KUNHIRAMA VARIAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The Writ Petitioners challenge Ext.P-16 notice issued by the Assistant Commissioner under the Malabar Devaswom Board inviting applications for appointment of non - hereditary trustees for the temple in question. This action by the Assistant Commissioner is on the basis of a decision of the Area Committee. In support of the Writ Petition, the learned counsel for the petitioners argued that there is no decision by the Area Committee and there is no jurisdiction for the Area Committee to decide any such matter having regard to the terms of Ext.P-1 scheme. He further says that such an action cannot be taken without a prior enquiry as laid down by this Court in Raman Namboothiri v. Chief Commissioner, H.R. & C.E., 2004 1 KerLT 945.

(2.) With the aforesaid, we required the learned counsel for the petitioners to tell us as to whether the first petitioner claims to be the hereditary trustee of the temple in question. The 1st petitioner does not. In fact, there is a hereditary trustee who was under suspension at a point of time. The 1st petitioner was then appointed as a 'fit person' in terms of Section 47 (3) of the Madras Hindu Religious and Charitable Endowments Act, 1951, for short, the 'Act'. Thereafter, the hereditary trustee became fit and was brought back to continue as a hereditary trustee, Resultantly, the first petitioner herein was removed from the office. The first petitioner filed a Writ Petition before this Court challenging that decision on the plea that he was not heard in relation to that matter. This Court noticed that the 1st petitioner herein was only appointed as a 'fit person' and the hereditary trustee having been brought, in, the petitioner would have no way to stand even if he was heard in the matter. Ext.P-10 judgment was issued in that matter. That judgment has become final. The learned counsel for the petitioners says that the decision to bring back the hereditary trustee is as of now subject to an appeal before the statutory authority. Even with that, the first petitioner cannot claim to be a hereditary trustee. If that were so, this Writ Petition has to fail for reasons more than one. Firstly, under Section 39(2) of the Act which is the trump card of the petitioners' argument, the enquiry is to be by giving notice to the hereditary trustee. So long as the first petitioner has no claim that he is the hereditary trustee, he cannot complain or have the locus standi, that too, to file a Writ Petition and seek relief in re- lation to the proposal for appointment of a nonhereditary trustee. The statutory provisions envisage that the non- hereditary trustee can be brought in only after giving the hereditary trustee an opportunity of hearing. This does not bring home to all members of a family or the other members of a trust, the right of hearing even if they may have a right to challenge the decision in appropriate statutory proceedings. Secondly, Ext.P-10 judgment has clearly noted that the petitioner therein (1st petitioner herein) has no semblance of right to make a claim to the post of hereditary trustee. Thirdly, the provision of Ext.P-1 scheme cannot be pushed through except by a proper complaint before the competent authorities. For these reasons, the challenge to Ext.P-16 fails.

(3.) In so far as relief No.ii is concerned, the same calls for adjudication of disputed facts and cannot be entertained in writ jurisdiction because the claim therein is for a declaration that the 5th respondent has no legal right to surrender the family right with regard to the right, of trusteeship. Therefore, we do not find any ground to deal with that plea under Art.226 of the Constitution of India.