The inclusion of a Temple in the list prepared and published under S.38 of the Hindu Religious and Charitable Endowments Act is a prerequisite for the appointment of Trustees under S.39, and the declaration of a Temple as a public temple under S.57 does not confer such jurisdiction.

C.S. Rajan, J

The Thiruvachira Sreekrishna Temple once belonged to the Kozhikode Zamorin Raja, who was the Hereditary Trustee of the Temple. The petitioner representing the Thiruvachira Sreekrishna Kshethra Paripalana Committee is in possession and management of the Temple for the last 20 years. The second respondent issued Exhibit P-1 notice to the Zamorin as well as to the President under S.41 of the Hindu Religious and Charitable Endowments Act (Madras Act XIX),1951 (hereinafter referred to as the act). Exhibit P-1 proposes to appoint new Trustees to the Temple for giving more representation to the worshipping public. The petitioner challenged Exhibit P-1 before the first respondent. The first respondent as per Exhibit P-3 quashed Ext. P-1 notice and the second respondent was directed to proceed afresh in accordance with law. In Exhibit P-3 an Administrator was also appointed to take over the charge of the Temple. In O.P. No. 12537 of 1992 a Division Bench of this Court quashed Exhibit P-3 to the extent of appointing the Executive Officer as the Administrator of the Temple. Therefore the second respondent passed Exhibit P-4 order by which the objection against Exhibit P-1 was rejected. The petitioner took up the matter before the first respondent and the first respondent as per Ext. P-6 order confirmed Exhibit P-5 order.

2. The main ground taken by Sri. Ram Prasad Unni, learned counsel for the petitioner is that unless this particular temple has been included in the list of religious institutions prepared and published under S.38 of the Act, no appointment of Trustees can be made under S.39 of the Act. According to S.39(1) of the Act, where a religious institution included in the list published under S.38 has no Hereditary Trustees, the Commissioner can also appoint non-Hereditary Trustees if he is of opinion that the affairs of the institution are not likely to be properly managed by the Hereditary Trustees.

3. There is no case for the respondents that the proposed action has been taken under any Section other than S.39 of the Act. In Ground A of the Original Petition a specific ground has been taken that S.39 has no application as the Temple has not been included in a list published under S.38 of the Act. The above ground has been answered in the counter affidavit filed by the first respondent as follows. The Temple has been declared as a public temple coming under the purview of H.R.& C.E. Act by the Deputy Commissioner under S.57(a) of the Act by order in O. A. 8/85 dated 14-2-1991. No appeal has been preferred by anybody against the above order. It is further admitted in the counter affidavit that Exhibit P-1 notice has been issued under S.41 of the Act read with S.39.

4. Thus, the fact that this Temple has not been included in the list of institutions under S.38 of the Act has not been denied. Therefore, the only other contention, that because this Temple has been declared as a public temple under S.57 of the Act, respondents 1 and 2 get jurisdiction to appoint new Hereditary Trustees has to be considered. S.57 of the Act gives power to the Deputy Commissioner to enquire 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; and

(d) whether any property or money is a specific endowment."

Therefore, 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 public temple will not enable the respondents to invoke powers under S.39