K. V. Jayakumar, J.

1. This Writ Petition is filed under Article 226 of the Constitution of India.

2. The petitioner, Sri. P.K. Satheesan, is the hereditary trustee of Malamakkavu Ayyappa Kshethram, a private temple under the Padinjarapattu Tharavadu, Palakkad. The petitioner states that the said temple is not notified under the Madras Hindu Religious and Charitable Endowment Act, 1951 (for the sake of brevity, ‘the Act’).

3. The petitioner states that Malamakkavu Ayyappa Kshethram is a very ancient temple and local people worship in the said temple with permission of the members Padinjarapattu Tharavadu. The temple administration is being conducted by the hereditary trustees without any hindrance. According to the petitioner, no member of the public have any grievance with regard to the administration of the temple.

4. While so, the members of Padinjarapattu Tharavadu decided to create a Trust for further smooth administration of the temple. Accordingly, a Trust namely Padinjarapattu Malamakkavu Temple Trust was created and registered as Trust Deed No.239/2008 in SRO Trithala. Now the temple is running by the Trust, of which, the petitioner is the Managing Trustee.

5. The petitioner asserted that there is no allegation of any maladministration or misappropriation of funds by the hereditary trustee so far. Accounts and inventory of movable articles are kept properly.

6. The petitioner states that, in the year 2006, an Area Committee constituted under Section 41 of the Act filed a report. On the basis of the said report, the Malabar Devaswom Board has attempted to nominate a new Board of Trustees, alleging that the temple affairs are not being properly managed.

7. Aggrieved by the actions of the Board, the hereditary trustee approached this Court, which directed the Commissioner to consider the issue in the light of the principles laid down in Raman Namboothiri v. Chief Commissioner (2001 KLT 495).

8. The petitioner further states that vide Ext.P1 order, the 3rd respondent Commissioner, MDB has directed the Area Committee to appoint non-hereditary trustees and an Executive Officer for the administration of the temple and to take over the management of the temple.

9. Being aggrieved by Ext.P1 order, the hereditary trustee approached this Court and filed WP(C) No. 14303/2008. The main challenge in the aforesaid Writ Petition was that the order was passed without issuing notice to the hereditary trustee under Section 39(2) of the Act. This Court has granted a stay and allowed the hereditary trustee to continue management of the affairs of the temple till the disposal of the Writ Petition.

10. However, this Court as per Ext.P2 judgment dated 01.10.2009 has directed the petitioner to approach the appropriate civil court seeking proper remedies, without going into the merits of the case.

11. Pursuant to Ext.P2 judgment, the petitioner filed a suit before the Subordinate Court, Ottappalam as O.S.No.360/2009 inter alia challenging the appointment of non-hereditary trustee and the Executive Officer. The said claim was resisted by the contesting respondent, stating that the suit is not maintainable and that an application under Section 39(4) is to be appropriately instituted.

12. The Sub Court, Ottappalam has considered the issue of maintainability as a preliminary issue and found that only an application would lie and not a suit.

13. The petitioner challenged the findings of the Sub Court, Ottappalam in RFA No.742/2013. This Court in RFA No.742/2013 directed the Sub Court, Ottappalam to convert the suit into an application in respect of the prayer to set aside the order appointing non-hereditary trustee. It was further directed that, as regards the order appointing the Executive Officer, the proper remedy is to file a revision before the Government of Kerala under Section 99(1) of the Act, and the Court has granted liberty to approach the Government by way of a Revision Petition.

14. Thereafter, the suit was withdrawn as the term of the non-hereditary trustees expired.

15. Pursuant to the directions issued by this Court in RFA No.742/2013, petitioner preferred Revision Petition before the 1st respondent, State of Kerala contending that the order of the 3rd respondent Commissioner appointing the Executive Officer is wholly illegal, arbitrary and ultravires. Ext.P3 is the copy of the Revision Petition. On 03.09.2015, the 1st respondent dismissed the Revision Petition vide Ext.P4 order.

16. The petitioner contends that Ext. P4 order suffers from non-application of mind, contains grave errors, and is therefore vitiated. Ext.P4 order would adversely affect the valid rights of the hereditary trustees of the temple. Thereafter, petitioner filed W.P.(C) No.760/2016 challenging Ext.P4 order. The petitioner further states that this Court was pleased to grant a stay of all further proceedings pursuant to Ext.P4 order of the revisional authority.

17. Vide Ext.P5 judgment dated 16.11.2023, this Court has set aside Ext.P4 order and directed the 1st respondent, revisional authority, to reconsider Ext.P3 Revision Petition, after affording an opportunity of being heard to the affected parties.

18. The petitioner states that he has submitted Ext.P6 argument notes before the Secretary to the Government, Revenue (Devaswom Department) on 03.05.2025. The matter was heard by the Joint Secretary, on behalf of the Secretary to the Government and the Revision Petition was dismissed as per order dated 30.12.2024 (Ext.P7). The petitioner asserts that Ext.P7 order was passed without considering the legal and factual contentions raised by the petitioner and without any application of mind.

19. The 1st respondent has filed a counter-affidavit. It is stated that pursuant to Ext.P5 judgment in W.P.(C) No. 760/2016, the Government has reconsidered Ext.P3 Revision Petition after hearing the affected parties. Paragraph Nos.7 and 8 of the counter affidavit of the 1st respondent reads thus:

                  7. The Government considered all the arguments made before it, and as per G.O.(Rt) 3149/2024/RD dated 30-12-2024 rejected the revision petition of Sri.P.K. Satheesan. Aggrieved by this Sri. P.K. Satheesan has again filed the present WP(C) No. 1552/2025. The petitioner also challenged compatibility of 2nd Respondent to pass Exhibit P7. In order to ensure effective administration, the Head of the Department (Here is Secretary Revenue (Devaswom) Department) is permitted to entrust any official duty to subordinate officers in his department, whom he thinks fit for the purpose. On the occasion of getting Judgment in WP(C)no.760/2016 dated 16.11.2023, the 1st Respondent entrusted the 2nd respondent to take necessary action. In the light of above order the 2nd Respondent heard the interested /affected parties in this regard and pass Exhibit P7. Hence the contention raised by the petitioner regarding official capacity of 2nd Respondent to pass Exhibit P7 order has no merits.

                  8.       In this connection it is to be noted that in the hearing conducted as per the judgment in WP(C) 760/2015 and after that while going through the issue in detail, some serious ambiguity related to the constitution of Trust was noticed, which needs to be examined more in detail. It appears that the temple is a notified one under HR&CE Act. But in the revision petition filed by Sri. P.K.Satheesan it is stated that the Temple was registered in the Trithala Sub-Registrar Office as Trust as per Trust Deed No. 239/2008. It is not known how a trust deed was formed in 2008 while the temple was notified under HR&CE Department long before. Since the allegation is serious in nature, it is to be examined in detail and as part of this, file (Dev-B1/8/2025/REV) has been forwarded to Taxes Department dealing with registration matters. It is understood that no prior permission was obtained for registration of trust in connection with the temple management, when there is a scheme of administration was already formed by the Department. And also it is seen that the temple administration is got more worsened as mentioned in G.O(Rt) No.5591/2015/RD dated 03-09-2015 (Exhibit P4).

20. The 3rd respondent, the Commissioner, has filed a counter-affidavit contending that the Writ Petition seeking to quash Ext.P7 order is not maintainable and liable to be dismissed. It is stated that as per Clause (10) of the scheme in BO No. 3896 of 07/10/1948, the Executive Officer is the person authorised to represent the temple. The Board is the competent authority to nominate the managing trustee of the temple under clause (3) of the scheme. Since the writ petitioner was not nominated as managing trustee, he has no right to represent the temple.

21. It is further contended that Sree Malamakavu Devaswom is a religious institution within the purview of the Hindu Religious Charitable Endowment Act, 1926 .

22. The administration of the temple is governed by a scheme of administration framed under Section 57 (1) of the Act of 1926, as per order in BO No.3896 dated 07.10.1948 in OA No. 304/ 1946, and the scheme was published in the Malabar Gazette dated 27.12.1948. When the Hindu Religious and Charitable Endowments Act, 1951 was enacted, the temple continued to fall within the purview of the 1951 Act.

23. Under Clause (2) of the scheme, the administration of the temple and its properties was vested with the Board of Trustees consisting of hereditary trustees and one or more non-hereditary trustees (not exceeding 3) appointed by the Board. By virtue of Clause (14) of the scheme, the right of administration of the temple was vested with the Board of trustees, consisting of hereditary and non-hereditary trustees. Clause (4) of the scheme provides that the Board shall have the power to appoint the non-hereditary trustees and the Executive Officer.

24. It is further contended that the proceedings for the appointment of non-hereditary trustees were initiated in 2005, while the deceased trustee, Kesavan Nambiar, was still holding office. During that time, the administration of the temple was done by a power of attorney holder, namely, Jagadeesan and a Manager appointed by him, namely Manavedan, without any approval as per the Act. The aforesaid persons misused their positions and misappropriated the entire income of the temple without maintaining any accounts. The funds of the temple were looted by unauthorised persons from 1989 onwards. The petitioner has created a Trust by disregarding the applicability of the Hindu Religious and Charitable Endowment Act, abusing the process of law. The petitioner has no right to transfer the property of the Malamakavu temple, which is a public temple.

25. The petitioner is a self-appointed Managing Trustee of the said Trust. The intent and purpose behind the creation of the Trust are only to plunder the funds and properties of the temple.

26. It is further contended that the petitioner is not the lawful hereditary trustee and is, in fact, a stranger to the administration of the temple, and that no member of the family of the hereditary trustees has come forward to claim trusteeship by producing records of entitlement. The petitioner had not been nominated by the Managing Trustee of the temple, as provided in Clause (3) of the scheme, so the petitioner had no legal right to represent the temple.

27. One Raghavanunni Nambiar was approved as Trustee from 06.12.2006 and at that time, he was 85 years old and bedridden. By obtaining the signature of the incapable Trustee Raghavanunni Nambiar, Sri. Manavedan misappropriated the entire income of the temple without maintaining any accounts for several years. Thereafter, a Non-Hereditary trustee was appointed. He assumed his office on 03.05.2008.

28. It is further stated in the counter affidavit that, when the Divisional Inspector inspected the temple in 1997, he noted various grave irregularities and omissions in the administration carried out by the power-of-attorney holder of the former trustee. On that basis, the Trustee was directed to implement certain directions in the administration of the temple, which inter alia included maintaining an inventory register for ornaments, vessels, and other assets and vazhipadu items, to remit cash into the bank on the same day, and maintaining and producing proper accounts before the Inspector.

29. On 27.06.2005, the Area Committee considered the entire matter and decided to initiate proceedings for the appointment of Non-Hereditary-Trustees and issued notice to Kesavan Nambiar, which he received at Delhi. He did not submit any objection and hence the proceedings were finalised to appoint three Non-Hereditary-Trustees. The decision of the Board was challenged by filing WP(C) No. 11429/2006 by the Power of Attorney holder. The Writ Petition was disposed of on 18.08.2006, directing to issue order after making proper enquiry. In the meantime, the former Trustee expired on 01.08.2006 and Raghavanunni Nambiar was approved as trustee on 06.12.2006.

30. It is further stated in the counter affidavit that complaints alleging gross irregularities in the administration of the temple were again received. W.P.(C) No. 34022/2007 was filed and disposed of with a direction to conduct an enquiry. Pursuant to the order of this Court, the 4th respondent, the Assistant Commissioner, conducted an enquiry at the temple. The petitioner neither appeared before the 4th respondent nor produced any accounts.

31. The Local Fund Audit Department, in its report dated 05.02.2008 stated that the accounts had not been submitted for audit and requested that appropriate action be taken. The prolonged maladministration by the trustees for about 34 years, without maintaining any accounts or vouchers, warranted the appointment of an Executive Officer for the administration of the temple. Paragraph 17 of the counter affidavit of respondent No.3 reads thus:

                  “The point to be considered therein, warranting appointment of Executive Officer for the administration of the temple. The material available on record would show that for the last 34 years, the administration of the public temple within the purview of Hindu Religious and Charitable Endowment Act, was carried out in violation of the law, without maintaining any accounts or vouchers and in gross violation of the scheme for administration of the temple. From 1989 onwards there are no accounts or records at all, despite directions from the authorities under the Act, and the petitioner was interested to initiate innumerable legal proceedings before courts and forums, one by one, by misusing temple fund, in order to thwart all the lawful actions of the Board, for ensuring better and transparent administration of the temple and implementation of the scheme of administration, as well as the provisions of the Act, by the Area Committee and the Assistant Commissioner. As many as, more than 10 cases had been filed on one ground or the other, by misusing temple funds, only to sabotage the lawful actions expedited by the Board to get the temple administered in accordance with law.”

32. It is further contended that the appointment of the Executive Officer was strictly in accordance with the scheme and was necessitated by the urgent need to prevent mismanagement, plundering of funds, and alienation of the Temple’s properties.

33. The writ petitioner has filed a reply affidavit refuting the averments in the counter-affidavits. It is submitted that the powers of the Board are limited under the provisions of the Act and are only to prevent mismanagement and not to dislodge a hereditary trustee or appoint a non-hereditary trustee.

34. Sri. K. Ramkumar, the learned counsel for the petitioner, submitted that the Joint Secretary has no power to pass an order under Section 99 of the Act and therefore Ext.P7 order is illegal. Under Section 99 of the Act, the revisional powers are vested in the State Government. It is submitted that all actions of the State Government shall be through the Secretary of the concerned Department and not through the Joint Secretary.

35. It is further pointed out that, despite several allegations against the hereditary trustee, no opportunity to show cause was afforded to the petitioner.

36. The learned counsel further pointed out that the petitioner, Satheesan, continues to function as the hereditary trustee. Only in the absence of a hereditary trustee, the question of appointing a non-hereditary trustee be considered. The learned counsel argued that the Commissioner could appoint a non-hereditary trustee only when the twin conditions prescribed under Section 39 of the Act are satisfied. According to the learned counsel, both the conditions precedent are absent, and therefore, Ext.P1 order passed by the Commissioner is illegal, ultra vires, and unjustifiable.

37. The learned counsel would further submit that unless the hereditary trustee is removed, dismissed, or otherwise terminated from functioning on the specific allegations prescribed under the Act, a non-hereditary trustee cannot be appointed.

38. The learned counsel would then point out that, as per Section 48 of the Act, the power to appoint an Executive Officer is vested in the hereditary trustee, and such power cannot be arrogated by the Government for whatever reason. The Government or the Commissioner have no power to appoint an Executive Officer, which is exclusively within the jurisdiction of the hereditary trustee. It is submitted that only in the absence of the trustee, and for reasons to be specifically recorded, the Government can exercise the power to appoint an Executive Officer. Hence, the proposal to make such an appointment in the impugned orders by the Government and the Commissioner is wholly beyond their jurisdiction and is liable to be set aside.

39. The learned Senior Counsel would further submit that interference by the Commissioner, and the subsequent affirmation of the same by the Government of Kerala, to dislodge the existing hereditary trustee or to thrust an Executive Officer on the Trust contrary to the legal provisions, would amount to an infraction of the right to manage religious institutions guaranteed under Articles 25 and 26 of the Constitution of India.

40. The learned counsel would then submit that the powers conferred under Section 20 of the Act, to the Commissioner, apply only to a religious endowment as defined under Section 6(14) of the Act. A Temple would not come within the purview of ‘Religious Endowments’ as defined under Section 6(14) of the Act.

41. Therefore, the learned counsel would submit that the impugned orders (Exts.P1 and P7) of the Commissioner and the State are illegal and ultra vires and liable to be set aside.

42. Per contra, the learned counsel for the Malabar Devaswom Board submitted that Ext.P1 order issued by the Commissioner is perfectly valid and legal. Challenging Ext.P1 order, the petitioner approached this Court and preferred WP(C) No. 760/2016. This Court, by Ext.P5 judgment dated 16.11.2023, disposed of the Writ Petition with a direction to reconsider the Revision Petition, after issuing notice to the petitioner and other affected parties.

43. Pursuant to Ext. P5 judgment, before notice was issued to the petitioner, an opportunity to be heard was afforded to him. In spite of repeated opportunities, the petitioner did not appear or adduce any evidence before the revisional authority.

44. The Government, after careful consideration of the materials placed on record, has dismissed the Revision Petition, thereby upholding Ext.P1 order and appointing the Executive Officer for the smooth and effective administration of the temple.

45. We have carefully considered the rival submissions of the counsel for the parties and perused the pleadings and materials placed on record.

46. According to the petitioner, he is the trustee of Malamakavu Ayyappa Kshethram, a private temple under the Padinjarepattu Tharavadu. The said temple is not notified under the Act. Now the temple is run by a Trust, namely, Padinjarepattu Malamakavu Temple Trust, registered in the year 2008. The petitioner further contended that the administration of the temple is effectively managed by the Trust without any maladministration or misappropriation. Proper accounts and inventory of movables are duly maintained by the Trust.

47. On the other hand, the learned counsel for the respondents would submit that Ext.P1 order appointing an Executive Officer for the temple and Ext.P7 revisional order issued by the Revenue (Devaswom B) Department are perfectly legal and justifiable. The petitioner approached this Court and filed numerous Writ Petitions suppressing the material facts.

48. Before we proceed to decide the matter in controversy, it will be useful to extract the relevant provisions of the Act. Sections 38, 39, 57, 58, 76 and 99 of the Act are extracted hereunder:

                  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:

                  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.

                  39.     Trustees and their number and term of office.- (1) Where a religious institution included in the list published under Section 38 or over which no Area Committee has jurisdiction, has no hereditary trustee, the Commissioner shall constitute a Board of Trustees consisting of not less than three and not more than five persons appointed by him.

                  (2)      Where, in the case of any such institution having a hereditary trustee or trustees; the Commissioner after notice to such trustee or trustees, and after such enquiry as he deems adequate, considers for reasons to be recorded, that the affairs of the institution are not, and are not likely to be, properly managed by the hereditary trustee or trustees, the Commissioner may, by order appoint such number of non-hereditary trustees as he thinks necessary, so however that the total number of trustees does not exceed five.

                  (3)      Every trustee appointed under sub-section (1) and subject to the result of an application, if any, filed under sub-section (4) every non-hereditary trustee appointed under sub-section (2) shall hold office for a term of two years, unless in the meanwhile the trustee is removed or dismissed or his resignation is accepted by the Commissioner or he otherwise ceases to be a trustee.

                  (4)      Where the Commissioner by order appoints a non-hereditary trustee or trustees the hereditary trustee or trustees may, within thirty days of the receipt of the order, file an application to the Court to set aside or modify such order.

                  (5)      Where a vacancy arises in the office of a non-hereditary trustee appointed under sub-section (2) the Commissioner shall not fill up such a vacancy unless, for reasons to be recorded, he considers it necessary to do so. A non-hereditary trustee appointed in the vacancy shall be deemed to have been appointed under sub-section (2) and the provisions of sub-sections (3) and (4) shall apply accordingly.

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                  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       moneyis        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.

                  58. Power of Deputy Commissioner to frame scheme.- (1) When the Deputy Commissioner has reason to believe that in the interests of the proper administration of a religious institution, a scheme should be settled for the institution, or when not less than five persons having interest make an application in writing, stating that in the interests of the proper administration of a religious institution a scheme should be settled for it, the Deputy Commissioner shall consult in the prescribed manner the trustee and the persons having interest and the Area Committee, if any, having jurisdiction over the institution; and if, after such consultation, he is satisfied that it is necessary or desirable to do so, he shall, by order, frame a scheme of administration for the institution.

                  (2)      A scheme settled under sub-section (1) for a temple or for a specific endowment other than one attached to a math for may contain provision for-

                  (a) removing any existing trustee, whether hereditary or non

                  Removing of trustee hereditary:

                  Provided that where provision is made in the scheme for the removal of a hereditary trustee, provision shall also be made therein for the appointment as trustee of the person next in succession who is qualified;

                  (b)      appointing, or directing the appointment of, a paid executive officer, who shall be a person professing the Hindu religion, on such salary and allowances as may be fixed, to be paid out of the funds of the institution; and defining the powers and duties of such officer:

                  Provided that in making any provision of the nature Benefits of specified in clause (b) due regard shall be had to the persons belong to the the claims of persons belonging to the religious religious de-denomination for whose benefit the institution is chiefly nomination maintained.

                  (3)      A scheme settled under sub-section (1) for a math or for a specific endowment attached to a math may contain provision for-

                  (a)      associating one or more persons with the trustee or constituting a separate body for the purpose of participating or assisting in the whole or any part of the administration of the endowments of such math or of the specific endowment; provided that such person or persons or the members of such body shall be chosen from persons having interest in such math or endowment;

                  (b)      appointing or directing the appointment of a paid executive officer, who shall be a person professing the Hindu religion, on such salary and allowances as may be fixed by the Deputy Commissioner, to be paid out of the trust funds, and defining the powers and duties of such officer;

                  (c)      defining the powers and duties of the trustee;

                  (4)      The Deputy Commissioner may determine what the properties of the religious institution are and append to the scheme a schedule containing a list of such properties:

                  Provided that such determination shall not affect the rights of persons who are in hostile possession of any of the said properties.

                  (5)      Pending the framing of a scheme for a temple or for a specific . endowment other than one attached to a math, the Deputy Commissioner may appoint a fit person to discharge all or any of the functions of the trustee thereof and define his powers and duties.

                  (6)      The Deputy Commissioner may, at any time, after consulting the trustee and the persons having interest and the Area Committee, if any, having jurisdiction over the institution, by order, modify or cancel any scheme settled under sub-section (1) or a scheme settled by the Board under the Madras Hindu Religious Endowments Act, 1926.

                  (7)      Every order of the Deputy Commissioner settling, modifying or cancelling a scheme under this section shall be published in the prescribed manner and on such publication shall, subject to the provisions of Sections 61 and 62, be binding on the trustee, the executive officer and all persons having interest.

                  (8)      The powers conferred by this section shall, in respect of maths, be exercised by the Commissioner or by a Deputy Commissioner to whom powers in this behalf have been delegated by the Commissioner under Section 10, sub-section (2).

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                  [76. Religious institutions to pay an annual contribution to the [Board].- (1) In respect of the services rendered by the 4[Board] and contribution their officers and for defraying the expenses incurred on account of such services every religious institution shall, from the income derived by it, pay to the [Board] annually such contribution not exceeding five per centum of its income as may be prescribed.

                  (2)      Every religious institution, the annual income of which, for the Cost of [Calendar] year immediately preceding as calculated for the purposes audit of the levy of contribution under sub-section (1), is not less than one thousand rupees, shall pay to the 4[Board] annually, for meeting the cost of auditing its accounts, such further sum not exceeding one and a half per centum of its income as the Commissioner may determine.]

                  (3)      The annual payments referred to in sub-sections (1) and (2) shall be made, notwithstanding anything to the contrary contained in any scheme settled or deemed to be settled under this Act for the religious institution concerned.

                  [(4) xxxx]

                  [(5) Wherever there is any surplus after meeting all the charges referred to in the forgoing sub-section, it shall be lawful for the Commissioner acting suo motu or on an application to make grants to poor and needy religious institutions for carrying out repairs and renovation subject to such rules as may be framed by [Board] in this regard;

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                  99. Power of [State Government] to call for records and pass orders.- (1) The [State Government] may call for and examine the record of the [Board or] Commissioner or any Deputy or Assistant Commissioner, or any Area Committee or of any trustee in respect of any proceeding, not being a proceeding in respect of which a suit or an appeal to a Court is provided by this Act, to satisfy themselves as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein; and, If, in any case, it appears to the ²[State Government] that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, they may pass orders accordingly:

                  Provided that the [State Government] shall not pass any order prejudicial to any party unless he has had a reasonable opportunity of making his representations.

                  (2) The [State Government] may stay the execution of any such decision or order, pending the exercise of their powers under sub-section (1) in respect thereof.

49. The first contention of the learned counsel for the petitioner is that Ext. P7 revisional order is illegal as it is rendered by the Joint Secretary of the Revenue Department. The Joint Secretary has no power under Section 99 of the Act. Section 99 of the Act does not specifically state which Officer of the State Government is empowered to exercise the powers conferred under that Section. Therefore, we are unable to accept the said contention.

50. The next submission of the learned counsel for the petitioner is that Ext. P7 order was passed without complying with the twin conditions stipulated under Section 39(2) of the Act. No notice was served on the hereditary trustee and the enquiry as contemplated under Sub clause (2) was not conducted.

51. Reliance was also placed on the dictum laid down by this Court in E.K. Raman Namboothiri @ Unni Namboothiri v. The Chief Commissioner, HR&CE and another ((2004) 1 KLT 945) . In E.K. Raman Namboothiri (supra), this Court observed that the management of the temple by the hereditary trustee is the rule and the appointment of non-hereditary trustee is an exception. The appointment of non-hereditary trustee is not as a matter of course. Section 39 empowers the Commissioner to constitute a Board consisting of not less than three and not more than five persons only when a religious institution has no hereditary trustee. It is further held that the Commissioner could exercise the power under Section 39(2) only after recording reasons. In other words, there must be materials to show that the hereditary trustee or trustees are not properly managing the religious institution or are not likely to be properly managed by the religious institution.

52. Smt. Renjinie, the learned Standing Counsel appearing for the Malabar Devaswom Board placing reliance on the judgment in K. Chathu Achan v. State of Kerala ((2022) 6 KLT 388) submitted that if a scheme is framed by the Commissioner under Section 58 of the Act, the Board has to see that the administration of the temple is carried on in accordance with that scheme. Paragraph No.32 of K. Chathu Achan (supra) reads thus:

                  “32. The aforesaid decisions of the Division Bench are in the context of the provisions under sub-section (2) of Section 39 of the HR&CE Act, which deals with appointment of non-hereditary trustees, in the circumstances stated in the subsection (2), which has no application, when the appointment of non-hereditary trustees in a temple is governed by the provisions under the scheme framed under Section 58 of the Act. Sub-section (2) of Section 39 of the Act relates to the appointment of hereditary trustees in temples, where there is no scheme framed in terms of Section 58 of the Act. Once such a scheme is framed, the Board has to see that the administration of the temple is carried on in accordance with that scheme. The reference of Sections 39 and 41 of the Act in Clause 4 of Ext. P1 scheme does not in any manner affect the right of the Board to appoint non-hereditary trustees in the temple, in terms of Clause 4 of the said scheme. Therefore, we find no merits in the contentions raised by the petitioner, relying on the provisions under sub-section (2) of Section 39 of the Act, in order to challenge Ext. P5 notification dated 26.07.2021 issued by the 3rd respondent Commissioner.”

53. In the instant case, a scheme for the administration of the temple was framed as early as in the year 1948. The framing of the scheme was not challenged by any hereditary trustee. Now, the petitioner cannot contend the non-compliance of the twin conditions stipulated in Section 39(2) of the Act, in view of the dictum laid down in K. Chathu Achan (supra). Therefore, we are unable to accept the arguments advanced by the learned counsel for the petitioner.

54. It is pertinent to note that clause (2) of the scheme for the administration of the temple states that the properties of the temple are vested with the Board of trustees, consisting of hereditary trustees and one or more non-hereditary trustees (not exceeding three) appointed by the Board. Clause (4) of the scheme empowers the Board to appoint the non-hereditary trustee and the Executive Officer.

55. The records would indicate that the appointment of the Executive Officer and non-hereditary trustee is in accordance with the scheme framed for the administration of the Temple. The scheme became final long ago. The petitioner has suppressed the fact that there was a scheme for the administration of the Temple and claimed that it is a private temple not notified under Section 38 of the Act. The fact remains that the Malamakkavu Ayyappa Temple was notified under Section 38 of the Act as serial No. 891 of the Schedule attached to the Gazette Notification dated 15.06.1994.

56. On a careful consideration of the materials placed on record and the submissions of the counsels, it is clear that there has been mismanagement and maladministration of the affairs of the temple for the past several decades. The Board has granted sufficient opportunities for the petitioner to produce the accounts and to substantiate his contentions. But the records would reveal that the petitioner did not cooperate with the Devaswom officials and took an evasive stand.

57. Exts. P1 and P7 orders challenged in this Writ Petition are passed by competent authorities strictly in accordance with the scheme framed for the administration of the Temple. We do not find any illegality, irregularity or impropriety in the impugned orders.

58. In the light of the above discussions, we are of the view that the reliefs claimed in the Writ Petition cannot be granted. We find no merit in the submissions advanced by the learned counsel for the petitioner. The Writ Petition is liable to be dismissed, in our view.

                  Accordingly, the Writ Petition stands dismissed.