P. BHAVADASAN. J.
1. All these writ petitions, in one way or other are related to the administration and management of Thirumandhamkunnu Bhagavathy temple.
2. In W.P. (C) 23149 of 2009, the petitioner who was holding the post of hereditary trustee of the temple challenges his dismissal form that post, covered by Exts.P7 and P12 orders in the said writ petition.
3. W.P. (C) 36839 of 2010 is by the Secretary of Sree Vallabha Kshema Samithi, Angadipuram. That is a Samithi constituted from among the members of the families which hold hereditary trusteeship of Thirumandhamkunnu Bhagavathy temple, Samithi challenges Ext.P10 order by which, after the dismissal of Bhanunni Raja, who is the petitioner in W.P.(C) 23149 of 2009, Sri.Kalidasa Raja was appointed as the fit person as per Section 20 of the Hindu Religious and Charitable Endowment Act, 1951 (hereinafter referred to as the Act) on a temporary measure.
4. W.P. (C) 34920 of 2010 is by the trustee in charge of Thirumandhamkunnu Bhagaavathy Devaswom challenging Ext.P15 order by the Deputy Commissioner refusing to approve certain appointments made by him.
5. W.P. (C) 1934 of 2011 is also by the Samithy, who is the petitioner in W.P.(C) 36839 of 2009, challenging the appointment and the functioning of Sri.T.T.Vijayakumar as the Manager of the temple.
6. It is agreed to by all the counsel appearing for the parties that the fate of the other three writ petitions will depend upon the outcome of W.P. (C) 23149 of 2009. If the petitioner in that case succeeds in his challenge to the orders already made mention of, then the other writ petitions become almost academic.
7. Since the principal issue involved is the one in W.P.(C) 23149 of 2009, the facts in the said writ petition re being referred to in detail.
8. Sree Thirumandhamkunnu Bhagavathy temple is a public religious institution covered by the Act. As a result of various amendments brought to the Act, Malabar Devaswom Board has been constituted. Ext.P1 is the scheme framed as per the provisions of the Act. The petitioner as well the Board are governed by the terms of the said scheme. The administration of a temple is vested with the hereditary trustee and currently, the petitioner, who is the senior most member of the family is entitled to exercise that authority. The petitioner alleges that recently, there has been some concerted efforts on the part of some interested persons to somehow remove the hereditary trustee and place the temple in the hands of politicians with ulterior motive and in furtherance thereof, anonymous petitions were sent to the Commissioner raising false allegations against the petitioner. An enquiry was initiated by the Deputy Commissioner under the Act. Those proceedings were challenged before this court in W.P.(C) 19014 of 2007 and W.P.(C) 22046 of 2007. Those petitions were disposed of by directing that the enquiry be conducted by the Commissioner and till final orders are passed in the proceedings, the petitioner is entitled to continue as the hereditary trustee. In spite of the specific direction issued from this court, the Commissioner directed the Deputy Commissioner to conduct the enquiry which was the subject matter of challenge in W.P.(C) Nos.37760 of 2007, 5580 of 2008 and 30469 of 2008. In W.P. (C) 5580 of 2008 the petitioner was directed to furnish a reply to the notice and the petitioner did so, copy of which is produced as Ext.P3. Presumably dissatisfied with Ext.P3, the Deputy Commissioner framed 18 charges and issued memo of charges to the petitioner, which is marked as Ext.P4. This court in the writ petition relating to the subject matter directed that the petitioner he heard on all the matters including the jurisdiction of the Commissioner to initiate proceedings against the hereditary trustee. True copy of the objection is produced as Ext.P5. By way of abundant caution, the petitioner claims that he put forward further contentions as per Ext.P6. According to the petitioner, without giving an opportunity of establishing his case, on 2.3.2009, an order was passed under Section 40 of the Madras Hindu Religious and Charitable Endowment Act. The said order is produced as Ext.P7. In furtherance thereof, the third respondent in the writ petition was appointed as the fit person.
9. Ext.P7 was challenged before this court in W.P.(C) 7237 of 2009. Finding that the petitioner has a statutory remedy by way of an appeal, this court directed him to avail of the said remedy. The petitioner did so and Ext.P9 is the appeal filed by him. This court also made arrangements for the administration of the temple by appointing one Venugopal Raja in temporary basis till the appeal was disposed of by the second respondent. The appeal before the second respondent was heard by the Secretary to Government Department of Devaswom and thereafter, it was posted before the Additional Secretary. According to the petitioner, the Additional Secretary had no jurisdiction to hear the matter. The petitioner was asked to appeal before the Additional Secretary and he did so. He also filed two detailed statements, copies of which are Exts.P10 and P10 (a). The petitioner would allege that without fixing any date for hearing, the Additional Secretary contacted the Commissioner over phone and took a statement through phone. Strangely enough, thereafter the file disappeared and the petition had to present an application before the Additional Chief Secretary pointing out the said fact. Copy of the said application is produced as Ext.P11. Thereafter the appeal was disposed of as per Ext.P12 order. The petitioner attacks Exts.P7 and P12 orders on several grounds.
10. The first respondent has chosen to file a counter affidavit. According to the first respondent, on receiving complaints regarding the functioning of the petitioner as the hereditary trustee, a special team was constituted under the Junior Superintendent of Commissioner’s office and a detailed enquiry was conducted. The enquiry report is produced as Ex.R1 (A). It was thereafter the disciplinary proceedings were initiated against the trustee as per Ext.P4, suspending him pending enquiry and appointing Sri.Chandrahasa Menon as the fit person. 18 charges were leveled against the petitioner and the memo of charges was served on him. The first respondent thereafter mentions about the various proceedings filed before this court and there suits thereof. It is claimed by the first respondent that in respect of the listed institutions under Section 38, the power of the Commissioner under Section 45 was delegated to the Deputy Commissioner under Section 45 was delegated to the Deputy Commissioner under Section 10(2) of the Act, and it was under those circumstances that the Deputy Commissioner had initiated proceedings against the petitioner. It is contended on behalf of the first respondent that the petitioner has been filling petitions after petitions before this court with the sole intention of protracting and forestalling the proceedings against him. In the enquiry conducted, witnesses were examined and the petitioner cross-examined them and it was after considering all the circumstances and the evidence in the case that Ext.P7 order came to be passed. The contention of the first respondent is that the charges leveled against the trustee consisted of violation of lawful orders issued by the State and the Commissioner, neglect of duty on his part, breach of trust and several misdeeds causing loss to the temple. In support of these contentions, it is pointed out that the trustee misappropriated temple funds by purchase of sandal wood for personal gain, drew house rent for the trustee and manger and various other matters were also stated, which are not very relevant for the present purpose. in the counter affidavit, the first respondent has made attempts to justify Exts.P7 and P12 orders on the ground that in the enquiry the misdeeds of the petitioner had been proved. It is therefore contended on behalf of the first respondent that the petition is without any merit and it is only to be dismissed.
11. A reply affidavit has been filed by the petitioner wherein he refuted the stand taken by the first respondent in the counter affidavit and asserted that the charges are cooked up and ill-motivated and that there was no mal-administration by the hereditary trustee. It is also asserted by him that neither the Commissioner nor the Board has the power to remove the hereditary trustee on such flimsy grounds and claimed that the act now committed by the respondents amounts to violation of the rights guaranteed under Articles 25 and 26 of the Constitution of India.
12. Standing Counsel for the first respondent has filed a statement producing certain Government Orders.
13. In W.P. (C) 34920 of 2010, as already stated, filed by the tru7stee in charge, he challenges Ext.P15 order. It is alleged that administration of the temple is governed by a Scheme and Clause 7 of the Scheme is referred to by the petitioner. The notification of the Scheme is produced as Ext.P2. It is pointed out that Ext.P2 was challenged before this court in Original Petition No.261 of 1954. Ext.P3 is the order in the said writ petition. It is claimed by the petitioner that the administration and management of the temple are to be carried on in accordance with the Scheme and no one has any authority to by-pass the Scheme. As time passed by, it is pointed out by the petitioner that there was considerable increase in the number of devotees coming to the temple and certain facilities necessarily had to be made. It became necessary to provide a waste water treatment plant. On bringing the mater to the notice of the authorities concerned, a report was obtained by them, which is produced as Ext.P5. In the meanwhile, the Health Inspector issued a notice demanding that immediate steps be taken to abate the nuisance. That notice is produced as Ext.P6. Subsequently, an order under Section 133(1) of the Code of Criminal Procedure was passed, copy of which is produced as Ext.P7. Immediately, steps were taken by the temple authorities and the estimate and plan submitted were approved by the Commissioner. The plant was erected. However, the plant was not commissioned and the petitioner was constrained to move the Commissioner for necessary steps. A communication to that effect was sent to the Commissioner and that is produced as Ext.P8. Ext.P9 is the communication sent to the Commissioner requesting to make arrangement s to have the service of an Executive Engineer from Kerala State Electricity Board. Therefore, it is pointed out that, for the purpose of operating the plant, employees were required and it was decided to conduct an interview on 18.11.2009. The details of the procedures followed are given in the statement. However, it is claimed that some queries were made by the Deputy Commissioner as per Ext.P12, A reply was given as per Ext.P13 and it was pointed out that appointment of two persons was purely on temporary basis. Subsequently two posts were sanctioned and Ext.P14 communication was sent to the Commissioner. The complaint of the petitioner is that the Deputy Commissioner insisted that appointments could be made only with the previous approval of the Commissioner in view of Section 100(2)(r) 10(y) of the HR and CE Rules. It was also emphasized that as per Section 24 of the Act, the trustee is bound to obey the orders issued by the Board. Various other provisions were also pointed out and objection was taken to the appointment. The order issued by the Deputy Commissioner is produced as Ext.P15. According to the petitioner Ext.P15 is clearly unsustainable in law.
14. W.P. (C) 36839 of 2010 is by Sree Vallabha Kshema Samithi represented by its Secretary. The Samithi claims to be a body registered under the Societies Registration Act with Registration No.187/1995. The Samithi is constituted from among the members of four Kovilakams, namely, Ayiranazhi, Kadannamanna, Mankada and Aripra Kovilakam. It is claimed by the petitioner that due to the effective and efficient management by the trustees at various points of time, with the active assistance of the members of the Samithi, staff and devotees, the temple has gained prominence. The temple is notified as per the Act. This writ petition also makes mention of the challenge to the notification and the consequences thereof. The Samithi mentions about the Scheme referred to in W.P. (C) 23149 of 2009, which is marked as Ext.P5. It is claimed by the Samithi that the administration and management and other affairs of the temple are being carried out in a most transparent manner and there was a practice among the members of the family to form an Advisory Committee to help the hereditary trustee for the effective management of the temple. The petitioner in W.P. (C) 23149 of 2009 became the senior most member qualified to be the trustee of the temple and he took charge. It is pointed out that after his assumption of charge he created an additional post namely P.A. to the Trustee and his son-in-law Krishna Kumar was appointed. The Samithi would allege that thereafter things went astray and there was maladministration and several other misconducts in respect of the administration of the temple. Complaints were forwarded to the H.R. and C.E. Commissioner and an enquiry was conducted. It was found that the trustee was at fault and the P.A. to the Trustee had an equal role to play in the misdeeds and therefore he was removed from service. It is pointed out by the Samithi that the charges leveled against the second respondent, who is the petitioner in W.P. (C) 23149 of 2009, were found proved and he was removed. Under such circumstances, as is the practice, the next senior most member of the Kovilakam, Sri. M.C. Ravi Varma Raja is to be appointed as the hereditary trustee. Even though Sri,.Bhanunni Raja was found quickly of the charges leveled against him, he was reluctant to vacate the post. Sri.Bhannunni Raja challenged his order of dismissal in W.P.(C) 7237 of 2009. On the basis of the decision in that writ petition, Sri.Ravi Varma Raja was the next senior most member issued an authorization in favour of Sri.A.C.Venugopala Raja. He is a retired Headmaster and more over he is residing very near to the temple. He was actively involved in the various activities of the temple. According to the Samithi, Sri.Venugopala Raja is a competent person to administer the affairs to the temple in the light of the fact that Sri. Bhanunni Raja was found guilty of the charges leveled against him and has been dismissed from the post. However, it is pointed out that Sri.Bhanunni Raja suggested Sri.Kalidasa Raja to function as the Trustee. The Samithi would point out that Sri.Kalidasa Raja was an undesirable person for various reasons which are not very relevant for the present purpose. After Sri.Bhanunni Raja, the next senior most member Sri.M.C.Ravi Varma Raja, who had given authorization to Sri.Venugopala Raja to function as Trustee. Sri.Venugopala Raja had functioned as Trustee of the temple on an earlier occasion. Sri.M.C.Ravi Varma Raja passed away on 22.11.2009 and the next in line was Sri.Kunjunni Raja, who is settled at Bangalore. Therefore sometime was required to make arrangements for the administration of the temple. A request to that effect was made and Ext.P8 is the said communication. The power of attorney letter issued by Sri.Kunjunni Raja in favour of Sri.Venugopala Raja is produced as Ext.P9. The allegation is that taking advantage of the delay in making arrangements, the second and third respondents in the writ petition made an application on 1.2.2010 itself. A report was submitted in haste and the first respondent issued an order appointing Sri.Kalidasa Raja as the trustee of the temple on a temporary basis. The said order is produced as Ext.P10. In this writ petition Ext.P10 is assailed on various grounds.
15. The first respondent has filed a statement. In the statement it is pointed out that Sri.Venugopala Raja was entrusted with the management of the temple as an interim measure as directed by this court in W.P.(C) 7237 of 2009 on the basis of the power of attorney given by Sri.Ravi Varma Raja. Sri.Ravi Varma Raja died on 22.11.2009 and thereafter the power of attorney ceased to be in operation. Sri.Bhanunni Raja had complained to the petitioner about the unauthorized continuance of Sri.Venugopala Raja as acting on behalf of the hereditary trustee, who is no more. The third respondent Kalidasa Raja also staked his claim. The statement would disclose that Sri.Kunjunni Raja was not willing to take over the office of the Trustee and under Section 47(3) of the Act the Deputy Commissioner is to decide the dispute after conducting enquiry. The first respondent would say that Sri.Kalidasa raja, the third respondent was appointed as trustee only on temporary basis subject to the decision of this Court in the writ petition filed by the second respondent. Pointing out the circumstances under which Sri.Kalidasa Raja came to be appointed as the fit person, the first respondent pointed out that no interference is called for with the said order of the first respondent.
16. In the counter affidavit field by the second respondent it is pointed out that the writ petition is nothing but a gross abuse of the process of court. It is contended that if at all the petitioner is aggrieved by Ext.P10 order, he has got statutory remedies available and he has to avail of the same before approaching this court. It is also pointed out that a reading of the petition will have leave one in no doubt that the petition has been instigated by Sri.Venugopala Raja, who has a desire to function as the Trustee though he is incompetent do so. It is pointed out that the petitioner is not entitled to any relief.
17. In the counter affidavit filed by the third respondent, it is pointed out that his appointment on a temporary basis, is fully justified. The petitioner has filed a reply to the statement filed by the first respondent.
18. W.P.(C) 1934 of 2011 is also filed by the petitioner in W.P.(C) 36839 of 2010. The complaint in this writ petition appears to be that the second respondent, who was appointed on a temporary measure has appointed the third respondent as the Manager, which according to the petitioner is illegal and is contrary to the provisions of the Act. Apart from the fact that the third respondent, who is appointed as Manager is over aged, he is also incompetent to act as Manager. Competency of the second respondent to appoint a Manager is also challenged. Third respondent was appointed as Manager as per Ext.P6 order. The petitioner challenges Ext.P6 order.
19. From the above facts as disclosed in various writ petitions, the core issue that arises for consideration is whether the dismissal of Bhanunni Raja, which gave rise to W.P.(C) 23149 of 2009 is justified and whether he is entitled to succeed in his challenge of the order of his dismissal. If he is successful in doing so, then the there may not be much to decide in the other writ petitions as they will have to take the consequences of the result in W.P. (C) 23149 of 2009.
20. Sri. P.G.Rajendran in his work titled ‘ ‘ (Kshethra Vigyanakosam) refers to the temple involved in these writ petitions. The temple is situate in Malappuram District. The temple is an ancient one. The main diety is Bhadrakali and the diety faces north. The temple is on the top of a hill. According to the author, the myth that is in vogue is that Sivalinga worshiped by Goddess Parvathy was obtained by Mandhathav Maharshi, by observing penance and meditation, from Lord Siva. It is believed that Goddess Parvathy, who came to know about the same merged in that Sivalinga. At that time Sree Parvathy was accompanied by daughter Kali and son Ganapathy. It is also believed that Maharshi Mandhathav obtained salvation in that place. There are two other myths with regard to the temple. There is also a belief that Thirumandhankunnu Bhagavathy is the sister of Kodungallur Bhagavathy. The author would state that initially the rituals and ceremonies in both the temples were same. Later the rituals and ceremonies underwent change and modification. Initially the poojas were conducted by ………………… (Adimakal) from Kodungallur temple. Later when ………………………….. (Swathika) form of rituals and ceremonies were adopted, the prominence of ………………….(Adimakal) faded away. Thee is also it belief that when the legendary Poonthanam suffered from smallpox, he rendered ………………………….. (Khanasangha Sthothram) in the temple and was relieved of the illness. The temple belongs to four families namely, Mankada, Ayiramnazhi, Kadannavanna and Aripra Kovilakam.
21. It is not in dispute that the administration and management of the temple is governed by Ext.P1 scheme in W.P.(C) 23149 of 2009. Clause 2 in Ext.P1 specifically states that all movable and immovable properties vest in the family of the hereditary trustee. Power in given to the hereditary trustee to appoint an Executive Officer. Clause 7 is also relevant, which stipulates that the Trustee shall have the power to appoint all other servants in the temple with power of disciplinary action against them. Various other clauses also would stipulate that the administration and management is to be carried on by the hereditary trustee.
22. In the case on hand, as already mentioned, the temple belongs to four families and the hereditary trustee is the senior most member of the four families at the relevant time. It is not in dispute that at the point of time when the disputes arose, Sri.Bhanunni Raja, the petitioner in W.P.(C) 23149 of 2009 had succeeded as the hereditary trustee and was functioning in that capacity.
23. Before going further into the various aspects, it will be useful to refer to the provisions of he Act and also the status of a trustee. Going by the provisions of the Act, there are two types of trustees, namely hereditary trustees and non-hereditary trustees. A trustee is defined under Section 6(19) of the Act. Act of 1951 as it now stands provides for the constitution of the Board namely Malabar Devaswom Board. The Chief Executive Officer of the Board is the Commissioner appointed under Section 8 C of the Act. The Act also provides for the appointment of the Deputy Commissioner, Area Committee and Temple Advisory Committees. It also stipulates the powers, functions and duties of the respective bodies. The power of the Commissioner is dealt with under Sections 18, 19 etc. Section 20, which is in Chapter III of the Act, makes mention of the powers and duties of the Commissioner in respect of religious endowments. Section 21 of the Act provides that the authorities made mention of in that provision shall have the power to enter the premises of any religious institution or any place of worship for exercising powers and duties conferred under the Act.
24. Section 21 A of the Act is of some significance. It is appropriate to extract the same, and it reads as follows:
“21A. The President, Member or Commissioner etc, to observe appropriate forms and ceremonies.- The President, Member of the Board or of the Area Committee or of the Temple Advisory Committee, Commissioner, Deputy Commissioner, Assistant Commissioner and every other person exercising the powers of superintendence or control or advice under this Act, shall so far as may be. Observe forms and ceremonies appropriate to the religious institution in respect of which such powers are exercised and in the case of a math, act in conformity with the usages of a math in his dealings with the head of the math.”
25. Section 22 deals with the persons who are competent to hold the office and Section 23 stipulates that the trustees are bound to obey the lawful orders issued by the authorities under the Act. Section 24 deals with the powers of the trustee. Sections 25, 26, 27 etc. deal with the duties of the trustee and his obligation to submit various records to the authorities concerned. Section 45 deals with the power of the Deputy Commissioner and the Commissioner to suspend, remove or dismiss any hereditary trustee or non-hereditary trustee. It reads as follows:
“45. Power to suspend, remove or dismiss trustees.- (1) The Deputy Commissioner in the case of any religious institution over which an Area Committee has jurisdiction, and the Commissioner in the case of any other religious 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 willful 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 f, 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.
(2) When it is proposed to take action under sub-section (1), the Commissioner or the Deputy Commissioner, as the case may be, shall frame charges against the trustee concerned and give him an opportunity of meeting such charges, of testing the evidence in his favour; and the order of suspension, removal or dismissal shall state the charges framed against the trustee, his explanation and the finding on each charge with the reasons therefore:
Provided that the Deputy Commissioner shall also consult the Area Committee before passing the final order under sub-section (1).
(3) Pending the disposal of the charges framed against the trustee, the Commissioner or the Deputy Commissioner may place the trustee under suspension and appoint a fit person to discharge the functions of the trustee.
(4) It shall be open to an Assistant Commissioner to move the Deputy Commissioner to take action under sub-section (1) in respect of any trustee of an institution over which an Area Committee has jurisdiction, and to place the trustee under suspension pending the orders of the Deputy Commissioner under sub-section(3).
(5) A trustee who is suspended, removed or dismissed under sub-section (1) may, within one month from the date of the receipt of the order of suspension, removal or dismissal, appeal against the order to the Commissioner if it was passed by a Deputy Commissioner, and to the State Government if it was passed by the Commissioner.”
26. Section 47 deals with the filling up of the vacancies in the office of the hereditary trustee. Section 57 empowers the Deputy Commissioner to settle certain disputes and maters. Section 100 empowers the State Government to make Rules to carry out the purpose of the Act. It also stipulates the matters in regard to which the Rules could be made.
27. In the decision reported in Bhanunni v. Commissioner, Hindu Religious and Charitable Endowments (Admn.) Department (2011(2) K.L.T. 312) this court had occasion to consider status of a temple viz a viz Board and its offers and it was observed as follows:
“M.D.B. is constituted by a notification of the Government under S.7 of the H.R. and C.E. Act. It is a body corporate, having perpetual succession and common seal, with power to acquire, hold and dispose of properties and to enter into contracts and may sue and be sued in its name,. Its constitution is in terms of the statutory provision. It has different standing committees as provided in S.7L S.8C provides for the appointment of officers and employees of the M.D.B. The Commissioner of M.D.B. is appointed by the Government. He shall also function as the Secretary of the M.D.B., S.8 provides that all powers and duties under the H.R. and C.E. Act, in respect of various religious institutions of the Malabar area, that have been exercised or performed by the Commissioner, Deputy Commissioners, Assistant Commissioners and Area Committees before the commencement of the amending Act of 2008, shall vest in the M.D.B. on its constitution. S.8A provides that, subject to the other provisions of the H.R. and C.E. Act and supervision and control by the M.D.B., the Commissioner, Deputy Commissioners, Assistant Commissioners and Area Committees exercising any power or performing any duty under the Act, before the commencement of the amending Act of 2008, shall continue to exercise such powers and perform such duties. As officers of M.D.B., as if those powers are delegated to them by the M.D.B., as if those powers are delegated to them by the M.D.B,. Under S.8B, the M.D.B. shall have the power to assume the direct management of any religious institution, provided the trustees request the M.D.B. to take over its management unconditionally. The M.D.B. shall have the power to fix and regulate the service conditions and pay structure of the officers and employees of the temples from time to time and to supervise its implementation. The M.D.B. may maintain a welfare fund scheme for the benefit of the officers and employees of the temples in the manner as may be prescribed. S.8D enjoins that all appointments of officers and employees of the M.D.B., except the Commissioner, for which direct recruitment is resorted to, shall be made from a select list of candidates belonging to Hindu religion, furnished by the Kerala Public Service Commission in accordance with the law made for the exercise of this additional function by the public Service Commission. Thus, the M.D.B. is an institution which is constituted under the provisions of the H.R. and C.E. Act. It is therefore a “public authority” for the purpose of the R.T.I. Act. It is an establishment, a juristic person and a body corporate, having perpetual succession and common seal.
…………….Charitable endowment, Math, religious charity, religious endowment, religious institution, specific endowment, temple, trustee, are all terms defined in S.6 of the H.R. and C.E. act. Those definitions do not contain any semblance of any manner of jural relationship between any of those entitles and the M.D.B. as if any of them is an administrative unit or office under the M.D.B. establishment, which is a public authority for the purpose of the R.T.I. Act. There is no umbilical link between the M.D.B. and the temples or offices of the temples in the Malabar district, either statutory or otherwise. The power to supervise, regulate and control such establishments under the authority of the H.R. and C.E. Act does not make those establishments, the administrative units and offices, of, or, under, the M.D.B., As already noticed above, S.5(1) of the R.T.I. Act operates only as regards the administrative units and offices under a public authority. Therefore, S.5(1) of the R.T.I. Act does not authorize M.D.B. or its Commissioner to treat the temples and temple offices as administrative units or offices of the M.D.B. and thereby appoint or designate Madathipath/Managing trustee/Chairman or President or Executive Officer of the temples as information officers under the R.T.I. Act.”
28. One has to refer to the scheme namely Ext.P1 to ascertain the position of a trustee and the nature of his rights. Necessarily, a reference to the provisions of the Act will have to be made to understand the true scope of his powers. It is important to notice that none of the respondents in W.P.(C) 23145 of 2009 has a case that the Scheme is not in force. Going by the provisions of the Scheme and provisions of the Act, the Administration of the temple and its properties are vested in the hereditary trustee. He has the right to appoint servants of the temple and he holds disciplinary control over them. He has financial powers and also the power to deal with the properties in the best interest of the temple.
29. Learned Senior Counsel Sri. K.Ramakumar appearing for the petitioner in W.P.(C) 23149 of 2009 pointed out that the reliance placed by the first respondent on Section 45(b), (c) and (d) and Section 100(2) (i), (j), (q), and (s) and the relevant rules are totally baseless and that they find no place in the memo of charges issued to the petitioner. According to learned counsel, the various charges at best would amount to improper exercise of functions and there is no misconduct, misappropriation or misfeasance on the part of the Trustee. There is nothing to show, according to learned counsel, that there has been any misfeasance or malfeasance as alleged by the first respondent, nor is there any evidence to show that the petitioner has misappropriated the temple funds for himself or has made any unlawful gain for himself or caused any unlawful loss to the temple by the various acts which are stated in the memo of charges issued to the petitioner. Learned counsel referred to the memo of charges and pointed out that all that the memo charges show is that the petitioner has done certain acts. But there is nothing mentioned in the memo of charges that any of the alleged objectionable acts violated any particular provision of the Act or Rule or order issued by the authorities concerned, so as to amount to misconduct or other grounds for disciplinary action. The petitioner had given detailed reply to each of the charges and it was without referring to the defence statements and the relevant documents etc tht Ext.P7 order was issued. According to learned counsel, even assuming that all the allegations in the memo of charges are true, still there is absolutely no evidence of any misappropriation or other undesirable activities depleting the funds of the institution which are now taken as grounds by the first respondent to dismiss the petitioner from the post of hereditary trustee. It may be that the hereditary trustee might not have obtained prior sanction of the authorities concerned for the various acts done by him. But that is far from saying that he is guilty of misappropriation, misfeasance, breach of trust etc. In the memo of charges served on the petitioner, there is no whisper regarding any provision of the Act or Rule or order issued by the State or authorities under the Act which has been flouted or willfully disobeyed by the trustee. Therefore the petitioner had no opportunity to specifically answer with regard to the various provisions of the Act, Rule or orders which have now been taken aid of by the first respondent to find the petitioner guilty. Certain statements are seen made in the memo of charges and the petitioner has offered his reply to the same. Learned counsel cautioned this court that the trustee is not to be treated as an employee under the authorities as per the Act and interference by the Board and its offices is limited. Unless it is shown that the acts of the trustee are detrimental to the interests of the institution or that the funds of the institution are being squandered away, interference by the authorities in the administration and management of the temple is unwarranted. Learned counsel drew the attention of this court to the recent trend on the part of the authorities under the Act to usurp management of temple such as the one involved in these cases or powers of the Trustee under one pretext or another. According to the learned counsel this in fact violates the constitutional rights guaranteed under Articles 25 and 26 and 300A of the Constitution of India. It may be that the Trustee might have been imprudent in his acts. But there is nothing to show that he had willfully disobeyed any order issued by the authority or that he has misappropriated any amount. There is nothing to show that he has been willfully negligent or there have been willful omission on his part which has adversely affected the interests of the trust.
30. According to the learned counsel there is no finding that the sandal wood which he had purchased is of inferior quality or that he had manipulated accounts to make gain for himself. Learned counsel pointed out that unless it is shown that the acts of the trustee were malafide and were of such nature, that the acts were done with the intention of making unlawful enrichment for himself or had caused unlawful loss to the institution or that the affairs of the temple were carried on to the detriment to the interests of the institution, powers under Section 45 could not be invoked to remove the petitioner from the post of hereditary trustee. Learned counsel also referred to the decision reported in Manavikrama Zamorin raja of Kozhikode v. Commissioner, H.R. and C.Endowments (1960 K.L.T. 1007).
31. Sri. K. Mohana Kannan appearing for the first respondent tried to justify the acts of the Devaswom Board and the Commissioner by pointing out that the acts alleged against the petitioner were in clear violation of the relevant statutory provisions, rules and orders of the Commissioner. The explanation offered by the petitioner to the memo of charges had been considered in detail both by the disciplinary authority as well the appellate authority and both had found that the charges have been established. According to the learned counsel the evidence adduced clearly show that trustee had committed breach of trust, misappropriated amount and had acted in a manner detrimental to the interests of the temple. Both the authorities have come to a definite conclusion that there has been misappropriation of funds and reasons have been given for such conclusions. Sufficient opportunities were given to the petitioner to substantiate his acts and he was unable to do so. In short the contention is that no grounds are made out to interfere with Exts.P7 and P12 orders and they are only to be sustained.
32. The first respondent did get support from some of the respondents also.
33. Though counsel for the first respondent very vehemently and strenuously tried to justify the acts of the first respondent and to sustain Exts.P7 and P12 orders, we are unable to agree with him for several reasons.
34. Clause 2 of the Scheme namely Ext.P1 makes it abundantly clear that the movable and immovable properties of the temple vest with the family of the hereditary trustee. Other clauses also indicate that he has to carry out the day to day administration of the temple and he is empowered to appoint employees. Of course he is saddled with the obligation to submit budgets, returns and reports in accordance with the Acts and Rules. The executive officer is to be appointed by him and he is to work under the trustee. To recollect, the power to appoint employees and their disciplinary control vest with the trustee.
35. Section 24 of the ct mentions about the care that is required by the Trustee and also his powers. It reads as follows:
“24. Care required of trustee and his powers.- (1) Subject to the provisions of the Madras Temple Entry Authorization Act, 1947, the trustee of every religious institution is bound to administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of the institution and all lawful direction which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence would deal with such affairs, funds and properties if they were his own.
(2) A trustee shall, subject to the provisions of this Act be entitled to exercise all powers incidental to the provident and beneficial administration of the religious institution and to do all things necessary for the due performance of the duties imposed on him.
(3) A trustee shall not be entitled to spend the funds of the religious institution for meeting any costs, charges or expenses incurred by him in any suit. Appeal or application or other proceeding for, or incidental to, his removal from office or the taking of any disciplinary action against him:
Provided that the trustee may reimburse himself in respect of such costs, charges or expenses if he is specifically permitted to do so by an order passed under Section 88.”
36. A reading of the Act and Rules leaves one in no doubt that the power of the statutory authority, i.e. the Board and its authorities is only to see that the funds of the temple are not being squandered, wasted, spend unwisely and the religious institution does not suffer due to the act committed by the Trustee.
37. One may now relies on to the actual issue involved in E.P.(C) 23149 of 2009. Immediate reference may be made to the memo9 of charges issued to the petitioner. There are 18 charges leveled against the petitioner. Out of which charges 1 to 7 relate to the purchase of sandal wood. Charge 8 relates to certain omissions in the account. Charge 9 relates to withdrawal of Rs.10,000/- per month by the Manager and appointment of another person and paying an amount of Rs.14,160/- to him misusing the Devaswom fund. Charge 11 relates to the act of the Trustee in installing telephone in the house of the Trustee as well as the Manager. Charge 12 relates to the putting up of a cabin spending an amount of Rs.37,000/- without prior sanction. Charge 13 relates to the installation of Air Conditioner in the cabin of the Manager without the sanction of the department. Charge 14 accuses the Trustee of having squandered away Dewaswom fund for installing Air Conditioner in the cabin of the Manager. Charge 15 relates to the purchase of furniture without following the necessary procedure. Charge 16 is nothing but a repetition of Charges 14, 15 and 16. Charge 17 relates to spending of amount for fire works relating to the Pooram of the temple and Charge 18 relates to the attempt on the part of the Trustee to misappropriate Deveswom fund.
38. It cannot escape one’s notice that the charge memo neither refers to any specific provisions of the Act which have been violated nor dies it refer to any specific orders or Rules which have been by-passed or disobeyed. Quite a few allegations in the charge memo relate to spending of amounts for purposes like purchasing furniture, installing air conditioner etc without prior sanction and which are not covered by budget proposals.
39. One may now refer to the explanation offered by the Trustee, which is produced as Ext.P3. As already stated, Charges 1 to 7 relate to the purchase of sandal wood. The Trustee has offered his explanation as to the circumstances under which he had to purchase sandal wood for the purpose of the temple. He has specifically pointed out that the sandal wood available in the temple had become unusable, but still is being utilized and he has pointed out that the assessment made regarding the requirement of sandal wood by the Dewaswom is far short of the requirements. He has given detailed explanation regarding the circumstances which compelled him to purchase sandal wood. He has also pointed out that the purchase is covered by documents and is reflected in the accounts. As regards Charge No.8, it has been pointed out by him that the amounts mentioned in the charge are entered in the account only when the amounts are actually received and has pointed out that he has not omitted to include any amount in pursuance to the sponsorship made by the persons concerned and which have been received. As regards Charge No.9 relating to the employment of another person to help the Manager, the Trustee has given an explanation. He has pointed out that in the enquiry against Sri. Venugopal, who was the former Manager, it was found that there were several irregularities and they had to be identified. It had also to be ascertained whether there had been misutillization of the funds of the Devaswom. When instructions were given to the present Manger it was pointed out by him that it involves considerable work and he needs help of a person. It was under those circumstances another person was appointed and his services were terminated after six months when the purpose was achieved. As regards charge No.10, it was pointed out that the Trustee lives fur away from the temple and he finds it extremely difficult to manage the affairs of the temple. It was under those circumstances that he had to take a house on rent. It has been specifically pointed out by him that the proposal to have quarters for the Trustee is pending sanction from the H.R. and C.E. department for a long time. Thus the trustee had no other option but to take a house on rent. It was so done and he paid rent from the Devaswom fund. He has pointed out that as soon as the quarters is built for the trustee, he would discontinue the rental arrangement. Same is the case with the Manager, who was appointed by the Trustee. As regards Charge No.11, it relates to the installation of telephone, the Trustee has pointed out that being a person at the helm of affairs of the temple, he has to communicate with several persons and telephone facility is inevitable for the proper functioning of his office. He finds it extremely difficult to pass on and receive messages and that affects the administration of the temple. Same is the case with the Manager also. Regarding Charge Nos. 12 to 16, it has been pointed out that all that has been done was to make necessary arrangements keeping in tune with the growing requirements. Since the temple has attained considerable prominence and is being visited by a large number of persons including VIPs, it had become necessary to make arrangements for the convenience of both the public and the VIPs who visit the temple. The space now available and the facilities are too meager to cater to the needs of the public as well as the VIPs. It was under those circumstances the arrangements were done. The Trustee has pointed out that it was in fact the duty of the Devaswom Board to make the necessary arrangements. But the Devaswom Board paid little heed to the several requests made by the Trustee and therefore the Trustee had to take necessary steps to meet the situation. He has specifically pointed out that he has accounted all the expenses incurred by him.
40. As regards Charge Nio.17 also, he has given an explanation. He has pointed out the circumstances under which he had to take steps referred to in the charges. He has specifically pointed out that he has accounted for the expenses incurred by him and the expenses are supported by vouchers. Finally he has pointed out that all that he has done is to take such steps as are necessary for the proper functioning of the temple and he has done so in terms of the provisions of the Scheme and the Act and the allegation that he has violated the provisions of the Act, Rules, Regulations etc are without any basis.
41. It appears the witnesses were examined and parties were heard. Ext.P7 is the order passed by the Commissioner finding the petitioner guilty of all the charges leveled against him. One has to necessarily refer to the same. As regards Charge Nos.1 to 7, which relate to the purchase of sandal wood, it is found that there is violation of Sections 36 and 100(2)(1) of H.R. and C.E. Act. The order refers to the communication issued, HRJ6-2061/06 dated 14.3.2006. Then it is mentioned that there is no proper agreement for purchase of sandal wood. The order makes mention of certain irregularities and had concluded that charges 1 to 7 are proved.
42. The claim of the Trustee that purchase of sandal wood is part of the temple administration is frowned upon. It is noted that there is no unqualified right of administration vested in the trustee. It is found that the trustee violated Sections 23 and 24 of the Act and the purchase was made in violation of Rules under Section 100(2)(1) of the Act. It is also found that the purchase was necessary as there are 292 kg of sandal wood which is sufficient for 2 years. Therefore it is found that the claim of the Trustee is unsustainable. The order says that on the basis of the materials available it was found that Charges 7 and 8 were also proved. As regards the other charges like taking house on rent, installation of telephone facility, installation of Air Conditioner etc, the findings are that it was without permission and it was unnecessary and that prior sanctions were not taken. in short, the finding mainly relate to the violation of certain provisions of the Act and Rules there under and also the fact that prior sanction has not been taken for the Act by the Trustee.
43. The order made mention of in Ext.P7, namely order dated 14.3.2006 has infact no relevance at all. First of all there was no reference to the said order in the memo of charges. That order is produced as Ext.R1(b) A reading of the communication only shows that information was sought for regarding the quantity of sandal wood required for each temple so as to enable a bulk purchase. It is significant to notice that in charge Nos.1 to 7 which relate to purchase of sandal wood, it is not mentioned that any particular provisions of Rule have been violated nor is there any reference to any order of the State Government or department which has been flouted by the Trustee. One must notice that the Trustee has pointed out in his explanation that the sandal wood available in the temple had become useless and he was constrained to purchase sandal wood to meet the requirements of the temple. He has also mentioned that the has continued to use the available sandal wood. He has given detailed explanation regarding the procedures followed by him. The explanation offered by the trustee has not been considered and Ext.P7 order proceeds on other grounds which are not the subject matter of memo of charges. The trustee had pointed out that he had taken care to see that no exorbitant expense is incurred for the purchase and also that the purchase is reflected in the accounts and other available documents. There is no finding that the claim of the Trustee that the sandal wood available in the temple was not fit for use and therefore he had to purchase sandal wood was untrue. There is also no finding that either he had not accounted for the purchase or that he has manipulated the accounts. There is also not finding that he has made any unlawful gains for himself or has caused any unlawful loss to the institution. There is no allegation in the memo of charges to the effect that the sandal wood purchased by the Trustee was inferior one or that the quantum shown to have been purchased is not available nor is there any such finding in Ext.P7. in short there is nothing to indicate that the Trustee had made any unlawful gain or had misappropriated the funds of Devaswom by the purchase of sandal wood. May be that the might not have taken the permission of the Board or the Commissioner as the case may be. But how far it is necessary is a matter which will be considered a little later. At any rate there is nothing to show that he has misused the funds of the institution and has caused loss to the Devaswom.
44. Most of the orders, Rules and Regulations referred to in Ext.P7, as already stated, do not find a place in the memo of charges and therefore Trustee had no opportunity to answer those matters. All that the authority makes mention of is that the sandal wood purchase was improper, for which the Trustee has offered his explanation. At the risk of repetition one may notice that there is absolutely no finding that the Trustee has defrauded the institution in the purchase of sandal wood.
45. Before going further, one finds that the first respondent relies on Section 45(1)(b), (c) and (d) to hold against the petitioner and also Rules under Section 100(2)(j).
46. Section 45 (1) (b), (c) and (d) relate to (b) willful disobedience of the order issued under the provisions of the Act, (c) malfeasance, misfeasance, breach of trust or neglect of duty and (d) misappropriation of or improper dealing with the properties of the institution and the Rules made mention of is concerned with income of the institution and the manner of accounting for the same. It also mentions about the need to prepare budget etc.
47. As rightly contended by the learned counsel for the petitioner, misappropriation has a definite connotation in legal pariance. There must be entrustment of the property and that property must be appropriated dishonestly by the person concerned. It involves the improper dealing and the illegal use of another person’s property for his own benefit. The Trustee has pointed out in his explanation that the purchase of sandal wood was under compelling circumstances and he had taken necessary steps to ensure that the institution does not stand to suffer.
48. One may again remember here that in the memo of charges served on the petitioner, there is no reference to either Section 45 or Section 100(2)(i)(j)(q) and (s) or rules thereunder. In none of the allegations there is any specification of violation of any particular provision or Rules, which have enabled the Trustee to explain his position and establish that there are no violations as alleged. These provisions find a place for the first time in Ext.P7 order.
49. The first respondent also refers to certain provisions of the Act and Rules, namely Rules under Section 100(2) (q), (r) and (s) relating to construction etc. As already made mention of, these provisions find a place for the first time in Ext.P7 and the memo of charges is totally silent regarding the various provisions relied on against the Trustee. The main objection seems to be that prior sanction of the Commissioner was not obtained for various expenses incurred by the Trustee. It is surprising to note that in Ext.P7 various findings are entered into which do not form part of the allegations in the memo of charges and regarding which the trustee was not given an opportunity to explain the real position and to show that there was no misconduct or any culpable act on his part.
50. In support of their contention, learned counsel appearing for the first respondent relied on Ext.R1(c) also. That is a Circular issued by the Commissio0ner. It is interesting to note that the Circular is dated 2.3.2010. It therefore can have no application to the facts of the case.
51. In his memorandum of appeal also the Trustee had highlighted the various aspects and had pointed out that the findings entered into by the Commissioner were incorrect. It has been specifically pointed out by him in the additional statement filed before the appellate authority that all the acts committed by him are properly accounted for and it could be seen from the records. It was also pointed out that it was without referring to the documents that the commissioner had issued the order dismissing the hereditary trustee. Ext.P9 is the memorandum of appeal and Ext.P10 and P10(a) are the additional statements filed by the Trustee before the appellate authority. Each of the finding of the commissioner has been specifically assailed in the appeal offering explanation as to how the findings of the Commissioner are perverse, contrary to facts and documents.
52. One may now refer to Ext.P12, which is the order passed by the appellate authority.
53. It is trite that an appellate authority is bound to reconsider the entire materials on record and arrive at an independent decision. All that has been done by the appellate authority in the case on hand is to refer to the respective stand put forward by the parties and thereafter simply accept the contentions put forward by the representatives of the Malabar Devaswom Board and confirm Ext.P7 order.
54. The findings in both Exts.P7 and P12 are far from satisfactory to come to the conclusion that the Trustee is guilty of the charges leveled against him. No particular documents or evidence is referred to show that the Trustee has misappropriated devaswom fund or he is guilty of malfeasance or misfeasance. There is also nothing to show that there was any dishonest intention on the part of the Trustee in having taken various steps for which charges have been levelled against him. It is difficult to accept that the expenses incurred or arrangements made by the Trustee for various purposes were necessary or uncalled for in the light of the explanations offered by him. The reasons given to find. Trustee guilty of Charges 7 to 18 are infact very disturbing and most unimpressive. Except for saying that prior sanction has not been obtained and therefore Rules have been violated, at the risk of repetition one may notice that there is no finding that the Trustee has unlawfully enriched himself at the expense of the institution. There is nothing to show that there has been squandering of funds by the Trustee or that his acts were totally uncalled for and affected the interests of the institution resulting in the depletion of funds. The income of the temple far exceed the expenditure incurred.
55. It is significant to notice that the Trustee has pointed out that more than 80 files are pending before the Commissioner regarding various matters and no orders are being passed, thereby choking the administration and management of the temple, If as a mater of fact, the Devaswom or the commissioner as the case may be, had taken timely steps, the present contingency would not have arisen. It could not be said that in the light of the provisions of the scheme the Trustee was incompetent to act as he did. One falls to understand how installation of telephone facilities in the residence of the Manager and the Trustee could be viewed as improper. The Trustee has pointed out the circumstances under which he had to make additional arrangements for the convenience of the public and the VIPs, who visit the temple and there is nothing to show that there is any misutilization of fund. It is strange to notice that Ext.P7 mentions that it was unnecessary for the Manager and the Trustee to take houses on rent since they could have stayed in one of the lodges available in the locality. The observation, to say the least, is perverse and absurd. In fact on certain earlier occasions also the trustee had taken house on rent near the temple to ensure that affairs of the temple are properly conducted.
56. It is a fact that the hereditary trustee namely, the petitioner stays far away form the temple. So also is the Manager, appointed by the Trustee. Therefore they had to take houses on rent near the temple. One fails to understand how they could be said to have committed any misutilization of funds. We are unable to subscribe to the view and the assertion made by the counsel for the first respondent that they could have stayed in lodge and prior sanction of the Commissioner is necessary for all acts that is to be done by the Trustee.
57. Ext.P12 order, to say the least in far from satisfactory. It has not only not considered the various grounds taken by the petitioner. It has also failed to pursue the records and ensure that the findings of the Commissioner that the petitioner is guilty are justified. The appellate authority has not referred to the specific explanations offered by the trustee against the findings of the Commissioner and also the relevant documents referred to in Exts.P9, P10 and P10 (a). It is very evident that the appellate authority has chose to mechanically issue an order confirming Ext.P7 order in a perfunctory manner which justifies the belief of the Trustee that it was a deliberate ploy adopted to usurp the administration of the temple.
58. One may remember here that the temples contribute funds to the Devaswom and the Government does not contribute any amount to the Board or for the upkeep of the temple. In fact all the Devaswom Boards in Kerala thrive on the funds contributed by the temples. Boards are not very much concerned about the interest of the temple or facilities available to the devotees but are more interested in trying to prevent the hereditary trustees from continuing to manage and administer the temples and usurp their powers with oblique motive, though the power conferred on the authorities are limited.
59. May be there was some imprudence on the part of the Trustee. But we are unable to treat the Trustee as an employee of the Board or the Commissioner as the case may be.
60. It has become necessary to ascertain the true position of hereditary trustee with regard to the temple. The attitude of the Board seems to be that the hereditary trustee is only a puppet in their hands and he can do nothing except with the permission or consent of the appropriate authorities under the Act. The question arises as to what are the powers and duties of the trustee when the provisions of the Act and scheme made Ext.P1 are considered.
61. One may here refer to the decision reported in Manavikrama Samorin Raja of Kozhlkode’s case (supra). In the said decision, Section 45 of the Act was challenged on the ground that it exceeds the limit of reasonable restriction. Considering the contentions it was held as follows:
“S.45 has been put in Chapter 111 of the Act, and that deals with the Commissioner’s several powers over the endowments. By S.20 he is vested with the power of superintendent, besides his other specific powers of control. In such circumstances the trustee cannot complain of unreasonable restrictions on his rights, because the rule is well established that persons committing breaches of trust should removed from the office. The exercise of power is not without any control; for there is the right of appeal against the actions under S.45 (4). There is also the further safeguard by the issuance of certiorari, against the action being vitiated by excess of jurisdiction, or want of jurisdiction or by disregard of the fundamental principles of natural justice, or by error apparent on the face of the record. The general superintendent over Tribunals exercising quasi-judicial powers, which is vested in the High Court under Article 227, affords sufficient scrutiny by courts, and makes the actions authorized by S.45, reasonable restrictions in the interests of the general public for the purposes of Article 19(5). Therefore the challenge to the constitutionality of S.45 is not justifiable.”
62. The above decision clearly shows that the power conferred under Section 45 of the Act is to be exercised in a reasonable manner and only in appropriate cases. It is also evident that it is not an arbitrary power and it has to be exercised in accordance with the procedure established by law. The decision clearly shows that powers conferred being drastic in nature, they are to be exercised only in appropriate cases and where interference is necessary to protect the temples, its properties and the interests of the public.
63. Coming back to the provisions of the Act, as would be evident from Section 21A, the powers conferred on the authorities are to be exercised in accordance with the usage, custom and ceremonies of the temple or the Math as the case may be. Section 24 is clear to the effect that the affairs of the religious institution are to be administered by the hereditary trustee as a prudent man or as is normally expected of from a trustee. S per the Scheme the movable and immovable properties of the temple vest with the hereditary trustee.
64. It may be useful here to consider whether the hereditary trusteeship constitute property contemplated under law. In the decision reported in Narayan v. State of Madras (Air 1954 Madras 385) it was held as follows:
“…………Thus there is ample authority for the view that trusteeship, where hereditary, is in the nature of property.”
65. The issue was considered in relation to a Math in the decision reported in Commissioner, H.R.E. v. L.T. Swamiar (AIR 1954 SC 282) wherein it was held as follows:
“The ward “property” as used in Art.19(1)(f) of the Constitution, should be given a liberal and wide connotation and so interpreted, should be extended to those well recognized types of interest which have the insignia or characteristics of proprietary right. Thus, Art.19 (1) (f) applies equality to concrete as well as abstract rights of property. The ingredients of both office and property, of duties and personal interest are blended together in the rights of a Mahant. The Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. To take away this beneficial interest and leave him merely to the discharge of his duties will be to destroy his character as a Mahant altogether.”
66. It is no doubt true that in the above decision right to property was considered in relation to Article 9(1)(f) of the Constitution. It is also true that said article is no longer in force. But that does not mean that the right to property is totally abridged. Even assuming that it is no longer a fundamental right, it continues as a constitutional right by virtue of Article 300A of the Constitution of India.
67. It will not be out of place here to refer to the decision reported in Chairman, Indore vikal pradhikaran v. Pure Industrial Coke and Chemicals Ltd, ((2007) 8 SCC 705) wherein it was held as follows:
“The right to property is now considered to be not only a constitutional right but also a human right.
The Declaration of Human and Civil Rights of 26.8.789 enunciates under Article 17:
“17. Since the right to property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid”
Further under Article 17 of the Universal Declaration of Human Rights, 1948, adopted in the United National General Assembly resolution it is stated that: (1) Everyone has the right to own arbitrarily deprived of his property.
Earlier human rights were existed to the claim of individuals right to health, right to livelihood, right to shelter and employment, etc. but now human rights hve started gaining a multifaceted approach. Now property rights are also incorporated within the definition of human rights. Even claim of adverse possession has to be read in consonance with human rights. As President John Adams put it
“Property is surely a right of mankind as real as liberty.”
“The moment the idea is admitted into society that property is not as secured as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.”
Property, while ceasing to be a fundamental right would, however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law.”
Thus the trusteeship being property gets constitutional protection also.
68. The rights and duties of the hereditary trustee will have to be viewed in the above context.
69. A trustee of a religious institution, like any other trustee, should not deal with the property for private advantage or gain. It is also well settled that a trustee is enjoined to obey all the provisions of the trust and all conditions annexed to any powers so given so as to ensure that the trust is property administered. As long a the trustee discharges his duty in accordance with the accepted notions of law and in terms of the trust, any interference with the affairs of the institution is not called for.
70. It is true that the Act gives wide powers to the Board as well as to its officers. But as already noticed, in Bhanunni’s case (supra) one has to remember that temples are not financed by the Government nor are they unit offices of the Board. The hereditary trustee, going by the provisions of the Act as well as Ext.P1 scheme, has considerable liberty with regard to the administration of the temple and so long as he administers the affairs of the trust without causing any detriment to the institution and without depleting its resources and affecting the interest of the public, interference by the statutory authority is uncalled for.
71. It may be mentioned here that even though the statutory provisions give wide powers to the Board as well as its officers and it is stated that the Trustee is bound to obey the orders issued by the State and the Board etc, one has to notice that those powers are limited in nature. It is not as if that any order could be issued by the State, Board or its officers under the Act to curb the right of administration and management of the hereditary trustee. In case of rituals, ceremonies and rites of the temple, it is well settled that the State, Board and its officers have no say in the mater. In fact an impartial look at the Act would indicate that the power conferred on the authorities under the Act is confined to ensure that the affairs of the trust are properly administered and that the hereditary trustee does not use the funds of the institution for his personal benefits or does any act detrimental to the institution. The determination of rituals, ceremonies and rites of a religious institution do not fall within the province of the powers conferred on the Board or its officers at all. That would be event from a reading of the provisions already referred to. Their powers are restricted and they can exercise their statutory functions only in accordance with the custom, usage and accepted practice of the religious institution. Neither the Board nor its officers have any authority whatsoever to meddle with those matters. As long as the trustee administers the affairs of the temple as a man of ordinary prudence and utilizes the funds with due care and caution, we see no reason as to why the Board or its officers should interfere in the affairs of the temple. We are clear in our mind that the provisions of the Act do not confer any unfettered power on the Board or its officers to meddle with the affairs of the temple so long as the situations already mentioned of do not arise. It cannot be said that for each and every matter to be done in relation to the temple, the hereditary trustee has to look up to the Commissioner or the other officers under the Act for consent or sanction. As long as the acts done by him fall within the normal administrative function, and within the ambit and scope of Section 24 of the Act, it could not be said that the trustee would be acting against the orders of the State, Commissioner or the other officers as the case may be. We see no power under the Act which would indicate that the Trustee is an employee or is a person who is bound by any order issued by the Commissioner or the other officers under the Act irrespective of the wide powers conferred on the hereditary trustee as per the provisions of the Act.
72. Thee is sufficient power given to the Commissioner as well as the authorities under the Board to ensure that the affairs of the institution are properly administered. The Act provides for budget proposal audit etc. but that does not mean that the hereditary trustee is under the absolute control or is an employee of the Board. Mere fact that supervisory powers are given to the Board and its officers does not make the hereditary trustee a subordinate of the Board.
73. Having thus understood the scope and ambit of the powers of the trustee viz a viz the Board and its officers, one may now return to the case on hand. At the risk of repetition, it may be said that there is absolutely no evidence at all in W.P.(C) 23149 of 2009 to show that the hereditary trustee who stands charge sheeted has done nay act which is detrimental to the institution or that he has squandered its funds. Again, the memo of charges issued to the petitioner does not accuse him of having misappropriated amounts or that he has diverted funds for his own benefit. Here one has to remember that the hereditary trustee has given detailed explanations to the original authority as well as to the appellate authority regarding the various acts alleged against him and he has pointed out that all the transactions carried out by him were in the interests of the institution and are all documented and relevant entries appear in the registers concerned.
74. Even though the enquiry conducted against the petitioner is only in the nature of a statutory enquiry, the result has far reaching consequences. It is by now well settled that the difference between a statutory enquiry and a quasi judicial enquiry is very thin. In fact they are hybrid legal and administrative process for the reason that they are almost similar to the judicial proceedings.
75. Learned Senior Counsel for the petitioner has referred to Articles 25 and 26 of the Constitution of India and ahs contended that the orders Exts.P7 and P!2 violate his fundamental right.
76. Learned Senior Counsel was very vehement in pointing out the Hindu religious institutions re being singled out for such hostile treatment when the institutions of other communities are left untouched even though matters in those cases are even more worse. This is being done, according to learned Senior Counsel, deliberately with oblique motive. The learned Senior Counsel stressed the importance of a Common Civil Code regarding these matters.
77. Suffice it to say, to cannot be said that the argument is without merits. Even assuming that restrictions could be imposed regarding the right enjoyed under Articles 25 and 26 of the Constitution, the theory of proportionality would still arise for consideration. But we leave it there. We do not propose to go into other aspects highlighted by the learned Senior Counsel for the petitioner as it is unnecessary to do so in this case.
78. During the course of hearing, we have come across a very disturbing fact. On most of the occasions at the time when the hereditary trustee assumes office he is far advanced in age, and is physically unable to personally attend to the administration and management of the temple. It is seen stated that in the case on hand that even though the senior most member of the family is entitled to become the hereditary trustee, there used to be a committee formed from among the four family members to assist the hereditary trustee in the administration of the temple. That practice seems to have been given a go by and quite often when the hereditary trustee who is in almost all instances is a person of advanced age being unable to administer and manage the temple, delegates his functions to a nominee. It is seen that the nominee then usurps to himself all powers and it is found that he often indulges in mismanagement and mal-administration. We feel that it is only in the interests of the institution that the earlier practice of forming a committee from among the four families to assist the hereditary trustee in the administration is restored or at any rate a person who is acceptable to the four families is nominated by the hereditary trustee in case the hereditary trustee finds it difficult to manage the affairs due to his advanced age or for any other reason.
The result of the above discussion is that W.P.(C) 23149 of 2009 is to be allowed and Exts.P7 and P12 are only to be held to be unsustainable in law and are to be quashed.
W.P.(C) 34920 of 2009
In this writ petition the trustee in charge had sought approval of appointment of two persons as plant operators. That was declined by Ex1.P15. It is seen from the averments in the petition that waste water treatment plant was erected after obtaining due permission and sanction from the Board and it was necessary to have employees to uphold the same. It is seen that several requests were made to the Board to make necessary arrangements, but they did nothing in the matter. Under such circumstances the trustee in charge was constrained to appoint two persons on daily wages in lieu of the scheme and the Act. There is nothing to show that the post sanctioned and filled up was un necessary or that there is any dubious act on the part of the trustee-in-charge in selecting the person to occupy the post. The trustee-in-charge has stated the procedures followed by him and seen quite transparent. One fails to understand how any objection could be taken to the acts done by the trustee-in-charge.
W.P. (C) No.36839 of 2010
In the light of the decision in W.P.(C) 23149 of 2009 nothing survives for consideration in this writ petition.
W.P. (C) 1934 of 2011
Manager and other matters. In the light of the decision in W.P.(C) 23149 of 2009, nothing survives for consideration in this writ petition. Further, we are given to understand that his service has been dispensed with.
In the result, these writ petitions are disposed of as follows:
i) W.P. (C) 23149 of 2009 is allowed and Exts.P7 and P12 are quashed and it is hereby declared that the petitioner is entitled to continue as the hereditary trustee in accordance with law and in the light of what has been stated above.
ii) In W.P. (C) 34920 of 2010 Ext.P15 order is quashed and the first respondent is directed to approve the appointment made as disclosed by Ext.P14 in accordance with law and in the light of what has been stated above.
iii) W.P. (C) Nos. 36839 of 2010 and 1934 of 2011 are dismissed.