AR. Lakshmanan, Actg. C.J.
1. These two contempt of Court cases filed by one C. Murari against the Secretary and President of the Cochin Devaswom Board was heard by a Division Bench comprising of P.K. Balasubramanyan and G. Sasidharan, JJ. The Division Bench has referred the following question of law to a Full Bench for decision, which was in turn referred to a Fuller Bench by the Ag. Chief Justice on 30-5-1999.
'Whether on the scheme of the Travancore-Cochin Hindu Religious Institutions Act, one alone of the three members elected or nominated to the Cochin Devaswom Board could function or administer the institutions of the Devaswom as the Board or on behalf of the Board and even if he could so function, what would be the extent of his power and what if any would be the restrictions or limitations on his power?'
2. The cause of action for the first contempt petition C.C.C. No. 211/99 is the judgment passed by a Division Bench comprising of AR. Lakshmanan and S. Kirshnan Unni, JJ. in C.D.B. No, 1 of 1999 and O.P. No. 6974 of 1998 dated 7-4-1999 in which the Division Bench, after carefully perusing the records placed before it, was of the opinion that one C. V. Subramanian, is the best suited person to be selected and appointed as Devaswom Commissioner for the Cochin Devaswom Board with immediate effect on deputation initially for a period of three years and that his extension will be considered depending upon the performance of the Officer. In that case a panel of three Government Officers for being appointed as Devaswom Commissioner in the Cochin Devaswom Board was submitted to this Court on 18-11-1998 to fill up the vacancy by passing appropriate orders. Another affidavit was also filed by the Secretary inviting the attention of the Court to Para 38, Chapter V of the Report submitted by the High Court Commission which has recommended that the Devaswom Commissioner-Cum-Secretary should have faith in temple worship and should be a senior officer of proven administrative ability, who has preferably worked as a District Collector and is of the rank of Additional or Special Secretary to Government in the case of Travancore Devaswom Board and of the rank of Joint Secretary to Government in the case of Cochin Devaswom Board. The Division Bench, after considering the personal particulars of the three names, selected Sri. C. V. Subramanian as the best suited person for the post. According to the petitioner in the contempt petition, who is also the petitioner in O.P. No. 6974/98, the non-implementation of the judgment by the respondent C. N. Vasudevan, Secretary of Cochin Devaswom Board, is wilful and the action on the part of the Secretary in not implementing the judgment is a deliberate action and amounts to contempt of Court.
3. A counter-affidavit was filed by the Secretary to the Cochin Devaswom Board stating that after receiving the judgment by this Court he put up a note submitting for necessary orders and the President noted that the Board is the competent authority to appoint the Secretary-cum-Commissioner as per the recommendation of the High Power Commission and that the President alone cannot take a decision in the matter as per the mandate of Section 73(4). He also directed taking legal opinion. The counter-affidavit has also referred to the nothings of the President in the relevant files. It is also stated that pursuant to the directions of the President a review petition has also been filed and that the Secretary of the Devaswom Board has no power to make appointment especially to the post of Commissioner and that he has not committed any contempt of Court.
4. C.C.C. No. 246 of 1999 is filed by the petitioner C. Murari against Advocate Soman Kuruvath, President, Cochin Devaswom Board. It is stated that the non-implementation of the order passed by this Court by the executive authority is wilful and deliberate and amounts to contempt of Court and that the post of Devaswom Commissioner is lying vacant in the Cochin Devaswom Board since 31-5-1998 and that as there was no Commissioner, the President is enjoying uncontrolled power and that the Inaction on the part of the President is wilful and deliberate and that the President is liable to be punished for committing contempt of Court under the provisions of the Contempt of Court Act.
5. Sri. Soman Kuruvath filed a counter-affidavit in C.C.C. No. 246 of 1999. The following are some of the averments to be noticed :
'1. There is no proper prayer in the petition for contempt.
2. This Court in the order in C.M.P. No. 14946/98 in O.P. No. 6974/98 has not issued any direction ordering the President to do anything in regard to the subject-matter of the original petition. The Court only expressed an opinion that Sri. C. V. Subramanian is the best suited person to be selected and appointed on deputation.
4. Admittedly the Board was only bound to consider the opinion expressed by this Court with due respect and deference. Apart from expressing an opinion there is no direction to the President at all as there could not have been a direction as the President is not a party to the original petition. The President has only noted the correct legal position on the file that it is not within the exclusive powers of the President to make the appointments and expressing an opinion on the lack of power in the President and pointing out the correct legal position cannot by any stretch of imagination be termed an action of contempt.
5. When a note about the judgment of this Court in O.P. No. 6974 of 1998 for emergent steps was placed before the President, he made a note that as per Section 73(2) of the Travancore Cochin Hindu Religious Institutions Act, 1950, the Board alone is competent to appoint a Commissioner and that the President alone cannot take a decision in the matter. The President also noted that in view of the decision of the Board to make the Secretary and Commissioner one as per the recommendation of the High Power Commission, is approved by this Court in another original petition, it may not be fair on the part of the President alone to revise the decision.'
6. When the contempt petition came up on 24-5-1999 before the Division Bench, the Bench after going through the allegations in the petition and in the counter-affidavit filed by the Secretary of the Devaswom Board, felt that it was necessary to issue notice to the President of the Cochin Devaswom Board before proceeding further with the matter and before passing orders that may be called for in the proceedings. Hence urgent notice was issued to the President of the Cochin Devaswom Board directing him to appear before the Court on 4-6-1999. As already noticed the petitioner in the original petition who filed C.C.C. No. 211 of 1999 on 10-5-1999 had also filed C.C.C. No. 246 of 1999 impleading the President of the Cochin Devawom Board as the respondent. From the affidavit of the Secretary filed in C.C.C. No. 211 of 1999 it has become clear that it was the President of the Devaswom Board who has committed contempt of Court and hence action may be initiated against the respondent in C.C.C. No. 246 of 1999 under the Contempt of Court Act. When the matter came up on 3-6-1999 the Division Bench directed that the same be posted along with C.C.C. No. 211 of 1999 on 4-6-1999. Pursuant to the notice the President appeared in person before the Bench and sought time to file a reply. The Bench before adjourning the proceedings put it to the President who had appeared pursuant to the notice that it would be appropriate for him to first comply with the order of this Court made in CDB No. 1 of 1999 and O.P. No. 6974 of 1998 without prejudice to his right to put forward his contentions in support of the petition for review he had filed before this Court. It is seen from the reference order that the President took the stand that he was not in a position to implement the order of this Court. Since the President stuck to his stand that he could not and would not implement the order of this Court as President, the Division Bench thought it appropriate even while issuing notice on C.C.C. No. 246/99 to issue an Interim injunction restraining the respondent from functioning as the President of the Devaswom Board until further orders from this Court. Pending further orders this Court also authorised and directed the Secretary of the Devaswom Board to attend to the routine affairs of the Board and to take a decision on routine matters. He was not authorised to take any decision on matters of policy and he was given the freedom to seek prior approval of the Court of any action he proposes to take. On 14-6-1999 the Secretary of the Cochin Devawom Board filed a memo submitting that as per the orders of this Court In O.P. No. 6974 of 1998 Sri. C. V. Subramanian, had been appointed as Special Devaswom Commissioner of the Cochin Devaswom Board and that he had taken charge.
7. We have already referred to the counter-affidavit filed by the President in C.C.C. No. 246 of 1999, where he pointed out that the initiation of the proceedings under the Contempt of Court Act was an abuse of process of Court and that the contempt petition did not satisfy the requirements of the rules framed by this Court under the provisions of the Contempt of Courts Act.
8. The Division Bench after referring to the provisions of the Travancore Cochin Hindu Religious Institutions Act, which came into force on 16-4-1950 and in particular Sections 62, 63, 66, 68, 69, 70, 71, 73(4) and 74, 76, 78 and also the Bye-laws framed under Section 78 of the Act and considering the defence taken by the President that he by himself had no power or authority to appoint a Devaswom Commissioner-cum-Secretary and hence he was not in a position to implement the directions of this Court, entertained a doubt as to whether in the absence of two if its three members, the Devaswom Board can function and whether the President by himself can exercise all the powers of the Board; whether it is based on any resolution earlier taken by the Board or otherwise, which are matters of considerable general importance and have referred the matter to a Larger Bench by the order of reference. The Bench by virtue of the position adopted by the President himself and in the light of the relevant provisions of the Act referred to supra, had entertained a considerable doubt whether the President by himself can act as the Cochin Devaswom Board and whether by himself can take a decision relating to the Board and whether the power of the Board, even by a resolution of the members of the Board, can be conferred on a single individual as was sought to be done by resolution of November, 1998 passed at a meeting when the President and one Velayudhan alone were the members and Velayudhan was about to cease to be a member of the Cochin Devaswom Board. According to the learned Judges of the Division Bench, the intention was to confer the power on the Board which was to be a body corporate having perpetual succession and common seal with power to hold and acquire properties for and on behalf of the Devaswoms, institutions and estates specified in Section 62 of the Act. The Board was also the repository of the power of the erstwhile Ruler of Cochin. All the properties and the funds were to vest in the Board. Prima facie they were inclined to the view that a single member, whether he be the person elected as President by the members of the Board or not. cannot by himself perform the functions of the Board. In this context, the Bench had noticed that the earlier provisions In Section 73(3) providing that on expiration of his term of office, amember will continue to be in office until the vacancy caused by the expiration of his term of office is filled up, was deleted by Section 5 of the Travancore Cochin Hindu Religious Institutions (4th Amendment) Act, 1990, Act 3 of 1991. The omission brought about, clearly indicated an intention that a member whose term has expired should not continue to act even for a limited period. In such a context, it has become necessary to decide the question whether the President himself could discharge the function of the Cochin Devaswom Board or permit the Secretary to act by exercising all powers of the Board. The Division Bench thought that an answer to this question has to be found before the interim order of injunction restraining the President, the sole surviving member in the Board, from acting as the Cochin Devaswom Board is vacated wholly or partially and an answer to that question may also have considerable bearing on the question whether the Contempt of Court proceedings should be continued or not. Accordingly the Division Bench has referred the question for decision to a Full Bench of this Court in exercise of power under Section 4 of the Kerala High Court Act and on their being satisfied that a question of law Is Involved, they referred the question of law for decision by a Full Bench as noticed earlier.
9. We have heard Mr. M. P. Ashok Kumar for the petitioner in both the petitions and Mr. K. Ramakumar for the President of the Board and Mr. Ramesh Chander for the Cochin Devaswom Board.
10. We shall now consider the provisions of the Travancore Cochin Hindu Religious Institutions Act, 1950, making provisions for the administration, supervision and control of incorporated and unincorporated Devawom and of other Hindu Religious Endowments and funds in the regions covered by the erst while States of Travancore and Cochin. Part I of the Act applies to the Travancore area, while Part II applies to the Cochin Area. In this case, we are concerned with the powers of the Board under Section 61 of the Act. The 'Board' is defined to mean the Cochin Devaswom Board constituted under Chapter VIII of the Act in accordance with the covenant. The Act itself is a product of a covenant. Under Chapter VIII, Section 62 of Act, the entire administration of the incorporated and unincorporated Devaswom and Hindu Religious Institutions which were under the management of the Ruler of Cochin immediately prior to the first day of July, 1949 and all their properties and funds and of the estates and all institution under the management of the Devaswom Department of Cochin vested in the Cochin Devaswom Board. The only exemptions were with regard to the regulation and control of all rituals and ceremonies in the temple of Sree Poornathrayeesa at Trippunithura and in the Pazhayannur Bhagavathy Temple at Pazhayannur. Section 63 of the Act deals with the Constitution of the Board, which is to consist of three Hindu members, one of whom was to be nominated by the Ruler of Cochin, one by the Hindus among the Council of Ministers and one elected by the Hindus among the members of the Legislative Assembly of the State of Travancore-Cochin. The said section was substituted by Act 20 of 1974, according to which, two members out of the three are to be nominated by the Hindus among the Council of Ministers and one elected by the Hindus among the members of the Legislative Assembly of the State of Kerala. Section 64 deals with the procedure for the election of member to Board. Section 66 deal with the qualifications and disqualifications for membership respectively. Under Section 68, the Board is bound to administer the affairs of incorporated and unincorporated Devaswom and institutions under its management in accordance with the objects of the trust, the established usage and customs of the institutions and to apply their funds and property for such purposes. Section 70 deals with the term of the Board and provides that every member of the Board shall be entitled to hold office for a period of four years from the date of his nomination or election, as the case may be. A member of the Board is free to resign his membership by writing under his hand.
Under Section 71, the members of the Board is to elect one among them as President at the first meeting of the Board. The President and members of the Board are entitled to receive honorarium as specified in Section 71 (2) of the Act. Under Section 72, the Board is to be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the Devaswom, institutions and estates specified in Sub-Section (1) of Section 62. The Board can sue and be sued by its name. If a Secretary has been appointed, he shall be competent to represent the Board in a suit by or against the Board. Section 73 deals with the function of the Board and provides that the Board shall have an office at Trichur where it shall meet for the transaction of business and to which all communications and notices may be addressed. The Board Is empowered to appoint a Secretary to perform such functions and duties as they may prescribe. It is also provided that the Meetings of the Board shall be presided over by the President or by mernber authorised by him to preside. Under Section 73(4) of the Act, no business can be transacted at any meeting unless two members are present. Section 78 enables the Board to make bye-laws, which reads as follows :
'78. The Board may make bye-laws not inconsistent with Part II of this Act or the rules made thereunder as to-
(a) the division of duties among the members of the Board;
(b) the procedure and conduct of business at the meetings of the Board;
(c) the books, registers, and accounts to be kept at the office of the Board;
(d) the form and manner of applications to the Board; and
(e) generally for the conduct of all proceedings and business of the Board under Part II of this Act.'
11. A reading of the above provisions will go to show that the Board is distinct from its members. The Board, under Section 72 of the Act, is a body corporate having perpetual succession and a common seal, and it is to consist of three members who are entitled to hold office for a period of four years from the date of his election or nomination. As already noticed, there is a specific prohibition in Sub-Section (4) of Section 73 of the Act that no business shall be transacted at any meeting of the Board unless two members are present. Thus, the minimum strength required for the functioning of the Board is two members and without there being two members, the functions of the Board cannot be discharged. Under Section 73A, only if all the members of the Board ceased to exist, a Commissioner can be appointed to discharge the functions of the Board, but the Act does not provide for the discharge of the functions of the Board when only one member is existing. Even though Section 76 gives power to the President and members of the Board to divide the duties among themselves relating to the routine administration vested in the Board, it does not provide for the discharge of the Junctions of the Board when only one member is existing. So also, under Section 78 the Board is given power to make bye-laws. But the bye-laws so framed should be consistent with the provisions of Part 11 of the Act. The above provisions clearly indicate that two members of the Board cannot give power to one member of the Board to take a decision on behalf of the Board.
12. In the present case, it appears that only the President of the Board is continuing. There is no dispute that the President is nominated by the Hindu members of the Cabinet. He can continue as the President of the Cochin Devaswom Board, but cannot discharge the functions of the Board, since for discharging the functions of the Board, at least two members are to be present. The President can take advantage of the situation of the non-existence of other members and discharge the duties of the Board. The Board is created under the Statute; duties are imposed under the statute and the way in which the duties are to be discharged is also prescribed in the statute. Hence, in our opinion, the functions of the Board can be discharged only in accordance with the Statute. The mandate of Sub-Section (4) of Section 73 is explicit the Board can discharge the duties only when there are two members and one member alone cannot discharge the functions of the Board. The President, who is the only serving member, in our view, can only at the most discharge the functions given to him under Section 76 of the Act regarding routine matters.
13. The Travancore Devaswom Board, which Is created under the Travancore Cochin Hindu Religious Institutions Act, has been held to be a State under Article 12 of the Constitution of India In the decision of this Court reported in Damodaran Namboodiri v. Devaswom Commissioner, ILR (1970) 1 Ker 231. The Board is a body corporate and is distinct from its members. The rights of the members and the Board are created under the Statute. Thus, one has to look into the statute regarding the powers of the Board and the powers of the members including the President. Even if there is an implied power, such implied power can only be visa-vis the power conferred under the statute. Hence, we are of the view that by no stretch of imagination can it be argued that the President is entitled to discharge the functions of the Board in the absence of the mandatory requirement of two members. In our view, the President, by himself, has no authority or power to discharge the functions of the Board.
14. We, therefore, answer the reference as follows :
'On the scheme of the Travancore-Cochin Hindu Religious Institutions Act, one alone of the three members elected or nominated to the Cochin Devaswom Board cannot function or administer the institutions of the Devaswom as the Board.'
The Registry is directed to post the Contempt of Court Cases before the same Division Bench for further orders in the light of the opinion of this Larger Bench.
It appears that the President approached the Supreme Court against the orders passed by this Court appointing Sri C. V. Subramanian as the Devaswom Commissioner for the Cochin Devaswom Board and also filed another Special Leave Petition against the order passed by another Division Bench restraining the President of the Cochin Devaswom Board from functioning as such president. The Supreme Court, by its order dated 16th August, 1999 in S.L.P. No. 10289 of 1999, directed the President to obtain appropriate orders from the High Court in this regard. Accordingly, he filed C.M.P. No. 38138 of 1999 to vacate the interim orders passed by the Division Bench during the pendency of the contempt of Court proceedings and for appropriate orders to be issued. We are of the opinion that the Division Bench has referred a pure question of law for an authoritative opinion by a Larger Bench. Accordingly, the Larger Bench, by this order, has answered the reference and remitted the matter to the Division Bench to be heard and disposed of in the light of the opinion of the Larger Bench. We, therefore, direct the Registry to post C.M.P. No. 38138 of 1999 also along with C.C.C. Nos. 211 and 246 of 1999 before the Division Bench.