BY AD vs SRI.M.RAMESH CHANDER (SR.)

audit reports for the year 2015-17. The first phase of the renovation is over. When the second phase of the renovation was about to get started, based on a complaint made by the 6th respondent, Ext.P5 order dated 16.02.2017 has been issued by the 3rd respondent Assistant Commissioner and the Committee has been dissolved, on the ground that it has no sanction from the Board.

4. On 06.06.2017, when this writ petition came up for admission, the learned Standing Counsel for Malabar Devaswom Board sought time to get instructions. While issuing urgent notice to respondents 5 and 6 by speed post, returnable within ten days, this Court granted an order of status quo as on that date, which was directed to be maintained with regard to Ext.P5 order, insofar as it relates to disbanding of the committee. In that order, it was made clear that further proceedings in the meanwhile shall be subject to the orders to be passed by this Court, after hearing the parties. Though the said interim order was extended for a period WP(C) NO. 18780 OF 2017 5 2025:KER:24640 of one month on 31.08.2017, it was not extended thereafter.

5. The 5th respondent hereditary trustee of the temple has filed a counter affidavit dated 10.07.2017. Paragraphs 3 to 7 of that counter affidavit read thus: “3. The above writ petition challenges exhibit P5 order by which the 3rd respondent, Assistant Commissioner of Malabar Devaswom Board has disbanded the existing committee which is formed for carrying out the renovation work and other urgent activities that are required to be carried out at the above temple. This deponent respectfully submits that the said order passed by the 3rd respondent is without jurisdiction and totally inappropriate in the facts and circumstances of the case.

4. The 6th respondent elder brother, who is one of the trustees was an aspirant to the post of Managing Trustee of the temple and his younger brother is the priest of the above said temple. The 6th respondents family is trying to take over the temple administration and also to get the managing trustee post, he started creating all sorts of problems in the administration of the temple and preferred exhibit P2 complaint before the 3rd respondent to which this deponent has given a detailed reply which is already marked in the writ petition as P3.

5. At the risk of repetition, this deponent submits that Sri Mahadeva Sahasthra Seva samithy was formed for the purpose of carrying out the renovation works of the temple, which is a pressing necessity. It is the said committee which elected this deponent as the treasurer of thesevasamithi WP(C) NO. 18780 OF 2017 6 2025:KER:24640 and this deponent has been functioning as such. The allegation that the committee is maladministering the affairs of the temple and that amounts are being diverted by the committee are all fanciful imaginations of the 6th respondent. The accounts of the committee are properly maintained and audited as is evident from the documents produced by the petitioner.

6. The only irregularity which the 3rd respondent found out was that prior approval from the board was not obtained by the committee. If that be so, the same is only a curable irregularity and the committee can approach the board for permission. After P5 order, the secretary of the committee has furnished the Managing Trustee with all records pertaining to the Samithy and the same has been given to the chartered accountant for auditing.

7. As of now, the work of the Srikovil, Namaskaramantapa and kerekatte are completed and now certain other urgent works are pending. In the circumstances, it is imperative that for completing the renovation work, a committee is in place for which appropriate directions may be issued by this honorable court.”

6. Heard the learned counsel for the petitioner, the learned Standing Counsel for Malabar Devaswom Board for respondents 1 to 4 and also the learned counsel for the 6th respondent.

7. The issue that requires consideration in this writ petition is as to whether any interference is warranted on Ext.P5 WP(C) NO. 18780 OF 2017 7 2025:KER:24640 order dated 16.02.2017 of the 3rd respondent and whether the petitioner is legally entitled for a writ of mandamus commanding the Malabar Devaswom Board to recognise Sree Mahadeva Shastra Seva Samithy for undertaking activities in the temple in question.

8. The aforesaid issue has already been dealt with in the decision of this Court in Hindu Seva Kendram v. State of Kerala [2023 (3) KHC 258]. As noticed by the Division Bench in the said decision, after the decision in Payyannur Sree Subrahmanya Swami Kshethrodharana Samithi and another v. Malabar Devaswom Board and others [2013 (3) KHC 849] quashing the circular dated 03.08.2009, the formation of committees consisting of the devotees in temples which are controlled institutions of Malabar Devaswom Board, for the specific purpose of conducting festivals or renovation works are governed by the provisions contained in Circular No. HRH5/8246/2006 dated 15.06.2007 issued by the Commissioner of the erstwhile Hindu Religious and Charitable Endowments (Administration) Department. Paragraphs 11 to 14 of that decision read thus; WP(C) NO. 18780 OF 2017 8 2025:KER:24640 “11. Section 14 of the Madras Hindu Religious and Charitable Endowments Act, 1951, deals with Temple Advisory Committee. As per sub-section (1) of Section 14, for the purpose of ensuring the adequate participation of Hindu devotees, a committee may be constituted for each temple in the name "(name of the temple) Temple Advisory Committee", not inconsistent with the existing custom and practices. As per sub-section (2) of Section 14, the Temple Advisory Committees formed under sub-section (1) shall be approved by the Board. As per sub-section (2) of Section 14, the composition of a Temple Advisory Committee under sub-section (1) shall be in such manner as may be prescribed.

12. In Payyannur Sree Subrahmanya Swami Kshethrodharana Samithi and another v. Malabar Devaswom Board and other [2013 (3) KHC 849] a Division Bench of this Court was dealing with the challenge made against Section 14 of the Madras Hindu Religious and Charitable Endowments Act, 1951 as substituted by Amending Act 31 of 2008, the Madras Hindu Religious and Charitable Endowments (Amendment) Rules, 2009 inserting ’the Rules under Section 14(3)’ and Circular No. HRJ 1- 5144/2009 dated 03.08.2009 issued by the Commissioner, Malabar Devaswom Board. This Court held that the object sought to be achieved by the constitution of Temple Advisory Committees provided in the opening part of sub- section (1) of Section 14 of the Act is for ensuring the adequate participation of Hindu devotees. While sub-section (1) of Section 14 provides for the participation of Hindu devotees, Rule 2 provides for nomination from among WP(C) NO. 18780 OF 2017 9 2025:KER:24640 locally residing Hindu persons having interest in the affairs of the temple. The impugned Section 14 and the impugned Rules are so made that they insulate the maintenance of existing customs and practices of each temple. The constitution of a Temple Advisory Committee shall not be inconsistent with the existing customs and practices. This is the dictate of sub-section (1) of Section 14.

12.1. The Division Bench noticed that the Madras Hindu Religious and Charitable Endowments Act and the Rules, including the impugned amendments to the Act and Rules, are made in such a manner that the administration of the institution by the hereditary trustee or the trustees is never intended to be impaired, except in cases where it becomes necessary to remove the hereditary trustee or the trustees or appoint non-hereditary trustees or to frame a scheme for the purpose of the temple in question. Insofar as involvement in a Temple Advisory Committee under the impugned Rules and Section 14 of the Act is concerned, one has to be not merely a Hindu but a Hindu person having interest in the affairs of the temple, thereby meaning that such person should be one who would fall within the definition of the term ’person having interest’ in Section 6(11)(b) of the Act. This means that only a person, who is entitled to attend at or is in the habit of attending the performance of worship or service in the temple, or who is entitled to partake or is in the habit of partaking in the benefit of the distribution of gifts thereat, can be included as a member of a Temple Advisory Committee. The scheme of the Act and the Rules framed thereunder not only insulates the authority of the hereditary trustee or the WP(C) NO. 18780 OF 2017 10 2025:KER:24640 trustees to preserve and have matters of religion in a temple in terms of such customs, practices and usages, it gives no room for any authority to interfere with that. The statutory prescription to visit and remove or modify the office of a trustee is itself circumscribed to the effect that such exercise could be only to ensure the management in terms of the customs and practices. It is not to obviate or to be in derogation thereof. Such being the statutory situs and setting of the impugned Section 14 of the Act and the impugned Rules, the Division Bench found no ground to hold that those provisions are unconstitutional. Equally, on the face of sub-section (3) of Section 14 of the Act and the general rule-making power, as contained in Section 100 of the Act, the Division Bench repelled the challenge to the impugned Rules that it is in excess of the rule-making power under the Act.

12.2. The Division Bench noticed that unlike the Travancore- Cochin Hindu Religious Institutions Act, 1950, and the manner of management of the different temples falling under the Travancore Devaswom Board and the Cochin Devaswom Board; insofar as the Madras Hindu Religious and Charitable Endowments Act is concerned, many of the temples are autonomous bodies administered in terms of the schemes framed either by the Deputy Commissioner or earlier by the District Court and the control of the Malabar Devaswom Board over such institutions in terms of the provisions of the Madras Act is only supervisory. Even in relation to temples where a scheme is not framed, but the establishment continues to be under the control of a hereditary trustee or trustees, the legal status of that WP(C) NO. 18780 OF 2017 11 2025:KER:24640 institution does not become anything different. With this in view, the Division Bench considered the plea that the terms of the circular are in excess of the authority and sweep of Section 14 of the Act and the impugned Rules and it has been issued beyond the authority of the Commissioner.

12.3. The Division Bench noticed that Section 8B of the Madras Hindu Religious and Charitable Endowments Act, which empowers the Malabar Devaswom Board to assume the direct management of any religious institution provided the trustees request the Board to take over its management unconditionally. Except in cases where direct administration is so assumed, the statutory authority under the Madras Act would remain regulatory and supervisory to the entire extent as provided by the different provisions of that Act. Reverting to the impugned circular, the Division Bench found that the provisions thereof, if operated, would be a parallel administrative mechanism whereby the matters relating to different aspects of the temple, including festivals, etc., would essentially be under the control of such Temple Advisory Committees. Recalling sub-section (1) of Section 14 of the Act, it is clear that the Statute never contemplated any such authority with the Temple Advisory Committees. The provision was only intended to ensure adequate participation of Hindu devotees, not inconsistent with the existing customs and practices. The purpose of the participation of Hindu devotees as envisioned in sub-section (1) of Section 14 cannot be to create a managerial institution or a committee which will meddle with the affairs relating to the administration of the temple or any matter related thereto. Matters relating to customs, usages and WP(C) NO. 18780 OF 2017 12 2025:KER:24640 practices include matters relating to festivals and organising different functions in connection with the rituals of the temple. Those are not matters which can be meddled with by the Temple Advisory Committees. The administration of the temple is clearly with the hereditary trustee or the trustees, as the case may be, except in cases of institutions which fall under Section 8B of the Act and of course those temples in relation to which the non-hereditary trustees or fit persons have been appointed. Going by sub-section (1) of Section 14 of the Act, read with Rule 2 of the impugned Rules, the Temple Advisory Committees would merely be a committee of persons having interest in the affairs of a temple, to ensure the adequate participation of Hindu devotees. Nothing beyond.

12.4. On the question as to whether the powers of the Commissioner to issue circulars include the power to issue any circular of the nature of the one impugned, the Division Bench noticed that the impugned circular does not quote any statutory authority. It merely refers to decision No.3 taken by the Board on 09.07.2009. Section 14 of the Madras Hindu Religious and Charitable Endowments Act provides for Temple Advisory Committees and enjoins that composition of a Temple Advisory Committee shall be in such manner as may be prescribed. The impugned Rules prescribe for nominations by the Malabar Devaswom Board. Such nominations are for members at clauses (c) to (e) of Rule 1 of the impugned Rules. While the power to prescribe the composition of a Temple Advisory Committee is left by the Act to be in terms of what may be prescribed, that Statute does not provide subordinate legislative power or WP(C) NO. 18780 OF 2017 13 2025:KER:24640 regulatory executive authority to enumerate the powers, duties and functions of Temple Advisory Committees. The nature of duties and responsibilities fixed on the Chairman, Secretary and Treasurer under the impugned circular essentially give them the authority to take donations from the public, issue receipts, maintain bank accounts and get involved in different other aspects which are predominantly matters relating to the management of any establishment, whether it is religious or not. No such authority is seen available to a Temple Advisory Committee in terms of Section 14 of the Act or the impugned Rules. The insulation of the temple, its customs, usages, office of hereditary trustee or trustees from interference by the Temple Advisory Committees is one of the grounds on which the validity of Section 14 and the impugned Rules have been upheld hereinabove. The provisions in the impugned circular essentially run to the contrary; by enabling the Temple Advisory Committees to make recommendations to the temple authorities in matters relating to temple festivals, renovations, naveekaranakalasam and other special chatangukal (ritualistic functions) which have to be held from time to time. What has been done by the impugned circular is essentially to take away what stands protected in terms of the different statutory provisions as regards the office of the hereditary trustee or the trustees and their eligibility to regulate the customs, usages and practices and rituals in the temples. Therefore, the impugned circular invades the right of the hereditary trustee or the trustees to manage and administer a temple unless found in statutory proceedings to be liable to be removed from such office. The WP(C) NO. 18780 OF 2017 14 2025:KER:24640 Division Bench noticed the manner in which nominations are to be made to the Temple Advisory Committees in terms of the impugned circular also tends to indicate that the criticism levelled by the petitioners, that the attempt is to infuse persons of the political choice of those in power, comments acceptance. The impugned circular goes beyond the limits of the provisions of Section 14 of the Act and the impugned Rules, as noted above. Under such circumstances, the Division Bench held that the impugned circular is ultra vires the Act and the impugned Rules, therefore, arbitrary and liable to be declared as void and inoperative. The Division Bench allowed the writ petitions in part, quashing the impugned circular dated

03.08.2009 issued by the Commissioner of Malabar Devaswom Board.

13. After the decision of the Division Bench in Payyannur Sree Subrahmanya Swami Kshethrodharana Samithi [2013 (3) KHC 849] quashing the impugned circular dated

03.08.2009, the formation of committees consisting of the devotees in temples which are controlled institutions of Malabar Devaswom Board, for the specific purpose of conducting festivals or renovation works are governed by the provisions contained in Circular No. HRH5/8246/2006 dated 15.06.2007 issued by the Commissioner, Hindu Religious and Charitable Endowments (Administration) Department. Clause (1) of the said circular reads thus; 1) ഉ്഼വാ്ഷ ാഷ്ങൾ, ്ഷേത്ര്ങളിൽ നവീകരണ ത്രവർ്ᩈന്ങൾ എ്ᩐിവ ന്ᩤരീരിയിൽ നട്ᩈു്ᩐരിനായി ആവശ്യമെ്ഝിൽ ഭ്വജന്ങമള ഉൾമെടു്ᩈിമകാ്ᩂ് ക്ᩜ്റി രൂരീകരികാവു്ᩐരാണ്. ഇ്ങമന രൂരീകരികു്ᩐ ക്ᩜ്റികൾ ്ഷേത്ര്ᩈിൽ യാമരാരു കാരണവശ്ാലുും ്ᩝിരൊയി WP(C) NO. 18780 OF 2017 15 2025:KER:24640 ത്രവർ്ᩈികാൻ രാടു്ᩦര്ᩤ. ഒരു വർഷ്ഷ്ᩈ്ഷകാ അമ്ᩤ്ഝിൽ ഉ്ഷേശ്യലേയ്ങൾ രൂർ്ᩈീകരി്ചരിനു്ഷശ്ഷ്ഷൊ അമ്ᩤ്ഝിൽ ക്ᩜ്റിയുമട ത്രവർ്ᩈനും അവസാനിെികു്ᩐരിന് വകുെ് ക്ᩜീഷണർ ഉ്ᩈരവ് രുറമെടുവികുക്ഷയാ മെ്യു്ᩐരുവമര ഇരിൽ ഏരാണ് ആദ്യും വരിക, അര് കഴി്ᨼാൽ ക്ᩜ്റി രിരി്ചുവി്ഷട്ᩂരാണ്.” (underline supplied)

14. As held by the Division Bench in Payyannur Sree Subrahmanya Swami Kshethrodharana Samithi [2013 (3) KHC 849] the scheme of the Madras Hindu Religious and Charitable Endowments Act and the Rules framed thereunder not only insulates the authority of the hereditary trustee or the trustees to preserve and have matters of religion in a temple in terms of such customs, practices and usages, it gives no room for any authority to interfere with that. Matters relating to customs, usages and practices include matters relating to festivals and organising different functions in connection with the rituals of the temple. Those are not matters which can be meddled with even by a committee consisting of the devotees, constituted under the provisions contained in Circular No. HRH5/8246/2006 dated

15.06.2007, for the specific purpose of conducting temple festivals. The administration of the temple is clearly with the hereditary trustee or the trustees, as the case may be, except in cases of institutions which fall under Section 8B of the Act and of course those temples in relation to which the non-hereditary trustees or fit persons have been appointed.

9. Viewed in the light of the law laid down in the decisions referred to above, conclusion is irresistible that the constitution of a committee in a temple, which is a controlled institution under the Malabar Devaswom Board, is legally permissible only in terms WP(C) NO. 18780 OF 2017 16 2025:KER:24640 of the provisions contained in the aforesaid circular dated

15.06.2007, for the specific purpose of conducting temple festivals, renovation works, etc. The administration of the temple is clearly within the hereditary trustees or the Trustee Board, as the case may be, except in the case of religious institutions which fall under Section 8B of the Madras Hindu Religious and Charitable Endowments Act. In that view of the matter, we find no grounds to interfere with Ext.P5 order dated 16.02.2017 of the 3rd respondent Assistant Commissioner. The petitioner is also not entitled for a writ of mandamus commanding respondents 1 to 3 to grant recognition to Sree Mahadeva Shastra Seva Samithy for enabling that Samithi to undertake activities in Sree Mahadeva Temple, Kidoor.

10. In case, the annual accounts of the temple are yet to be subjected to statutory audit by the additional 8th respondent Senior Deputy Director, Kerala State Audit Department, Malabar Devaswom Board Audit, it is for the 3rd respondent Assistant Commissioner to direct the 5th respondent Managing Trustee to submit the same for statutory audit. The accounts of the Sree Mahadeva Shastra Seva Samithy shall also be subjected to statutory audit, since the Samithy has undertaken various WP(C) NO. 18780 OF 2017 17 2025:KER:24640 renovation activities in the temple, after collecting money from the devotees. The accounts of the said Samithy in connection with the renovation works and other activities undertaken in the temple, shall also be subjected to audit by the State Audit Department, along with the statutory audit of the accounts of Sree Mahadeva Temple, Kidoor. The writ petition fails and the same is accordingly dismissed; however, subject to the aforesaid directions. ANIL K. NARENDRAN, JUDGE Sd/- MURALEE KRISHNA S., JUDGE Sd/- DSV/- WP(C) NO. 18780 OF 2017 18 2025:KER:24640 APPENDIX OF WP(C) 18780/2017 PETITIONER’S EXHIBITS : EXHIBIT P1- EXHIBIT P2- EXHIBIT P3- EXHIBIT P4- EXHIBIT P5- PHOTOSTAT COPY OF THE AUDIT REPORT FOR THE YEARS 2015, 2016 AND 2017. PHOTOSTAT COPY OF THE COMPLAINT WITHOUT ENCLOSURES. PHOTOSTAT COPY OF THE OBJECTIONS GIVEN BY THE MANAGING TRUSTEE TO THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD DATED 15/02/2017. PHOTOSTAT COPY OF THE CIRCULAR ISSUED BY THE COMMISSIONER DATED 15/06/2007. PHOTOSTAT COPY OF THE ORDER NO.A2- 335/2017/(MDB) DATED 16/02/2017.