Sympathizing With A Political Party Not A Disqualification For Appointment As Non-Hereditary Trustee In A Temple: Kerala High Court

The petitioner, a hereditary trustee of Sree Emoor Bhagavathy Temple, had approached the Court challenging the notification issued by the Commissioner for the appointment of non-hereditary trustees. He also sought a declaration that, since no finding has been entered on the need and necessity of appointing non-hereditary trustees for managing the properties of the Devaswom, the present Board of Trustees (which consists of two hereditary trustees) is entitled to manage the affairs of the temple.

Advocate U. Balagangadharan appearing for the petitioner contended that for the appointment of non-hereditary trustees, the Commissioner has to 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 in issuing the impugned notification is per se arbitrary and illegal.

The petitioner also contended that the Commissioner is acting on the pressure brought to bear upon it from his political masters, who want to induct their own persons in the Trustee Board to interfere in the affairs of the temple and also the school and to politicize the temple administration. It was further contended that the age of the hereditary trustee is not a disqualification and it cannot constitute a valid reason for the appointment of non-hereditary trustees while adding that the hereditary trustees were capable of discharging their functions.

Opposing the plea, Advocate R. Lakshmi Narayan, the Standing Counsel for the Malabar Devaswom Board,contended that, the provisions under sub-section (2) of Section 39 of HR&CE Act has no application in the matter of appointment of non-hereditary trustees in Sree Emoor Bhagavathy Temple, which is governed by a Scheme approved by the  Commissioner, under Section 58 of the said Act. Senior Government Pleader S. Rajmohan and Advocates P.B. Krishnan, P.B. Subramanyan, Sabu George and Manu Vyasan Peter appearing for the other respondents contested the petition. 

The Court noted that Sree Emoor Bhagavathy Temple is a public religious institution coming within the purview of HR&CE Act, under the control of the Malabar Devaswom Board. The temple and its properties were all vested with the deity.

It was found that as per Section 39(1) of the Act, where a religious institution included in the list published under Section 38 or over which no Area Committee has jurisdiction, has no hereditary trustee, the Commissioner shall constitute a Board of Trustees consisting of not less than three and not more than five persons appointed by him.

Similarly, under Section 39(2), where, in the case of any such institution having a hereditary trustee or trustees; the Commissioner after notice to such trustee or trustees, and after such enquiry as he deems adequate, considers for reasons to be recorded, that the affairs of the institution are not, and are not likely to be, properly managed by the hereditary trustee or trustees, the Commissioner may, by order appoint such number of non-hereditary trustees as he thinks necessary, so however that the total number of trustees does not exceed five.

The petitioner contended that the Scheme of administration of Thirunavaya Sree Navamukunda Temple specifically provides that, the power of the Board and the Area Committee to appoint non-hereditary trustees under Clause (4) is subject to Sections 39 and 41 of the HR&CE Act. Therefore, it was argued that the Commissioner cannot evade serving notice under Section 39(2) citing the scheme is operational. The scheme is framed under the provisions of the Act and no scheme can go beyond the framework of the statute, the petitioner asserted.

The Court found that Section 39(2) of the Act relates to the appointment of hereditary trustees in temples where there is no scheme. Once such a scheme is framed, the Board has to see that the administration of the temple is carried on in accordance with that scheme.

"The reference of Sections 39 and 41 of the Act in Clause 4 of Ext.P1 scheme does not in any manner affect the right of the Board to appoint non-hereditary trustees in the temple, in terms of Clause 4 of the said scheme. Therefore, we find no merits in the contentions raised by the petitioner, relying on the provisions under sub-section (2) of Section 39 of the Act in order to challenge Ext.P5 notification dated 26.07.2021 issued by the 3rd respondent Commissioner."

Further, the Bench observed that clauses 3 and 4 of the impugned notification make it explicitly clear that for appointment as a non-hereditary trustee of the temple, the applicant should be a regular worshipper of the temple, who is prepared to actively work for the betterment of the temple.

It was asserted that such an applicant should be a permanent resident of the Taluk in which the temple situates, who believe in idolatry. Persons who are busy with their employment, office bearers of political parties, active politicians or those indulging in active participation in the activities of a political party cannot aspire appointment as non-hereditary trustee of the temple.

Therefore, the Court ruled that it is for the Commissioner to take necessary steps to ensure that any appointment made as nonhereditary trustee of the temples under the control of the Malabar Devaswom Board is strictly in terms of these disqualification and eligibility clauses.

The Division Bench also added that if found necessary, the format of the application for the appointment has to be modified in an appropriate manner, by requiring the applicant to furnish particulars in terms of the disqualification and eligibility clauses. It is for the Commissioner to take necessary steps in this regard, if found necessary, after placing it before 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 trustees, or forget that he is only a servant of the Trustee Board', the bench observed :

"The Executive Officer has to exercise the powers and perform duties, as assigned by the 3rd respondent Commissioner, in the administration of the temple in question. When the power and duties of an Executive Officer is specified in the statute, the petitioner cannot contend that the 6th respondent Executive Officer is only a servant of the Trustee Board, who is bound by the decisions of the Trustee Board consisting of two hereditary trustees."

The court also referred to a notification dated 26.07.2021 issued by the Commissioner which deals with eligibility of a person for being appointed as non-hereditary trustee. Referring to earlier judgments on the issue of political persons being appointed to this post, the bench observed:

There is clear distinction between sympathizing with a political party and indulging in active participation in the activities of the party. The taboo under sub-clause (g) of clause 3 of Ext.P2 will be attracted only if respondents 7 to 9 are active politicians or are office bearers of a political party, for which absolutely no evidence is forthcoming

"The provisions of Clauses 3 and 4 of Ext.P5 notification, referred to hereinbefore at paragraph 38, make it explicitly clear that, for appointment as non-hereditary trustee of the temple, the applicant should be a regular worshipper of the temple, who is prepared to actively work for the betterment of the temple. He should be a permanent resident of the Taluk in which the temple situates, who believe in idolatry. Persons who are busy with their employment, office bearers of political parties, active politicians or those indulging in active participation in the activities of a political party cannot aspire appointment as non-hereditary trustee of the temple. Therefore, it is for the 3rd respondent Commissioner to take necessary steps to ensure that any appointment made as nonhereditary trustee of the temples under the control of Malabar Devaswom Board is strictly in terms of the disqualification and eligibility clauses provided in Ext.P5 and similar notifications. If found necessary, the format of the application for appointment as a non-hereditary trustee in the temple under the control of Malabar Devaswom Board has to be modified in an appropriate manner, by requiring the applicant to furnish particulars in terms of the disqualification and eligibility clauses in Ext.P5 and similar notifications. It is for the 3rd respondent Commissioner to take necessary steps in this regard, if found necessary, after placing before the Malabar Devaswom Board, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment."

The writ petition was accordingly dismissed subject to these directions.

Case Title: K. Chathu Achan v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 371

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