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CASE NO.: Appeal (civil)  486 of 2003

PETITIONER: Swamy Prakasananda & Anr.

RESPONDENT: State of Kerala & Ors.

DATE OF JUDGMENT: 20//06

BENCH: Dr. AR. Lakshmanan & R. V. Raveendran

JUDGMENT: J U D G M E N T

RAVEENDRAN, J.

       This appeal by special leave is filed against the judgment  dated 10.8.2001 passed by the High Court of Kerala in O.P.  No.19079/1997, wherein the appellants had challenged the  constitutional validity of the Sivagiri Mutt Emergency  Provisions (Ordinance), 1997 and the Sivagiri Mutt  (Emergency Provisions) Act, 1997, (Kerala Act No.17 of 1997)  replacing the said Ordinance.  

2.      Sree Narayana Guru, a great social reformer and saint,  founded Sree Narayana Dharma Sanghom at Sivagiri Mutt,  Varkala. The said Sanghom consisted of members who  followed and believed in the teachings of Sree Narayana Guru.  The members of the Sanghom were the monastic order of  Sanyasi disciples nominated under the Will executed by Sree  Narayana Guru. Certain disputes having arisen in respect of the  affairs of the Sanghom, the Kerala High Court formed a scheme  for the said Sanghom as per its judgment dated 26.3.1959 in  Appeal Suit No.14 of 1956,  arising from O.S. No. 127 of 1954  on the file of the Sub-ordinate Judge, Attingal.  

3.      As per the scheme, all Sanyasins, who were the members  of Sree Narayana Dharma Sanghom on the date of coming into  force of the scheme, became the members of the Sree Narayana  Dharma Sanghom Trust (’Trust’ or ’Sanghom’ for short). The  scheme requires constitution of a Board from among the  members/trustees for the management and administration of the  Trust, such Board consisting of not less than 7 and not more  than 11 members, all to be elected by and at a special meeting  of the General Body. The Board is to hold office for a term of  five years. Provision is made for the Board to fill up any  vacancies arising in it. The scheme contemplated selection of  future members of the Trust from persons having the following  qualifications (clause 7) : (a)     who have undergone a course of training in the  Matha-mahapadhasala under this Sanghom;

(b)     who are free, in thought, word and deed from  casteism and religious fanaticism;  

(c)     who dedicate themselves to the service of the  Sanghom for life;

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(d)     who are Thyagis free from marital and family  attachments;     

(e)     who are not below the age of 25;

(f)     who follow and observe the principles and code of  conduct laid down by the Guru for Sanyasins; and

(g)     who are prepared to abide by the rules and  regulations of the Sanghom as also the decisions of  the Board that may be taken from time to time.

Clause 7 of the Scheme further provides that it shall be  competent for the Board to accept the service of any Sanyasins  having qualifications sufficient in the opinion of the Board and  enrol such Sanyasins as members of the Sanghom at a special  meeting of the Board if they apply for membership, the  subjective opinion of the Special Board in matters relating to  such qualifications and fitness being final and binding.   Clause  15 of the Scheme provides for suspension or removal of a  member from the Sanghom.  

4.      It is stated that elections to the Board of the Trust were  held on 26.7.1994 and 11 members were elected to the Board.  But six of them resigned. There is a controversy as to whether  two out of those six who resigned, withdrew their resignations.  On the ground that the resignations of members reduced the  number below the quorum, on 14.10.1994, the outgoing Trust  Board convened a meeting of the general body and fixed the  date for fresh elections as 22.11.1994. The first appellant herein  filed O.S. No.247/1994 on the file of the Sub-Judge, Attingal,  for a declaration that the decision taken in the general body  meeting on 14.10.1994 to convene a special meeting of the  Sanghom on 22.11.1994 to conduct an election for the Trust  Board was illegal, and for a permanent injunction restraining  the defendants (outgoing Board members) from conducting  such elections. A temporary injunction was granted on  21.11.1994. An appeal filed on 23.11.1994 by the defendants in  that suit, against the said temporary injunction was allowed and  the order of temporary injunction granted by the Sub-Judge was  set aside by the appellate court on 2.12.1994. The first appellant  challenged the order of the appellate court in a revision before  the Kerala High Court, on 16.12.1994. During the pendency of  the revision petition, the elections were held on 25.12.1994 and  a new Board were elected.  

5.      The Kerala High Court by order dated 19.6.1995,  allowed the revision petition. It held that  prima facie, the Trust  Board elected on 26.7.1994 had the requisite quorum and  therefore the fresh election held on 25.12.1994 was invalid.  Consequently, it directed the Board elected on 25.12.1994 to  hand-over the management of the Sanghom to the Board  elected on 26.7.1994, with a further direction to the Board  elected on 26.7.1994 to take steps to fill up the vacancies to the  Board as per the provisions of the scheme. The review petition  filed by the Respondents in the Revision was rejected on  16.1.1996. There were also other suits (O.S. No. 192/1995 and  O.S. No. 801/1996) and several ancillary proceedings between  the two factions, one led by Swamy Prakasananda and the other  led by Swamy Swaroopananda.  

6.      On a complaint dated 24.6.1997 by one of the factions,  proceedings under section 145 Cr.P.C. were initiated by the  District Magistrate, Thiruvananthapuram, who passed an order

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dated 25.6.1997 placing the properties of the Trust under the  receivership of the Deputy Collector pending ascertainment as  to who was in actual control of the properties/affairs of the  Trust. Subsequently, on 9.10.1997, he directed the Receiver to  release the properties of the Trust to the Trust Board as there  was no likelihood of breach of peace.

7.      On the same day (9.10.1997), Sivagiri Mutt Emergency  Provisions (Ordinance) Act, 1997 was promulgated by the  Governor of Kerala for taking over the management of the  Trust for a limited period. In view of it, the District Magistrate  cancelled the further proceedings under section 145 Cr.P.C. on  13.10.1997.     On 19.2.1998, the Ordinance was replaced by the  Sivogiri Mutt (Emergency Provisions) Act, 1997 (’Act’ for  short). The Preamble to the Act (relevant portion) read thus :

AND WHEREAS, of late, serious disputes have arisen  between those concerned with the administration of the said  Trust and of its properties inter se, the beneficiaries,  followers and the devotees forming themselves into  fighting groups and taking sides leading to a situation  where there is an atmosphere of violence, unrest and  tension in Sivagiri Mutt and all other institutions governed  by the Trust, seriously affecting their administration;

AND WHEREAS proceedings under section 145 of the  Code of Criminal Procedure, 1973, in regard to the  possession of the Trust including Sivagiri Mutt at Varkala  are in force and the Trust and its properties have passed  into the possession of the Receiver appointed by the  District Magistrate, Thiruvananthapuram;

AND WHEREAS the rival factions of the ’Sanyasins’ are  asserting possession and control in the administration of the  Trust properties even after the taking over of the possession  and management of the properties of the Trust by the  Receiver appointed by the District Magistrate,  Thiruvananthapuram and thereby causing breach of peace  in the respective institutions;

AND WHEREAS in view of the situation which has so  arisen with regard to the management of the Trust along  with all institutions owned, possessed or run by the Trust, it  is necessary to take over, in the public interest, for a limited  period, the management thereof and any delay in taking  over the management of the Trust would be highly  detrimental to the interest and objectives of the Trust;"

Section 3 of the Act provided for the vesting of the  management of the Trust in the Government for a period of two  years, with effect from 9.10.1997. The proviso thereto enabled  the State Government to continue the vesting from time to time,  after the expiry of the initial period of two years, the total  period of vesting however, not exceeding in all 5 years from  9.10.1997. Section 4 set out the general effect of vesting.  Section 5 provided for the administration of the Trust. Section 6  provided for constitution of an Advisory Council by the State  Government to advise the Administrator in the management of  the Trust. Section 8 enabled relinquishment of management  before the specified period. Section 9 provided for resolution of  any dispute relatable to the Trust by a tribunal constituted under  the Act. In terms of the Ordinance/Act, an Administrator was

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appointed who took over the management of the Trust. An  Advisory Council was constituted by the State Government, to  advise the Administrator in the management of the Trust.

8.   On 24.10.1997, the appellants filed W.P. No.19079/1997  challenging the validity of the Ordinance. When it was replaced  by the Act, it was also challenged by suitable amendment to the  writ petition. By impugned judgment dated 10.8.2001, a  Division Bench of the Kerala High Court upheld the validity of  the Act and disposed of the writ petitions with the following  directions :

"We therefore direct the Administrator and Advisory  Council to take all steps as per the Act to complete the  election process. The Council has to take all steps under  Section 6(5). We may indicate that the list they have finally  prepared be treated as preliminary list. They will call for  the objections and comply with all other formalities and  finalise the list within a period of six weeks from today.  Government on the basis of the said final list will take  further steps in the matter and complete the election  process within a period of one month thereafter. Steps  should be taken to conduct election in a smooth and orderly  manner and put the elected Trust Board in office  immediately.

We hope that members of the warring groups will take  earnest efforts to uphold the teachings and messages of  Sree Narayana Guru. We hope it would be their endeavour  to spread Guru’s message for the goodness of the mankind.  Teachings of Sree Narayana Guru is the very soul of our  society which is to pass from one generation to another. Let  us preserve it for posterity. Charles Caleb Colton, a British  Clergyman and writer in the 18th century said that men  would wrangle for religion, write for it, fight for it,  anything but live for it. Disciples of Sree Narayana Guru  shall not wrangle for power but propagate his teachings,  fight for it and live for it. Let the, try to uphold Guru’s  unique philosophy, i.e. One Caste, One Religion, One God  for Man."

9.      The appellants filed SLP [C] No.15689/2001 on 6.9.2001  challenging the order of the Kerala High Court and  notice was  ordered on 21.9.2001. Elections to the Trust Board was  conducted by the State Government on 11.10.2001 as per the  directions of the Kerala High Court and 11 trustees were elected  for a term of 5 years. On 13.11.2001, the State Government  relinquished the management of the Trust, and the Trust Board  elected on 11.10.2001 is in charge of the affairs of the Trust.  The next election is due in October/November of this year.  

10.     When the appeal was taken up for hearing, Sri P.P. Rao,  learned senior counsel appearing for the State of Kerala,  submitted that the management of the Trust having been  delivered back to the elected Board and the period of vesting of  management in the Government having expired during the  pendency of this appeal,  the Act has exhausted itself and this  appeal relating to the challenge to the Act has become  infructuous.  

11.     The appellants, however, contended that certain acts done  in pursuance of the provisions of the Act were illegal; that they  were aggrieved not only by the Act, but also by the advice

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given by the Advisory Council constituted under the Act and  action taken by the State Government on the basis of such  advice; that in particular, they were aggrieved by the advice  tendered by the Advisory Council by report dated 7.9.2001 and  acceptance thereof by the Government, for the removal of the  18 Sanyasins who had been duly enrolled as members of the  Trust in 1988, 1993 and on 22.12.1995 and 8.3.1996, as also the  removal/exclusion of six of the original members; that the  election held in 2001, excluding the said 24 legitimate members  of the Trust from participating in the said election was invalid;  and that, therefore, the present Board is an illegal body. It was  submitted that if this Court, were to hold the Act to be invalid,  necessarily the constitution of the Advisory Council and the  advice of the Advisory Council and action taken thereon by the  State Government would also be invalid, and therefore, it is  necessary to go into the question of validity of the Act, even  though the Act has exhausted itself.   

12.     After the matter was argued for some time, Mr. Soli J.  Sorabjee, learned senior counsel appearing for the appellants,  submitted on instructions, that in view of the events that took  place during the pendency of this appeal, in  particular, the term  of the Board elected in 2001 now nearing its end, and the Act  being no longer in force,  the appellants will not press their  challenge to the validity of the Act, if the following  remedial/corrective measures are taken through an independent  agency :   (i)     to consider the validity of the admission of the 18  Sanyasins as members of the Trust (who have been  subsequently excluded/removed from membership  as not validly admitted to membership);  

(ii)    to consider the legality, correctness and validity of  the removal/exclusion of the said eighteen  members, as also six of the original members.  

(iii)   to finalize the voters list/Electoral Roll for the  elections to the Board to be held this year, taking  note of the decision relating to the validity of  removal of the said 24 members;  

(iv)    to conduct the elections for electing the new Board  within six months, and supervise the handing over  of the charge to the newly elected Board.  

He also suggested that one of the members of the Trust (to be  nominated by the contesting private Respondents), may be  appointed to render any assistance to the Authority appointed  by this Court for the aforesaid purposes.

13.     Sri Rakesh Dwivedi, learned senior counsel appearing for  the contesting private respondents submitted that the Act was  valid and the action taken on the advice of the Advisory  Council in excluding 24 members from the Trust was also  valid. He, however, further submitted, on instructions, that to  put an end to the litigation and in the interests of the Trust, his  clients have no objection for appointment of an independent  authority to examine the correctness of the exclusion of 24  members and to finalize the voters list. He, however, submitted  that the independent authority should be a retired Judge of this  Court. He also suggested the name of Swamy Sugananda to  assist such authority.   

14.     In view of the aforesaid submissions on behalf of the  parties, we find it unnecessary to examine the constitutional

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validity of the Act. On the facts and circumstances, we find the  request by appellants for appointment of an independent  authority for finalizing the voters list by examining the  correctness of exclusion/removal of 24 members, and to  supervise the elections, is just and proper. This appeal can,  therefore, be disposed of by appointing a retired Judge of this  Court, as the Authority to perform the following functions : (i)  to scrutinize and decide the validity of the admission of 18  members to the Trust; (ii) to examine and decide whether the  removal/exclusion of the said 18 members as also six of the  original members from the Trust is valid; (iii) to finalize the list  of voters for holding elections to elect the Trust Board; and (iv)  to draw up the calendar, and supervise the conduct of the  elections for the Board, the declaration of the results, and the  handing over of the charge from the existing Board to the newly  elected Trust Board. Both sides consented to Shri Justice K. S.  Paripoornan, a retired Judge of this Court being appointed as  such Authority.  

15.     It is unfortunate that an institution founded by a great  social reformer is entangled in faction politics, coups and  counter coups, and litigations, that too between groups of  Sanyasin disciples of the Guru who swear allegiance and  commitment to his great ideals. We hope and trust that at least  from now onwards, all the members of the Sanghom will work  in unity, with a constructive attitude, understanding and  tolerance, to propagate the ideals and philosophies of Sree  Narayana Guru for upholding the moral values, for inspiring  social reforms, and for eradication of caste, untouchability,  religious fanaticism and to usher in universal brotherhood.       

16.     Accordingly, we dispose of this appeal with the  following directions  :

(i)     Mr. Justice K.S. Paripoornan, a retired Judge of  this Court, is appointed as the appropriate  Authority to perform the functions mentioned in   para (14) above.  

(ii)    The said Authority may grant an opportunity of  hearing to all affected parties and may call for the  relevant records, take affidavits and adopt  suitable/appropriate procedure for deciding upon  the validity of admission/exclusion of members  and finalizing the list of voters for this purpose.  His decision thereon shall be final and binding on  the parties.

(iii)   The said Authority shall finalize the list of voters  within four months and conduct the Elections  under his supervision within six month. The Trust  Board and parties shall extend their fullest  cooperation to enable the said Authority to  discharge his functions.  

(iv)    The parties and/or their counsel shall appear before  the Authority on 15.5.2006 at 11.00 AM, produce  the relevant material and take further orders from  him.

(v)     The remuneration of the said Authority and  expenses relating to all secretarial assistance,  travel and other incidentals as indicated by the  Independent Authority shall be borne and paid by

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the Trust to the said Authority. The expenses part  shall be paid in advance, as indented.  

(vi)    Sri Swami Sugananda, one of the members of the  Trust, is appointed to render such assistance as  may be required by the said Authority. He shall,  however, have no say in the decision making,  which shall be exclusively within the domain of  the said Authority.  

(vii)   Parties to bear their respective costs.  

Registry to communicate this decision to Shri Justice K. S.  Paripoornan. Liberty is reserved to the parties and the Authority  to seek clarification from this Court, if necessary, in regard to  any matter connected with or arising from the above directions.  

16.     We also dispose of the pending interlocutory applications  as under :-  

(i)     I.A. No. 5/2001 (filed by 18 excluded members for  intervention) and I.A. No. 8/2001 (filed by the  appellants for impleading the 11 members of the  Trust Board who were elected on 11.10.2001)  are  allowed and they are impleaded as respondents 5  to 22 and 23 to 33 respectively.

(ii)    I.A. No. 4/2001 (filed by the appellants seeking a  direction to the State of Kerala to stop election  process as per the letter dated 27.9.1991 and to  withdraw the approval granted to the voters’ list  submitted by the Advisory Council), I.A. No. 6 of  2001 (for setting aside the election to the Trust  Board held on 11.10.2001 and the proceedings  pursuant thereto) and I.A. No. 9/2003 (for  declaration that the election held on 11.10.2001 is  invalid and to restrain handing over the  management of the Trust by the State Government  to the Trust Board elected on 11.10.2001) are  dismissed as having become infructuous and no  longer surviving for consideration.