Decided on January 23,1974

Assistant Commissioner H.R. And C.E. Calicut Respondents


V.BALAKRISHNA ERADI,J. - (1.) THE petitioner "Zamorin Raja of Calicut "is the hereditary trustee of a public temple situated in Tirurangadi by name Trikkulam Siva Temple.By a notice evidenced by Ext.P -1,dated 28th July 1971 issued by the Assistant Commissioner,Hindu Religious and Charitable Endowments(Admn.) Department,Calicut,the petitioner was informed that the Assistant Commissioner(respondent)proposed to conduct an enquiry into the administration of the aforesaid temple on 6th August 1971 and that therefore the Kariasthan of the temple should be present at the time of the said enquiry with all the accounts etc.of the temple relating to Fasli 1379 onwards and render all other neces­sary facilities for the conduct of enquiry.The enquiry was apparently initiated by the respondent on the basis of a petition addressed to him by an organisation called the Trikkulam Kshethra Paripalana Sangham containing allegations of mismangement against the trustee.On the petitioner coming to know that the decision to conduct an enquiry had been taken on the basis of the aforesaid petition he requested the Assistant Commissioner as per a letter,dated 4th August 1971 to furnish him with a copy of the said petition.That request was complied with by the res­pondent and a copy of this petition was forwarded to the petitioner on 9th August 1971 under cover of the letter Ext.P -3.The petitioner thereafter submitted a detailed representation strongly refuting the allegations of misman­agement levelled against him in the petition submitted by the Kshethra Paripalana Sangom.Ext.P -4 is the copy of the said representation,dated 6th September 1971.Subsequently,on 8th October 1971 the respondent issued to the petitioner a notice as per Ext.P -5 stating that the Area Committee in its resolution,dated 27th September 1971 had resolved to issue a notice to the petitioner directing him to show cause why non -hereditary trustees should not be appointed for the aforesaid temple under section 41 of the Madras Hindu Religious and Charitable Endowments Act,1951(hereinafter referred to as the Act)on the ground that the management of the temple by the heredit­ary trustee was far from satisfactory and that the temple and its affairs had been left in a neglected condition.In reply to Ext.P -5 the petitioner submitted an elaborate written statement,dated 21st October 1971 denying the charges set out in Ext.P -5 and contending that there was no prima facie case at all to show that the hereditary trustee had mismanaged the affairs of the temple and that hence there was no justifiable ground to take action under section 41 of the Act for appointing non -hereditary trustees of the temple.The 1st respondent thereafter passed an order -Ext.P -7 appointing respondents Nos.2 to 6 as non -hereditary trustees of the temple for a period of five years under section 41 of the Act on the ground that the Area Com­mittee in its resolution No.1017 dated 29th October 1971 had decided to appoint the said persons as non -hereditary turstees since in its view the affairs of the temple are not and are not likely to be properly managed by the hereditary turstee(petitioner ).The petitioner contends that the order Ext.P -7 has been passed without proper enquiry and due application of the mind of the Area Committee to the relevant facts and circumstances of the case and that it consti­tutes an arbitrary and illegal exercise of the power con­ferred by section 41 of the Act.It is also contended that in any event there was no jurisdiction for the 1st respondent to appoint five non -hereditary trustees for the institution when the statute specifically provides that the total number of trustees for the temple should not exceed five even after appointment of non -hereditary trustees.
(2.) I do not consider it necessary to examine in detail the contentions taken by the petitioner against the merits of the order Ext.P -7 or the alleged procedural irregularity committed by the respondent and the Area Committee in the matter of appointment of the non -hereditary trustees because,in my view,the petitioner is entitled to succeed on the short ground that the 1st respondent as well as the Area Committee have acted without jurisdiction in appoint­ing five non -hereditary trustees when there is already a hereditary trustee also for the temple. Section 41 of the Act merely enables the Area Committee to exercise the same power to appoint trustees as is vested in the Commissioner in the case of a religious institution referred to in section 39.Hence,the ambit of the power of the Area Committee has to be gathered by reference to the terms of section 39 of the Act.The portions of that section which are relevant for the deter­mination of the present case are those contained in sub­sections(1)and(2 ).They read: 39(1 ).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. (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. In the case of religious institutions having a hereditary trustee or trustees the power to appoint non -hereditary trustees is conferred by sub -section(2 ).The exercise of that power has been expressly made subject to the limitation that only such number of non -hereditary trustees can be appointed thereunder as would not make the total number of trustees exceed five.The expression 'trustees 'in the last portion of the said sub -section is comprehensively used so as to take in both hereditary trustees as well as non -hereditary trustees.Hence,in a case like the present one where there is already a hereditary trustee functioning in respect of the temple,whom the Commissioner has not considered it necessary or fit to disturb from that position,the maximum number of non -hereditary trustees that may be appointed under sub -section(2)is only four.From the fact that even the said statutory restriction has been lost sight of by both the Area Committee as well as the Assistant Commissioner it is evident that there has not been a proper application of their minds to all the relevant aspects before taking the impugned decision to appoint non -hereditary trustees.The order Ext.P -7 as well as the resolution No.1017/71,dated 29th October 1971 referred to therein will therefore stand quashed.
(3.) AS already indicated,no opinion is being expressed by this court regarding the various remaining contentions raised by the petitioner.;

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