GOPINATHA MENON (KENATHACHAN) v. MALABAR DEVASWOM BOARD

W.P.(C).NO.9194/2012-Y:6. BINESH. P, S/O.PARAMESWARAN,'SARAVANA BHAVANAM'AKSHARA NAGAR, KARINKARAPPULLI, KADAMKODU,PALAKKAD-678 859.7. M.MANI, S/O.ARU .P.,25/295,KENATHPARAMBU, CHITTUR ROAD, KUNNATHOOR P.O.,PALAKKAD-678 859. R1 TO R3 BY SRI.R.LAKSHMI NARAYANAN,S.C, M.D.B. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.9194/2012-Y:APPENDIXPETITIONER'S EXHIBITS: EXT.P1:-TRUE COPY OF THE JUDGMENT DTD. 8/11/2002 IN OP 23415/2002.EXT.P2:-TRUE COPY OF THE ORDER DTD. 229/12/2003 IN CMP. 2852/2003 IN OP 23415/2002EXT.P3:-TRUE COPY OF THE LIST SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.EXT.P4:-TRUE COPY OF THE JUDGMENT DTD. 28/8/2003 IN OP. 14835/2003.EXT.P5:-TRUE COPY OF THE ORDER NO J5 6427/07/MDB/K.DIS. PASSED BY THE 2ND RESPONDENT DTD 22/2/2012.EXT.P6-TRUE COPY OF THE LETTER NOTICE ISSUED BY THE INSPECTOR, MALABAR DEVASWOM BOARD, ON 24/03/2012.EXT.P7:-TRUE COPY OF THE MINUTES OF MEETING DTD. 27/10/2007.EXT.P8:-TRUE COPY OF THE PROCEEDINGS DTD. 27/7/2009 ISSUED BY THE LOCAL FUND AUDIT DEPARTMENT.EXT.P9:-TRUE COPY OF THE PROCEEDINGS DTD. 28/4/2010 ISSUED BY THE LOCAL FUND AUDIT DEPARTMENT.RESPONDENTS' EXHIBITS: NIL.//TRUE COPY//P.S. TO JUDGE.Prv. THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ.----------------------------------------W.P.(C)No.9194 of 2012----------------------------------------Dated this the 12th day of April, 2012JUDGMENT“C.R.” Thottathil B.Radhakrishnan, J. The petitioner is the hereditary trustee of the temple in relation to which this writ petition is filed.

Admittedly, there is a Scheme governing the Trust. Itprovides, among other things, for appointment of four non-hereditarytrustees. 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 non-hereditary trustee on any ground referable to the conduct of the hereditary trustee, or otherwise.

Sub section (5) of section 39 authorises filling up of the vacancies of non-hereditary trustees as and when they arise. If the Commissioner comes to the conclusion that those vacancies are to befilled up, he has to state reasons therefor. However, section 39(5) does not provide any statutory rule obliging the Commissioner to hear the hereditary trustee in that regard. We notice this in contradistinction to WP(C).No.9194/20122the clear provision in sub-section (2) of section 39 which enjoins pre-decisional hearing before the appointment of a non-hereditary trustee on a ground available under that provision. Therefore, the complaint of the hereditary trustee, the writ petitioner, that he ought to have been heard in making the choice of the non-hereditary trustee cannot be countenanced. We are not persuaded by Exts.P1, P2 and P4 judgments which, in our view, do not dilate on, or lay down, any principle of law tobe followed as the precedent. We may, however, notice KunhiramaVariar v. State of Kerala (2011 (2) KLT 707), ParameswaranNamboothiri v. Malabar Devaswom Board (2011 (2) KLT 988) and Satheesh Kumar v. Malabar Devaswom Board (2011 (4) KLT 921),wherein different aspects of sub-sections (2) and (5) of section 39 of the Act have been considered.

The fundamental complaint of the petitioner is not that there is no requirement to fill up the vacancies of non-hereditarytrustees but that, the persons who are appointed as non-hereditarytrustees are disqualified, as according to the petitioner, they are active politicians or those clouded by allegations referable to financial misconduct. Even if the persons who have been selected and appointed as non-hereditary trustees have any such disqualifications, it may be WP(C).No.9194/20123open to the petitioner to move the Commissioner by pointing out such disqualifications. The Commissioner will then have to hear the petitioner and the persons against whom such allegations are made and conclude whether any such disqualification exists, warranting the removal of those persons. We leave that issue open. That is, however, insufficient for us to interfere with the order for filling up the vacancies of non-hereditary trustees. We do not find any legal infirmity in that regard in Ext.P5.