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Judgment
K. V. Jayakumar, J.
The petitioners state that they are the hereditary Poojaris of Sree Valayanad Temple. The said Temple is under the supervisory control of the Malabar Devaswom Board and administered by the 6th respondent, the Trustee of the Temple.
According to the petitioners, the priesthood of the said Temple has been assigned to three families, namely, Kozhiparambathu Illam, Kozhikodanparambath Illam and Naduvileppattillam. The male members of the aforesaid families undertake Poojas in the Temple on a monthly rotation basis. The Poojas and other rituals in the Temple are done in accordance with customary practices and usages.
According to the petitioners, ‘Muttarakkal’ is one of the offerings conducted in the Temple from time immemorial. After conducting the Vazhipadu, Muttarakkal, by breaking the coconut, a portion of it will be given to the devotees as Prasadam and the remaining portion will be retained by the Poojaris as ‘Dakshina’. The petitioners state that the Devaswom is charging an amount of ₹2/- for performing the said Vazhipadu and the Poojaris are not given any remuneration for the conduct of the ritual.
The 7th respondent, the Executive Officer of the Temple, issued Ext.P1 order dated 17.12.2021 restraining the petitioners from retaining one half of the coconuts and directed them to return both halves of the coconut to the devotees. Challenging Ext.P1 order, the petitioners made an application before the 5th respondent, Deputy Commissioner, as O.A. No. 1 of 2022. Ext.P2 is the true copy of the said application. Initially, the 5th respondent, Deputy Commissioner, stayed Ext.P1 order. However, the Deputy Commissioner had confirmed Ext.P1 order vide Ext.P3 order dated 15.03.2024.
Challenging Ext.P3 order, the petitioners preferred an appeal before the 4th respondent, Devaswom Commissioner. Ext.P4 is the true copy of the Appeal Memorandum and Ext.P5 is the copy of the Interlocutory Application seeking to stay Ext.P3 order. Ext.P6 is the order of stay dated 19.04.2024 granted by the Commissioner.
Ext.P3 order was passed by the then Deputy Commissioner, Sri. Biju T.C. Later, he was promoted to Commissioner. In such circumstances, the Commissioner has refused to extend the stay order passed in this matter. Therefore, the petitioners approached this Court and preferred W.P.(C) No. 22082 of 2024. The said Writ Petition was disposed of by this Court by Ext. P7 judgment dated 05.08.2024, directing the Government of Kerala to take an appropriate decision on Ext.P4 Appeal and Ext.P5 stay petition invoking the powers under Section 99 of the Madras Hindu Religious Charitable Endowments Act, 1951 (for the sake of brevity, ‘the HR & CE Act’).
The petitioners further contended that pursuant to Ext.P7 judgment, the 2nd respondent, Joint Secretary, Department of Revenue (Devaswom), has issued notice to the parties. After hearing the parties, the Joint Secretary, Revenue (Devaswom) has passed Ext.P10 order dismissing Ext.P4 appeal.
In the meantime, Sri. P.C. Sankaranarayanan, the Tanthri of the Temple, issued Ext.P11 letter to Sri. Samoothiri Raja, the Trustee of the Temple, stating that as per the customary practice of the Temple, one half of the coconut is returned to the devotees after the ‘Muttarakkal Vazhipad’ and the other portion is retained by the Poojaries. The Tanthri opined that the said practice is to be followed as such.
It is with these assertions and challenging Exts. P1, P3 and P10 orders, the petitioners preferred this Writ Petition seeking the following reliefs:
(i)Issue a writ of certiorari calling for the records of this case and quashing Exhibits Ext.P1, P3 and P10;
(ii)Issue a writ of mandamus or an order in its nature directing the 3rd respondent to continue the practice hitherto followed in Muttarakkal Vazhipad, without causing any prejudice to the petitioners in performing the Vazhipad and accepting half of the coconuts as Dakshina;
The 4th respondent, Commissioner, has placed on record a counter affidavit. It is stated in the counter that the Writ Petition is not maintainable.
It is further stated that while the income of the Temple was very low, the writ petitioners were remunerated both in cash as well as in kind, and that one half of the coconut was allowed to be taken by the petitioners, and the said practice was continued thereafter. Now, the Temple is included in the Super Grade, and the scale of pay and salary are similar to that prevalent in the Government service. In such circumstances, the Trustee had the right to stop such practice.
It is further stated in the counter that 30 paise will be paid to the Poojaris for the performance of each Muttarakkal Vazhipadu as per the revised Vazhipadu schedule, which came into effect on 01.04.2014. The petitioners are drawing more than ₹1,00,000/- as salary and Santhi Vihitham. Moreover, they are getting a considerable amount as ‘Dakshina’ from the devotees.
Respondent Nos. 6 and 7 have also filed a counter affidavit denying that there was a practice of retaining one half of a coconut by the Poojaris as Dakshina. The ritual named ‘Muttarakkal’ is not considered as a ritual under the ‘Kaula’ tradition. The Devaswom collects an amount of ₹2/- from the devotees for performing the ritual ‘Muttarakkal’ and out of it, 30 paise is paid to Poojaris as ‘Santhi Vihitham’. Over and above, the devotees are also paying Dakshina in cash. They have placed on record Ext.R7(a), a tabular statement showing the salary and emoluments drawn by the Santhis.
It was further stated that Ext.P1 order was issued taking note of the report submitted by the Inspector, Central Devaswom, dated 04.03.2020 and the order dated 18.05.2020. In Ext. R7(b) order dated 18.05.2020, Sri. Zamorin Raja, the trustee of the Temple, ordered that steps shall be taken to give back both halves of the coconut after the Muttarakkal.
Sri. T. M. Raman Kartha, the learned counsel appearing for the petitioners, submitted that Exts.P1, P3 and P10 orders are illegal as they are against the customary practice followed in the Temple from time immemorial. He submitted that the 3rd respondent, Malabar Devaswom Board, is bound to protect the customary practice followed in the Temple under its management.
The learned counsel submitted that the Board or the Trustee cannot depart or deviate from the customary practices followed in the Temple without consulting and getting approval from the Tanthri of the Temple. Profuse reliance was placed on the judgment in Ammanoor Parameswaran Chakyar v. State of Kerala1. The learned counsel further submitted that one half of the coconut is retained by the Poojaris as Dakshina and the other half is given to the devotees as prasadam. Ext. P1 order prohibits the acceptance of Dakshina, which amounts to interference with the religious practice which was followed in the Temple.
Smt. R. Ranjanie, the learned Standing Counsel for the Malabar Devaswom Board, submitted that the Temple is a Super Grade Temple and the Poojaris are getting salaries and other emoluments equivalent to those of a Government servant. Apart from that, they are paid 30 paise as Santhi Vihitham for each Muttarakkal Vazhipadu.
Sri. M. P. Sreekrishan, the learned counsel appearing for the respondent Nos. 6 and 7, supported the stand of the Devaswom Board.
We have heard the submissions of Sri. T. M. Raman Kartha, the learned counsel appearing for the petitioners, Smt. R. Ranjanie, the learned Standing Counsel for the Malabar Devaswom Board, Sri. K.R. Sunil, the learned Special Government Pleader for Devaswom and Sri. M.P. Sreekrishnan, the learned counsel appearing for the respondent Nos. 6 and 7.
Ext.P1 is a communication issued by the Executive Officer of the temple directing the poojaris to stop the practice of retaining one half of the coconut after the Muttarakkal offering. It is stated in the said letter that the Audit Department has raised objections and issued directions to stop the practice of taking one half of the coconut by the Poojaris of the Temple. The Audit Department opined that both halves of the coconut be given to the devotees after the Muttarakkal Vazhipadu. Therefore, the Devaswom has decided to discontinue the said practice and has decided to hand over both halves of the coconut to the devotees after the Muttarakkal Vazhipadu. Though the petitioners challenged Ext.P1 order by preferring O.A.01 of 2022 before the Deputy Commissioner, the same was dismissed vide Ext.P3 order. Ext.P3 appeal preferred by the petitioners was also dismissed by the State.
The petitioners herein claim that Ext.P1 letter has infringed the customary right of the petitioners.
Before further discussion, it may be useful to extract the relevant provisions of the HR & CE Act.
57. Deputy Commissioner to decide certain disputes
and matters.- Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following disputes and matters-
(a)whether an institution is a religious institution;
(b)whether a trustee holds or held office as a hereditary trustee;
(c)whether any property or money is a religious endowment;
(d)whether any property or money is a specific endowment;
(e)whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what the established usage of a religious institution is in regard to any other matter;
(f)whether any institution or endowment is wholly or partly of a religious or secular character; and whether any property or money has been given wholly or partly for religious or secular uses; and
(g)where any property or money has been given for the support of an institution which is partly of a religious and partly of a secular character or the performance of any service or charity connected with such an institution or the performance of a charity which is partly of a religious and partly of a secular character or where any property or money given is appropriated partly to religious and partly to secular uses, as to what portion of such property or money shall be allocated to religious uses.”
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61. Appeal to the Commissioner.- (1) Any person
aggrieved by any order passed by the Deputy Commissioner under any of the foregoing provisions of this Chapter may, within one month from the date of the publication of the order or the receipt thereof by the party concerned, as the case may be, appeal to the Commissioner.
(2)Any order passed by the Commissioner on such appeal against which no suit lies to the Court under the next succeeding section, or in which no suit has been instituted in the Court within the time specified in Section 62, sub-section (1), may be modified or cancelled by the Commissioner if the order has settled or modified a scheme for the administration of a religious institution or relates to any of the matters specified in Section 59.
62. Suits and appeals.- (1) Any party aggrieved by an order
passed by the Commissioner-
(i)under Section 61, sub-section (1) or sub-section (2), and relating to any of the matters specified in Section 57, Section 58 or Section 60; or
(ii)under Section 57, Section 58 or Section 60 read with sub-section (1) (a), (2), or (4) (a) of Section 19 may, within ninety days from the date of the receipt of such order by him, institute a suit in the Court against such order; and the Court may modify or cancel such order, but it shall have no power to stay the Commissioner's order pending the disposal of the suit.
(2)Any party aggrieved by a decree of the Court under sub-section (1) may, within ninety days from the date of the decree, appeal to the High Court.
(3)(a) Any scheme for the administration of a religious institution settled or modified by the Court in a suit under sub-section (1) or on an appeal under sub-section (2) or any scheme deemed under Section 103, clause (d), to have been settled or modified by the Court may, at any time, be modified or cancelled by the Court on an application made to it by the Commissioner, the trustee or any person having interest.
(b)Any party aggrieved by an order of the Court under clause (a) may, within ninety days from the date of the order, appeal to the High Court.
Section 57 of the HR &CE Act empowers the Deputy Commissioner to decide certain disputes stated therein. Section 61 of the HR & CE Act provides for a statutory appeal to the Commissioner. If the parties are aggrieved by the decision of the Commissioner, they can institute a suit under Section 62 of the HR & CE Act.
In the case on hand, the petitioners have exhausted their remedies under Sections 57 and 61 of the HR & CE Act. The petitioners have approached the Deputy Commissioner and preferred O.A. 01 of 2022, which was dismissed vide Ext. P3 order. Ext. P4 preferred by the petitioners has also been dismissed vide Ext.P10 order. Ext. P4 appeal was considered by the Joint Secretary, Department of Revenue, Devaswom, as per the directions issued by this Court in W.P.(C) No. 22082 of 2024. Such direction was issued by this Court since the Deputy Commissioner, who considered the original application of the petitioners, had been promoted as the Commissioner.
The statutory remedy available to the petitioners against an order under Section 61 of the HR & CE Act is to institute a suit in a civil court having jurisdiction. The petitioners herein have approached this Court without pursuing their statutory remedy available to them under Section 62 of the HR & CE Act. In view of the efficacious alternative remedy available to the petitioners under Section 62 of the Act to institute a suit, we are not inclined to invoke the powers of jurisdiction vested with this Court under Article 226 of the Constitution of India. Furthermore, a detailed consideration of evidence is required to adjudicate the customary right claimed by the petitioners. The Writ Court is not expected to adjudicate a matter which involves disputed questions of fact and law. Therefore, the reliefs claimed in this Writ Petition are declined.
The Writ Petition is dismissed.
Footnotes
- 1.2024 (5) KHC 389