MANJUNATHA SHETTY v. MALABAR DEVASWOM BOARD

SRI P.RAMACHANDRAN - R8 ; SRI LAKSHMI NARAYAN (SR) AND SMT R .RANJANIE- - SC, MALABAR DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2024, ALONG WITH WP(C).34739/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -5- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 “C.R” JUDGMENT Anil K. Narendran, J. The issue raised in W.P.(C)No.34739 of 2023 and W.P.(C)No.12007 of 2024 relates to an order dated 25.09.2023 of the 2nd respondent Commissioner, Malabar Devaswom Board, whereby an Executive Officer has been appointed for Sree Salathur Malaraya Daivasthanam.

2. W.P.(C)No.34739 of 2023:- The petitioner in this writ petition, who belongs to Bakrabail family, which is one among the 18 families, having hereditary rights in the management of Sree Salathur Malaraya Daivasthanam, which is a controlled institution under the 1st respondent Malabar Devaswom Board. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2 order dated 25.09.2023 of the 2nd respondent Commissioner, Malabar Devaswom Board, whereby, an Executive Officer has been appointed for Sree Salathur Malaraya Daivasthanam.

2.1. On 20.10.2023, when this writ petition came up for admission, the learned Standing Counsel for the Malabar Devaswom Board took notice on admission for respondents 1 to

4. Urgent notice on admission by speed post was ordered to -6- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 respondents 6 and 7, returnable within three weeks. The learned standing counsel for the Malabar Devaswom Board was directed to get instructions.

2.2. On 16.11.2023, when this writ petition came up for consideration, the 7th respondent entered appearance through counsel and sought time to file a counter affidavit. Despite service of notice, none appeared for the 6th respondent.

2.3. On 05.12.2023, it was submitted that Sree Salathur Malaraya Daivasthanam is a controlled institution under the Malabar Devaswom Board, which is included in Appendix I - B Schedule (non-listed) Serial No.37 in notification No.HR.3/5691/ 93 dated 15.02.1994 issued by the Commissioner of the erstwhile Hindu Religious and Charitable Endowments (Administration) Department. The learned Standing Counsel for Malabar Devaswom Board pointed out the circumstances in which the Commissioner, in exercise of his powers under Section 20 of the Madras Hindu Religious and Charitable Endowments Act, 1951, appointed an Executive Officer for the temple. The learned Standing Counsel sought time to get instructions as to whether the Executive Officer had already taken charge.

2.4. The 7th respondent has filed a counter affidavit opposing the relief sought for in the writ petition, producing -7- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 therewith Exts.R7(a) to R7(d) documents.

2.5. Third parties have filed I.A.No.1 of 2023 to implead them as additional respondents 8 to 12 in this writ petition. The writ petitioner has filed a counter affidavit dated 10.02.2024, opposing the relief sought for in the interlocutory application. Today, by a separate order, this Court allowed I.A.No.1 of 2023 the applicants therein are impleaded as additional respondents 8 to 12 in this writ petition.

3. W.P.(C)No.12007 of 2024:- During the pendency of W.P.(C)No.34739 of 2023, the petitioner, who claims to be a member of one among the 18 families having hereditary rights in Sree Salathur Malaraya Daivasthanam, has filed this writ petition seeking a writ of mandamus commanding the 1st respondent Malabar Devaswom Board to implement Ext.P10 order dated

25.09.2023 [Ext.P2 order in W.P.(C)No.34739 of 2023], by directing the Executive Officer to take charge and to manage the affairs of Sree Salathur Malaraya Daivasthanam; a writ of mandamus commanding the 1st respondent Board to appoint an alternative person in the place of D.C. Krishnavaarmaraj as Executive Officer and to take charge to maintain the affairs of Sree Salathur Malaraya Daivasthanam; and a writ of mandamus commanding respondents 2 to 4 to take appropriate action on -8- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 Ext.P13 representation dated 16.03.2024, within a stipulated time for the peaceful conduct of the temple festival under the vigilance of the Executive Officer appointed by the Malabar Devaswom Board.

3.1. By the order dated 22.03.2024 in I.A.No.1 of 2024, the Executive Officer appointed in terms of Ext.P10 order was impleaded as the additional 9th respondent. The learned Standing Counsel for the Malabar Devaswom Board took notice on admission for respondents 1 to 4 and urgent notice on admission by special messenger was issued to respondents 6 to 8 and also to the additional 9th respondent, returnable by 25.03.2024. The learned Standing Counsel was directed to get instructions.

4. Heard the learned counsel for the petitioner in the respective writ petitions, learned Senior Standing Counsel for Malabar Devaswom Board for the Board and its officials and respective counsel for the party respondents. Despite service of notice, none appears for Santhosh Shetty, who is arrayed as the 6th respondent in both the writ petitions.

5. The requires consideration W.P.(C)No.34739 of 2023 is as to whether any interference is warranted on Ext.P2 order dated 25.09.2023 of Commissioner, Malabar Devaswom Board, whereby, an Executive -9- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 Officer has been appointed for Sree Salathur Malaraya Daivasthanam, for the reasons stated in that order.

6. The arguments of the learned counsel for the petitioner in W.P.(C)No.34739 of 2023 is that, as per Section 66 of the Madras Hindu Religious and Charitable Endowments Act, the appointment of salaried Executive Officer is permissible only in notified religious institutions under Chapter VI. Since Sree Salathur Malaraya Daivasthanam is not a notified religious institution, the 2nd respondent Commissioner, Malabar Devaswom Board has no authority to appoint an Executive Officer for the and as such, Ext.P2 order is liable to be interfered with. The learned counsel would submit that, if the situation warrants, instead of appointing an Executive Officer, a fit person to discharge all or any of the functions of the trustee could have been appointed, by the Deputy Commissioner, invoking the provisions under sub-section (5) of Section 58 of the Act.

7. The learned Senior Counsel for Malabar Devaswom Board would submit that the power that has been exercised by the Commissioner, Malabar Devaswom Board while issuing Ext.P2 order is that under Section 20 of the Act, which deals with the powers and duties of the Commissioner in respect of religious endowments. Under Section 20, the Commissioner is -10- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 exercising general power of supervision and control over the religious endowments. The learned Senior Counsel would point out that Section 66 of the Act, which deals with the appointment of a salaried Executive Officer, is applicable only in the case of religious institutions notified under Chapter VI. Similarly, the power of the Deputy Commissioner under sub-section (5) of Section 58 of the Act to appoint a fit person to discharge all or any of the functions of the trustee can be exercised only during the pendency of proceedings for the framing a Scheme under Section 58 of the Act.

8. ’Deva’ means God and ’swom’ means ownership in Sanskrit and the term ’Devaswom’ denotes the property of God in common parlance. [See: Prayar Gopalakrishnan and another v. State of Kerala and others - 2018 (1) KHC 536]

9. In M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65], in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court explained the nature of the fiduciary position of the trustee and his duties and obligations. It is the duty of the trustees of the property to be faithful to the Trust and execute any document with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. A trustee could not, therefore, occasion any loss -11- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 to the Trust and it is his duty to sell the property if at all that was necessary, to the best advantage. Paragraph 4 of that decision reads thus; “4. There is some controversy on the question whether defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs.21,500, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed Ext.B13 dated July 14, 1960. The fact, however, remains that Defendant 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the trust and it was his duty to sell the property, if at all that was necessary, to best advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of trustee’s discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in -12- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee’s partner or son, for that would, in fact and substance, indirectly benefit the trustee. Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner. The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law although it had a direct bearing on the controversy before it.” (underline supplied)

10. In A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fence eating -13- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.

11. In Travancore Devaswom Board v. Mohanan Nair [(2013) 3 KLT 132] a Division Bench of this Court noticed that in A.A. Gopalakrishnan [(2007) 7 SCC 482] a Three-Judge Bench of the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The Division Bench further noticed that the relevant principles under the Hindu law will show that the deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court is the guardian of the deity and apart from the revisional jurisdiction under Section 103 of the Kerala Land Reforms Act, 1963, the High Court has inherent jurisdiction and the doctrine of parens patriae will also apply in exercising the jurisdiction.

12. Sree Salathur Malaraya Daivasthanam is a controlled institution under the Malabar Devaswom Board, which is -14- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 included in Appendix I - B Schedule (non-listed) Serial No.37 in notification No.HR.3/5691/ 93 dated 15.02.1994 issued by the Commissioner of the erstwhile Hindu Religious and Charitable Endowments (Administration) Department. In view of the law laid down in the decisions referred to supra, it is the duty of the hereditary trustee of Sree Salathur Malaraya Daivasthanam to be faithful to the Devaswom and manage, protect and safeguard the interest and properties of the Devaswom, with reasonable diligence. The Malabar Devaswom Board and its officials are duty-bound to exercise their supervisory control in order to ensure that the interests and properties of the Devaswom are protected and safeguarded by its trustees and the employees of the Devaswom. Any act of ‘fence eating the crops’ should be dealt with sternly by the Board and its officials.

13. The reasons stated in Ext.P2 order dated 25.09.2023 in W.P.(C)No.34739 of 2023 for appointing an Executive Officer for Sree Salathur Malaraya Daivasthanam are that the inventory register, stock register of ‘vazhipadu’, etc., are not maintained in the Daivasthanam for the last 16 years and the annual budgets of the Daivasthanam are not being submitted for approval before the State Audit Department for the last 25 years. There is no proper accounting of the amounts collected as ‘kanikka’. -15- WP(C)NOS.34739 OF 2023 & 12007 OF 2024

14. In W.P.(C)No.34739 of 2023, the petitioner, who belongs to Bakrabail family, which is one among the 18 families having hereditary rights in the management of Sree Salathur Malaraya Daivasthanam, has no case that inventory register, stock register of ‘vazhipadu’, etc., are properly maintained in the Daivasthanam and the annual budgets of the Daivasthanam are being submitted for approval before the State Audit Department.

15. Section 20 of the Act deals with the powers and duties of the Commissioner in respect of religious endowments. As per Section 20, subject to the provisions of this Act, the administration of all religious endowments shall be subject to the general superintendence and control of the Commissioner; and such superintendence and control shall include the power to pass any orders which may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist.

16. Section 45 of the Act deals with the power to suspend, remove or dismiss trustees. As per subsection (1) of Section 45, the Deputy Commissioner in the case of any religious institution over which an Area Committee has jurisdiction, and the Commissioner the case of any other religious -16- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 institution, may suspend, remove or dismiss any hereditary or non-hereditary trustee or trustees thereof (a) for persistent default in the submission of budgets, accounts, reports or returns; or (b) for wilful disobedience of any lawful order issued under the provisions of this Act by the State Government, the Commissioner or Deputy Commissioner, the Area Committee or the Assistant Commissioner; or (c) for any malfeasance, misfeasance, breach of trust or neglect of duty in respect of the trust; or (d) for any misappropriation of, or improper dealing with, the properties of the institution; or (e) for unsoundness of mind or other mental or physical defect or infirmity which unfits him for discharging the functions of the trustee.

17. The Madras Hindu Religious and Charitable Endowments Act, therefore, makes it irrefragable that the administration of all religious endowments, including temples, are always under the general superintendence and control of the Commissioner, Malabar Devaswom Board and the Commissioner have the power to pass orders to ensure that the endowments are properly administered and income is duly appropriated only for the purposes of the endowment. Even though the temples are autonomous and independent and not owned by the Devaswom Board (except those temples over -17- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 which, under the provisions of Section 8B of the Act, the Board has assumed management as per the request of the Trustee), they are under the complete supervisory control of the Commissioner appointed under the Act and who is obligated statutorily to ensure that the endowments are administered at the highest standards and that its income is used and appropriated only for the purpose for which it is founded.

18. When inventory register, stock register of ‘vazhipadu’, etc., of Sree Salathur Malaraya Daivasthanam, which is a controlled institution under the Malabar Devaswom Board, are not being maintained for the last 16 years; the annual budgets of the Daivasthanam are not being submitted for approval before the State Audit Department for the last 25 years; and there is no proper accounting of the amounts collected as ‘kanikka’, 2nd respondent Commissioner, who has a statutory duty to ensure that the Daivasthanam, which is a controlled institution under the Board, is properly administered and that the income of the Daivasthanam is duly appropriated for the purposes for which they were founded or exist, cannot be found fault with in appointing an Executive Officer for the Daivasthanam, in the exercise of the power of general superintendence and control under Section 20 of the Act. -18- WP(C)NOS.34739 OF 2023 & 12007 OF 2024

19. In the above circumstances, we find no reason to interfere with Ext.P2 order dated 25.09.2023 of the 2nd respondent Commissioner, Malabar Devaswom Board, which is under challenge in W.P.(C)No.34739 of 2023, whereby an Executive Officer has been appointed for Sree Salathur Malaraya Daivasthanam. The challenge made in W.P.(C)No.34739 of 2023 against Ext.P2 order dated 25.09.2023 of the 2nd respondent Commissioner fails.

20. The main relief sought for in W.P.(C)No.12007 of 2024 is the implementation of the aforesaid order dated 25.09.2023 of the 2nd respondent Commissioner, Malabar Devaswom Board, which is placed on record in that writ petition as Ext.P10. For making proper arrangements in connection with the festival of Sree Salathur Malaraya Daivasthanam, which is scheduled to commence on 08.04.2024, the petitioner has made Ext.P13 representation dated 16.03.2024 before the 4th respondent Assistant Commissioner.

21. In Sinil Kumar v. Travancore Devaswom Board and others [2023 (5) KHC 85], a Division Bench of this Court in which one among us [Anil K. Narendran, J.] was a party, noticed that according to ‘Agama Sastra’ Hindu temples represent the culmination of social and religious aspirations of a -19- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 society. The temple is the focal point in the life of a community and often represents its pride, identity and unity. It draws into its fold people from its various segments and denominations and binds them together. The worship that takes place the sanctum sanctorum and within the temple premises is important; so are the festivals and occasional processions that involve the direct participation of the entire community. They complement each other. While the worship of the deity in the sanctum sanctorum might be an individual‘s spiritual or religious need; the festivals are the expression of a community‘s joy, exuberance, devotion and pride and are also an idiom of a community‘s cohesiveness.

22. The document marked as Ext.P12 in W.P.(C)No.12007 of 2024 is the request dated 02.03.2024 made by the 8th respondent, who is the ‘Thantri’ of Sree Salathur Malaraya Daivasthanam, before 4th respondent Assistant Commissioner, for taking necessary steps to ensure that the Executive Officer appointed as per Ext.P10 order takes charge before the commencement of the festival.

23. In the above circumstances, W.P.(C)No.12007 of 2024 is disposed of by directing the 1st respondent Malabar Devaswom -20- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 Board and the 2nd respondent Commissioner to take necessary steps to ensure implementation of Ext.P10 order dated

25.09.2023, whereby, an Executive Officer has been appointed for Sree Salathur Malaraya Daivasthanam. The 1st respondent Board, the 2nd respondent Commissioner and the 4th respondent Assistant Commissioner shall take necessary steps, accordance with law, to ensure that the festival of Sree Salathur Malaraya Daivasthanam, which is scheduled to commence on

08.04.2024, is conducted in accordance with the customary practices, without any obstruction being caused by the 6th respondent. In the result, W.P.(C)No.34739 of 2023 is dismissed, declining interference on Ext.P2 order dated 25.09.2023 of the Commissioner, Malabar Devaswom Board, and W.P.(C)No.12007 of 2024 is disposed of with the directions contained hereinbefore. Sd/- ANIL K. NARENDRAN JUDGE Sd/- HARISANKAR V. MENON JUDGE uu/26.03 -21- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 APPENDIX OF WP(C) 34739/2023 PETITIONER EXHIBITS Exhibit-P1 Exhibit-P2 THE TRUE COPY OF THE ORDER DATED 3/10/2022 IN O.A NO.11/2016 ON THE FILES OF THE THIRD RESPONDENT THE TRUE COPY OF THE ORDER BEARING NO.H8/5303/2023/MDB, 25/9/2023 PASSED BY THE SECOND RESPONDENT DATED RESPONDENT EXHIBITS Exhibit R7(c) Exhibit R7(d) Exhibit R7(a) Exhibit R7(b) True copy of the reply to the RTI application submitted respondent’s advocate dated 03.05.2023 A true copy of the judgment in N. Pramod v. Board, Malabar W.P.(C)No.28664 of 2023 True copy of the Inspection and Enquiry note of the Assistant Commissioner dated 29.11.1974 alongwith readable copy A true copy of the letter of resignation of Seetharam Shetty dated 29.11.1974 Dewasom -22- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 APPENDIX OF WP(C) 12007/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PETITION FILED BY 6TH RESPONDENT AS O.A NO.11 OF 2016 ON THE FILES OF THE 3RD RESPONDENT DATED 20/05/2016 TRUE COPY OF THE I.A 23/2016 IN O.A NO.11 OF 2016 FILED BY THE 6TH RESPONDENT ON THE FILES OF THE 3RD RESPONDENT DATED 20/05/2016 TRUE COPY OF THE ORDER DATED 3.10.2022 IN O.A NO.11 OF 2016 ISSUED BY THE 3RD RESPONDENT TRUE COPY OF THE IMPLEADING PETITION DATED 13.04.2023 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT IN O.A NO.11 OF 2016 TRUE COPY OF THE COUNTER-STATEMENTS FILED BY THE 6TH RESPONDENT BEFORE THE 3RD RESPONDENT IN O.A NO.11 OF 2016 DATED 19.05.2023 A TRUE COPY OF THE ORDER OF I.A 10, 11, 12 &13 IN O.A NO 11/2016 DATED 03/10/2023 PASSED BY THE 3RD RESPONDENT TRUE COPY OF THE RTI APPLICATION DATED 12.04.2023 FILED BY THE PETITIONER THROUGH THE ADVOCATE BEFORE THE 4TH RESPONDENT TRUE COPY OF THE REPLY DATED 3.05.2023 TO THE EXHIBIT P6 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER OF THE 4TH RESPONDENT TRUE COPY OF THE COMPLAINT DATED 12/09/2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT TRUE COPY OF THE REPRESENTATION DATED 12/06/2023 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT TRUE COPY NO.H8/5303/2023/MDB DATED PASSED BY THE 2ND RESPONDENT A TRUE COPY OF THE RELEVANT PAGES OF THE ORDER DATED 12/12/2023 ISSUED BY THE 2ND RESPONDENT A TRUE COPY OF THE REQUEST MADE BY THE BEARING 25.9.2023 ORDER THE OF Exhibit P1(a) Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 Exhibit P11 Exhibit P12 -23- WP(C)NOS.34739 OF 2023 & 12007 OF 2024 Exhibit P13 8TH RESPONDENT TO THE 4TH RESPONDENT DATED 2.3.2024 A TRUE COPY OF THE REQUEST MADE BY THE PETITIONER TO THE 4TH RESPONDENT DATED 16.03.2024