PADMANABHA SHENOI Vs. SRIMAD ANANTHESWAR TEMPLE

JUDGEMENT

(1.) The judgment of the Court was delivered by Viswanatha Iyer, J - These two appeals are filed against the decision of the Sub-Court, Kasaragod framing a fresh scheme for the famous Srimad Anantheswar Temple of Manjeswar. It has been held in Mahabala Shetty v. Ananda Baliga ( 1959 KLT 689 ) that this temple is a sectional temple of the Gowdasaraswath Brahmins of erstwhile South Canara District now forming part of Karnataka State and part of Kerala State, the portion in Kerala being Kasaragod and Hosdrug Taluks of Cannanore District. A scheme had been framed in O. S.37 of 1920 on the file of the District Judge of South Canara for its management. As many of its provisions were found to cause difficulties a suit for modifying it was filed as O.S.4 of 1928 and the scheme framed therein is as follows: -

(2.) The lower court has in the decision under attack held that the nomination of trustees by His Holiness the Kasi Mutt Swamiyar or by the Commissioner or by the Association will not be a proper exercise of the right of the community to administer their religious institution. A scheme for election alone was held to be proper one and a scheme is framed in these lines. This is challenged in these appeals. Those who plead for a scheme of nomination by His Holiness the Swamiyar have filed one appeal and the Commissioner has filed the other appeal.

(3.) The first point for consideration is whether the existing scheme by which the Commissioner is given the power to nominate is valid and consistent with Art.26 of the Constitution. The existing scheme framed by the court in O. S. 4 of 1928 is a pre-constitution scheme. A power of nomination of trustees to an outside body will certainly be interference with the right of the denomination to administer their own religious institutions. The fact that the Commissioner before nominating has to invite applications and after that consider the objections, if any, to the choice of any of the applicants before making a final choice of the trustees is not a substitute for the right of the denomination to select trustees of their choice. The principle stated in the decision of the Mysore High Court in Mukundaraya v. State of Mysore (AIR 1960 Mysore 18) relied on by the lower court is the correct principle to be followed. Para. 41 of the decision of this court in Krishnan v. Guruvayoor Devaswom ( 1979 KLT 350 (FB)) only says that conferment of power of nomination on the Government by itself may not be illegal but considering the secular character of the State it is desirable that the legislature should consider whether the power to nominate the members of the committee (Guruvayoor Devaswom) should not be conferred on an independent statutory body other than the State Government with sufficient guidelines furnished to it for ensuring that the nominations will be effected in such a way as to be truly representative of the denomination consisting of the worshipping public. Here the existing scheme only provides that the nomination shall be by the Hindu Religious Endowment Board. Unguided power is given to that Board to nominate the trustees. The Board may consist of members not belonging to this community and this temple being a sectional temple it may not be consistent with Art.26(b) of the Constitution to retain the power with the Board. Therefore we agree with the lower court that the existing scheme conferring the power on the Endowment Board should be changed. That disposes of the appeal by the Commissioner.