Kerala High Court
Balan vs Malabar Devaswom Board on 7 July, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
W.P.(C)No.9118 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
MONDAY, THE 7TH DAY OF JULY 2025 / 16TH ASHADHA, 1947
W.P.(C)NO.9118 OF 2025
PETITIONERS:
1 BALAN
AGED 60 YEARS
S/O.SANKARAN, KOMACHANKANDI, MENHANIAM P.O., PERAMBRA,
KOZHIKODE DISTRICT, PIN - 673525
2 PADMINI BALAN
AGED 64 YEARS
W/O.LATE PARUTHIPARA BALAN, PARUTHIPALA HOUSE,
PERAMBRA P.O., KOZHIKODE DISTRICT, PIN - 673525
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.MAYA S. KUMAR
RESPONDENTS:
1 MALABAR DEVASWOM BOARD
HOUSEFED COMPLEX, ERANJIPALAM, KOZHIKODE DISTRICT,
REPRESENTED BY ITS SECRETARY, PIN - 67300
2 THE COMMISSIONER,
MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANJIPALAM
KOZHIKODE DISTRICT, PIN - 673003
3 THE ASSISTANT COMMISSIONER
MALABAR DEVASWOM BOARD, OFFICE OF THE ASSISTANT
COMMISSIONER KOZHIKODE DIVISION, HOUSEFED COMPLEX,
EAST NADAKKAVE, ERANHIPPALAM, KOZHIKODE,PIN - 673003
4 KOZHIKODE DIVISION AREA COMMITTEE
MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, EAST
NADAKKAVE, ERANHIPPALAM, KOZHIKODE, REPRESENTED BY ITS
W.P.(C)No.9118 of 2025
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CHAIRMAN, PIN - 673003
5 EXECUTIVE OFFICER
ELAMARANKULANGARA BHAGAVATHI TEMPLE, PERAMBRA,
KOYILANDY TALUK, CALICUT ROAD, AMBALA NADA, MENHANIAM,
PERAMBRA, KOZHIKODE, PIN - 673525
6 SASIKUMAR P P,
S/O.MADHAVAN NAMBIAR, PARATTPOYIL, MADHAVAM PERAMBRA
KOZHIKODE, PIN - 673525
7 LAL N K
S/O.GOPALAN, THALICHANKULATH HOSUE, PERAMBRA ,
KOZHIKODE DISTRICT, PIN - 673525
8 NAGATH CHANDRASEKHARAN
S/O.NAGATH CHATHUKUTTY NAIR, NAGATH HOUSE,
AROKOOTTATHIL PERAMBRA, KOZHIKODE, PIN - 673525
9 SANILKUMAR A.
S/O.KUTTIYAPPA NAIR, MARUTHORACHALIL HOUSE, PERAMBRA,
KOZHIKODE, PIN - 673525
10 A K KARUNAKARAN NAIR
AVALINCHOTTIIL HOUSE, PERAMBRA P.O., KOZHIKODE
DISTRICT HEREDITARY TRUSTEE, ERAMARANKULANGARA
BHAGAVATHI TEMPLE, PERAMBRA , KOZHIKODE, PIN - 673525
*11 STATE OF KERALA, REPRESENTED BY SPECIAL SECRETARY TO
GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT,
GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM
*12 BALAKRISHNAN S/O. NARAYANA NAIR, KOLLIYIL
(SREEVALSAM), CHENOLI PO PERAMBRA, KOZHIKODE.
*13 VALSA RAJ S/O NARAYANA NAIR, KIZHAKKAYIL HOUSE,
PERAMBRA PO, KOZHIKODE.
*[ADDL. RESPONDENTS 11 TO 13 ARE IMPLEADED AS PER
ORDER DATED 07.07.2025 IN THE W.P.(C)NO.9118 OF 2025]
BY ADVS.
SMT.R.RANJANIE
SRI.MAHESH V RAMAKRISHNAN
SHRI.P.K.RAMKUMAR
SHRI.P.K.IBRAHIM
SHRI.K.B.PRADEEP
SMT.ANITHA MENON
SHRI.PRADEEP KUMAR A.
SMT.K.P.AMBIKA
SMT.ZEENATH P.K.
W.P.(C)No.9118 of 2025
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SMT.JABEENA K.M.
SHRI.ANAZ BIN IBRAHIM
SMT.KSHEMA ELIZABETH SAMUEL
OTHER PRESENT:
SMT. R. RANJANIE, SC, MDB
SRI. S. RAJMOHAN, SR.GP.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Anil K. Narendran, J.
The petitioners, who are devotees of Sree Elamarankulangara Bhagavathi Temple in Koyilandy Taluk,
Kozhikode District, which is a controlled institution under the 1 st
respondent Malabar Devaswom Board, in which the 10th
respondent is the hereditary trustee, have filed this writ petition
under Article 226 of the Constitution of India, seeking a writ of
certiorari to quash Ext.P7 order dated 01.03.2025 of the 4th
respondent Area Committee, Kozhikode Division, whereby
respondents 6 to 9 have been appointed as non-hereditary
trustees of the said temple, for a period of two years.
2. On 07.03.2025, when this writ petition came up for
admission, the learned Standing Counsel for Malabar Devaswom
Board took notice on admission for respondents 1 to 4. Urgent
notice on admission by special messenger was ordered to
respondents 5 to 10, returnable by 11.03.2025. By the order dated
07.03.2025, this Court granted an interim stay of operation and
implementation of Ext.P7 order dated 01.03.2025 of the 4 th
respondent Area Committee, for a period of one month, thereby
restraining respondents 6 to 9 from taking charge as non
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hereditary trustees of the temple in question or exercising any
powers as such. Paragraphs 3 to 5 of the said order read thus;
“3. Having considered the pleadings and materials on record
and also the submissions made by the learned counsel for
the petitioners and the learned Standing Counsel for Malabar
Devaswom Board in the light of the law laid down by this
Court in Muraleedharan M. v. Malabar Devaswom
Board and others [2024 (6) KHC SN 20] and the
directions contained in clauses (i) and (ii) of paragraph 154
and also the interim order dated 20.01.2025 of the Apex
Court in SLP(C)Diary No.60879 of 2024, we find that the
petitioners have made out a prima facie case for the grant
of an interim stay of operation and implementation of Ext.P7
order dated 01.03.2025 of the 4th respondent Area
Committee, Kozhikode Division, Malabar Devaswom Board.
4. In the result, there will be an interim stay of operation
and implementation of Ext.P7 order dated 01.03.2025 of the
4th respondent Area Committee for a period of one month,
thereby restraining respondents 6 to 9 from taking charge
as non-hereditary trustees of the temple in question or
exercising any powers as such.
5. The learned Standing Counsel for Malabar Devaswom
Board to make available for the perusal of this Court the files
relating to Ext.P7 order dated 01.03.2025 and also that
relating to Exts.P1 to P3 complaints received against the
appointment of non-hereditary trustees in the temple in
question.”
3. On 11.03.2025, when this writ petition came up for
consideration, respondents 6, 7 and 10 entered appearance
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through respective counsel, who sought time to file counter
affidavit. Despite service of notice, none appears for respondents
8 and 9. Paragraphs 2 to 6 of the order dated 11.03.2025 read
thus;
“2. In terms of the directions contained in the order of this
Court dated 07.03.2025, the learned Standing Counsel for
Malabar Devaswom Board has made available for the perusal
of this Court the files relating to Ext.P7 order dated
01.03.2025 and also that relating to Exts.P1 to P3 complaints
received against the appointment of non-hereditary trustees
in Elamarankulangara Bhagavathi temple, Koyilandi. The files
contains a report dated 25.02.2025 of the Divisional
Inspector (Page Nos.149 and 150), Paragraph Nos.5 and 6 of
that report deals with Sasikumar P.P known as Sasikumar
Perambra and Lal N.K, who are arrayed as respondents 6 and
7 respectively in this writ petition.
3. After considering the report of the Divisional Inspector,
Kozhikode, the Assistant Commissioner submitted a report
dated 27.02.2025 before the Area Committee, in which it is
stated that Sasikumar is having disqualification in terms of
the notification issued for appointment of non-hereditary
trustees in the temple. The complaint that the 7th respondent
Lal N.K is an active politician, has also been referred to in the
said report of the Assistant Commissioner. A reading of
decision No.40 dated 27.02.2025 of the Area Committee,
which is available at Page No.10 of the note filed with File
No.A4-2096/2024/MDB, would show that the appointment of
the said respondents as non-hereditary trustees by Ext.P7
order of the Area Committee is one made by totally ignoring
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4. Having perused the files relating to Ext.P7 order, we deem
it appropriate to direct the learned Standing Counsel to
ensure that an affidavit sworn to by the Chairman of the 4 th
respondent Area Committee, Kozhikode, is placed on record
within two weeks.
5. The learned Standing Counsel for the Malabar Devaswom
Board to retain the files.
6. A counter affidavit on behalf of the 1st respondent Board
and that of respondents 6, 7 and 10 shall be placed on record
within two weeks.”
4. The 10th respondent hereditary trustee has filed a
counter affidavit dated 26.03.2025. Paragraphs 2 to 5 of that
counter affidavit read thus;
“2. It is a well-established religious practice among Hindus
that the eldest member of the family assumes the position of
hereditary trustee of all temples owned by the family. Being
the eldest member of my undivided family, I am the
hereditary trustee of Elamarankulangara Bhagavathi Temple
and all other temples owned by our family.
3. It is respectfully submitted that hereditary trustees do not
participate in the financial affairs of the temples but are solely
responsible for overseeing the rituals and religious practices
associated with the temples. Accordingly, this respondent is
neither involved in nor competent to provide any information
regarding the observations made in the audit report for the
years 2018 to 2023.
4. It is respectfully submitted that this respondent has
attended only four meetings of the Trustee Board since
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attending any other meetings of the Board held after the
aforementioned.
5. It is further submitted that the proceedings under Ext.P7,
whereby the 4th respondent appointed non-hereditary
trustees from among the applicants, were undertaken
without any consultation with this respondent. It is pertinent
to state that being the hereditary trustee this respondent has
no role or involvement in the selection process of non-
hereditary trustees.
5. The learned Standing Counsel for Malabar Devaswom
Board has filed a counter affidavit dated 22.03.2025 sworn to by
the Chairman of the 4th respondent Area Committee. Paragraphs 2
to 9 of that counter affidavit read thus;
“2. It is submitted that the term of the earlier Trustee Board
expired on 30.07.2024. On the request of the 10th respondent,
the hereditary trustee, as per letter dated 16.07.2024, the
Area Committee/Assistant Commissioner has commenced the
proceedings to constitute new Board of Trustees. A
notification dated 08.08.2024 was issued by the 3 rd
respondent, on behalf of the 4th respondent, inviting
application for the post of Non Hereditary Trustees. The true
copy of the notification dated 08.08.2024 issued by the 3rd
respondent is produced herewith and marked as Ext.R4(a).
The true copy of the letter dated 16.07.2024 issued by the
10th respondent, addressed to the 3rd respondent is produced
herewith and marked as Ext.R4(b).
3. Thereafter, the 4th respondent’s office, through the 3rd
respondent, commenced the proceedings in the matter of
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mandatory procedures and formalities were complied.
Sufficient publications, as mandated by law and as directed
by this Hon’ble Court have been done in the matter giving
sufficient publicity to the notification inviting applications to
the post of Non Hereditary Trustees. The notifications was
published in the newspapers and also notices were affixed in
the Board of the temple Village Office, Panchayat, in
conspicuous places. Notices were also published in the Notice
Board of the temple, for enabling the devotees to point out
any disqualification of any of the applicants. It is submitted
that the complaints submitted by the devotees with reference
to certain applicants were also considered by the officers
under the Area Committee, including the Inspector as well as
the 3rd respondent. These aspects are discernable from the
file note produced before this Hon’ble Court. The true copy of
the Communication dated 25.02.2025 issued by the Inspector
to the 3rd respondent, is produced herewith and marked as
Ext.R4(c). The true copy of the letter dated nil, issued by the
3rd respondent, addressed to the 2nd respondent, is produced
herewith and marked as Ext.R4(d). As Exts.R4(c) and
Ext.R4(d) are self-explanatory, and so the contents thereof
are not reiterated in the counter affidavit for the sake of
brevity.
4. It is submitted that the allegations against the respondents
6 and 7 is that they are active politicians and hence they are
disentitled to be considered for the appointment to the post
of Non Hereditary Trustees. The 3rd respondent has given a
Note that there is an allegation by the devotees that the 6th
respondent is in an active politician, as he is the member of
the Block Panchayat, as reported by the Inspector. So it was
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also reported that there is allegation that the 7th respondent
is also an active politician and some photographs are received
in support of the allegations. The applications, with the above
notings and reports, was submitted to the 4th respondent for
taking a final decision.
5. It is submitted that the 4th respondent Area Committee had
met on 27.02.2025, and taken note of the situation in the
temple and the necessity of having a duly elected Trustee
Board including Non Hereditary Trustees. The Area
Committee, have perused the reports and note of the
Assistant Inspector and Assistant Commissioner, indicating
allegations of the certain devotees that the 6th and 7th
respondents are active politicians. The Area Committee, on
overall assessment that the present renovation activities are
going on well in the temple for the interest of the temple,
appointed these persons who had already served as Non
Hereditary Trustees in the past as Non Hereditary Trustees of
the said temple. So, four Non Hereditary Trustees were
appointed for 2 years. Except the allegations raised against
6th and 7th respondents and the fact that the 6th respondent
is a sitting Block Panchayat Member, no material were there
to disqualify him, especially when he had served the temple
as Non Hereditary Trustees in the past also. At that point of
time also he was serving as a Block Panchayat Member. Hence
the Area Committee thought that the status of the 6 th
respondent as a member of the local body, especially the
Block Panchayat membership, is not enough to categorize the
person as an active politician to weed out from the zone of
consideration for appointment to the post of Non Hereditary
Trustees.
6. It is submitted that, Ext.P6 Audit Report of the temple is
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pertaining to the years 2018-2020. Undisputedly, no
surcharge has been issued in this regard and that before
finalization of the Audit Report, several steps like submission
of explanation, forwarding of a rectification report etc. has to
be gone into. At present, no surcharge notice under Section
74(3) has been issued against respondents 6 to 8, to the
knowledge of this respondent. Moreover, no amount was
disallowed or objected in Clauses 4-2 and 4-3 of Ext.P6 report.
So the contention that there were serious allegation of mal
administration and mismanagement, is premature at this
point of time respondents 6 and 7 were the Trustee Board
Members and the 6th respondent being the Chairman
appointed for the term of the Board 2020-2022. No
allegations worth considering was received against them,
while they were in the administration of the temple.
7. It is submitted that the allegation in paragraph 2 of the writ
petition that the 3rd respondent is the Authority controlling
the 4th respondent, is unfounded and mischievous in nature,
hence empathetically denied. It is also incorrect to contend
that the 3rd respondent has specifically pointed out that the
respondents 6 and 7 are active politicians. Apart, from the
allegation that the 6th respondent is the elected member of
Perambra Block Panchayat and Chairman of the Health
Standing Committee, and the 7th respondent is a member of
CPI(M) and Office Bearer of CITU District Committee, no
materials were placed before the Area Committec, to show
that they are falling within the category of active politicians,
to be weeded out from the consideration for the appointment
of the Non Hereditary Trustees, especially when those
persons have served the temple in the past in an appreciable
manner, as evidenced from records. So the appointment of
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Non Hereditary Trustees were made by the 4th respondent,
for securing the temple interest, and all other allegation to
the contrary are denied by the 4th respondent.
8. It is incorrect to content that Ext.P7 was passed without
considering any of the objections and the allegations
regarding the disqualification of the respondents 6 to 8. None
of the grounds raised in the writ petition are tenable in law.
This respondent has duly complied with the judgments
referred in the writ petition and the Ext.P7 order is passed
subject to result of the SLP pending before the Hon’ble
Supreme Court of India. So the petitioners are not entitled to
get any of the reliefs claimed in the writ petition.
9. It is submitted that the 4th respondent acted bonafidely in
the matter of appointment and not infracted any of the
binding judgments of this Hon’ble Court, in the matter of the
procedure to be adopted for the appointment of Non
Hereditary Trustees and considering the suitability of each of
them for the appointment.”
6. By a separate order of this date, I.A.No.1 of 2025 filed
by the petitioners seeking an order to implead the State of Kerala
as additional 11th respondent is allowed. By that order, I.A.No.2 of
2025 filed by third parties, who have submitted applications
pursuant to the notification dated 08.08.2024 issued by the 4th
respondent Area Committee, are impleaded as additional
respondents 12 and 13, since additional 11th respondent has
already impleaded by the order in I.A.No.1 of 2025.
7. Heard the learned counsel for the petitioners, the
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learned Standing Counsel for Malabar Devaswom Board for
respondents 1 to 4, the learned counsel for the 5th respondent
Executive Officer, the learned counsel for the 10th respondent
hereditary trustee, the learned Senior Government Pleader for the
additional 11th respondent State and the learned counsel for
additional respondents 12 and 13.
8. The issue that requires consideration in this writ
petition is as to whether any interference is warranted on Ext.P7
order dated 01.03.2025 of the 4th respondent Area Committee,
whereby respondents 6 to 9 have been appointed as non-
hereditary trustees of the temple, for a period of two years.
9. Though various reasons have been stated in the counter
affidavit filed by the 4th respondent Area Committee to supplement
the reasoning of the Area Committee in Ext.P7 order dated
01.03.2025, we find that such a course is legally impermissible, in
view of the law laid down by the Apex Court in Mohinder Singh
Gill v. Chief Election Commissioner [(1978) 1 SCC 405].
10. In Mohinder Singh Gill [(1978) 1 SCC 405], the
Apex Court reiterated that when a statutory functionary makes an
order based on certain grounds, its validity must be judged by the
reasons so mentioned and cannot be supplemented by fresh
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reasons in the shape of affidavit or otherwise. Otherwise, an order
bad in the beginning may, by the time it comes to Court on account
of a challenge, get validated by additional grounds later brought
out.
11. The Madras Hindu Religious and Charitable
Endowments Act, 1951 is enacted to provide for the better
administration and governance of Hindu Religious and Charitable
Institutions and Endowments in the State of Madras. The Act
received the assent of the President on 27.08.1951. By the Kerala
Adoption of Laws Order, 1956 the provisions under the said Act
have been made applicable to Hindu Religious and Charitable
Institutions and Endowments in the Malabar District.
12. Clause (9) of Section 6 of the Act defines the term
‘hereditary trustee’ to mean the trustee of a religious institution
succession to whose office devolves by hereditary right or is
regulated by usage or is specifically provided for by the founder,
so long as such scheme of succession is in force. Clause (19) of
Section 6 defines the term ‘trustee’ to mean any person or body
by whatever designation known in whom or in which the
administration of a religious institution is vested, and includes any
person or body who or which is liable as if such person or body
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were a trustee.
13. The provisions contained in Chapter II of the Act were
substituted by the Madras Hindu Religious and Charitable
Endowments (Amendment) Act, 2008 (Act 31 of 2008), which
deals with the Malabar Devaswom Board and its officers. Section
7B of the Act deals with qualification for membership in the
Malabar Devaswom Board. In view of the provisions contained in
Section 7B, a person shall be qualified for nomination or election
as a member of the Board only if he is a permanent resident of the
Malabar area; professes the Hindu religion; is a believer of temple
worship; and falls within the age criteria prescribed in clause (iv)
of Section 7B. In view of the provisions under Section 7C, where a
person has been elected or nominated as a member of the Board,
before entering the office as a member, he shall take an oath
before the Commissioner of the Board stating that he is a person
professing Hindu religious rites and is a believer of God and temple
worship. The provisions under Section 7D deal with disqualification
for membership and Section 7E deals with supervening
disqualifications. As per the provisions under Section 7M, the
duties and functions of the Board include a duty to ensure proper
maintenance and upliftment of Hindu religious institutions and to
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establish and maintain proper facilities in the temples for the
devotees. In view of the provisions under Section 8 of the Act, all
the powers and duties under this 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 Madras Hindu Religious and Charitable Endowments
(Amendment) Act, 2008 shall vest in the Board, on its constitution.
Section 8A of the Act deals with supervision and control by the
Board. As per Section 9 of the Act, the Commissioner, etc. to be
Hindus.
14. Section 24 of the Act deals with the care required of the
trustee and his powers. As per sub-section (1) of Section 24,
subject to the provisions of the Madras Temple Entry Authorisation
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 directions 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. As per sub-section (2) of Section 24, a trustee shall, subject
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to the provisions of the 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. As per sub-section (3)
of Section 24, 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. As per the proviso to
sub-section (3) of Section 24, 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.
15. Section 39 of the Act deals with Trustees and their
number and term of office. As per sub-section (1) of Section 39,
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. As per sub-section (2) of Section 39,
where, in the case of any such institution having a hereditary
trustee or trustees; the Commissioner after notice to such trustee
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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. As per sub-section (3) of Section 39, every trustee
appointed under sub-section (1) and subject to the result of an
application, if any, filed under sub-section (4) every non-
hereditary trustee appointed under sub-section (2) shall hold office
for a term of two years, unless in the meanwhile the trustee is
removed or dismissed or his resignation is accepted by the
Commissioner or he otherwise ceases to be a trustee.
16. As per sub-section (4) of Section 39 of the Act, where
the Commissioner by order appoints a non-hereditary trustee or
trustees the hereditary trustee or trustees may, within thirty days
of the receipt of the order, file an application to the court to set
aside or modify such order. As per sub-section (5) of Section 39,
where a vacancy arises in the office of a non-hereditary trustee
appointed under sub-section (2) the Commissioner shall not fill up
such a vacancy unless, for reasons to be recorded, he considers it
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necessary to do so. A non-hereditary trustee appointed in the
vacancy shall be deemed to have been appointed under sub-
section (2), and the provisions of sub-sections (3) and (4) shall
apply accordingly.
17. Section 40 of the Act deals with the Chairman. As per
sub-section (1) of Section 40, in the case of a religious institution
for which a Board of Trustees is constituted under sub-section (1)
of Section 39, the Board shall elect one of its members to be its
Chairman. As per sub-section (2) of Section 40, in the case of any
other religious institution having more than one trustee, the
trustees of such institution shall elect one of their members to be
the Chairman. As per sub-section (3) of Section 40, a Chairman
elected under sub-section (1) or sub-section (2) shall hold office
for such period as may be prescribed.
18. Section 41 of the Act deals with the power of the Area
Committee to appoint Trustees. As per sub-section (1) of Section
41, in the case of any religious institution over which an Area
Committee has jurisdiction, the Area Committee shall have the
same power to appoint trustees as is vested in the Commissioner
in the case of a religious institution referred to in Section 39. As
per the proviso to Sub-section (1) of Section 41, the Area
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Committee may, in the case of any institution which has no
hereditary trustee, appoint a single trustee. As per sub-section (2)
of Section 41, the provisions of sub-section (3) of Section 39 and
Section 40 shall apply to the trustee or trustees appointed, or the
Board of Trustees constituted, by the Area Committee as they
apply in relation to the trustee or trustees appointed, or the Board
of trustees constituted, by the Commissioner.
19. As per Section 42 of the Act, the power to appoint
trustees under Section 39 or Section 41 Shall be exercisable
notwithstanding that the scheme, if any, settled, or deemed under
this Act to have been settled for the institution contains provisions
to the contrary.
20. A reading of the provisions contained in Sections 39 and
41 of the Act makes it explicitly clear that, sub-section (1) of
Section 39 empowers the Commissioner to constitute a Board of
Trustees consisting of not less than three and not more than five
persons appointed by him, in a religious institution included in the
list published under Section 38 or over which no Area Committee
has jurisdiction, which has no hereditary trustee. Sub-section (2)
of Section 39 empowers the Commissioner, by order to appoint
such number of non-hereditary trustees as he thinks necessary,
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not exceeding five, in any such institution having a hereditary
trustee or trustees, if 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. Sub-section (3) of Section 39
deals with the term of office of the trustees appointed under sub-
sections (1) and (2) of Section 39 of the Act. The provisions under
sub-section (5) of Section 39 of the Act makes it explicitly clear
that where a vacancy arises in the office of a non-hereditary
trustee appointed under sub-section (2) the Commissioner shall
not fill up such a vacancy unless, for reasons to be recorded, he
considers it necessary to do so. As per sub-section (1) of Section
41 of the Act, in the case of any religious institution over which an
Area Committee has jurisdiction, the Area Committee shall have
the same power to appoint trustees as is vested in the
Commissioner in the case of a religious institution referred to in
21. Regarding the challenge made against Ext.P7 order
dated 01.03.2025 of the 4th respondent Area Committee, whereby
respondents 6 to 9 have been appointed as non-hereditary
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trustees of the temple, for a period of two years, the learned
counsel for the petitioner would point out the law laid down by this
Court in P.V. Sankaran and others v. Malabar Devaswom
Board and others [2025 KHC OnLine 89].
22. In P.V. Sankaran [2025 KHC OnLine 89], a Division
Bench of this Court in which one among us [Anil K. Narendran, J.]
was a party noticed that a reading of the provisions contained in
Sections 39 and 41 of the Act makes it explicitly clear that,
subsection (1) of Section 39 empowers the Commissioner to
constitute a Board of Trustees consisting of not less than three and
not more than five persons appointed by him, in a religious
institution included in the list published under Section 38 or over
which no Area Committee has jurisdiction, which has no hereditary
trustee. Sub-section (2) of Section 39 empowers the
Commissioner, by order to appoint such number of non-hereditary
trustees as he thinks necessary, not exceeding five, in any such
institution having a hereditary trustee or trustees, if 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
W.P.(C)No.9118 of 2025
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trustees. Sub-section (3) of Section 39 deals with the term of office
of the trustees appointed under subsections (1) and (2) of Section
39 of the Act. The provisions under sub-section (5) of Section 39
of the Act makes it explicitly clear that where a vacancy arises in
the office of a non-hereditary trustee appointed under sub-section
(2) the Commissioner shall not fill up such a vacancy unless, for
reasons to be recorded, he considers it necessary to do so. As per
sub-section (1) of Section 41 of the Act, in the case of any religious
institution over which an Area Committee has jurisdiction, the Area
Committee shall have the same power to appoint trustees as is
vested in the Commissioner in the case of a religious institution
referred to in Section 39.
23. In P.V. Sankaran [2025 KHC OnLine 89] it was held
that in view of the provisions contained in Sections 39 and 41 of
the Act, any appointment of non-hereditary trustees in a religious
institution having hereditary trustee or trustees, by the
Commissioner invoking the provisions under sub-section (2) of
Section 39 of the Act, or by the concerned Area Committee
invoking the provisions under sub-section (1) of Section 41 of the
Act, has to be made after notice to such trustee or trustees, after
such enquiry as he deems adequate and for reasons to be recorded
W.P.(C)No.9118 of 2025
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that the affairs of the religious institution are not, and are not likely
to be, properly managed by the hereditary trustee or trustees. For
filling up the vacancy in the office of non-hereditary trustees
appointed under sub-section (2) of Section 39 of the Act, the
Commissioner or the Area Committee, as the case may be, has to
record reasons, as per the mandate of sub-section (5) of Section
39, read with sub-section (1) of Section 41. Therefore, neither the
Commissioner nor the Area Committee can issue an order filling
up the vacancy of non-hereditary trustees appointed under sub-
section (2) of Section 39 of the Act, in a religious institution having
hereditary trustee or trustees, as a routine order, in continuation
of the earlier order appointing non-hereditary trustees in that
religious institution.
24. In view of the law laid down by this Court in P.V.
Sankaran [2025 KHC OnLine 89] for filling up the vacancy in
the office of non-hereditary trustees in Sree Elamarankulangara
Bhagavathi Temple, appointed under sub-section (2) of Section 39
of the Act, the 4th respondent Area Committee has to record
reasons, as per the mandate of sub-section (5) of Section 39, read
with sub-section (1) of Section 41. The 4th respondent Area
Committee cannot exercise that power, by way of a routine order,
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in continuation of its earlier order appointing non-hereditary
trustees in that religious institution.
In the above circumstances, this writ petition is allowed by
setting aside Ext.P7 order dated 01.03.2025 passed by the 4 th
respondent Area Committee, Kozhikode Division, whereby
respondents 6 to 9 have been appointed as non-hereditary
trustees of Sree Elamarankulangara Bhagavathi Temple. Before
issuing a fresh notification for appointment of non-hereditary
trustees in Sree Elamarankulangara Bhagavathi Temple, the 4 th
respondent Area Committee has to record its reasons, as per the
mandate of sub-section (5) of Section 39 of the Act, read with sub-
section (1) of Section 41, with notice to the 10th respondent
hereditary trustee. The decision taken by the Area Committee shall
be communicated to the hereditary trustee, before issuing any
fresh notification. We also make it clear that in case a fresh
notification is issued after complying with the mandate of sub-
section (5) of Section 39 of the Act, read with sub-section (1) of
Section 41, the entire process of appointment shall be strictly in
terms of the law laid down by the Division Bench of this Court in
Muraleedharan M. v. Malabar Devaswom Board and others
[2024 (6) KHC SN 20], subject to the interim order dated
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20.01.2025 of the Apex Court in SLP (C)No.4484 of 2025.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
MIN
W.P.(C)No.9118 of 2025
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APPENDIX OF WP(C) 9118/2025
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 11-10-
2024 SUBMITTED BY THE 2ND PETITIONER BEFORE
THE 3RD RESPONDENT WITH ACKNOWLEDGEMENT
RECEIPT
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 24-10-
2024 SUBMITTED BY THE DEVOTEES WITH POSTAL
ACKNOWLEDGEMENT RECEIPT
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT
DATED 1-11-2024 WITH POSTAL
ACKNOWLEDGEMENT
EXHIBIT P4 TRUE COPY OF THE NEWS ITEM PUBLISHED IN
MALAYALA MANORAMA DAILY DATED 10-9-2024
EXHIBIT P5 TRUE COPY OF THE ANOTHER NEWS ITEM PUBLISHED
IN MATHRUBHUMI DAILY DATED 2-3-2025
EXHIBIT P5(A) TRUE COPY OF THE NOTICE OF THE CITU SHOPS AND
COMMERCIAL EMPLOYEES UNION, PERAMBRA
COMMITTEE
EXHIBIT P6 TRUE COPY OF THE COMMUNICATION
NO.K.S.A/M.L.D-T.2/681/2023 DATED 8-1-2024
SENT BY THE AUDIT DEPARTMENT TO THE EXECUTIVE
OFFICER OBTAINED UNDER THE RIGHT TO
INFORMATION ACT
EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS OF THE 4TH
RESPONDENT NO.A4-2096/2024/MDB DATED 01-03-
2025
RESPONDENT EXHIBITS
EXT. R-4(A) THE TRUE COPY OF THE NOTIFICATION DATED
8.8.2024 ISSUED BY THE 3RD RESPONDENT
EXT. R-4(A) THE TRUE COPY OF THE LETTER DATED 16.7.2024
ISSUED BY THE 10TH RESPONDENT, ADDRESSED TO
THE 3RD RESPONDENT
EXT. R-4(C) THE TRUE COPY OF THE COMMUNICATION DATED
25.2.2025 ISSUED BY THE INSPECTOR TO THE 3RD
RESPONDENT
EXT. R-4(D) THE TRUE COPY OF THE LETTER DATED NIL, ISSUED
BY THE 3RD RESPONDENT, ADDRESSED TO THE 2ND
RESPONDENT
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