1. The judgment of the Court was delivered by Viswanatha Iyer, J - These two appeals are filed against the decision of the Sub-Court, Kasaragod framing a fresh scheme for the famous Srimad Anantheswar Temple of Manjeswar. It has been held in Mahabala Shetty v. Ananda Baliga (1959 KLT 689) that this temple is a sectional temple of the Gowdasaraswath Brahmins of erstwhile South Canara District now forming part of Karnataka State and part of Kerala State, the portion in Kerala being Kasaragod and Hosdrug Taluks of Cannanore District. A scheme had been framed in O. S.37 of 1920 on the file of the District Judge of South Canara for its management. As many of its provisions were found to cause difficulties a suit for modifying it was filed as O.S.4 of 1928 and the scheme framed therein is as follows: -
"1. The affairs of the temple shall be managed by a council of three trustees, who shall all be members of the Gowdasaraswath Brahmin community.
2. The trustees shall be nominated by the Hindu Religious Endowments Board as follows. One from the residents of Manjeshwar Peta, two from persons residing outside Manjeshwar, but within the South Canara District.
3. The trustees shall hold office for three years.
Note. - The same trustee shall not hold office for two consecutive terms but there shall be an interval of at least three years before the same person is again nominated trustee after vacating the office.
4. The trustees shall be under the general Superintendents of the Hindu Religious Endowments of the Hindu Religious Endowments Board in the manner provided by the Hindu Religious Endowments Act.
5. There shall be paid manager of the temple to keep the accounts. He shall be appointed by the trustees and shall work under their orders. His salary shall not be less than Rs. 100. He must furnish security for Rs. 3000.
Note. - 1. The rights of the temple writhics or priests such as they are not in any was restricted or defined in this scheme.
2. A copy of this scheme shall be forwarded to the Hindu Religious Endowments Board by the Court and the scheme shall also be published in two vernacular papers of the District.
The proceedings subsequently taken by the Hindu Religious Endowment Board declaring the temple as a public temple and the litigations that followed it are discernable from the decision in Mahabala Shetty v. Ananda Baliga (1959 KLT 689). The effect of that decision is that the scheme framed in O. S. 4 of 1928 was in effect restored. The consequence was a council of trustees to manage the affairs of the temple was from time to time nominated by the Hindu Religious Endowment Board, some members of the community felt that the power of nomination of the trustees by the Board is unconstitutional in view of Art.25 and 26 of the Constitution. They also felt that the existing scheme is inadequate for the proper management of the temple and hence they moved the lower court by an O. P. to frame a fresh scheme. According to the petitioners His Holiness the Kasi Mutt Swamiyar who is the spiritual head of the community should be given the power to nominate the trustees and other suitable provisions should be added for the efficient management of the temple. The commissioner for Hindu Religious Endowments contested this plea and contended that the existing scheme under which he can nominate the trustees should remain. The Gowdasaraswath Brahmin Religious and Charitable Association - a society registered under the Karnataka Societies Registration Act - claimed that it should be given the power to nominate the trustees. Some others who got themselves impleaded on notice under O.1, R.8 C.P.C. objected to the idea of nomination of trustees and they pleaded for election of the trustees.
2. The lower court has in the decision under attack held that the nomination of trustees by His Holiness the Kasi Mutt Swamiyar or by the Commissioner or by the Association will not be a proper exercise of the right of the community to administer their religious institution. A scheme for election alone was held to be proper one and a scheme is framed in these lines. This is challenged in these appeals. Those who plead for a scheme of nomination by His Holiness the Swamiyar have filed one appeal and the Commissioner has filed the other appeal.
3. The first point for consideration is whether the existing scheme by which the Commissioner is given the power to nominate is valid and consistent with Art.26 of the Constitution. The existing scheme framed by the court in O. S. 4 of 1928 is a pre-constitution scheme. A power of nomination of trustees to an outside body will certainly be interference with the right of the denomination to administer their own religious institutions. The fact that the Commissioner before nominating has to invite applications and after that consider the objections, if any, to the choice of any of the applicants before making a final choice of the trustees is not a substitute for the right of the denomination to select trustees of their choice. The principle stated in the decision of the Mysore High Court in Mukundaraya v. State of Mysore (AIR 1960 Mysore 18) relied on by the lower court is the correct principle to be followed. Para. 41 of the decision of this court in Krishnan v. Guruvayoor Devaswom Managing Committee (1979 KLT 350 (FB)) only says that conferment of power of nomination on the Government by itself may not be illegal but considering the secular character of the State it is desirable that the legislature should consider whether the power to nominate the members of the committee (Guruvayoor Devaswom) should not be conferred on an independent statutory body other than the State Government with sufficient guidelines furnished to it for ensuring that the nominations will be effected in such a way as to be truly representative of the denomination consisting of the worshipping public. Here the existing scheme only provides that the nomination shall be by the Hindu Religious Endowment Board. Unguided power is givento that Board to nominate the trustees. The Board may consist of members not belonging to this community and this temple being a sectional temple it may not be consistent with Art.26(b) of the Constitution to retain the power with the Board. Therefore we agree with the lower court that the existing scheme conferring the power on the Endowment Board should be changed. That disposes of the appeal by the Commissioner.
4. Equally improper is the case concerning the power of nomination on His Holiness the Swamiyar of Kasi Mutt. No doubt he is the unquestioned spiritual head of the members of the community residing in this area. His guidance or advice may be sought for by the trustees in respect of spiritual matters. His Holiness himself does not hail from this District and for that reason he is an outsider. Even apart from that when the entire community has got a voice in the matter of selecting trustees it may not be proper to confer such a power on the Swamiyar. So this plea put forwarded in the connected appeal must also be held to be unsustainable.
5. Faced with this situation the petitioner appellant submitted that the provision for election of the trustees in the scheme mentioned in the order of the lower court is beset with so many difficulties considering the large members of this community and the area of the erstwhile South Canara District. It was submitted that the trustees may be elected by a body of representatives who in turn are elected by members of the community belonging to this area. In other words the entire area may be divided into so many constituencies in such a manner that each constituency may more or less have equal number of voters and each constituency may elect a member and the body of such elected representatives may elect the number of trustees giving weightage to Manjeswar peta. According to them this will facilitate the conduct of election and the exercise of the right by each male member of the community who has attained the age of 21 years. It was also suggested that there are 18 temples belonging to this community in the erstwhile South Canara District and the constituency may be so demarcated that one temple will come in each constituency. This will also create a sense of participation in the election of members to the Manjeswar temple by the worshippers of each of the other temples. There is fairness in this submission we feel that instead of providing for election of trustees by all the members of the community an indirect election in the manner suggested by the appellant will be proper. But the details regarding the number of constituencies and their extent are matters of detail and it is for the interested parties to submit draft rules to the lower court providing for the division of the area into constituencies and the procedure to be followed in the conduct of election of the representatives and also relating to the manner of election of the trustees by the body of representatives elected in the above manner. Until these Rules are framed and election held it is necessary that the existing Board Trustees should continue.
6. Some other minor modifications in the scheme as selected by the lower court are also called for. In clause (3) instead of providing for interval of 10 years it is enough to provide for an interval of 5 years only. In clauses (23), (24) and (25) some minor changes are also called for. So we modify the order passed by the lower court in the following manner: -
For the existing clause (2) the following shall be substituted - The trustees shall be elected by secret ballot by the body of representatives, also elected by secret ballot by the male members of the above community who have attained the age of 21 years. To elect the body of representatives the present South Canara District of Karnataka State and Kasargod, Hosdurg Taluks of Kerala State will be divided into not more than 20 constituencies having approximately more or less equal number of male members of this community who have attained the age of 21 years. The parties interested may submit draft rules providing for the division of the entire area into number of constituencies and for the conduct of election of one representative from each constituency. The said rules should also provide for the manner of the conduct of the election of trustees by such body of representatives. The lower court will consider the draft and objections, if any, to the same and pass a final order on such rules.
In electing the trustees two of them shall be from residents of Manjeshwar Peta consisting of three villages of Hosabetta. Udyavar and Hosdurg taluks and two from the present South Canara District of Karnataka State.
The representatives and the trustees elected should profess Hindu Religion and believe in the temple worship and should not be below 30 years of age and should have a minimum educational qualification of School Leaving Certificate. Any person standing for election as representative or as trustee should make subscribe in the presence of the Returning Officer an oath in the following form, that is to say, -
"I, A. B.. . .do swear in the name of God that I profess Hindu religion and believe in temple worship."
For R.3 substitute the following: The representatives elected shall act as such for a term of 5 years. The trustees elected shall hold office for 5 years. After the expiry of the term of 5 years all the trustees shall vacate the office and the same persons shall not hold office or stand for election again before an interval of 5 years. If any vacancy by death, resignation or insolvency of any of the trustees arises during their term of 5 years the same body of representatives or such of them as are alive and available may elect the required number of trustees to fill up the vacancy. The trustees elected mid-term may hold office for the balance of the term allowed and vacate office along with the rest of the trustees on the expiry of the term of 5 years.
Add the following at the end of Clause 10: - If any single item of expenditure will exceed Rs. one lakh, the trustees shall take into account also the views of the body of representatives before incurring the same.
Add the following at the end of Clause 11: - A copy of the statement shall also be furnished free of cost to all the elected representatives.
Clause 23 may be deleted and in its place the following shall be substituted: - The draft rules shall be filed before the Sub Court within three months from the date of the decision in this appeal and after approval of the Sub-Court, steps shall be taken by the present council of trustees to prepare the electoral roll of each constituency as per rules. After finalisation of the electoral rolls as per the rules election of the body of representatives should be held within three months thereafter. The body of representatives should elect the trustees in another two months. The elected trustees shall assume office from 1st August, 1982. If for any reason the elected trustees cannot take charge on the above date the administration of the temple shall be continued as per the scheme now in vogue, that is, Ext. A-1 scheme, and that too until the elected trustees take charge of their office.
In Clause 24 the words "after 7th October, 1981" and also the words "although their term of office has not empired" are deleted.
For Clause 25 the following shall be substituted - the later election shall be held three months before the expiry of the term of the sitting council of trustees. The necessary expenditure for the election shall be met out of the funds. If such subsequent election for any reason could not be held before the expiry of the term of the sitting council to trustees they should obtain the sanction of the court for continuance and it will be open to the court to provide for the necessary safeguards in considering the request for such continuance and the period for which permission is granted for continuance.
7. In other respects the order of the lower court is confirmed. After the draft rules are considered and approved by the lower court the scheme with the rules shall be printed as a Hand Book for future use.
The appeals are disposed of in the above terms. There will be no order as to costs.
Comments