification dated 15.2.1994 that by itself cannot be a reason to hold that MDB got jurisdiction over it. At the first blush his contention would appear to be acceptable and attracted. But, at the same time, a careful analysis of the provisions under Sections 12, 18(2) and 41 of MHR&CE Act would suggest that even in respect of religious institutions not included in the list under Section 38 of MHR&CE Act, the MDB got certain powers as specifically conferred under various **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 18 provisions of the MHR&CE Act. A conjoint reading of Sections 12 and the provisions under Section 41, of MHR&CE Act would reveal that in respect of non-listed temples, i.e., temples listed not under Section 38, the Area Committee concerned would be having jurisdiction to pass order akin to the one under Section 39(2) of the Act. 12. At the same time, a perusal of Exts.P1 and P2 would not reveal that such proceedings/notification was issued pursuant to any direction or decision taken by the Area Committee. At any rate, no material was made available before us to arrive at a conclusion that steps thereunder were initiated pursuant to any such decision by the Area Committee. While considering the question whether in such circumstances the Assistant Commissioner was justified or MDB was justified in issuing Ext.P1 as also Ext.P2 another aspect would also assume relevance. The learned counsel appearing for the MDB submitted that virtually a perusal of Ext.P1 itself would reveal that steps were taken for appointment of non-hereditary trustee and the hereditary trustees have given their consent for the same. The contention is that having given the consent therefor, ## **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 19 the petitioners are not justified in turning around and challenging the proceedings including notification inviting applications for appointment of non-hereditary trustees. 13. At this juncture and in the context of such contentions it is relevant to take note that the learned counsel for the petitioners vehemently opposed the submission that the petitioners are given consent for appointment of non-hereditary trustees. The learned counsel drew our attention to the specific averment in that regard in the writ petition where in unambiguous terms, the petitioners have stated that none of the members of the petitioners' family had ever expressed willingness for appointment of hereditary trustee in the temple in question. 14. We have taken note of all the aforesaid aspects solely to indicate that disputatious facts involved for resolution in the former writ petition. As noticed herein before, even while contending that the hereditary trustees of the temple in question belong to Vazhakkandi family, Kottoor family and Karimbummel family, the first petitioner who seems to be a member of the Vazhakkandi family and the second petitioner who appears to **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 20 be a member of the Kottoor family alone are before us. What exactly is the stand of Karimbummel family is not forthcoming. They are neither in the array of petitioners nor in the array of respondents. Even going by the contentions of the petitioners that the said family also got hereditary right over the temple in question. In view of their non-junction in this proceedings we are not in a position to understand what exactly is the stand of the said family in the matters in question. It is also not discernible as to whether it is the trustee from the said family who had given consent. We will deal with this issue at a little later, if necessary. 15. As noticed herein before, when the admitted position is that the temple in question is not a listed one under Section 38 of MHR&CE Act. Section 38 of the MHR&CE Act reads thus:- “ - **38. Commissioner to publish list of certain institutions.** The Commissioner shall publish in the prescribed manner a list of the 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, and may from time to time modify such list in the prescribed manner. Provided that the Commissioner shall not be bound to **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 21 remove any institution from such list unless its annual income calculated as aforesaid has fallen below twenty thousand rupees for three consecutive years.” In view of the position that the temple in question is not listed under Section 38 and in view of the provisions under Section 39 of MHR&CE Act, the petitioners are justified in canvassing the position that the power under Section 39(2) cannot be invoked. As regards the steps taken following Exts.P1 and P2, in the counter affidavit it is stated that in view of the stay for further proceedings pursuant to Ext.P2, no further steps were taken for the purpose of appointing non-hereditary trustees to the temple. As already noticed, while the first respondent contends that consent was given by the hereditary trustee for appointment of a non-hereditary trustee, the petitioners who claim to be the hereditary trustees vehemently denies the same. At the same time, a perusal of Ext.P2 it would reveal that it is only a step taken in pursuance of Ext.P1. Ext.P1 is not under challenge in this writ petition. Ext.P1 would reveal that the proposal of the MDB is to appoint non-hereditary trustees to the temple in question. Under Ext.P1, the hereditary trustee was required to **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 22 raise objection or to make opinion within seven days from the date of its receipt with respect to the proposal for appointment of a non-hereditary trustee. In paragraph 6 of the writ petition, the petitioners have taken up a contention that pursuant to the receipt of Ext.P1, they approached the second respondent personally and convinced him regarding the lack of necessity for appointment of non-hereditary trustee to the temple. They have specifically stated that they have submitted written reply to Ext.P1 at that point of time. At the same time, they would further state therein that they had not taken photocopy of the reply thus submitted and therefore, not in a position to produce the same in this writ petition. No material is before us which would reveal that pursuant to the receipt of Ext.P1, the petitioners had submitted their written objection before the second respondent. In this context it is to be noted that in the counter affidavit filed by the first respondent, the first respondent has specifically denied the receipt of any such written reply or written objection from the petitioners subsequent to Ext.P1. It is also to be noted that Ext.P2 was issued only after a month since the issuance of Ext.P1. It is dated 8.8.2016. **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 23 The learned counsel appearing for the petitioners would submit that though specific contentions on the aforesaid lines have been taken in paragraph 6 of the writ petition, they are not specifically denied by the first respondent in the counter affidavit. Hence the factum of receipt of written reply to Ext.P1 cannot, now, be disputed. But, at the same time, owing to the absence of non availability of the written reply, we are not in a position to know what exactly are the contentions taken up by the petitioners in the written reply, if at all it was submitted, as contended. 16. As stated earlier, the jurisdiction of the second respondent to issue Exts.P1 and P2 are also challenged by the petitioners. We have already taken note of the fact that though Ext.P2 is issued owing to the interim order of stay against further proceedings based on Ext.P2, no further steps in pursuance thereof were taken by the respondents 1 and 2. The narration of facts above would undoubtedly show that in the case on hand disputatious facts are involved. That apart, for establishment of various aspects to be resolved, certain evidence are also to be let in. There cannot be any doubt with **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 24 respect to the position that such an exercise cannot be undertaken by us in this proceedings under Article 226 of the Constitution of India. But, at the same time, in the light of the provisions under Section 18 of MHR&CE Act, indubitably it can be said that disinclination to go into such question by us would not render the petitioner remediless. Going by the provisions under Section 18 the petitioners can work out their remedies against the decision in Ext.P1 and also against the subsequent steps in inviting application under Ext.P2. The petitioners can also take up the grievance regarding the appointment of the third respondent as Executive Officer before the Commissioner. Section 18(2) of MHR&CE Act would certainly indicate that even in respect of the temples not listed, the remedy under Section 18 (2) can be resorted to. That apart, we are persuaded to arrive at such a conclusion based on the submission made by the petitioners that on receipt of Ext.P1, a written reply was submitted before the second respondent and at the same time the second respondent denied the said assertion from the part of the petitioners. We are therefore of the view that since the petitioners are challenging the very jurisdiction of the second **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 25 respondent in issuing Exts.P1 and P2 as also Ext.P3, it is only proper for the petitioners to take up all such legal contentions, besides the factual disputes, before the commissioner of the first respondent, who is clothed with the power to call for records and to consider the correctness and sustainability of any order passed by the Deputy Commissioner or Assistant Commissioner. 17. Another question which may crop up in the said circumstances is as to how the management of the temple in question could be done in the interregnum. The indisputable position is that pursuant to the appointment of third respondent as Executive Officer under Ext.P3 he had already assumed full additional charge as Executive Officer of the temple in question. That apart, the petitioners themselves have produced Ext.P15, which would reveal that subsequent to the assumption of charge by the appointee under Ext.P3 as the Executive Officer, possession of certain articles and registers were given to him. Evidently those materials are specifically mentioned in Ext.P15. Ext.P15 would also reveal that the Administrative Committee, which was managing the temple as a mark of protest against **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 26 his appointment and assumption of charge, have resigned. Thus, It is evident that presently no Administrative Committee is available for the administration of the temple. In such circumstances, if the appointment of the 3[rd] respondent is interfered with at this stage, the ultimate sufferers would be the devotees. Moreover, a vaccum in the post may affect the dayto-day affairs of the temple and the deity in the temple may also put to suffer, in such circumstances. Hence, we leave liberty to the petitioners to challenge Ext.P1, the invitation of application for appointment of hereditary trustees made as per Ext.P2, as also the appointment of the third respondent as Executive Officer of the temple under Ext.P3, besides the question of very jurisdiction of the second respondent to issue Exts.P1 to P3, before the Commissioner of MDB. The petitioners are also at liberty to take up the contention regarding lack of power on the part of MDB for taking over the administration of the temple based on the contention that it is a family temple before the Commissioner. In case the petitioners raise any such contention appropriately before the commissioner of MDB, the Commissioner shall pass appropriate orders thereon ## **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 27 expeditiously, at any rate, within a period of four months from the date of receipt of such petition or application. Since we are permitting continuance of the third respondent as the Executive Officer, in view of circumstance explained herein before it is ordered that he shall not take any steps in pursuance of Ext.P12 order and also for alienating the property belonging to the temple including and also shall not take any policy decision during the interregnum, till a decision is taken by the Commissioner, firstly. In other words, he can only manage the day to day affairs of the temple till such time. It is also made clear that pursuant to Ext.P12 he shall not terminate the services of the employees, who are already in the services of the temple and he shall not induct new employees. Before parting with the judgment, we think it befitting to observe in the light of the recital in Ext.P3 that it will only be appropriate for the third respondent to take into confidence of the trustees of the temple, for conduct of affairs in the temple. This writ petition is disposed of as above. W.P.(C) No.16110 of 2019 In the light of the judgment in W.P.(C) No.34594 of 2016 **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 28 wherein we have delineated the powers of the petitioner herein, who was put in full additional charge of Executive Officer of Sree Murikkanmar Temple, is not entitled to the reliefs sought for in this writ petition, at this stage. In that view of the matter, this writ petition is dismissed. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **N.NAGARESH, JUDGE** dlk/vps corrected on 03.10.2019 ## **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 29 ## **APPENDIX OF WP(C) 34594/2016** **PETITIONERS EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE LETTER DATED 02.07.2016** - **EXHIBIT P2 TRUE COPY OF THE NOTIFICATION PUBLISHED BY THE 2ND RESPONDENT.** - **EXHIBIT P3** - **PHOTOCOPY OF THE ORDER NO.A1-4837/2012/17/M D B DATED 08.12.2017** - **EXHIBIT P4** - **PHOTOCOPY OF THE LETTER OBTAINED BY THE EXECUTIVE OFFICER ON 19.12.2017** - **EXHIBIT P5 PHOTOCOPY OF THE DISCHARGE SUMMARY** - **EXHIBIT P6 PHOTOCOPY OF THE MEDICAL CERTIFICATE DATED 04.01.2016** - **EXHIBIT P7 PHOTOCOPY OF NOTICE ISSUED BY THE NEW ADMINISTRATOR IN CONNECTION WITH THE MAHOLSAVAM** - **EXHIBIT P8 PHOTOCOPY OF THE DOCUMENT EXECUTED BETWEEN V.RANGARAJAN AND ASSAINAR** - **EXHIBIT P9 PHOTOCOPY OF THE BUILDING PERMIT NO.680/99-2000 DATED 10.03.2000** - **EXHIBIT P10 PHOTOCOPY OF THE PLAN APPROVED BY THE PANCHAYATH ON 10.03.2000 FOR THE CONSTRUCTION OF RESIDENCE PERMIT** - **EXHIBIT P11 PHOTOCOPY OF 12 CENTS OF PROEPRTY TO THE TEMPLE VIDE DOCUMENT NO.569/2001 OF PANAMARAM SUB REGISTRY, DATED 16.04.2001** - **EXHIBIT P12 PHOTOCOPY OF THE NOTICE ISSUED BY THE EXECUTIVE OFFICER DATED 29.06.2018** - **EXHIBIT P13 PHOTOCOPY OF THE APPLICATION DATED 10.01.2019 FILED BY THE EXECUTIVE OFFICER.** - **EXHIBIT P14** - **PHOTOCOPY OF THE OBJECTION FILED BY THE PETITIONER** 30 ## **WP(C).NoS.34594 of 2016 & 16110 OF 2019** **EXHIBIT P15 PHOTOCOPY OF THE DOCUMENT DATED 19.12.2017 SHOWING THE HANDING OVER OF THE CHARGE TO THE EXECUTIVE OFFICER.** **RESPONDENTS EXHIBITS:** **EXHIBIT R1(a) TRUE COPY OF THE RELEVANT EXTRACT OF GAZETTE NOTIFICATION NO.HR3/5691/9. DATED 15.02.1994** **EXHIBIT R1(b) TRUE COPY OF THE LETTER DATED 21.07.2016 SUBMITTED BY THE OORALAN FAMILY OF PANAMARAM SREE MURIKKANMAR TEMPLE** **EXHIBIT R1(c) PHOTOCOPY OF THE REPORT DATED 28.11.2017 OF THE DIVISIONAL INSPECTOR** **EXHIBIT R1(d) PHOTOCOPY OF THE CHARGE LIST DATED 19.12.2017 EXHIBIT R1(e) PHOTOCOPY OF THE REPORT OF EXECUTIVE OFFICER DATED 22.01.2018** **ANNEXURE R1 THE PHOTOCOPY OF THE APPLICATION DATED 05.07.2017 SUBMITTED BEFORE THE BOARD ANNEXURE R2 THE PHOTOCOPY OF THE APPLICATION DATED NIL SUBMITTED BEFORE THE BOARD.** **WP(C).NoS.34594 of 2016 & 16110 OF 2019** 31 ## **APPENDIX OF WP(C) 16110/2019** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE MEMO DATED 19.12.2017 OF TAKING CHARGE OF THE PETITIONERS TEMPLE. EXHIBIT P2 TRUE COPY OF THE REPORT DATED 22.1.2018 BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ORDER /LETTER DATED 8.4.2019 ISSUED BY THE 12TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 9.5.2019 ISSUED BY THE 3RD RESPONDENT.**