The Kerala High Court has observed that mere sympathy with a political party cannot be a disqualification for appointment as a non-hereditary of a temple.
There is a clear distinction between sympathizing with a political party and engaging in active participation in party activities, the bench comprising Judges Anil K. Narendran and PG Ajithkumar observed as he rejected a petition filed by a hereditary trustee of the Sree Emoor Bhagavathy temple challenging the notice issued by council commissioner Malabar Devaswom which invited applications for the post of non-hereditary trustees of the temple.
The claimant, a hereditary trustee of Sree Emoor Bhagavathy Temple, had applied to the Court to challenge the notice issued by the Commissioner for the appointment of non-hereditary trustees. He also requested a statement that since no decision has been made on whether and whether to appoint non-hereditary trustees to manage the properties of the Devaswom, the current board of trustees (which consists of two hereditary administrators) has the right to manage the affairs of the temple.
Lawyer U. Balagangadharan appearing for the petitioner argued that for the appointment of non-hereditary trustees, the commissioner must comply with the requirements of Section 39(2) of the Madras Hindu Religious and Charitable Endowments Act (HR&CE Act). Therefore, he argued that the procedure adopted to issue the disputed notification was in itself arbitrary and unlawful.
The petitioner also argued that the commissioner is acting under pressure exerted on him by his political masters, who want to induct their own people into the board of trustees to interfere in the affairs of the temple and also the school and politicize the temple. . administration. It was further argued that the age of the hereditary trustee is not a disqualification and cannot constitute a valid reason for the appointment of non-hereditary trustees while adding that the hereditary trustees were capable of fulfilling their functions.
Opposing the means, Master R. Lakshmi Narayan, the permanent counsel of the Malabar Devaswom Board, argued that the provisions of subsection (2) of section 39 of the HR&CE Act do not apply in relation to the appointment of non-hereditary trustees at Sree Emoor Bhagavathy Temple , which is governed by a regime approved by the Commissioner, under section 58 of the said Act. Senior Government Advocate S. Rajmohan and PB Krishnan’s lawyers, PB Subramanian, sabu george and Manu Vyasan Peter appearing for the other respondents contested the motion.
The Court noted that the Sree Emoor Bhagavathy Temple is a public religious institution under HR&CE law, under the control of the Malabar Devaswom Board. The temple and its properties were all invested with divinity.
It was found that under Section 39(1) of the Act, where a religious institution included in the list published under Section 38 or over which no regional committee has jurisdiction, shall not has no hereditary trustee, the commissioner must constitute a board of directors composed of at least three and at most five persons designated by him.
Similarly, under section 39(2), where, in the case of such an institution having a hereditary trustee or trustees; the commissioner, after having advised the trustee(s) and after investigation which he deems adequate, considers, for reasons to be recorded, that the affairs of the establishment are not, and probably will not be, properly managed by the trustee(s). hereditary trustees, the commissioner may, by order, appoint such number of non-hereditary trustees as he deems necessary, provided however that the total number of trustees does not exceed five.
The Claimant argued that the Thirunavaya Sree Navamukunda Temple Administration Scheme specifically provides that the power of the council and regional committee to appoint non-hereditary trustees under clause (4) is subject to Sections 39 and 41 of the Act. HR&CE. Therefore, it has been argued that the Commissioner cannot avoid serving a notice under section 39(2) citing the scheme is operational. The scheme is framed by the provisions of the law and no scheme can go beyond the framework of the law, asserted the petitioner.
The Court concluded that Section 39(2) of the Act relates to the appointment of hereditary administrators in temples where there is no system. Once such a pattern is framed, the Council must ensure that the administration of the temple is conducted in accordance with that pattern.
“The reference to Sections 39 and 41 of the Act in Section 4 of the Ext.P1 Scheme does not in any way affect the right of the Council to appoint non-hereditary trustees in the Temple, under Section 4 of the said Scheme Therefore, we find no basis for the assertions raised by the petitioner, relying on the provisions of sub-section (2) of article 39 of the law to contest the Ext.P5 notification dated 26.07. 2021 issued by the Respondent 3rd Commissioner.”
Further, the Chamber observed that clauses 3 and 4 of the impugned notification explicitly state that in order to be appointed as a non-hereditary administrator of the temple, the petitioner must be a regular devotee of the temple, who is willing to work actively for the betterment of the temple. .
It has been claimed that such a candidate should be a permanent resident of the Taluk in which the temple is located, who believes in idolatry. Persons who are busy with their jobs, office bearers of political parties, active politicians, or those who engage in active participation in political party activities cannot aspire to be appointed as non-hereditary trustees of the temple.
Therefore, the Court held that it is for the Commissioner to take the necessary steps to ensure that any appointment made as a non-hereditary trustee of the temples under the control of the Malabar Devaswom Council is strictly in accordance with these disqualification clauses and of eligibility.
The Bench Division also added that if necessary, the format of the nomination request should be amended appropriately, asking the candidate to provide details on the disqualification and eligibility clauses. It is up to the commissioner to take the necessary measures in this regard, if he deems it necessary, after submitting it to the Malabar Devaswom Board within one month.
With regard to the argument that “the executive officer appointed by the commissioner cannot act like an autocrat, disregard the authority and power of the hereditary administrators, or forget that he is only a servant of the Board of Directors”, the bench observed:
“The executive officer shall exercise the powers and perform the duties, as assigned by the defendant 3rd commissioner, in the administration of the temple in question. Where the power and duties of an executive officer are specified in the statute, the petitioner cannot argue that the 6th officer respondent is merely an agent of the board of directors, who is bound by the decisions of the board of directors consisting of two hereditary directors.”
The court also referred to a notification dated 26.07.2021 issued by the commissioner which discusses the eligibility of a person to be appointed as a non-hereditary trustee. Referring to previous judgments on the question of the appointment of political figures to this post, the panel observed:
There is a clear distinction between sympathizing with a political party and engaging in active participation in party activities. The taboo under sub-clause (g) of clause 3 of Ext.P2 will only be drawn if respondents 7-9 are active politicians or are leaders of a political party, for which there is absolutely no evidence. is provided
“The provisions of clauses 3 and 4 of Notification Ext.P5, mentioned above in paragraph 38, explicitly state that, in order to be appointed as a non-hereditary trustee of the temple, the applicant must be a regular devotee of the temple, who is willing to actively work for the betterment of the temple.He must be a permanent resident of the Taluk in which the temple is located, who believes in idolatry.People who are busy with their jobs, office bearers of political parties, politicians active or those engaging in active participation in the activities of a political party are not eligible for appointment as a non-hereditary administrator of the temple.Therefore, it is up to the Respondent 3rd Commissioner to take the necessary steps to ensure that any appointment made as a non-hereditary trustee of the temples under the control of the board of trustees of Malabar Devaswom is strictly in terms of covenants of e disqualification and eligibility provided in Ext.P5 and similar notices. If necessary, t The format of the application for appointment as a non-hereditary trustee in the temple under the control of the council of Malabar Devaswom should be amended appropriately, requiring the applicant to provide details of the disqualification clauses and of eligibility in Ext. P5 and similar notices. It is up to the Respondent 3rd Commissioner to take the necessary steps in this regard, if deemed necessary, after referral to the Malabar Devaswom Board, as expeditiously as possible, in any case, within one month from the date of receipt of a certified copy of this judgment. »
The motion in writ was therefore dismissed subject to these directions.
Case title: K. Chathu Achan c. State of Kerala & Ors.
Quote: 2022 LiveLaw (Ker) 371
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