M Gangadharan Nair Vs the Commissioner - Citation 1016435 - Court Judgment

Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice thottathil b.radhakrishnan & the hon'ble mr. justice a.v.ramakrishna pillai wednesday, the 19th day of december 2012 28th agrahayana 193 wp(c).no. 22507 of 2011 (k) --------------------------- petitioner(s): ------------- 1. m.gangadharan nair, manjulavil house, kundliyoor p.o., thrissur district.2. m.janardhanan nair, manjulavil house, kundliyoor p.o., engandiyoor, thrissur district. by adv. sri.m.p.ashok kumar respondent(s): -------------- 1. the commissioner, malabar devaswom board, kozhikode-673 001.2. the deputy commissioner, h.r. & c.e. (administration), kozhikode-673 001.3. sri.panayankulangara bhagavathy kshethra samrakshana samithy, engandiyoor, thrissur district, rep. by its secretary, p.hariharan, pin-670 615.4. sri.panayankulangara bhagavathy temple utsava committee, engandiyoor, thrissur district, rep. by its secretary, c.narayana menon, pin-680 615.5. sri.panayankulangara bhagavathy temple, kshethra kshema samithy, engandiyoor, thrissur district, rep. by its secretary, e.sankara narayanan, pin-680 615. wp(c).no. 22507 of 2011 (k) 6. ayinippully raghavan, s/o.kittappan, ayinippully house, kundaliyoor p.o., pin”616. chavakkad taluk, thrissur district.7. pandarathil hariharan, s/o.kittunni, engandiyoor amsom, kundaliyoor desam, chavakkad taluk, thrissur district-680 616.8. suresh, s/o.madhavan master, unnikochan house, engandiyoor amsom, kundaliyoor desom, chavakkad taluk, thrissur district-680 616.9. ayyappan, s/o.karimulli raman, karimully house, engandiyoor amsom kundaliyoor desom, chavakkad taluk, thrissur district-680 616. r1 & r2 by advs. sri.k.mohanakannan, sc, malabar devaswom sri.r.lakshmi narayanan, sc, malabar devaswom sri.v.krishna menon, sc, malabar devaswom board r7 by advs. sri.p.b.sahasranaman sri.t.s.harikumar sri.k.jagadeesh this writ petition (civil) having come up for admission on 19-12-2012, the court on the same day delivered the following: dsv/- wp(c).no. 22507 of 2011 (k) appendix petitioners' exhibits: p1 copy of the i.a. filed by the petitioner dated 24 01.2005. p2 copy of the order dated 16 08.2006. p3 copy of the appeal dated 17 11.2007. p4 copy of the order dated 13 07.2011. respondent's exhibits: r1(a) copy of the order in ap 7/1998 passed by the deputy commissioner dated 25 07.2003. r1(b) copy of the order of the govt. go no.3415/06 rd dated 20 07.2006. r7(a) copy of the judgment in o.p.no.24229 of 1998.dated 27 h august, 2003. // true copy // p.a. to judge dsv/- t.r.ramachandran nair & a.v.ramakrishna pillai, jj.- - - - - - - - - - - - - - - - - - - - - - - - - - w.p.(c) no. 22507 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - datedthis the 22nd dayof july, 2013 judgment ramachandran nair, j.the substantial challenge in this writ petition is against exts.p2 and p4 orders which are passed by respectively by the second respondent deputy commissioner and in appeal by the first respondent commissioner.2. the question involved is whether the second respondent deputy commissioner has the power to declare a religious institution as a public temple defined under section 6(17) of the hindu religious and charitable endowment act (madras) [for short 'hr & ce act'], which according to the petitioners is lacking under section 57 of the hr & ce act.3. the first petitioner is a hereditary trustee of panayankulangara bhagavathy temple in chavakkad taluk which is owned by a family known as manjulavil family. the second petitioner is his brother as well as his power of attorney holder. according to the prevailing system, the senior most male member of the family is the hereditary trustee. it is their case wpc no.22507/2011 -2- that the temple is situated in the property of the manjulavil tharavad which is kept as a common property and remain unpartitioned.4. adversities have been caused due to the implementation of the land reforms act, as the family lost many of their properties. the situation also led to the encroachment of temple properties by some of their neighbours. even daily poojas were affected. the second respondent, who was a journalist in calicut returned to the family and he along with other family members renovated the temple.5. it is submitted that the temple is not a notified religious institution under the hr & ce act. the present controversy started in the year 1998 when the second respondent passed an order to take into custody the bhandarams of the temple. this was challenged in o.p.no.24229/98 before this court. the petitioners therein were directed to approach the deputy commissioner, under section 57 of the hr & ce act, who is having the power to inquire into and decide the dispute whether the institution is a religious institution.6. thereafter, the petitioners approached the deputy commissioner seeking to declare that the temple is owned by manjulavil wpc no.22507/2011 -3- family by filing o.a.no.19/2003. ext.p1 is the interlocutory application filed in that proceedings seeking for a direction to the assistant commissioner, hr & ce, palakkad to produce the entire files relating to the notification, if any, in support of the temple but, no orders were passed on the same and the files were not summoned. various documents mentioned in para.5 of the writ petition have been produced before the deputy commissioner on the side of the petitioners to establish that the temple property was not partitioned and it is a family temple. it is stated that ignoring the voluminous evidence, ext.p2 order has been passed by the second respondent and the appeal filed has also been rejected as per ext.p4. ext.p3 is the copy of the appeal memorandum.7. we heard the learned counsel for the petitioner shri m.p.ashok kumar, learned counsel appearing for the seventh respondent shri p.b.sahasranaman, learned counsel appearing for 4th, 5th and 9th respondents shri c.e.unnikrishnan and the learned standing counsel for the board shri v.krishna menon.8. learned counsel for the petitioners elaborated his contentions by submitting the following: wpc no.22507/2011 -4- firstly, it is contended that ext.p2 order is without any jurisdiction as the officer, who has passed the order was not functioning as the deputy commissioner at the relevant date. he was already promoted as a special officer from the post of deputy commissioner. under section 57 of hr & ce act, the power is conferred on the deputy commissioner alone. it is also submitted that as section 57 is not one conferring an administrative power but a quasi-judicial power, such a power cannot be exercised by a person like the special officer. the officer herein is termed as special officer-in-charge of deputy commissioner. while contending that the said charge arrangement is not one enabling the special officer to have any adjudicatory power in the matter, learned counsel relied upon the provisions under the kerala service rules part-i also. it is submitted that to give an officer full additional charge of a post, a separate order in terms of rule 53 (b) of the rules has to be there. such is not the case here. it is therefore submitted that the entire order will have to be set aside on that point itself.9. it is submitted that the second respondent has committed a grave error in finding that the temple in question is a public temple. such a power is not conferred under section 57 of hr & ce act. it is declared by wpc no.22507/2011 -5- the second respondent in ext.p2 that the temple is one as defined under section 6(17) of the hr & ce act. relying upon the dictum laid down in thiruvachira s.k.p. committee v. commissioner, h.r.c. endowments [1999 (2) klt 590], it is submitted that such a decision cannot be taken by the deputy commissioner. the provision under section 57(a) has conferred power to adjudicate a dispute whether a particular institution comes under the definition of religious institution under section 6(15) of the hr & ce act. in this context, the learned counsel submitted that section 38 of hr & ce act enables the board to publish a list of religious institutions. in the said list, the temple herein is not included. even for inclusion of a temple in the list under section 38, the rules insist that an officer is bound to send notice to the trustee in respect of the temple's inclusion in the list under section 38 and herein no such notice was sent to the petitioners at any point of time. on that point, it is submitted that the special officer in-charge of the deputy commissioner did not consider various documents produced by the petitioners. the documents will establish clearly that the family is the owner of the temple. wpc no.22507/2011 -6- 10. the learned counsel submitted that even the notification that is relied upon by the deputy commissioner is of the year 1994. it will only show that the temple herein is included as item no.1186 as a non listed temple. the provisions under section 38 do not give any power to the commissioner or deputy commissioner to include a temple as a non listed one and try to administer the same by exercise of supervisory powers. it is submitted that such a notification will not come in the eye of law enabling the hr & ce department to assume the administration of the temple. it is submitted that both the authorities have failed in appreciating the real purport of section 38 of hr & ce act and have blindly followed the said list to deny the rights of the petitioners. the learned counsel submitted that the view of the appellate authority is also bad in law.11. the learned standing counsel for respondents 1 and 2 submitted that the writ petition is liable to be dismissed as the petitioners have an alternative remedy to approach the civil court as empowered under section 62(1) of hr & ce act. with regard to the competency of the special officer, who was in charge as deputy commissioner, reliance is placed on ext.r1(b) order and rule 53 of part i k.s.r. while referring to wpc no.22507/2011 -7- the definition of "temple" under section 6(17) of hr & ce act, learned counsel submitted that the argument raised by the petitioners about lack of power to declare a temple as public temple is not correct. the decision relied upon in thiruvachira s.k.p. committee's case [1999 (2) klt 590.has been reversed in appeal. the learned counsel elaborated that when the public is worshipping as of right in the temple, the declaration made by the statutory authority is only in tune with the provisions of the act.12. as far as the notification of the year 1994 is concerned, the learned standing counsel for the board explained that there was no challenge against the notification in any forum by the petitioners and, therefore, they cannot be heard to say that the exercise of supervisory power by the hr & ce department in the light of the said notification is not correct. it is also submitted that in an earlier proceedings involving the hereditary trustee and another employee, there was no such challenge by the petitioners. therefore, the petitioners have not established a case for interference at all.13. the learned counsel appearing for the seventh respondent supported the arguments raised by the learned standing counsel for the wpc no.22507/2011 -8- board. it is submitted that the power is not lacking for the deputy commissioner under section 57 of hr & ce act to pass an order like the one here and the argument raised by the learned counsel for the petitioners cannot be accepted at all. at various stages in different forums and before this court, the very same plea was raised earlier and the petitioners did not succeed. the participation of the public in the affairs of the temple is evident and the same will justify the declaration by the second respondent that the temple is a public temple itself.14. learned counsel appearing for respondent nos.4, 5 and 9 supported the argument raised by the learned counsel for the petitioners. it is submitted that the family owns the temple and the power conferred under section 57 of hr & ce act is only to decide whether an institution is a religious institution. it is further submitted that the power given to the commissioner under section 38 of hr & ce act is only for the purpose of preparing and publishing the list of religious institutions for collection of contribution. in the said list, the temple herein is not included also and, therefore, no reliance can be placed on the notification dated 15/02/1994. wpc no.22507/2011 -9- 15. both sides relied upon various judgments of this court and the apex court in support of their pleas.16. first we will come to the relevant provisions of the act. going by section 1, sub-section 2 of hr & ce act, it extends to the whole of the malabar district and applies to all hindu public religious institutions and endowments, including the tirumalai-tirupati devasthanams and the endowments thereof. the other important definitions are "religious institutions" under section 6(15) and "temple" under section 6(17) which are reproduced below: "6(15) "religious institution" means a math, temple or specific endowment. 6(17) "temple" means a place by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of or used as of right by the hindu community or any section thereof, as a place of public religious worship." the distinction that is evident from the two definitions is that temple should be one used as a place of "public" religious worship and it should be dedicated to, or for the benefit of or used as of right by the hindu community or any section thereof as a place of public religious worship. a wpc no.22507/2011 -10- "religious institution" is not clothed with such a character and hence it can be a private one also.17. chapter v is under the heading "inquiries". section 57 confers power on the deputy commissioner to decide on certain disputes and matters. according to the main part of the section and sub section (a), which is relevant here, subject to the rights of suit or appeal, the deputy commissioner shall have power to inquire into and decide: (a). whether an institution is a religious institution. section 57 has come up for consideration in thiruvachira s.k.p. committee's case [1999 (2) klt 590.wherein the learned single judge held the view that there is no power for the deputy commissioner to declare a temple as a public temple. the relevant findings contained in para.4 read as follows: "the deputy commissioner is empowered to decide whether an institution is a religious institution. there is no power for the deputy commissioner to declare a temple as public temple. in fact there is no definition of the public temple in the act. a temple has been defined as a place of public religious worship and dedicated by the hindu community. therefore, the declaration alleged to have been made by the first respondent under s.57 of the act that this institution is a wpc no.22507/2011 -11- public temple will not enable the respondents to invoke powers under s.39 of the act. the basic fact for respondents 1 and 2 to get jurisdiction to act under s.30 of the act is the inclusion of a temple in the list prepared and published under s.38 of the act. in the absence of such inclusion in the list of temples, the first respondent cannot invoke the powers under s.38 so as to appoint either hereditary or non-hereditary trustees. since s.57 does not authorise the deputy commissioner to declare a temple as a public temple, such a declaration cannot enure to the benefit of the first respondent to invoke s.30 of the act." the said view was taken after noting that the temple has not been included in the list of religious institutions under section 38 of hr & ce act.18. certain other provisions of the act also will have to be considered in this context. section 38 of hr & ce act gives power to the commissioner to publish list of certain institutions which reads as follows: "38. commissioner to publish list of certain institutions.-- "the commissioner shall publish in the prescribed manner a list of the religious institutions whose annual income as calculated for the purposes of the levy of contribution under section 76 is not less than one lakh rupees, and may from time to time modify such list in the prescribed manner. wpc no.22507/2011 -12- provided that the commissioner shall not be bound to remove any institution from such list unless its annual income calculated as aforesaid has fallen below twenty thousand rupees for three consecutive years." chapter vi under the heading "notified religious institutions" contains the detailed provisions enabling the authority to notify religious institutions. sections 63 and 64 of hr & ce act are relevant herein which are extracted hereunder. "63. issue of notice to show cause why institution should not be notified.-- (1) notwithstanding that a religious institution is governed by a scheme settled or deemed to have been settled under this act, where the commissioner has reason to believe that such institution is being mismanaged and is satisfied that in the interest of its administration, it is necessary to take proceedings under this chapter, the commissioner may, by notice published in the prescribed manner, call upon the trustee and all other persons having interest to show cause why such institution should not be notified to be subject to the provisions of this chapter. wpc no.22507/2011 -13- (2) such notice shall state the reasons for the action proposed, and specify a reasonable time, not being less than one month from the date of the issue of the notice, for showing such cause. (3) the trustee or any person having interest may thereupon prefer any objection he may wish to make to the issue of a notification as proposed. (4) such objection shall be in writing and shall reach the commissioner before the expiry of the time specified in the notice aforesaid or within such further time as may be granted by the commissioner.64. consideration of objections, if any, and notification of institution.-- (1) where no such objection has been received within the time so specified or granted, the state government may, on receipt of a report from the commissioner to that effect, by notification published in the kerala government gazette, declare the religious institution to be subject to the provisions of this chapter. (2) where any such objections have been received within the time so specified or granted, the commissioner shall hold an inquiry into the objections in the manner prescribed, and decide whether the institution should be notified to be subject to the provisions of this chapter or not. wpc no.22507/2011 -14- (3) if the commissioner decides that the institution should be notified as aforesaid, he shall make a report to that effect to the state government who may thereupon, by notification published in the kerala government gazette, declare the religious institution to be subject to the provisions of this chapter. (4) every notification published or deemed to be published under this section shall remain in force for a period of five years but it may, by notification, be cancelled at any time or continued from time to time for a further period or periods not exceeding five years at a time as the government may by notification, in each case, think fit to direct." going by these provisions, the position that emerges is that on being satisfied that an institution is being mismanaged, proceedings under the chapter will have to be initiated. under sub section (1) of section 63, a show cause notice will have to be issued to the trustee. not less than one month's time will have to be given for showing cause. an opportunity to file objection will have to be given. section 64 of hr & ce act provides for consideration of objections. the power to declare the religious institutions to be notified is conferred on the state government, that too on a report from the commissioner to that effect as evident from section 64(1) wpc no.22507/2011 -15- in a case where no such objection is received within the time limit. if an objection is received, then sub section (2) requires holding of an inquiry and a decision will have to be taken whether the institution should be notified to be subject to the provisions of the chapter or not. if the decision is in favour of issuance of notification, a report will have to be sent to the government by the commissioner and the state government will have to publish the notification. the notification will remain for a period of five years and there is a provision for extending the five year period for a further period of not exceeding five years. going by section 65 of hr & ce act, on the publication of such a notification, the scheme of administration, if any, settled for religious institution, shall cease to apply to the institution and such scheme and rules shall not be deemed to be revived by reason of the cancellation of the notification or by reason of its having ceased to be in force by efflux of time. section 66 of hr & ce act will show that once the notification is issued, the commissioner will have to appoint a salaried executive officer and going by section 67, the terms and duties of the executive officer will have to be fixed. thus, the scheme for notifying a religious institution is envisaged under chapter vi under the above detailed wpc no.22507/2011 -16- provisions.19. we will now refer to the contents of the orders exts.p2 and p4. in support of the contentions of the petitioners, p.ws.1 to 3 have been examined and 9 documents have been marked as exs.a1 to a9. r.ws.1 to 5 have been examined on the side of the respondents and exts.b1 to b21 have been marked. ext.c1 is the notification dated 15.2.1994 of the commissioner, published in the gazette dated 26.4.1994. after the discussion of exts.a1 to a9 it is concluded in para 18 that no document is forthcoming regarding the nature of the temple and the origin of the temple is lost in antiquity. thereafter, the discussion proceeds to consider the oral evidence as well as documentary evidence adduced by the respondents.20. the important findings are contained in para 30 onwards. after referring to the notification dated 15.2.1994 of the commissioner, h.r. & c.e., calicut, published on 26.4.1994, it isnoted that sri panayamkulangara bhagavathy temple has been included as item no.1186 as engadiyur temple. it is included in the list of temples which are under the control of the department for the last so many years, of which the annual income was less than rupees one lakh. it is concluded that the notification wpc no.22507/2011 -17- will show that the temple is under the jurisdiction and control of h.r. & c.e. department. in para 32, certain tests for distinguishing a public temple from a private one, as indicated by hon'ble dr. b.k. mukherjea, former chief justice of india, in the 'hindu law of religious and charitable trust', have been stated. in para 34 it is concluded that if a temple was a private trust for the worship of family idol, the public would not have got repairs carried out. the remission of land revenue for the property on which the temple is constructed, has been taken as one of the decisive characters of the temple and finally it is concluded in paragraphs 37 and 38 that the temple is one as defined under section 6(17) of madras hr & ce act, 1951.21. therefore, what stood against the petitioners is the finding mainly based on the notification dated 26.4.1994 including the temple as non listed and the participation of the public by worship, making offerings in festivals and other important ceremonies, receipt of annuity from government, etc.22. in ext.p4, the commissioner has entered a finding that the petitioners could not prove by adducing evidence that the temple is built in their private land or family property. the commissioner also relied upon wpc no.22507/2011 -18- the notification including the temple as item no.1186 in schedule b in the notification dated 15.2.1994 and that the public is worshiping in the temple and their contributions are being accepted and are also participating in the festivals and management.23. the vehement argument raised by the learned counsel for the petitioner, shri m.p. ashok kumar is that the notification dated 15.2.1994 which is published in the gazette gives a schedule as listed temples and b schedule as non listed temples and the temple herein is included among the non listed temples. it is submitted that a reference to section 38 will show that there is no system for publishing and including a temple as non listed one and therefore the notification has no real importance. the listing of temples under section 38 is for levy of contribution under section 76. going by the said provision, such publication is for including such temples whose annual income is not less than one lakh rupees. the relevant rules under the madras h.r. & c.e. act for the enforcement of section 38 show that under under rule 2 of the madras h.r. & c.e. rules, a notice for inclusion of any religious institution, in the list shall be sent to the trustee or trustees of the religious institution concerned. learned wpc no.22507/2011 -19- counsel for the petitioners submits that such a procedure has not been undertaken in this case.24. it is clear from section 39(1) of the act that it is in respect of religious institutions included in the list published under section 38, or over which no area committee has jurisdiction, that the commissioner can constitute a board of trustees where there is no hereditary trustee. therefore, listing under section 38 gives power for the commissioner to act under section 39(1) of the act.25. the answer given in the counter affidavit filed by respondents 1 and 2 to this aspect is that going by the notification dated 15.2.1994 the temple in question became a religious institution as defined under the h.r. & c.e. act and it is a settled matter long before and continued as such for long. while explaining the background of publication of such list, it is stated as follows: "the government as per g.o.(ms) no.772/revenue dated 12.8.1961 constituted a high level committee for unification of laws relating to hindu religious institution and endowments headed by k. kuttikrishna menon, retired advocate general, madras as chairman. the above committee had prepared a list of wpc no.22507/2011 -20- religious institutions and endowments in the malabar area under the supervisory control of the then department h.r. & c.e. (admn) department. sri. panayamkulangara bhagavathy temple, engandiyoor is a major institution shown as item no.1180 in the list prepared by the above committee." therefore, evidently, the list is one, based on the list prepared by the said committee. the counter affidavit does not throw any light as to how the committee has prepared such a list. the stand taken is that the matter has become final in the light of the notification dated 15.2.1994 and the issue is a settled one.26. the temple is situated in chavakkad taluk which was part of the malabar district which is not under dispute. it is well settled as far as hindu temples in malabar district are concerned, that there is no presumption that they are public charitable trusts, going by the decision of the privy council in mundacheri koman v. thachangat puthan vittil achuthan (air 193.p.c. 230). therein, while comparing the system in the entire madras presidency and in malabar, it has been held as follows at page 231: wpc no.22507/2011 -21- "in the greater part of the madras presidency, where private temples are practically unknown, the presumption is that temples and their endowments form public charitable trusts. this was laid down by seshagiri ayyar, j., on an elaborate consideration of the whole subject in 1920 mad. 42(1) which was affirmed by the board in 1924 p.c. 44(2). in that case which related to a temple in the salem district founded by a religious devotee in 1814, seshagiri ayyar, j.specially excepted temples in the malbar district from the scope of this ruling, and in the later case of a nair temple in malabar, 1928 mad. 879(3), it was held by the high court, that there was no such presumption in malabar. the learned judges observed that it was very natural that the large family corporations or tarwads in malabar should have established private temples for their own use, and that this had often happened, as stated in most treatises on malabar law and polity. consequently, they held that in malabar there was no presumption one way or the other, and that the issue must be determined upon the evidence in the particular case. in this and the earlier case of 1918 mad 1179 (4), as also in other recent cases, of which reports are not available to their lordships, it has been held by the high court on the evidence in the case that the temples and their endowments were public trusts. the prevailing impression in malabar would seem to have been that these nair temples were private, and this may have, to some extent, wpc no.22507/2011 -22- influenced the lower courts, who so held both in this and in the two other cases already cited." 27. the powers of the department in notifying religious institutions in a case of mismanagement, as we have already noticed, is under chapter vi and there is a detailed procedure under section 63 onwards. the power under section 63 could be invoked notwithstanding that such a religious institution is governed by a scheme settled under the act mainly on the ground of mis-management and then after following the procedure prescribed, a final notification can be issued under section 64(1). if there is no objection under section 64(3), after enquiry under section 64(2), based on the report of the commissioner, a notification can be published by the government declaring that the religious institution to be subject to the provisions of the act.28. admittedly, such a procedure has not been adopted here or at any rate, materials have not been placed before us. the liability for payment of annual contribution is specified under section 76 for the services rendered by the department (now the board). therefore, in the case of a purely private temple, proper procedural formalities are mandatory to be complied wpc no.22507/2011 -23- with, for the department to get administrative powers and control. therefore, the procedure for listing the temples under section 38 and the procedure for notifying them under sections 63 and 64 not being evidently undertaken here, as no such pleas have been raised and the notification dated 15.4.1994 is in respect of the non listed temples only, such a notification cannot be crucial to decide whether the temple is purely a private or a public religious institution. therefore, the finding based on the said notification cannot hold good as far as the temple herein is concerned, in the absence of any other evidence notifying the temple in a legal manner, for getting administrative control. we hasten to add that our conclusion as above is not to be understood as a reflection on the legal validity of the notification, but only on the sufficiency of the same as far as the temple herein is concerned.29. learned standing counsel for the board, shri v. krishna menon and learned counsel appearing for the seventh respondent submitted that the notification is not specifically under challenge here and therefore as the petitioners have not challenged it, after 1994 to this time, the same should be held as valid. wpc no.22507/2011 -24- 30. if such a notification was issued after following the procedures prescribed under the act, the absence of challenge earlier would have come to the help of respondents 1 and 2. further, the notification dated 15.2.1994 in para 2(1) states about the list of temples under section 38 which comes under the income limit of rs.one lakh. with regard to the temples included in b schedule, what is stated is that their income is below rs.one lakh and they have been under the control of the department for a number of years. how the control was assumed by the department, is not evident from the notification. since the petitioners have raised a question specifically in this writ petition and the only answer given is that there was a list prepared by the committee constituted as per govt. order dated 12.8.1961, viz. high level committee for unification of laws relating to hindu religious institutions and endowments headed by shri k. kuttikrishna menon, former advocate general, madras, and as no further details have been made available as to how the committee also prepared the list, the petitioners' contentions are really sound. the said notification, as far as this case is concerned, will not therefore help respondents 1 and 2. wpc no.22507/2011 -25- 31. the next question is whether the deputy commissioner has power to declare that a religious institution will come under the definition of 'temple' under section 6(17) of the act, so as to treat it as a public temple.32. we have already seen the definition of 'temple' under section 6 (17) of the act. the power given under section 57 of the act for the deputy commissioner, is to enquire into and decide whether the institution is a religious institution and going by the definition of "religious institution" under section 6(15) of the act, it means "a math, temple or specific endowment." the definition of 'temple' under section 6(17) definitely indicates a place of public religious worship and dedicated to, or for the benefit of or used as of right by the hindu community or any section thereof, as a place of public religious worship." a plain reading of section 57 of the act shows that such a power is not conferred on the deputy commissioner and his power does not extend to that.33. the issue is one of having a statutory power to take such a decision. in thiruvachira s.k.p. committee v. commissioner, h.r.c. endowments (1999 (2) klt590) a learned single judge of this court has considered the very same issue and held that there is no power for the wpc no.22507/2011 -26- deputy commissioner to declare a temple as public temple. it was also held that the power under39 of the act can be invoked only if the temple is included in the list prepared and published under section 38 of the act. we have already referred to the relevant findings in para 4 of the said judgment.34. the trumpcard of the argument raised by the learned standing counsel for respondents 1 and 2 and learned counsel appearing for the seventh respondent is that in w.a. no.2758/1999 the judgment in thiruvachira s.k.p. committee's case (supra) has been reversed and therefore the legal position explained therein no longer exists. it is submitted by the learned counsel for the petitioners that it was not reversed on the said principle, but on a finding that there is a notification including the temple for the purpose of section 38 of the act.35. we will now refer to the judgment in w.a. no.2758/1999. in para 4, the division bench has relied upon annexure a1 which is the notification dated 15.2.1994 produced after the filing of the appeal by the department. with regard to the particular temple included therein, the division bench held as follows: wpc no.22507/2011 -27- "............the prevailing list under section 38 as per the above notification is appended. the list was revised as per law including the temples in a schedule. item 468 in the list b is thiruvachira sree krishna temple. thus, the temple is included in the list. hence it cannot be said that no trustee can be appointed for the temple. in the above view of the matter, the judgment of the learned single judge is reversed and the writ appeal is allowed." actually, the notification that is referred to therein is the one which is the subject matter before us also. the division bench has not gone into the principles stated by the learned single judge but on a factual aspect alone, the bench has reversed the said judgment. therefore, it cannot be said that the principle itself has been reversed. actually, the said temple was also included among the non listed temples only and not among the listed temples. in a schedule there are only 72 temples and the temple which was the subject matter therein was included in b schedule alone, viz. non listed. learned counsel for the petitioners, shri ashok kumar, therefore, submitted that the reversal of the judgment on the basis of the said list also is not correctly done by the division bench. we are not going into the said question. wpc no.22507/2011 -28- 36. in fact, the legal principles stated in thiruvachira s.k.p. committee 's case (1999 (2) klt590) have been approved by another division bench in a later decision, viz. gopinathan k.v. and others v. kannankavu devaswom udama and ooralam raman and others (ilr 200.(2) ker. 577). therein, this court was considering the question whether merely because public are also allowed to worship in the temple, the temple will become a public temple or not. in the course of the discussion, it was held as follows: "another learned judge of this court in thiruvachira s.k.p. committee v. commissioner, h.r.c. endowments (1999 (2) klt 590), held that the deputy commissioner has got no power to decide whether a temple is a public or private temple." therefore, the said dictum in thiruvachira s.k.p. committee's case (supra) has been approved by that bench.37. we are also of the view that section 57(a) of the act confers power on the deputy commissioner only to decide whether an institution is a religious institution. a public temple is not defined under the provisions of the act. it is submitted by the learned counsel appearing for the seventh respondent that since in the definition of "religious institution" under wpc no.22507/2011 -29- section 6(15) of the act, a temple is also mentioned, the deputy commissioner can decide whether it is a public temple or not. we cannot agree. since, the act specifically confers a power to do a particular thing, the said power will have to be exercised only to that extend and not for other purposes. herein, the petitioners have moved the o.a. under section 57, under which the power is clothed only to decide whether an institution is a religious institution. therefore, we are also of the view that the deputy commissioner has no power to declare that a temple will be a public temple, under section 57 of the act.38. arguments have been raised by the learned counsel for the petitioners challenging the conclusions made in exts.p2 and p4 based on the participation of public in daily worship, and in festivals, in making offerings and in contributing to the welfare of the temple. he relied upon the principles stated in the following decisions: pandit parma nand v. nihal chand and another (air 193.p.c. 195), babu bhgwan din and others v. gir har saroop and others (1940 p.c. 7), deoki nandan fv. murlidhar and others (air 195.sc 133), tilkayat shri govindlaji maharaj etc. v. state of rajasthan and others (air 196.sc 1638), wpc no.22507/2011 -30- radhakanta deb and another v. the commissioner of hindu religious endowments, orissa (air 198.sc 798), kunhunni nambudiripad v. cochin devaswom board (1964 klt 1034), appukutty and others v. kuniyil achuthan (ilr 198.(1) ker. 218), cochin devaswom board v. ramachandra kurup and others (ilr 200.(2) ker.569) and gopinathan k.v.'s case (ilr 200.(2) ker. 577).39. in pandit parma nand's case (air 193.p.c. 195), it has been held as follows with regard to the worship made by the public in a temple: "there can be no doubt that even in a private shrine, the public may worship, but the question is whether they do so without any permission, leave or license and as of right." 40. in the later decision, viz. babu bhagwan din's case (air 194.p.c.7) also, the relevant tests have been explained thus at page 10: "...........in these circumstances, it is not enough in their lordship's opinion, to deprive the family of their private property to show that hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among hindus or the locality or among persons resorting to the annual mela. worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the wpc no.22507/2011 -31- idol: they do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust. facts and circumstances, in order to be accepted as sufficient proof of dedication of a temple as a public temple, must be considered in their historical setting in such a case as the present; and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. such an inference if made from the fact of user by the public is hazardous, since it would not in general be consonant with hindu sentiments or practice that worshippers should be turned away; and as worship generally implies offerings of some kind it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. thus in 61 i a 40.(mundacheri koman v. achuthan nair (1934) 21 air pc230) the board expressed itself as being slow to act on the mere fact of the public having been freely admitted to a temple. the value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right.........." the principle that is emerging from the said decision is that merely because hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among hindus of the locality or among persons resorting to the annual mela, the family cannot be deprived wpc no.22507/2011 -32- of their private property. it was explained that worshipers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol. it was held therein that dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant of an individual or family.41. the apex court in deoki nandan's case (air 195.sc133) has laid down the following test in para 7: "when once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public represents no difficulty. the cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right worship at the shrine, of the general public or any specified portion thereof." in fact, the said case was concerning a hindu endowment. the intention of the founder will have to be assessed, going by the said principle.42. the very same issue was considered by a constitution bench of the apex court in tilkayat shri govindlaji maharaj's case (air 196.wpc no.22507/2011 -33- sc 1638.and in para 23 the real test to consider whether a hindu temple is private or public has been explained which is extracted below: "23. the question as to whether a hindu temple is private or public has often been considered by judicial decisions. a temple belonging to a family which is a private temple is not unknown to hindu law. in the case of a private temple it is also not unlikely that the religious reputation of the founder may be of such a high order that the private temple founded by him may attract devotees in large numbers and the mere fact that a large number of devotees are allowed to worship in the temple would not necessarily make the private temple a public temple. on the other hand, a public temple can be built by subscriptions raised by the public and a deity installed to enable all the members of the public to offer worship. in such a case the temple would clearly be a public temple. where evidence in regard to the foundation of the temple is not clearly available, sometimes, judicial decisions rely on certain other facts which are treated as relevant. is the temple built in such an imposing manner that it may prima facie appear to be a public temple? the appearance of the temple of course cannot be a decisive factor; at best it may be relevant factor. are the members of the public entitled to an entry in the temple? are they entitled to take part in offering service and taking darshan in the temple? are the members of the public entitled to take part in the festivals and wpc no.22507/2011 -34- ceremonies arranged in the temple' are their offerings accepted as a matter of right? the participation of the member of the public in the darshan in the temple and in the daily acts of worship or in the celebrations of festival occasions may be a very important factor to consider in determining the character of the temple. in the present proceedings, no such evidence has been led and it is, therefore, not shown that admission to the temple is controlled or regulated or that there are other factors present which indicate clearly that the temple is a private temple. therefore, the case for the tilkayat cannot rest on any such considerations which, if may have helped to establish either that the temple is private or is public." certain tests have been laid down therein, where evidence regarding the foundation of the temple is not clearly available.43. the next decision is radhakanta deb's case (air 198.sc798) wherein, in paragraphs 13 and 14, the following discussions have been made: "13. in gurpur guni venkataraya narashima prabhu v. b. c. achia, (1977) 3 scc 1.: (air 197.sc 1192), krishna iyer, j.reiterated these very principles in the following words : "the law is now well settled that 'the mere fact of the public having been freely admitted to the temple cannot wpc no.22507/2011 -35- mean that courts should readily infer therefrom dedication to the public. the value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right'. (see bihar state board religious trust, patna v. mahant sri biseshwar das, (1971) 3 scr 680.689 : (air 197.sc 2057.)." 14.thus, on a conspectus of the authorities mentioned above, the following tests may be laid down as providing sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature : (1)where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2)the fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. allied to this may be a circumstance when the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) where, however, a document is available to prove the nature and origin of the endowment and the recitals wpc no.22507/2011 -36- of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature; (4) where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment." therefore, in cases where the origin of the endowment cannot be ascertained, the question is whether the user of the temple by members of the public is as of right. that was also a case concerning religious endowment.44. we will now refer to an important judgment of this court by a learned single judge (s. velu pillai, j.) in kunhunni nambudiripad's case (1964 klt 1034.which has been approved by the division bench in appukutty's case (ilr 198.(1) ker. 218). there, the issue was concerned wpc no.22507/2011 -37- with the hindu religious institutions act (1950, t-c). the importance of dedication to the temple was explained therein and it was held that merely because the worshipers have used to attend the temple and were not turned out by the illom, no presumption can be made that such worship or user was as of right, once the temple is proved to belong to the illom. the relevant principles stated in paragraphs 4 and 5 are extracted hereunder: "the prevailing impression in kerala would seem to have been that nambudiri temples were private. the evidence adduced in the case does not point to any dedication of the temple by the appellant's illom for the benefit of the public; even dedication of properties to a temple is not inconsistent with its private ownership. granting that worshippers have attended or that they used to attend the temple and were not turned out by the illom, no presumption can be made that such worship or user was as of right, once the temple is proved to belong to the illom. it is where such proof is wanting that worshipping without let or hindrance by the members of the public has been held to raise a presumption, that such worship or user was as of right. once the private character of the temple is proved, user, however long, is not presumed to be as of right." wpc no.22507/2011 -38- in fact, in para 4, the decision of the privy council in mundacheri komman's case (air 193.p.c.280) was relied upon. it is also observed that the distinguishing feature in the case of malabar temples was recognised by the andhra pradesh high court in satyanarayana avadhani v. hindu religious endowments board, madras (air 195.a.p.824) and that this applies to the rest of the temples in kerala.45. there is a detailed discussion of all these judgments, in the decision of this court in appukuttuy's case (ilr 198.(1) ker. 218). after referring to the decisions of the apex court in mahant parchchan das v. bihar state board of religions trust and others (air 198.sc 514), radhakanta deb's case (air 198.sc 798), pratab singhji n. desai v. deputy commissioner, gujarat and others (air 198.sc 2064), the hindu state board of religions trust (patna) v. mahant m. sri biseshwar das (air 197.sc 2057), babu bhagwan din v. cin harswaroop (air 194.p.c.7), kunhunni namboodiripad's case (1964 klt 1034), and mundacheri koman's case (air 193.p.c. 230), it was held by the division bench at page 238 as follows: wpc no.22507/2011 -39- "where a temple was originally a private temple there must be clear and strong proof of subsequent dedication to the public, to sustain a plea that the temple subsequently became a public temple." in fact, in mahant parichchan das's case (air 198.sc514) which is relied upon by the division bench, with regard to the question whether worship by public will be crucial, the supreme court has held as follows: "the fact that members of public were permitted to go to the temple without any hindrance might not be a circumstance which by itself would conclusively establish that the temple was a public temple in the absence of an element of right in the user of the temple by the public." 46. all these decisions have been discussed by another division bench in gopinathan's case (ilr 200.(2) ker. 577). therein, the question which arose was under the hr & ce act itself. it was held that merely because public are also allowed to worship in a temple, it will not become a public temple. in paragraphs 6 and 7, after considering the definition of 'religious institution' under section 6(15) and the definition of the term 'temple' under section 6(17), the division bench has observed as follows: wpc no.22507/2011 -40- "6.............the term public religious institution has not been defined in the act. there are religious institutions under the act, either managed by the commissioner directly or by hereditary trustees independently.7. the trustees could manage private religious as well as public religious institution. religious institutions managed by the commissioner would invariably be public religious institutions. mere fact that public are allowed for worship would not make a private religious institution a public religious institution. section 6(17) states that temple means a place by whatever designation known, used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the hindu community or any section thereof and place of public religious worship. private temple owned by a family can also be a place for public worship but do not make such a private religious institution into a public religious institution. going by the act, deputy commissioner has got the power to decide whether the institution is a private religious institution or public religious institution but only subject to the rights of suit or appeal provided under sections 61 and 62." various decisions which have already been noted above, have been relied upon in that context. as already noticed, the principles stated by the learned single judge of this court in thiruvachira s.k.p. committee's case (1999 wpc no.22507/2011 -41- (2) klt590) that the deputy commissioner has got no power to decide whether a temple is a public or private temple, has also been approvingly referred to, in para 7 of the judgment in gopinathan's case (supra).47. in cochin devaswom board's case (ilr 200.(2) ker.569) relied on by the learned counsel for the petitioners, in para 14 the right guaranteed for every person under article 25(1) of the constitution, freely to profess, practice and propagate religion subject to restrictions imposed by the state in public order, morality and health, has been discussed. the question considered therein is a different one. in that context, article 300a of the constitution which says that no person shall be deprived of his properties save by authority of law, has also been noted.48. the discussion above will therefore show that importance will have to be given with regard to dedication, to find out whether it is a family temple or a public temple. various aspects will have to be assessed based on the intention of the propounder and other factors. merely because public were allowed to worship, it is not conclusive to hold that it is a public religious institution. various other factors will have to be assessed. when the evidence regarding the nature of the temple is not clearly wpc no.22507/2011 -42- available, how it could be assessed, has been laid down by the apex court in tilkayat shri govindlalji maharaj's case (air 196.sc 1638).49. therefore, when we come to the findings in ext.p2, towards these aspects, we are of the view that it requires a fresh consideration. we will not be venturing into a detailed discussion on the documents relied on by both the contesting parties, since under article 226 of the constitution of india, this court will not be justified in entering into a finding on disputed questions of fact. it requires an interpretation of the documents produced by the petitioners as exs.a1 to a9. the matter cannot rest based on the notification of the year 1994 alone. there should be cogent evidence from either side and we also notice that the documents produced on the side of the respondents as exts.b1 to b29 are mainly of the years after 1994. but still, how far they will go to show that the case of the petitioners is not justified, will have to be assessed again. in ext.p4 appellate order also, conclusions have been arrived at mainly relying on the notification of the year 1994 as well as the factum about the worship made by the public in the temple and that their entry has not been restricted. the crucial aspects will wpc no.22507/2011 -43- have to be decided on the dictum laid down by the apex court and this court in the various judgments referred to above.50. our views on the notification dated 15.2.1994 are on the facts of this case and in the absence of further materials in respect of the background of the notification in relation to the temple herein. it is made clear that the deputy commissioner will be free to call for other materials and official documents to take a further decision on this aspect. our views are not to be understood as of general nature in respect of the said list, viz. b schedule to 1994 notification.51. one more aspect will have to be dealt with, since the said point has been specifically raised and argued, i.e. whether ext.p2 is a valid order passed by an authority empowered under section 57 of the act, since the officer who has passed the order, is the special officer in charge of the deputy commissioner.52. the contention raised by the learned counsel for the petitioners is that section 57 of the act confers a quasi judicial power and the power is conferred only on the deputy commissioner and not to anybody else. when such a statutory power is being exercised, it cannot be delegated to wpc no.22507/2011 -44- anybody else. herein, the officer who has passed ext.p2 is the special officer, but he was on charge of the office of the deputy commissioner. such charge arrangement cannot confer exercise of a statutory power, is the contention. reliance is placed on the following judgments of the apex court and this court: sahni silk mills (p) ltd. and another v. employees state insurance corporation {(1994 )5 scc 346}, director general, esi and another v. t. abdul razak {(1996) 4 scc 708.and sharafudeen v. registrar, university of kerala (1997 (1) klt257) and h.w.r. wade on administrative law, fifth edn. chapter iv, page 319.53. the contention raised by the learned standing counsel for the board is that the special officer was having full additional charge of the post of deputy commissioner and therefore there is no invalidity. this is supported by the learned counsel appearing for the seventh respondent also. learned counsel appearing for respondents 4 and 5 supported the arguments of the learned counsel for the petitioners by stating that a person who is having mere charge of the office of the deputy commissioner, cannot exercise a statutory function of a quasi judicial nature. wpc no.22507/2011 -45- 54. both sides have referred to the relevant rules in part i k.s.r., viz. rule 53. we extract the relevant rules, viz. rules 53(a), 53(b), the ruling therein and government decision no.2, hereunder: "53(a) a competent authority may appoint an officer to hold substantively or to officiate in two or more independent posts at one time. (b) the competent authority who appoints an officer to hold or officiate in a second post in addition to his own, will declare whether he officiates in or holds full charge of the additional post or is appointed merely to discharge the current duties. it should also specify in each case the amount of special allowances, if any, to be granted, the amount being subject to the following limits:- (1) to (3) omitted. ruling the term 'independent' occurring in the above rule should be interpreted as meaning separate or distinct involving independent duties and responsibilities and the post subordinate to the one held by the officer should not be taken as independent under the rule. government decision no.2 "the following criteria will be followed to distinguish wpc no.22507/2011 -46- between 'full additional charge' and 'discharge of current duties'.-- (i) an officer appointed to hold 'full additional charge' of a post has to perform all the administrative, financial and statutory functions and duties in respect of that post. (ii) an officer appointed to discharge current duties of a post need attend only to the work of a routine nature in respect of that post." going by section 53(a), an officer who is holding a substantive post can be appointed to officiate in two or more independent posts at one time. going by sub-rule (b), the competent authority will have to declare whether he is holding full charge of the additional post or is appointed merely to discharge the current duties. the ruling therein will show that the post subordinate to the one held by the officer should not be taken as independent under the rule.55. therefore, the question will be whether, herein they are separate or distinct posts involving independent duties and responsibilities. under government decision no.2 it can be seen that a person holding full additional charge can perform all the administrative, financial and statutory wpc no.22507/2011 -47- functions and duties in respect of that post. the same is relied upon by the learned standing counsel for the board to submit that herein, there is no legal embargo to exercise the statutory function, as he was in full additional charge of the post of deputy commissioner. learned standing for the board further relied upon section 19(4) of the hr & ce act whereby the commissioner is empowered to delegate certain powers in specified contingencies. section 19(4) is extracted below: "19. other powers of commissioner in relation to deputy and assistant commissioners and area committee.-- (1) to (3) omitted. (4) notwithstanding anything contained in this act, where the office of a deputy or an assistant commissioner is vacant, the commissioner may, until the vacancy is filled-- (a) himself exercise the powers and discharge the duties assigned by or under this act to the deputy or assistant commissioner, or (b) authorise another deputy or assistant commissioner to exercise the said powers and discharge the said duties." going by the same, when the office of a deputy or assistant commissioner is vacant, the commissioner may, either himself exercise the powers and discharge the duties assigned to that officer or authorise another deputy or wpc no.22507/2011 -48- assistant commissioner to exercise such powers and duties. the proceeding available here and relied upon by the learned standing counsel for the board is ext.r1(b) produced along with the counter affidavit, which is the government order temporarily promoting the author of ext.p2 as special officer. on a reading of the order, it will show that the post of special officer is in the same rank of the commissioner and the commissioner was holding additional charge of the special officer. shri v.m. damodaran, deputy commissioner is ordered to be temporarily promoted as special officer. accordingly, he has been appointed as such. in the last sentence, it is stated as follows: "shri v.m. damodaran will hold the additional charge of deputy commissioner's post." plainly, it will not come under section 19(4) of the act, since the power under section 19(4) can be exercised only by the commissioner. apart from that, the commissioner can exercise the power under two contingencies provided therein, which is not the situation herein.56. then, we will have to consider whether rule 53 of part i k.s.r. will apply. going by rule 53(a), the appointment should be for two or wpc no.22507/2011 -49- more independent posts and the word 'independent', going by the ruling under rule 53, should not be a post subordinate to the one held by the officer. herein, as the officer was promoted from the post of deputy commissioner, the post of deputy commissioner is subordinate to it, evidently. hence, the said rule will not apply. then we will come to government decision no.2. what is mentioned therein is that he can perform statutory functions also, apart from administrative and financial duties. one thing that is evident from the said provision is that what is conferred is exercise of statutory function and not statutory power. the words 'power' and 'function' have got distinct and different scope and content. in chapter iv, wade administrative law, fifth edn. the importance of exercise of power by an authority upon whom it is conferred, has been explained thus: "an element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else. the principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable. normally the courts are rigorous in requiring the power to be exercised by the precise person or body wpc no.22507/2011 -50- stated in the statute, and in condemning as ultra vires action taken by agents, sub-committees or delegates, however expressly authorised by the authority endowed with the power." 57. the apex court in sahni silk mills (p) ltd.'s case {(1994) 5 scc 346.has considered the question whether a power delegated under the statute can be delegated further in the context of section 85-b(1) and 94-a of employees state insurance corporation act, 1948. while considering the question, in paragraphs 5 and 6 the legal principles have been explained thus: "5. the courts are normally rigorous in requiring the power to be exercised by the persons or the bodies authorised by the statutes. it is essential that the delegated power should be exercised by the authority upon whom it is conferred and by no one else. at the same time, in the present administrative set-up extreme judicial aversion to delegation cannot be carried to an extreme. a public authority is at liberty to employ agents to exercise its powers. that is why in many statutes, delegation is authorised either expressly or impliedly. due to the enormous rise in the nature of the activities to be handled by statutory authorities, the maxim delegatus non potest delegare is not being applied specially when there is question of exercise of administrative discretionary power. wpc no.22507/2011 -51- 6...................it is said that when parliament has specifically appointed authority to discharge a function, it cannot be readily presumed that it had intended that its delegate should be free to empower another person or body to act in its place." in para 8 of the above judgment, the following excerpts from halsbury's laws of england, 4th edn. vol.i have been extracted: "in accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, (h. lavender & sons ltd. v. minister of housing and local government - (1970) 3 all er871) unless sub-delegation of the power is authorised by express words or necessary implication (customs and excise commrs. v. cure and deeley ltd. (1962) 1 qb340) and mungoni v. attorbney general of northgern rhodesia). there is a strong presumption against construing a grant of legislative, judicial, or disciplinary power as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind. allam & co. v. europa poster services ltd. (1968) 1 all er 826). a reading of the same will show that there is a strong presumption against construing a grant of legislative, judicial, or disciplinary power as impliedly authorising sub-delegation. in para 12, it has also been explained that wpc no.22507/2011 -52- normally, judicial powers cannot be delegated. the maxim delegatus non potest delegare has also been explained there and we extract the same: "the maxim delegatus non potest delegare was originally invoked in the context of delegation of judicial powers saying that in the entire process of adjudication a judge must act personally except insofar as he is expressly absolved from his duty by a statute. the basic principle behind the aforesaid maxim is that "a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scope or object of the statute." (vide john willis, "delegatus non potest delegare, (1943) 21 can. bar rev. 257, 259)". therefore, normally the power can be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scope or object of the statute." if the said test is considered in the light of the express language of section 57 of hr & ce act, it does not indicate that the power conferred on the deputy commissioner can be exercised by any higher authority like the special officer. wpc no.22507/2011 -53- 58. the apex court in t. abdul razak's case {(1996) 4 scc 708.again considered the matter and in para 14 it was held as follows: "the law is well settled that in accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorised by express words or necessary implication." therein also, the employees state insurance corporation (staff and conditions of service) regulations 1959 was considered.59. the decision in sharafudeen's case (1997 (1) klt257) is by a division bench of this court where the question arose was under the kerala university first statutes, 1977, chapter 2, statute 6. after considering the scope of the provision, it was held that only administrative powers conferred on the vice chancellor can be delegated and the powers under the laws of the university have to be performed by him alone and non else.60. going by the scheme of section 57 of the hr & ce act, it can be seen that the power is conferred on the deputy commissioner himself. the office of the deputy commissioner is defined under section 6(7) and it wpc no.22507/2011 -54- means "the deputy commissioner appointed under sub-section (4) of section 8c." under the said provision, the board may appoint such number of deputy commissioners, asst. commissioner and other officers and staff as may be necessary for discharging its functions under this act. therefore, the statutory powers being conferred on the deputy commissioner, evidently the said power cannot be delegated and the power of delegation contained in section 19(4) allows the commissioner to authorise another deputy commissioner or assistant commissioner, when the office of the deputy or assistant commissioner is vacant. herein, such an authorisation is not there and therefore section 19(4) will not help to advance the contentions of respondents 1 and 2.61. as evident from the proceedings ext.r1(b), shri v.m. damodaran was holding the post of special officer by way of temporary promotion and was only in charge of deputy commissioner. government decision no.2 under rule 53 of part i k.s.r. cannot help, since only statutory functions are allowed to be exercised and not statutory powers. apart from that, the rules under the k.s.r. cannot have precedence over the provisions of hr & ce act, as the rules are only subordinate piece of wpc no.22507/2011 -55- legislation. therefore, we hold that the contention raised by the learned counsel for the petitioners that ext.p2 has to go for want of jurisdiction, is perfectly justified and the order cannot be sustained for that reason also.62. one of the contentions raised by the learned counsel for the seventh respondent is that the writ petition is not maintainable, as the petitioners are having the remedy of filing a suit under section 62 (1)(i) of hr & ce act. the answer given by the learned counsel for the petitioners is that since the order ext.p2 is passed without jurisdiction, the writ petition is maintainable and reliance is placed on the decision of a division bench of this court in padmanabhan v. commissioner, hrce (2007 (3) klt 617), para 10. therein, it has been held that the writ petition is maintainable, if the order is passed without jurisdiction. we have already held that the order is passed without jurisdiction and therefore, the alternate remedy will not be a bar for entertaining the writ petition.63. one of the other contentions strongly raised by the learned standing counsel and the learned counsel for the 7th respondent is that the petitioners have suffered an earlier order passed by the department, produced as ext.r1(a) in relation to disciplinary action taken against an wpc no.22507/2011 -56- employee. the said order is passed by the deputy commissioner directing the trustee to reinstate the appellant therein. it is submitted that no contention that the temple is a private one, has been raised. reliance is also placed on ext.r7(a) judgment by a division bench of this court. it is therefore submitted that the contention is barred on the principle of order ii rule 2 c.p.c. and the principles of constructive res judicata. reliance is also placed on the decisions of the apex court in shankara co-op. housing society ltd. v. m. prabhakar (air 201.sc 2161.and m. nagabhushana v. state of karnataka and others {(2011) 3 scc 408}.64. in shankara co-op. housing society ltd.'s case (air 201.sc 2161.it was held that the successive writ petitions on the same cause of action and on an issue which had attained finality, cannot be entertained.65. in fact, ext.r7(a) judgment, learned counsel for the petitioners submits, allowed the petitioners to move under section 57 before the deputy commissioner.66. a reading of the judgment will show that the challenge therein was against the alleged interference by the assistant commissioner, hr & ce, palakkad and specifically exts.p1 and p2 were under challenge. wpc no.22507/2011 -57- therein also, the notification dated 15.2.1994 was relied upon to contend that the temple is notified under section 38 as included as serial no.1198 in schedule b. therein, in para 9 this court held that prima facie evidence is there to show that the temple has been governed by the hr & ce department based on the notification. therefore, it was held that the petitioner therein is not entitled to any remedy in the original petition. but in para 10, liberty was given to approach the deputy commissioner under section 57 of the act and directed that if the petitioner moves any petition towards this, the deputy commissioner shall dispose of the same un- encumbered by any of the observations made in the judgment. therefore, the said judgment has left the alternate option to the petitioners to approach the deputy commissioner.67. the next judgment relied upon by the learned counsel for the respondents is that of a division bench of this court in w.p.(c) no.23222/2006. therein, ext.p2 order passed herein was under challenge. this court held that the petitioners have got a right of appeal under section 61 of the act and since that remedy has not been availed of, the writ wpc no.22507/2011 -58- petition was not entertained but liberty was given to the petitioners to file appeal. therein also, there is no finding regarding the merits of the matter.68. the judgment in w.p.(c) no.25988/2003 is another one wherein the challenge against ext.r1(a) order was the issue. the said writ petition was closed by the division bench leaving freedom to the present trustees to challenge any order issued or proposed by any authority under the act, if petitioners maintain that the temple is a private temple and not governed by the act. later, the writ petition itself was restored to file by the order in r.p.no.645/2008. therefore, the said orders will not help the contentions of the respondents.69. we are of the view that in the light of the judgment ext.r7(a) by a division bench of this court, it was open to the petitioners to move the deputy commissioner under section 57 of the act and the application filed thereafter, as o.a.no.19/2003 has resulted in ext.p2 order. it cannot be said that the contentions of the petitioners are barred by the principles of res judicata, as even in ext.r7(a) judgment, it was held that the wpc no.22507/2011 -59- observations therein are only prima facie. for all these reasons, we allow the writ petition and quash exts.p2 and p4 and the matter is relegated for a fresh decision by the deputy commissioner. both parties are allowed to adduce evidence and a fresh decision will be taken in accordance with law as expeditiously as possible, at any rate, within six months from the date of production of a certified copy of this judgment. no costs. (t.r.ramachandran nair, judge) (a.v. ramakrishna pillai, judge) kav/

Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI WEDNESDAY, THE 19TH DAY OF DECEMBER 2012 28TH AGRAHAYANA 193 WP(C).No. 22507 of 2011 (K) --------------------------- PETITIONER(S): ------------- 1. M.GANGADHARAN NAIR, MANJULAVIL HOUSE, KUNDLIYOOR P.O., THRISSUR DISTRICT.

2. M.JANARDHANAN NAIR, MANJULAVIL HOUSE, KUNDLIYOOR P.O., ENGANDIYOOR, THRISSUR DISTRICT. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENT(S): -------------- 1. THE COMMISSIONER, MALABAR DEVASWOM BOARD, KOZHIKODE-673 001.

2. THE DEPUTY COMMISSIONER, H.R. & C.E. (ADMINISTRATION), KOZHIKODE-673 001.

3. SRI.PANAYANKULANGARA BHAGAVATHY KSHETHRA SAMRAKSHANA SAMITHY, ENGANDIYOOR, THRISSUR DISTRICT, REP. BY ITS SECRETARY, P.HARIHARAN, PIN-670 615.

4. SRI.PANAYANKULANGARA BHAGAVATHY TEMPLE UTSAVA COMMITTEE, ENGANDIYOOR, THRISSUR DISTRICT, REP. BY ITS SECRETARY, C.NARAYANA MENON, PIN-680 615.

5. SRI.PANAYANKULANGARA BHAGAVATHY TEMPLE, KSHETHRA KSHEMA SAMITHY, ENGANDIYOOR, THRISSUR DISTRICT, REP. BY ITS SECRETARY, E.SANKARA NARAYANAN, PIN-680 615. WP(C).No. 22507 of 2011 (K) 6. AYINIPPULLY RAGHAVAN, S/O.KITTAPPAN, AYINIPPULLY HOUSE, KUNDALIYOOR P.O., PIN”

616. CHAVAKKAD TALUK, THRISSUR DISTRICT.

7. PANDARATHIL HARIHARAN, S/O.KITTUNNI, ENGANDIYOOR AMSOM, KUNDALIYOOR DESAM, CHAVAKKAD TALUK, THRISSUR DISTRICT-680 616.

8. SURESH, S/O.MADHAVAN MASTER, UNNIKOCHAN HOUSE, ENGANDIYOOR AMSOM, KUNDALIYOOR DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT-680 616.

9. AYYAPPAN, S/O.KARIMULLI RAMAN, KARIMULLY HOUSE, ENGANDIYOOR AMSOM KUNDALIYOOR DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT-680 616. R1 & R2 BY ADVS. SRI.K.MOHANAKANNAN, SC, MALABAR DEVASWOM SRI.R.LAKSHMI NARAYANAN, SC, MALABAR DEVASWOM SRI.V.KRISHNA MENON, SC, MALABAR DEVASWOM BOARD R7 BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- WP(C).No. 22507 of 2011 (K) APPENDIX PETITIONERS' EXHIBITS: P1 COPY OF THE I.A. FILED BY THE PETITIONER DATED 24 01.2005. P2 COPY OF THE ORDER DATED 16 08.2006. P3 COPY OF THE APPEAL DATED 17 11.2007. P4 COPY OF THE ORDER DATED 13 07.2011. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE ORDER IN AP 7/1998 PASSED BY THE DEPUTY COMMISSIONER DATED 25 07.2003. R1(B) COPY OF THE ORDER OF THE GOVT. GO NO.3415/06 RD DATED 20 07.2006. R7(A) COPY OF THE JUDGMENT IN O.P.NO.24229 OF 1998.DATED 27 H AUGUST, 2003. // TRUE COPY // P.A. TO JUDGE DSV/- T.R.RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.

- - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 22507 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - DATEDTHIS THE 22ND DAYOF JULY, 2013 JUDGMENT Ramachandran Nair, J.

The substantial challenge in this writ petition is against Exts.P2 and P4 orders which are passed by respectively by the second respondent Deputy Commissioner and in appeal by the first respondent Commissioner.

2. The question involved is whether the second respondent Deputy Commissioner has the power to declare a religious institution as a public temple defined under Section 6(17) of the Hindu Religious and Charitable Endowment Act (Madras) [for short 'HR & CE Act'], which according to the petitioners is lacking under Section 57 of the HR & CE Act.

3. The first petitioner is a hereditary trustee of Panayankulangara Bhagavathy Temple in Chavakkad Taluk which is owned by a family known as Manjulavil family. The second petitioner is his brother as well as his power of attorney holder. According to the prevailing system, the senior most male member of the family is the hereditary trustee. It is their case WPC No.22507/2011 -2- that the temple is situated in the property of the Manjulavil tharavad which is kept as a common property and remain unpartitioned.

4. Adversities have been caused due to the implementation of the Land Reforms Act, as the family lost many of their properties. The situation also led to the encroachment of temple properties by some of their neighbours. Even daily poojas were affected. The second respondent, who was a Journalist in Calicut returned to the family and he along with other family members renovated the temple.

5. It is submitted that the temple is not a notified religious institution under the HR & CE Act. The present controversy started in the year 1998 when the second respondent passed an order to take into custody the bhandarams of the temple. This was challenged in O.P.No.24229/98 before this Court. The petitioners therein were directed to approach the Deputy Commissioner, under Section 57 of the HR & CE Act, who is having the power to inquire into and decide the dispute whether the institution is a religious institution.

6. Thereafter, the petitioners approached the Deputy Commissioner seeking to declare that the temple is owned by Manjulavil WPC No.22507/2011 -3- family by filing O.A.No.19/2003. Ext.P1 is the interlocutory application filed in that proceedings seeking for a direction to the Assistant Commissioner, HR & CE, Palakkad to produce the entire files relating to the notification, if any, in support of the temple but, no orders were passed on the same and the files were not summoned. Various documents mentioned in para.5 of the writ petition have been produced before the Deputy Commissioner on the side of the petitioners to establish that the temple property was not partitioned and it is a family temple. It is stated that ignoring the voluminous evidence, Ext.P2 order has been passed by the second respondent and the appeal filed has also been rejected as per Ext.P4. Ext.P3 is the copy of the appeal memorandum.

7. We heard the learned counsel for the petitioner Shri M.P.Ashok Kumar, learned counsel appearing for the seventh respondent Shri P.B.Sahasranaman, learned counsel appearing for 4th, 5th and 9th respondents Shri C.E.Unnikrishnan and the learned Standing Counsel for the Board Shri V.Krishna Menon.

8. Learned counsel for the petitioners elaborated his contentions by submitting the following: WPC No.22507/2011 -4- Firstly, it is contended that Ext.P2 order is without any jurisdiction as the Officer, who has passed the order was not functioning as the Deputy Commissioner at the relevant date. He was already promoted as a Special Officer from the post of Deputy Commissioner. Under Section 57 of HR & CE Act, the power is conferred on the Deputy Commissioner alone. It is also submitted that as Section 57 is not one conferring an administrative power but a quasi-judicial power, such a power cannot be exercised by a person like the Special Officer. The Officer herein is termed as Special Officer-in-charge of Deputy Commissioner. While contending that the said charge arrangement is not one enabling the Special Officer to have any adjudicatory power in the matter, learned counsel relied upon the provisions under the Kerala Service Rules Part-I also. It is submitted that to give an Officer full additional charge of a post, a separate order in terms of Rule 53 (b) of the rules has to be there. Such is not the case here. It is therefore submitted that the entire order will have to be set aside on that point itself.

9. It is submitted that the second respondent has committed a grave error in finding that the temple in question is a public temple. Such a power is not conferred under Section 57 of HR & CE Act. It is declared by WPC No.22507/2011 -5- the second respondent in Ext.P2 that the temple is one as defined under Section 6(17) of the HR & CE Act. Relying upon the dictum laid down in Thiruvachira S.K.P. Committee v. Commissioner, H.R.C. Endowments [1999 (2) KLT 590], it is submitted that such a decision cannot be taken by the Deputy Commissioner. The provision under Section 57(a) has conferred power to adjudicate a dispute whether a particular institution comes under the definition of religious institution under Section 6(15) of the HR & CE Act. In this context, the learned counsel submitted that Section 38 of HR & CE Act enables the Board to publish a list of religious institutions. In the said list, the temple herein is not included. Even for inclusion of a temple in the list under Section 38, the rules insist that an Officer is bound to send notice to the trustee in respect of the temple's inclusion in the list under Section 38 and herein no such notice was sent to the petitioners at any point of time. On that point, it is submitted that the Special Officer in-charge of the Deputy Commissioner did not consider various documents produced by the petitioners. The documents will establish clearly that the family is the owner of the temple. WPC No.22507/2011 -6- 10. The learned counsel submitted that even the notification that is relied upon by the Deputy Commissioner is of the year 1994. It will only show that the temple herein is included as item No.1186 as a non listed temple. The provisions under Section 38 do not give any power to the Commissioner or Deputy Commissioner to include a temple as a non listed one and try to administer the same by exercise of supervisory powers. It is submitted that such a notification will not come in the eye of law enabling the HR & CE Department to assume the administration of the temple. It is submitted that both the authorities have failed in appreciating the real purport of Section 38 of HR & CE Act and have blindly followed the said list to deny the rights of the petitioners. The learned counsel submitted that the view of the Appellate Authority is also bad in law.

11. The learned Standing Counsel for respondents 1 and 2 submitted that the writ petition is liable to be dismissed as the petitioners have an alternative remedy to approach the Civil Court as empowered under Section 62(1) of HR & CE Act. With regard to the competency of the Special Officer, who was in charge as Deputy Commissioner, reliance is placed on Ext.R1(b) order and Rule 53 of Part I K.S.R. While referring to WPC No.22507/2011 -7- the definition of "temple" under Section 6(17) of HR & CE Act, learned counsel submitted that the argument raised by the petitioners about lack of power to declare a temple as public temple is not correct. The decision relied upon in Thiruvachira S.K.P. Committee's case [1999 (2) KLT 590.has been reversed in appeal. The learned counsel elaborated that when the public is worshipping as of right in the temple, the declaration made by the statutory authority is only in tune with the provisions of the Act.

12. As far as the notification of the year 1994 is concerned, the learned Standing Counsel for the Board explained that there was no challenge against the notification in any forum by the petitioners and, therefore, they cannot be heard to say that the exercise of supervisory power by the HR & CE Department in the light of the said notification is not correct. It is also submitted that in an earlier proceedings involving the hereditary trustee and another employee, there was no such challenge by the petitioners. Therefore, the petitioners have not established a case for interference at all.

13. The learned counsel appearing for the seventh respondent supported the arguments raised by the learned Standing Counsel for the WPC No.22507/2011 -8- Board. It is submitted that the power is not lacking for the Deputy Commissioner under Section 57 of HR & CE Act to pass an order like the one here and the argument raised by the learned counsel for the petitioners cannot be accepted at all. At various stages in different forums and before this Court, the very same plea was raised earlier and the petitioners did not succeed. The participation of the public in the affairs of the temple is evident and the same will justify the declaration by the second respondent that the temple is a public temple itself.

14. Learned counsel appearing for respondent Nos.4, 5 and 9 supported the argument raised by the learned counsel for the petitioners. It is submitted that the family owns the temple and the power conferred under Section 57 of HR & CE Act is only to decide whether an institution is a religious institution. It is further submitted that the power given to the Commissioner under Section 38 of HR & CE Act is only for the purpose of preparing and publishing the list of religious institutions for collection of contribution. In the said list, the temple herein is not included also and, therefore, no reliance can be placed on the notification dated 15/02/1994. WPC No.22507/2011 -9- 15. Both sides relied upon various Judgments of this Court and the Apex Court in support of their pleas.

16. First we will come to the relevant provisions of the Act. Going by Section 1, sub-section 2 of HR & CE Act, it extends to the whole of the Malabar District and applies to all Hindu public religious institutions and endowments, including the Tirumalai-Tirupati Devasthanams and the endowments thereof. The other important definitions are "religious institutions" under Section 6(15) and "temple" under Section 6(17) which are reproduced below: "6(15) "religious institution" means a math, temple or specific endowment. 6(17) "temple" means a place by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of or used as of right by the Hindu Community or any section thereof, as a place of public religious worship." The distinction that is evident from the two definitions is that temple should be one used as a place of "public" religious worship and it should be dedicated to, or for the benefit of or used as of right by the Hindu Community or any Section thereof as a place of public religious worship. A WPC No.22507/2011 -10- "religious institution" is not clothed with such a character and hence it can be a private one also.

17. Chapter V is under the heading "Inquiries". Section 57 confers power on the Deputy Commissioner to decide on certain disputes and matters. According to the main part of the Section and Sub Section (a), which is relevant here, subject to the rights of suit or appeal, the Deputy Commissioner shall have power to inquire into and decide: (a). whether an institution is a religious institution. Section 57 has come up for consideration in Thiruvachira S.K.P. Committee's case [1999 (2) KLT 590.wherein the learned Single Judge held the view that there is no power for the Deputy Commissioner to declare a temple as a public temple. The relevant findings contained in para.4 read as follows: "The Deputy Commissioner is empowered to decide whether an institution is a religious institution. There is no power for the Deputy Commissioner to declare a Temple as public temple. In fact there is no definition of the public temple in the Act. A Temple has been defined as a place of public religious worship and dedicated by the Hindu community. Therefore, the declaration alleged to have been made by the first respondent under S.57 of the Act that this institution is a WPC No.22507/2011 -11- public temple will not enable the respondents to invoke powers under S.39 of the Act. The basic fact for respondents 1 and 2 to get jurisdiction to act under S.30 of the Act is the inclusion of a Temple in the list prepared and published under S.38 of the Act. In the absence of such inclusion in the list of Temples, the first respondent cannot invoke the powers under S.38 so as to appoint either hereditary or non-hereditary trustees. Since S.57 does not authorise the Deputy Commissioner to declare a temple as a public temple, such a declaration cannot enure to the benefit of the first respondent to invoke S.30 of the Act." The said view was taken after noting that the temple has not been included in the list of religious institutions under Section 38 of HR & CE Act.

18. Certain other provisions of the Act also will have to be considered in this context. Section 38 of HR & CE Act gives power to the Commissioner to publish list of certain institutions which reads as follows: "38. Commissioner to publish list of certain institutions.-- "The Commissioner shall publish in the prescribed manner a list of the religious institutions whose annual income as calculated for the purposes of the levy of contribution under Section 76 is not less than one lakh rupees, and may from time to time modify such list in the prescribed manner. WPC No.22507/2011 -12- Provided that the Commissioner shall not be bound to remove any institution from such list unless its annual income calculated as aforesaid has fallen below twenty thousand rupees for three consecutive years." Chapter VI under the heading "Notified Religious Institutions" contains the detailed provisions enabling the authority to notify religious institutions. Sections 63 and 64 of HR & CE Act are relevant herein which are extracted hereunder. "63. Issue of notice to show cause why institution should not be notified.-- (1) Notwithstanding that a religious institution is governed by a scheme settled or deemed to have been settled under this Act, where the Commissioner has reason to believe that such institution is being mismanaged and is satisfied that in the interest of its administration, it is necessary to take proceedings under this Chapter, the Commissioner may, by notice published in the prescribed manner, call upon the trustee and all other persons having interest to show cause why such institution should not be notified to be subject to the provisions of this Chapter. WPC No.22507/2011 -13- (2) Such notice shall state the reasons for the action proposed, and specify a reasonable time, not being less than one month from the date of the issue of the notice, for showing such cause. (3) The trustee or any person having interest may thereupon prefer any objection he may wish to make to the issue of a notification as proposed. (4) Such objection shall be in writing and shall reach the Commissioner before the expiry of the time specified in the notice aforesaid or within such further time as may be granted by the Commissioner.

64. Consideration of objections, if any, and notification of institution.-- (1) Where no such objection has been received within the time so specified or granted, the State Government may, on receipt of a report from the Commissioner to that effect, by notification published in the Kerala Government Gazette, declare the religious institution to be subject to the provisions of this Chapter. (2) Where any such objections have been received within the time so specified or granted, the Commissioner shall hold an inquiry into the objections in the manner prescribed, and decide whether the institution should be notified to be subject to the provisions of this Chapter or not. WPC No.22507/2011 -14- (3) If the Commissioner decides that the institution should be notified as aforesaid, he shall make a report to that effect to the State Government who may thereupon, by notification published in the Kerala Government Gazette, declare the religious institution to be subject to the provisions of this Chapter. (4) Every notification published or deemed to be published under this section shall remain in force for a period of five years but it may, by notification, be cancelled at any time or continued from time to time for a further period or periods not exceeding five years at a time as the Government may by notification, in each case, think fit to direct." Going by these provisions, the position that emerges is that on being satisfied that an institution is being mismanaged, proceedings under the Chapter will have to be initiated. Under Sub Section (1) of Section 63, a show cause notice will have to be issued to the trustee. Not less than one month's time will have to be given for showing cause. An opportunity to file objection will have to be given. Section 64 of HR & CE Act provides for consideration of objections. The power to declare the religious institutions to be notified is conferred on the State Government, that too on a report from the Commissioner to that effect as evident from Section 64(1) WPC No.22507/2011 -15- in a case where no such objection is received within the time limit. If an objection is received, then Sub Section (2) requires holding of an inquiry and a decision will have to be taken whether the institution should be notified to be subject to the provisions of the Chapter or not. If the decision is in favour of issuance of notification, a report will have to be sent to the Government by the Commissioner and the State Government will have to publish the notification. The notification will remain for a period of five years and there is a provision for extending the five year period for a further period of not exceeding five years. Going by Section 65 of HR & CE Act, on the publication of such a notification, the scheme of administration, if any, settled for religious institution, shall cease to apply to the institution and such scheme and rules shall not be deemed to be revived by reason of the cancellation of the notification or by reason of its having ceased to be in force by efflux of time. Section 66 of HR & CE Act will show that once the notification is issued, the Commissioner will have to appoint a salaried Executive Officer and going by Section 67, the terms and duties of the Executive Officer will have to be fixed. Thus, the scheme for notifying a religious institution is envisaged under Chapter VI under the above detailed WPC No.22507/2011 -16- provisions.

19. We will now refer to the contents of the orders Exts.P2 and P4. In support of the contentions of the petitioners, P.Ws.1 to 3 have been examined and 9 documents have been marked as Exs.A1 to A9. R.Ws.1 to 5 have been examined on the side of the respondents and Exts.B1 to B21 have been marked. Ext.C1 is the notification dated 15.2.1994 of the Commissioner, published in the Gazette dated 26.4.1994. After the discussion of Exts.A1 to A9 it is concluded in para 18 that no document is forthcoming regarding the nature of the temple and the origin of the temple is lost in antiquity. Thereafter, the discussion proceeds to consider the oral evidence as well as documentary evidence adduced by the respondents.

20. The important findings are contained in para 30 onwards. After referring to the notification dated 15.2.1994 of the Commissioner, H.R. & C.E., Calicut, published on 26.4.1994, it isnoted that Sri Panayamkulangara Bhagavathy Temple has been included as item No.1186 as Engadiyur temple. It is included in the list of temples which are under the control of the department for the last so many years, of which the annual income was less than Rupees One Lakh. It is concluded that the notification WPC No.22507/2011 -17- will show that the temple is under the jurisdiction and control of H.R. & C.E. Department. In para 32, certain tests for distinguishing a public temple from a private one, as indicated by Hon'ble Dr. B.K. Mukherjea, Former Chief Justice of India, in the 'Hindu Law of Religious and Charitable Trust', have been stated. In para 34 it is concluded that if a temple was a private trust for the worship of family idol, the public would not have got repairs carried out. The remission of land revenue for the property on which the temple is constructed, has been taken as one of the decisive characters of the temple and finally it is concluded in paragraphs 37 and 38 that the temple is one as defined under Section 6(17) of Madras HR & CE Act, 1951.

21. Therefore, what stood against the petitioners is the finding mainly based on the notification dated 26.4.1994 including the temple as non listed and the participation of the public by worship, making offerings in festivals and other important ceremonies, receipt of annuity from Government, etc.

22. In Ext.P4, the Commissioner has entered a finding that the petitioners could not prove by adducing evidence that the temple is built in their private land or family property. The Commissioner also relied upon WPC No.22507/2011 -18- the notification including the temple as item No.1186 in Schedule B in the notification dated 15.2.1994 and that the public is worshiping in the temple and their contributions are being accepted and are also participating in the festivals and management.

23. The vehement argument raised by the learned counsel for the petitioner, Shri M.P. Ashok Kumar is that the notification dated 15.2.1994 which is published in the Gazette gives A schedule as listed temples and B schedule as non listed temples and the temple herein is included among the non listed temples. It is submitted that a reference to Section 38 will show that there is no system for publishing and including a temple as non listed one and therefore the notification has no real importance. The listing of temples under Section 38 is for levy of contribution under Section 76. Going by the said provision, such publication is for including such temples whose annual income is not less than One Lakh Rupees. The relevant rules under the Madras H.R. & C.E. Act for the enforcement of Section 38 show that under under Rule 2 of the Madras H.R. & C.E. Rules, a notice for inclusion of any religious institution, in the list shall be sent to the trustee or trustees of the religious institution concerned. Learned WPC No.22507/2011 -19- counsel for the petitioners submits that such a procedure has not been undertaken in this case.

24. It is clear from Section 39(1) of the Act that it is in respect of religious institutions included in the list published under Section 38, or over which no area committee has jurisdiction, that the Commissioner can constitute a board of trustees where there is no hereditary trustee. Therefore, listing under Section 38 gives power for the Commissioner to act under Section 39(1) of the Act.

25. The answer given in the counter affidavit filed by respondents 1 and 2 to this aspect is that going by the notification dated 15.2.1994 the temple in question became a religious institution as defined under the H.R. & C.E. Act and it is a settled matter long before and continued as such for long. While explaining the background of publication of such list, it is stated as follows: "The Government as per G.O.(Ms) No.772/Revenue dated 12.8.1961 constituted a High Level Committee for Unification of Laws relating to Hindu Religious Institution and Endowments headed by K. Kuttikrishna Menon, Retired Advocate General, Madras as Chairman. The above Committee had prepared a list of WPC No.22507/2011 -20- religious institutions and endowments in the Malabar area under the supervisory control of the then Department H.R. & C.E. (Admn) Department. Sri. Panayamkulangara Bhagavathy temple, Engandiyoor is a major institution shown as item No.1180 in the list prepared by the above committee." Therefore, evidently, the list is one, based on the list prepared by the said committee. The counter affidavit does not throw any light as to how the committee has prepared such a list. The stand taken is that the matter has become final in the light of the notification dated 15.2.1994 and the issue is a settled one.

26. The temple is situated in Chavakkad taluk which was part of the Malabar district which is not under dispute. It is well settled as far as Hindu temples in Malabar district are concerned, that there is no presumption that they are public charitable trusts, going by the decision of the Privy Council in Mundacheri Koman v. Thachangat Puthan Vittil Achuthan (AIR 193.P.C. 230). Therein, while comparing the system in the entire Madras Presidency and in Malabar, it has been held as follows at page 231: WPC No.22507/2011 -21- "In the greater part of the Madras Presidency, where private temples are practically unknown, the presumption is that temples and their endowments form public charitable trusts. This was laid down by Seshagiri Ayyar, J., on an elaborate consideration of the whole subject in 1920 Mad. 42(1) which was affirmed by the Board in 1924 P.C. 44(2). In that case which related to a temple in the Salem District founded by a religious devotee in 1814, Seshagiri Ayyar, J.

specially excepted temples in the Malbar District from the scope of this ruling, and in the later case of a Nair temple in Malabar, 1928 Mad. 879(3), it was held by the High Court, that there was no such presumption in Malabar. The learned Judges observed that it was very natural that the large family corporations or tarwads in Malabar should have established private temples for their own use, and that this had often happened, as stated in most treatises on Malabar law and polity. Consequently, they held that in Malabar there was no presumption one way or the other, and that the issue must be determined upon the evidence in the particular case. In this and the earlier case of 1918 Mad 1179 (4), as also in other recent cases, of which reports are not available to their Lordships, it has been held by the High Court on the evidence in the case that the temples and their endowments were public trusts. The prevailing impression in Malabar would seem to have been that these Nair temples were private, and this may have, to some extent, WPC No.22507/2011 -22- influenced the lower Courts, who so held both in this and in the two other cases already cited." 27. The powers of the department in notifying religious institutions in a case of mismanagement, as we have already noticed, is under Chapter VI and there is a detailed procedure under Section 63 onwards. The power under Section 63 could be invoked notwithstanding that such a religious institution is governed by a scheme settled under the Act mainly on the ground of mis-management and then after following the procedure prescribed, a final notification can be issued under Section 64(1). If there is no objection under Section 64(3), after enquiry under Section 64(2), based on the report of the Commissioner, a notification can be published by the Government declaring that the religious institution to be subject to the provisions of the Act.

28. Admittedly, such a procedure has not been adopted here or at any rate, materials have not been placed before us. The liability for payment of annual contribution is specified under Section 76 for the services rendered by the department (now the Board). Therefore, in the case of a purely private temple, proper procedural formalities are mandatory to be complied WPC No.22507/2011 -23- with, for the department to get administrative powers and control. Therefore, the procedure for listing the temples under Section 38 and the procedure for notifying them under Sections 63 and 64 not being evidently undertaken here, as no such pleas have been raised and the notification dated 15.4.1994 is in respect of the non listed temples only, such a notification cannot be crucial to decide whether the temple is purely a private or a public religious institution. Therefore, the finding based on the said notification cannot hold good as far as the Temple herein is concerned, in the absence of any other evidence notifying the Temple in a legal manner, for getting administrative control. We hasten to add that our conclusion as above is not to be understood as a reflection on the legal validity of the notification, but only on the sufficiency of the same as far as the Temple herein is concerned.

29. Learned Standing Counsel for the Board, Shri V. Krishna Menon and learned counsel appearing for the seventh respondent submitted that the notification is not specifically under challenge here and therefore as the petitioners have not challenged it, after 1994 to this time, the same should be held as valid. WPC No.22507/2011 -24- 30. If such a notification was issued after following the procedures prescribed under the Act, the absence of challenge earlier would have come to the help of respondents 1 and 2. Further, the notification dated 15.2.1994 in para 2(1) states about the list of temples under Section 38 which comes under the income limit of Rs.One Lakh. With regard to the temples included in B schedule, what is stated is that their income is below Rs.One Lakh and they have been under the control of the department for a number of years. How the control was assumed by the department, is not evident from the notification. Since the petitioners have raised a question specifically in this writ petition and the only answer given is that there was a list prepared by the Committee constituted as per Govt. Order dated 12.8.1961, viz. High Level Committee for Unification of Laws relating to Hindu Religious Institutions and Endowments headed by Shri K. Kuttikrishna Menon, Former Advocate General, Madras, and as no further details have been made available as to how the committee also prepared the list, the petitioners' contentions are really sound. The said notification, as far as this case is concerned, will not therefore help respondents 1 and 2. WPC No.22507/2011 -25- 31. The next question is whether the Deputy Commissioner has power to declare that a religious institution will come under the definition of 'Temple' under Section 6(17) of the Act, so as to treat it as a public temple.

32. We have already seen the definition of 'Temple' under Section 6 (17) of the Act. The power given under Section 57 of the Act for the Deputy Commissioner, is to enquire into and decide whether the institution is a religious institution and going by the definition of "Religious Institution" under Section 6(15) of the Act, it means "a math, temple or specific endowment." The definition of 'Temple' under Section 6(17) definitely indicates a place of public religious worship and dedicated to, or for the benefit of or used as of right by the Hindu Community or any section thereof, as a place of public religious worship." A plain reading of Section 57 of the Act shows that such a power is not conferred on the Deputy Commissioner and his power does not extend to that.

33. The issue is one of having a statutory power to take such a decision. In Thiruvachira S.K.P. Committee v. Commissioner, H.R.C. Endowments (1999 (2) KLT

590) a learned Single Judge of this Court has considered the very same issue and held that there is no power for the WPC No.22507/2011 -26- Deputy Commissioner to declare a temple as public temple. It was also held that the power under39 of the Act can be invoked only if the temple is included in the list prepared and published under Section 38 of the Act. We have already referred to the relevant findings in para 4 of the said judgment.

34. The trumpcard of the argument raised by the learned Standing Counsel for respondents 1 and 2 and learned counsel appearing for the seventh respondent is that in W.A. No.2758/1999 the judgment in Thiruvachira S.K.P. Committee's case (supra) has been reversed and therefore the legal position explained therein no longer exists. It is submitted by the learned counsel for the petitioners that it was not reversed on the said principle, but on a finding that there is a notification including the temple for the purpose of Section 38 of the Act.

35. We will now refer to the judgment in W.A. No.2758/1999. In para 4, the Division Bench has relied upon Annexure A1 which is the notification dated 15.2.1994 produced after the filing of the appeal by the department. With regard to the particular temple included therein, the Division Bench held as follows: WPC No.22507/2011 -27- "............The prevailing list under Section 38 as per the above notification is appended. The list was revised as per law including the Temples in A schedule. Item 468 in the list B is Thiruvachira Sree Krishna Temple. Thus, the Temple is included in the list. Hence it cannot be said that no trustee can be appointed for the Temple. In the above view of the matter, the judgment of the learned Single Judge is reversed and the Writ Appeal is allowed." Actually, the notification that is referred to therein is the one which is the subject matter before us also. The Division Bench has not gone into the principles stated by the learned Single Judge but on a factual aspect alone, the Bench has reversed the said judgment. Therefore, it cannot be said that the principle itself has been reversed. Actually, the said temple was also included among the non listed temples only and not among the listed temples. In A schedule there are only 72 temples and the temple which was the subject matter therein was included in B schedule alone, viz. non listed. Learned counsel for the petitioners, Shri Ashok Kumar, therefore, submitted that the reversal of the judgment on the basis of the said list also is not correctly done by the Division Bench. We are not going into the said question. WPC No.22507/2011 -28- 36. In fact, the legal principles stated in Thiruvachira S.K.P. Committee 's case (1999 (2) KLT

590) have been approved by another Division Bench in a later decision, viz. Gopinathan K.V. And others v. Kannankavu Devaswom Udama and Ooralam Raman and others (ILR 200.(2) Ker. 577). Therein, this Court was considering the question whether merely because public are also allowed to worship in the temple, the temple will become a public temple or not. In the course of the discussion, it was held as follows: "Another learned Judge of this Court in Thiruvachira S.K.P. Committee v. Commissioner, H.R.C. Endowments (1999 (2) KLT 590), held that the Deputy Commissioner has got no power to decide whether a temple is a public or private temple." Therefore, the said dictum in Thiruvachira S.K.P. Committee's case (supra) has been approved by that Bench.

37. We are also of the view that Section 57(a) of the Act confers power on the Deputy Commissioner only to decide whether an institution is a religious institution. A public temple is not defined under the provisions of the Act. It is submitted by the learned counsel appearing for the seventh respondent that since in the definition of "religious institution" under WPC No.22507/2011 -29- Section 6(15) of the Act, a temple is also mentioned, the Deputy Commissioner can decide whether it is a public temple or not. We cannot agree. Since, the Act specifically confers a power to do a particular thing, the said power will have to be exercised only to that extend and not for other purposes. Herein, the petitioners have moved the O.A. under Section 57, under which the power is clothed only to decide whether an institution is a religious institution. Therefore, we are also of the view that the Deputy Commissioner has no power to declare that a temple will be a public temple, under Section 57 of the Act.

38. Arguments have been raised by the learned counsel for the petitioners challenging the conclusions made in Exts.P2 and P4 based on the participation of public in daily worship, and in festivals, in making offerings and in contributing to the welfare of the temple. He relied upon the principles stated in the following decisions: Pandit Parma Nand v. Nihal Chand and another (AIR 193.P.C. 195), Babu Bhgwan Din and others v. Gir Har Saroop and others (1940 P.C. 7), Deoki Nandan fv. Murlidhar and others (AIR 195.SC 133), Tilkayat Shri Govindlaji Maharaj etc. v. State of Rajasthan and others (AIR 196.SC 1638), WPC No.22507/2011 -30- Radhakanta Deb and another v. The Commissioner of Hindu Religious Endowments, Orissa (AIR 198.SC 798), Kunhunni Nambudiripad v. Cochin Devaswom Board (1964 KLT 1034), Appukutty and others v. Kuniyil Achuthan (ILR 198.(1) Ker. 218), Cochin Devaswom Board v. Ramachandra Kurup and others (ILR 200.(2) Ker.

569) and Gopinathan K.V.'s case (ILR 200.(2) Ker. 577).

39. In Pandit Parma Nand's case (AIR 193.P.C. 195), it has been held as follows with regard to the worship made by the public in a temple: "There can be no doubt that even in a private shrine, the public may worship, but the question is whether they do so without any permission, leave or license and as of right." 40. In the later decision, viz. Babu Bhagwan Din's case (AIR 194.P.C.

7) also, the relevant tests have been explained thus at page 10: "...........In these circumstances, it is not enough in their Lordship's opinion, to deprive the family of their private property to show that Hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among Hindus or the locality or among persons resorting to the annual mela. Worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the WPC No.22507/2011 -31- idol: they do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust. Facts and circumstances, in order to be accepted as sufficient proof of dedication of a temple as a public temple, must be considered in their historical setting in such a case as the present; and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference if made from the fact of user by the public is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away; and as worship generally implies offerings of some kind it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. Thus in 61 I A 40.(Mundacheri Koman v. Achuthan Nair (1934) 21 AIR PC

230) the Board expressed itself as being slow to act on the mere fact of the public having been freely admitted to a temple. The value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right.........." The principle that is emerging from the said decision is that merely because Hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among Hindus of the locality or among persons resorting to the annual mela, the family cannot be deprived WPC No.22507/2011 -32- of their private property. It was explained that worshipers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol. It was held therein that dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant of an individual or family.

41. The Apex Court in Deoki Nandan's case (AIR 195.SC

133) has laid down the following test in para 7: "When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public represents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right worship at the shrine, of the general public or any specified portion thereof." In fact, the said case was concerning a Hindu endowment. The intention of the founder will have to be assessed, going by the said principle.

42. The very same issue was considered by a Constitution Bench of the Apex Court in Tilkayat Shri Govindlaji Maharaj's case (AIR 196.WPC No.22507/2011 -33- SC 1638.and in para 23 the real test to consider whether a Hindu temple is private or public has been explained which is extracted below: "23. The question as to whether a Hindu temple is private or public has often been considered by Judicial decisions. A temple belonging to a family which is a private temple is not unknown to Hindu law. In the case of a private temple it is also not unlikely that the religious reputation of the founder may be of such a high order that the private temple founded by him may attract devotees in large numbers and the mere fact that a large number of devotees are allowed to worship in the temple would not necessarily make the private temple a public temple. On the other hand, a public temple can be built by subscriptions raised by the public and a deity installed to enable all the members of the public to offer worship. In such a case the temple would clearly be a public temple. Where evidence in regard to the foundation of the temple is not clearly available, sometimes, judicial decisions rely on certain other facts which are treated as relevant. Is the temple built in such an imposing manner that it may prima facie appear to be a public temple? The appearance of the temple of course cannot be a decisive factor; at best it may be relevant factor. Are the members of the public entitled to an entry in the temple? Are they entitled to take part in offering service and taking Darshan in the temple? Are the members of the public entitled to take part in the festivals and WPC No.22507/2011 -34- ceremonies arranged in the temple' Are their offerings accepted as a matter of right? The Participation of the member of the public in the Darshan in the temple and in the daily acts of worship or in the celebrations of festival occasions may be a very important factor to consider in determining the character of the temple. In the present proceedings, no such evidence has been led and it is, therefore, not shown that admission to the temple is controlled or regulated or that there are other factors present which indicate clearly that the temple is a private temple. Therefore, the case for the Tilkayat cannot rest on any such considerations which, if may have helped to establish either that the temple is private or is public." Certain tests have been laid down therein, where evidence regarding the foundation of the temple is not clearly available.

43. The next decision is Radhakanta Deb's case (AIR 198.SC

798) wherein, in paragraphs 13 and 14, the following discussions have been made: "13. In Gurpur Guni Venkataraya Narashima Prabhu v. B. C. Achia, (1977) 3 SCC 1.: (AIR 197.SC 1192), Krishna Iyer, J.

reiterated these very principles in the following words : "The law is now well settled that 'the mere fact of the public having been freely admitted to the temple cannot WPC No.22507/2011 -35- mean that courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right'. (See Bihar State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das, (1971) 3 SCR 680.689 : (AIR 197.SC 2057.)." 14.Thus, on a conspectus of the authorities mentioned above, the following tests may be laid down as providing sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature : (1)Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2)The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance when the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals WPC No.22507/2011 -36- of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature; (4) where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the Private nature of the endowment." Therefore, in cases where the origin of the endowment cannot be ascertained, the question is whether the user of the temple by members of the public is as of right. That was also a case concerning religious endowment.

44. We will now refer to an important judgment of this Court by a learned Single Judge (S. Velu Pillai, J.) in Kunhunni Nambudiripad's case (1964 KLT 1034.which has been approved by the Division Bench in Appukutty's case (ILR 198.(1) Ker. 218). There, the issue was concerned WPC No.22507/2011 -37- with the Hindu Religious Institutions Act (1950, T-C). The importance of dedication to the temple was explained therein and it was held that merely because the worshipers have used to attend the temple and were not turned out by the Illom, no presumption can be made that such worship or user was as of right, once the temple is proved to belong to the Illom. The relevant principles stated in paragraphs 4 and 5 are extracted hereunder: "The prevailing impression in Kerala would seem to have been that Nambudiri temples were private. The evidence adduced in the case does not point to any dedication of the temple by the appellant's Illom for the benefit of the public; even dedication of properties to a temple is not inconsistent with its private ownership. Granting that worshippers have attended or that they used to attend the temple and were not turned out by the Illom, no presumption can be made that such worship or user was as of right, once the temple is proved to belong to the Illom. It is where such proof is wanting that worshipping without let or hindrance by the members of the public has been held to raise a presumption, that such worship or user was as of right. Once the private character of the temple is proved, user, however long, is not presumed to be as of right." WPC No.22507/2011 -38- In fact, in para 4, the decision of the Privy Council in Mundacheri Komman's case (AIR 193.P.C.280) was relied upon. It is also observed that the distinguishing feature in the case of Malabar temples was recognised by the Andhra Pradesh High Court in Satyanarayana Avadhani v. Hindu Religious Endowments Board, Madras (AIR 195.A.P.824) and that this applies to the rest of the Temples in Kerala.

45. There is a detailed discussion of all these judgments, in the decision of this Court in Appukuttuy's case (ILR 198.(1) Ker. 218). After referring to the decisions of the Apex Court in Mahant Parchchan Das v. Bihar State Board of Religions Trust and others (AIR 198.SC 514), Radhakanta Deb's case (AIR 198.SC 798), Pratab Singhji N. Desai v. Deputy Commissioner, Gujarat and others (AIR 198.SC 2064), The Hindu State Board of Religions Trust (Patna) v. Mahant M. Sri Biseshwar Das (AIR 197.SC 2057), Babu Bhagwan Din v. Cin Harswaroop (AIR 194.P.C.7), Kunhunni Namboodiripad's case (1964 KLT 1034), and Mundacheri Koman's case (AIR 193.P.C. 230), it was held by the Division Bench at page 238 as follows: WPC No.22507/2011 -39- "Where a temple was originally a private temple there must be clear and strong proof of subsequent dedication to the public, to sustain a plea that the temple subsequently became a public temple." In fact, in Mahant Parichchan Das's case (AIR 198.SC

514) which is relied upon by the Division Bench, with regard to the question whether worship by public will be crucial, the Supreme Court has held as follows: "The fact that members of public were permitted to go to the temple without any hindrance might not be a circumstance which by itself would conclusively establish that the temple was a public temple in the absence of an element of right in the user of the temple by the public." 46. All these decisions have been discussed by another Division Bench in Gopinathan's case (ILR 200.(2) Ker. 577). Therein, the question which arose was under the HR & CE Act itself. It was held that merely because public are also allowed to worship in a Temple, it will not become a public Temple. In paragraphs 6 and 7, after considering the definition of 'religious institution' under Section 6(15) and the definition of the term 'Temple' under Section 6(17), the Division Bench has observed as follows: WPC No.22507/2011 -40- "6.............The term public religious institution has not been defined in the Act. There are religious institutions under the Act, either managed by the Commissioner directly or by hereditary Trustees independently.

7. The Trustees could manage private religious as well as public religious institution. Religious institutions managed by the Commissioner would invariably be public religious institutions. Mere fact that public are allowed for worship would not make a private religious institution a public religious institution. Section 6(17) states that temple means a place by whatever designation known, used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof and place of public religious worship. Private temple owned by a family can also be a place for public worship but do not make such a private religious institution into a public religious institution. Going by the Act, Deputy Commissioner has got the power to decide whether the institution is a private religious institution or public religious institution but only subject to the rights of suit or appeal provided under sections 61 and 62." Various decisions which have already been noted above, have been relied upon in that context. As already noticed, the principles stated by the learned Single Judge of this Court in Thiruvachira S.K.P. Committee's case (1999 WPC No.22507/2011 -41- (2) KLT

590) that the Deputy Commissioner has got no power to decide whether a temple is a public or private temple, has also been approvingly referred to, in para 7 of the judgment in Gopinathan's case (supra).

47. In Cochin Devaswom Board's case (ILR 200.(2) Ker.

569) relied on by the learned counsel for the petitioners, in para 14 the right guaranteed for every person under Article 25(1) of the Constitution, freely to profess, practice and propagate religion subject to restrictions imposed by the State in public order, morality and health, has been discussed. The question considered therein is a different one. In that context, Article 300A of the Constitution which says that no person shall be deprived of his properties save by authority of law, has also been noted.

48. The discussion above will therefore show that importance will have to be given with regard to dedication, to find out whether it is a family Temple or a public Temple. Various aspects will have to be assessed based on the intention of the propounder and other factors. Merely because public were allowed to worship, it is not conclusive to hold that it is a public religious institution. Various other factors will have to be assessed. When the evidence regarding the nature of the Temple is not clearly WPC No.22507/2011 -42- available, how it could be assessed, has been laid down by the Apex Court in Tilkayat Shri Govindlalji Maharaj's case (AIR 196.SC 1638).

49. Therefore, when we come to the findings in Ext.P2, towards these aspects, we are of the view that it requires a fresh consideration. We will not be venturing into a detailed discussion on the documents relied on by both the contesting parties, since under Article 226 of the Constitution of India, this Court will not be justified in entering into a finding on disputed questions of fact. It requires an interpretation of the documents produced by the petitioners as Exs.A1 to A9. The matter cannot rest based on the notification of the year 1994 alone. There should be cogent evidence from either side and we also notice that the documents produced on the side of the respondents as Exts.B1 to B29 are mainly of the years after 1994. But still, how far they will go to show that the case of the petitioners is not justified, will have to be assessed again. In Ext.P4 appellate order also, conclusions have been arrived at mainly relying on the notification of the year 1994 as well as the factum about the worship made by the public in the Temple and that their entry has not been restricted. The crucial aspects will WPC No.22507/2011 -43- have to be decided on the dictum laid down by the Apex Court and this Court in the various judgments referred to above.

50. Our views on the notification dated 15.2.1994 are on the facts of this case and in the absence of further materials in respect of the background of the notification in relation to the Temple herein. It is made clear that the Deputy Commissioner will be free to call for other materials and official documents to take a further decision on this aspect. Our views are not to be understood as of general nature in respect of the said list, viz. B Schedule to 1994 notification.

51. One more aspect will have to be dealt with, since the said point has been specifically raised and argued, i.e. whether Ext.P2 is a valid order passed by an authority empowered under Section 57 of the Act, since the officer who has passed the order, is the Special Officer in charge of the Deputy Commissioner.

52. The contention raised by the learned counsel for the petitioners is that Section 57 of the Act confers a quasi judicial power and the power is conferred only on the Deputy Commissioner and not to anybody else. When such a statutory power is being exercised, it cannot be delegated to WPC No.22507/2011 -44- anybody else. Herein, the officer who has passed Ext.P2 is the Special Officer, but he was on charge of the office of the Deputy Commissioner. Such charge arrangement cannot confer exercise of a statutory power, is the contention. Reliance is placed on the following judgments of the Apex Court and this Court: Sahni Silk Mills (P) Ltd. and another v. Employees State Insurance Corporation {(1994 )5 SCC 346}, Director General, ESI and another v. T. Abdul Razak {(1996) 4 SCC 708.and Sharafudeen v. Registrar, University of Kerala (1997 (1) KLT

257) and H.W.R. Wade on Administrative Law, Fifth Edn. Chapter IV, page 319.

53. The contention raised by the learned Standing Counsel for the Board is that the Special Officer was having full additional charge of the post of Deputy Commissioner and therefore there is no invalidity. This is supported by the learned counsel appearing for the seventh respondent also. Learned counsel appearing for respondents 4 and 5 supported the arguments of the learned counsel for the petitioners by stating that a person who is having mere charge of the office of the Deputy Commissioner, cannot exercise a statutory function of a quasi judicial nature. WPC No.22507/2011 -45- 54. Both sides have referred to the relevant rules in Part I K.S.R., viz. Rule 53. We extract the relevant rules, viz. Rules 53(a), 53(b), the Ruling therein and Government Decision No.2, hereunder: "53(a) A Competent Authority may appoint an officer to hold substantively or to officiate in two or more independent posts at one time. (b) The Competent Authority who appoints an officer to hold or officiate in a second post in addition to his own, will declare whether he officiates in or holds full charge of the additional post or is appointed merely to discharge the current duties. It should also specify in each case the amount of special allowances, if any, to be granted, the amount being subject to the following limits:- (1) to (3) omitted. RULING The term 'independent' occurring in the above rule should be interpreted as meaning separate or distinct involving independent duties and responsibilities and the post subordinate to the one held by the officer should not be taken as independent under the rule. Government Decision No.2 "The following criteria will be followed to distinguish WPC No.22507/2011 -46- between 'full additional charge' and 'discharge of current duties'.-- (i) An officer appointed to hold 'full additional charge' of a post has to perform all the administrative, financial and statutory functions and duties in respect of that post. (ii) An officer appointed to discharge current duties of a post need attend only to the work of a routine nature in respect of that post." Going by Section 53(a), an officer who is holding a substantive post can be appointed to officiate in two or more independent posts at one time. Going by sub-rule (b), the competent authority will have to declare whether he is holding full charge of the additional post or is appointed merely to discharge the current duties. The Ruling therein will show that the post subordinate to the one held by the officer should not be taken as independent under the rule.

55. Therefore, the question will be whether, herein they are separate or distinct posts involving independent duties and responsibilities. Under Government Decision No.2 it can be seen that a person holding full additional charge can perform all the administrative, financial and statutory WPC No.22507/2011 -47- functions and duties in respect of that post. The same is relied upon by the learned Standing Counsel for the Board to submit that herein, there is no legal embargo to exercise the statutory function, as he was in full additional charge of the post of Deputy Commissioner. Learned Standing for the Board further relied upon Section 19(4) of the HR & CE Act whereby the Commissioner is empowered to delegate certain powers in specified contingencies. Section 19(4) is extracted below: "19. Other powers of Commissioner in relation to Deputy and Assistant Commissioners and Area Committee.-- (1) to (3) omitted. (4) Notwithstanding anything contained in this Act, where the office of a Deputy or an Assistant Commissioner is vacant, the Commissioner may, until the vacancy is filled-- (a) himself exercise the powers and discharge the duties assigned by or under this Act to the Deputy or Assistant Commissioner, or (b) authorise another Deputy or Assistant Commissioner to exercise the said powers and discharge the said duties." Going by the same, when the office of a Deputy or Assistant Commissioner is vacant, the Commissioner may, either himself exercise the powers and discharge the duties assigned to that officer or authorise another Deputy or WPC No.22507/2011 -48- Assistant Commissioner to exercise such powers and duties. The proceeding available here and relied upon by the learned Standing Counsel for the Board is Ext.R1(b) produced along with the counter affidavit, which is the Government Order temporarily promoting the author of Ext.P2 as Special Officer. On a reading of the order, it will show that the post of Special Officer is in the same rank of the Commissioner and the Commissioner was holding additional charge of the Special Officer. Shri V.M. Damodaran, Deputy Commissioner is ordered to be temporarily promoted as Special Officer. Accordingly, he has been appointed as such. In the last sentence, it is stated as follows: "Shri V.M. Damodaran will hold the additional charge of Deputy Commissioner's post." Plainly, it will not come under Section 19(4) of the Act, since the power under Section 19(4) can be exercised only by the Commissioner. Apart from that, the Commissioner can exercise the power under two contingencies provided therein, which is not the situation herein.

56. Then, we will have to consider whether Rule 53 of Part I K.S.R. will apply. Going by Rule 53(a), the appointment should be for two or WPC No.22507/2011 -49- more independent posts and the word 'independent', going by the Ruling under Rule 53, should not be a post subordinate to the one held by the officer. Herein, as the officer was promoted from the post of Deputy Commissioner, the post of Deputy Commissioner is subordinate to it, evidently. Hence, the said rule will not apply. Then we will come to Government Decision No.2. What is mentioned therein is that he can perform statutory functions also, apart from administrative and financial duties. One thing that is evident from the said provision is that what is conferred is exercise of statutory function and not statutory power. The words 'power' and 'function' have got distinct and different scope and content. In Chapter IV, Wade Administrative Law, Fifth Edn. the importance of exercise of power by an authority upon whom it is conferred, has been explained thus: "An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else. The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable. Normally the courts are rigorous in requiring the power to be exercised by the precise person or body WPC No.22507/2011 -50- stated in the statute, and in condemning as ultra vires action taken by agents, sub-committees or delegates, however expressly authorised by the authority endowed with the power." 57. The Apex Court in Sahni Silk Mills (P) Ltd.'s case {(1994) 5 SCC 346.has considered the question whether a power delegated under the statute can be delegated further in the context of Section 85-B(1) and 94-A of Employees State Insurance Corporation Act, 1948. While considering the question, in paragraphs 5 and 6 the legal principles have been explained thus: "5. The courts are normally rigorous in requiring the power to be exercised by the persons or the bodies authorised by the statutes. It is essential that the delegated power should be exercised by the authority upon whom it is conferred and by no one else. At the same time, in the present administrative set-up extreme judicial aversion to delegation cannot be carried to an extreme. A public authority is at liberty to employ agents to exercise its powers. That is why in many statutes, delegation is authorised either expressly or impliedly. Due to the enormous rise in the nature of the activities to be handled by statutory authorities, the maxim delegatus non potest delegare is not being applied specially when there is question of exercise of administrative discretionary power. WPC No.22507/2011 -51- 6...................It is said that when Parliament has specifically appointed authority to discharge a function, it cannot be readily presumed that it had intended that its delegate should be free to empower another person or body to act in its place." In para 8 of the above judgment, the following excerpts from Halsbury's Laws of England, 4th Edn. Vol.I have been extracted: "In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, (H. Lavender & Sons Ltd. v. Minister of Housing and Local Government - (1970) 3 All ER

871) unless sub-delegation of the power is authorised by express words or necessary implication (Customs and Excise Commrs. v. Cure and Deeley Ltd. (1962) 1 QB

340) and Mungoni v. Attorbney General of Northgern Rhodesia). There is a strong presumption against construing a grant of legislative, judicial, or disciplinary power as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind. Allam & Co. v. Europa Poster Services Ltd. (1968) 1 All ER 826). A reading of the same will show that there is a strong presumption against construing a grant of legislative, judicial, or disciplinary power as impliedly authorising sub-delegation. In para 12, it has also been explained that WPC No.22507/2011 -52- normally, judicial powers cannot be delegated. The maxim delegatus non potest delegare has also been explained there and we extract the same: "The maxim delegatus non potest delegare was originally invoked in the context of delegation of judicial powers saying that in the entire process of adjudication a judge must act personally except insofar as he is expressly absolved from his duty by a statute. The basic principle behind the aforesaid maxim is that "a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scope or object of the statute." (Vide John Willis, "Delegatus non potest delegare, (1943) 21 Can. Bar Rev. 257, 259)". Therefore, normally the power can be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scope or object of the statute." If the said test is considered in the light of the express language of Section 57 of HR & CE Act, it does not indicate that the power conferred on the Deputy Commissioner can be exercised by any higher authority like the Special Officer. WPC No.22507/2011 -53- 58. The Apex Court in T. Abdul Razak's case {(1996) 4 SCC 708.again considered the matter and in para 14 it was held as follows: "The law is well settled that in accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorised by express words or necessary implication." Therein also, the Employees State Insurance Corporation (Staff and Conditions of Service) Regulations 1959 was considered.

59. The decision in Sharafudeen's case (1997 (1) KLT

257) is by a Division Bench of this Court where the question arose was under the Kerala University First Statutes, 1977, Chapter 2, Statute 6. After considering the scope of the provision, it was held that only administrative powers conferred on the Vice Chancellor can be delegated and the powers under the laws of the University have to be performed by him alone and non else.

60. Going by the scheme of Section 57 of the HR & CE Act, it can be seen that the power is conferred on the Deputy Commissioner himself. The office of the Deputy Commissioner is defined under Section 6(7) and it WPC No.22507/2011 -54- means "the Deputy Commissioner appointed under sub-section (4) of Section 8C." Under the said provision, the Board may appoint such number of Deputy Commissioners, Asst. Commissioner and other officers and staff as may be necessary for discharging its functions under this Act. Therefore, the statutory powers being conferred on the Deputy Commissioner, evidently the said power cannot be delegated and the power of delegation contained in Section 19(4) allows the Commissioner to authorise another Deputy Commissioner or Assistant Commissioner, when the office of the Deputy or Assistant Commissioner is vacant. Herein, such an authorisation is not there and therefore Section 19(4) will not help to advance the contentions of respondents 1 and 2.

61. As evident from the proceedings Ext.R1(b), Shri V.M. Damodaran was holding the post of Special Officer by way of temporary promotion and was only in charge of Deputy Commissioner. Government Decision No.2 under Rule 53 of Part I K.S.R. cannot help, since only statutory functions are allowed to be exercised and not statutory powers. Apart from that, the rules under the K.S.R. Cannot have precedence over the provisions of HR & CE Act, as the rules are only subordinate piece of WPC No.22507/2011 -55- legislation. Therefore, we hold that the contention raised by the learned counsel for the petitioners that Ext.P2 has to go for want of jurisdiction, is perfectly justified and the order cannot be sustained for that reason also.

62. One of the contentions raised by the learned counsel for the seventh respondent is that the writ petition is not maintainable, as the petitioners are having the remedy of filing a suit under Section 62 (1)(i) of HR & CE Act. The answer given by the learned counsel for the petitioners is that since the order Ext.P2 is passed without jurisdiction, the writ petition is maintainable and reliance is placed on the decision of a Division Bench of this Court in Padmanabhan v. Commissioner, HRCE (2007 (3) KLT 617), para 10. Therein, it has been held that the writ petition is maintainable, if the order is passed without jurisdiction. We have already held that the order is passed without jurisdiction and therefore, the alternate remedy will not be a bar for entertaining the writ petition.

63. One of the other contentions strongly raised by the learned Standing Counsel and the learned counsel for the 7th respondent is that the petitioners have suffered an earlier order passed by the Department, produced as Ext.R1(a) in relation to disciplinary action taken against an WPC No.22507/2011 -56- employee. The said order is passed by the Deputy Commissioner directing the trustee to reinstate the appellant therein. It is submitted that no contention that the temple is a private one, has been raised. Reliance is also placed on Ext.R7(a) judgment by a Division Bench of this Court. It is therefore submitted that the contention is barred on the principle of Order II Rule 2 C.P.C. and the principles of constructive res judicata. Reliance is also placed on the decisions of the Apex Court in Shankara Co-op. Housing Society Ltd. v. M. Prabhakar (AIR 201.SC 2161.and M. Nagabhushana v. State of Karnataka and others {(2011) 3 SCC 408}.

64. In Shankara Co-op. Housing Society Ltd.'s case (AIR 201.SC 2161.it was held that the successive writ petitions on the same cause of action and on an issue which had attained finality, cannot be entertained.

65. In fact, Ext.R7(a) judgment, learned counsel for the petitioners submits, allowed the petitioners to move under Section 57 before the Deputy Commissioner.

66. A reading of the judgment will show that the challenge therein was against the alleged interference by the Assistant Commissioner, HR & CE, Palakkad and specifically Exts.P1 and P2 were under challenge. WPC No.22507/2011 -57- Therein also, the notification dated 15.2.1994 was relied upon to contend that the Temple is notified under Section 38 as included as serial No.1198 in schedule B. Therein, in para 9 this Court held that prima facie evidence is there to show that the Temple has been governed by the HR & CE Department based on the notification. Therefore, it was held that the petitioner therein is not entitled to any remedy in the original petition. But in para 10, liberty was given to approach the Deputy Commissioner under Section 57 of the Act and directed that if the petitioner moves any petition towards this, the Deputy Commissioner shall dispose of the same un- encumbered by any of the observations made in the judgment. Therefore, the said judgment has left the alternate option to the petitioners to approach the Deputy Commissioner.

67. The next judgment relied upon by the learned counsel for the respondents is that of a Division Bench of this Court in W.P.(C) No.23222/2006. Therein, Ext.P2 order passed herein was under challenge. This court held that the petitioners have got a right of appeal under Section 61 of the Act and since that remedy has not been availed of, the writ WPC No.22507/2011 -58- petition was not entertained but liberty was given to the petitioners to file appeal. Therein also, there is no finding regarding the merits of the matter.

68. The judgment in W.P.(C) No.25988/2003 is another one wherein the challenge against Ext.R1(a) order was the issue. The said writ petition was closed by the Division Bench leaving freedom to the present trustees to challenge any order issued or proposed by any authority under the Act, if petitioners maintain that the temple is a private temple and not governed by the Act. Later, the writ petition itself was restored to file by the order in R.P.No.645/2008. Therefore, the said orders will not help the contentions of the respondents.

69. We are of the view that in the light of the judgment Ext.R7(a) by a Division Bench of this Court, it was open to the petitioners to move the Deputy Commissioner under Section 57 of the Act and the application filed thereafter, as O.A.No.19/2003 has resulted in Ext.P2 order. It cannot be said that the contentions of the petitioners are barred by the principles of res judicata, as even in Ext.R7(a) judgment, it was held that the WPC No.22507/2011 -59- observations therein are only prima facie. For all these reasons, we allow the writ petition and quash Exts.P2 and P4 and the matter is relegated for a fresh decision by the Deputy Commissioner. Both parties are allowed to adduce evidence and a fresh decision will be taken in accordance with law as expeditiously as possible, at any rate, within six months from the date of production of a certified copy of this judgment. No costs. (T.R.RAMACHANDRAN NAIR, JUDGE) (A.V. RAMAKRISHNA PILLAI, JUDGE) kav/

Court	Kerala High Court
Decided On	Jul-22-2013
Judge	HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
Appellant	M.Gangadharan Nair
Respondent	The Commissioner

M.Gangadharan Nair Vs. the Commissioner - Court Judgment