THOTTATHIL B. RADHAKRISHNAN, J.

1. Four non-hereditary trustees were appointed under the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951, for the Sree Vyrancode Temple, Thirunavaya in Tirur Taluk. Three posts have fallen vacant. Ambika Pulliyathiri Amma, who was the hereditary trustee, died on 18.12.2008. Ambika Devi of Valiyktottu kovilakam staked claim to that post on plea of succession. That was rejected by the Commissioner. In WP(C) 5766/11, she was given a further opportunity to provide materials before the statutory authority within a period of four months. It is submitted that nothing happened after that judgment dated 23.2.2011. This means that as of now, there is none in office as the hereditary trustee and there is only one non-hereditary trustee. He is K.P. Appukuttan, the petitioner in W.P.(C) 10112/11, whose term expires on 14.6.2012.

2. Malabar Devaswom Board (MDB) authorities invited applications, conducted selection and appointed the private respondents as the non-hereditary trustees as against the three vacancies. Satheesh Kumar E., the petitioner in W.P.(C) 8991/11, who was a non-hereditary trustee till his term expired, lost his application for appointment afresh.

3. The challenge in these writ petitions are to the notifications inviting applications. The grounds raised include the plea that the private respondents are political activists and are, therefore, disentitled to be appointed; that the jurisdiction to appoint non-hereditary trustees is only with the Commissioner and further that, undue haste has been taken in making the selection. During the course of hearing, it was also pointed out that be it either under sub-section (2) or sub-section (5) of Section 39, the competent authority has to record reasons.

4. Going by what the Bench had minuted in orders dated 4th April, 2011 and 8th April 2011, the question whether the impugned action is bad for not recording reasons for it, ought to gain consideration. The Bench also noted later, on 3.8.2011, that on behalf of some of the private respondents, it was pointed out that it is not an instance where a non-hereditary trustee is being appointed for the first time and because there is already a non-hereditary trustee and the proceedings is only to fill up the available vacancy, all that is needed is to appoint a person as against a vacancy of another post of nonhereditary trustee and therefore, the question whether there should be a non-hereditary trustee may not be germane for consideration. It was then pointed out by the learned senior counsel on behalf of the contesting respondents that in such event, the compulsion for a pre-decisional consideration and hearing by the Malabar Devaswom Board authorities, as laid down by this Court on that issue, may not apply to the facts of the case in hand.

5. Following the aforesaid orders, the Bench heard learned senior advocates for the petitioners in these two writ petitions, learned senior advocates for the contesting respondents and the learned standing counsel for the Malabar Devaswom Board on the basis of the materials then on record. Then as regards law, submissions were made touching sub sections 2 and 5 of the Section 39 of the Hindu Religious & Charitable Endowments Act, 1951, hereinafter, ‘the Act’ for short and the decisions of this Court in KunhiramaVariar v. State of Kerala [2011 (2) KLT 707], ParameswaranNamboothiri v. Malabar Devaswom Board [2011 (2) KLT 988], Raman Namboothiri v. Chief Commissioner, HR & CE [2004 (1) KLT 945] and MuttilSree Vishnu Kshetra Samithy v. Assistant Commissioner, HR & CE (Admn) [2010 (4) KLT 654]. On the basis of submissions then made on 25.8.2011, it was noted by the Bench, among other things, as follows:

“The crucial issues that arise for decision in these cases are: i. What is the scope of the requirement to record reasons to exercise authority under Section 39(5) of the Act to fill up a vacancy of non-hereditary trustee?

ii. Whethe