K. Sankaran Nair and Others vs Nallacheri Govindan Nambiar and Others

Balakrishna Ayyar, J.—Prior to 1934, the Tricharamanna temple in Kottayam taluk, North Malabar, was being managed by certain

hereditary trustees. In the year 1934, the H. R. E. Board framed a scheme for the administration of the temple and its properties. With certain

modifications effected in 1945, the scheme was in operation till 1949, when the scheme was further modified by the District Court. The present

petition has been filed to issue a writ prohibiting the Commissioner of the H. R. E. and two other respondents from enforcing against the petitioners

the provisions of the scheme framed by the District Court, on the ground that they offend against Article 19(1)(f) of the Constitution. The complaint

is that the scheme infringes the fundamental rights to property of the petitioners.

An examination of the provisions of the scheme shows that this complaint is well founded. Paragraph 4 of the scheme requires the administration

of the affairs of the temple to be conducted by a paid manager appointed by the Board. It will be noticed that the hereditary trustees have no voice

in the appointment of the manager. The terms of his service are to be governed by the rules framed by the Board. The hereditary trustees have

practically no control over him. Paragraph 6 of the scheme provides that the trustees shall elect one of themselves to be the President and another

as Vice-President. The President shall take the chair at all meetings and in his absence the Vice-President. It is noticed that neither the President

nor the Vice-President has any powers worth mentioning. The Manager is also to be a member of the Board of Trustees and he is entitled to be

present at the meetings and to vote. If in his opinion a resolution passed by the trustees prejudicially affects the interests of the temple, and if he has

expressed his dissent at the meeting, he is entitled to intimate his dissent to the Board.

In other words, this provision gives room to the manager to by-pass the hereditary trustees whenever he deems fit. All the moneys of the temple

are to be in the hands of the manager. There is no doubt a direction that he should place all the accounts before the trustees at every meeting and

make them available for their inspection. The manager is entitled to represent the temple in all its proceedings civil, criminal and revenue, except in

cases where by a three-fourth majority his own conduct is called in question. The temple servants are placed under the control and supervision of

the manager. The most important event in connection with the temple is a festival of four weeks'' duration. One month before the beginning of the

festival the trustees are required to submit to the Board a special budget for its sanction. No expenditure which is not sanctioned by the Board may

be incurred for the festival. To cap all this, paragraph 34 of the scheme says that the Board shall have power to issue directions regarding the

internal management of the temple from time to time.

A scrutiny of the scheme makes it plain that the hereditary trustees are reduced to the position of dummies. They are shorn of all their rights and

powers and dignities. They are left only with the doubtful honour of describing themselves as trustees of the institution. In -- Kidangazhi Manakkal

Narayanan Nambudiripad and Others Vs. State of Madras and Another, , it is clearly stated that hereditary trusteeship is property within the

meaning of Article 19(1)(f) of the Constitution and if there is an encroachment on the rights of the petitioners as hereditary trustees, they can be

granted appropriate relief. The scheme which was impeached in the above case and the scheme which is impeached before me are drawn up more

or less on the same model. Dealing with the schemes, the Court observed In Kidangazhi Manakkal Narayanan Nambudiripad and Others Vs.

State of Madras and Another, as follows:

In the result, we must hold that the provisions in the schemes in so far as they encroach upon the rights of the petitioners as hereditary trustees are

void under Article 19(1)(f) of the Constitution.

At one stage of the arguments it was suggested to me that I might indicate the provisions of the scheme which are repugnant to Article 19(1)(f) of

the Constitution and those which are not. But this is not possible since all the provisions in the scheme form one integrated whole and pieces cannot

be taken out of it. The whole scheme must be remodelled.

It was contended on behalf of the Commissioner, H. R. E. that the scheme framed by the Board contains the following clause: ""The decree will

provide that on application to the Board, (he), or the Court with notice to all parties these rules can be further modified on due and sufficient cause

shown."" The petitioners, it was said, can utilise the above provisions and apply for the modification of the scheme. No doubt the existence of an

alternative remedy will very often dissuade this Court from granting an application for a writ. But this is a matter of discretion and the Court is not

bound to refuse a writ merely because an alternative remedy exists. This has been held in the case referred to above and also in other cases since

decided.

As it is not possible to salvage any part of the scheme the whole of it must be set aside. A writ will issue to this effect. The petitioners will get

their costs from the third respondent. Advocate''s fee Rs. 150.