Ajithkumar, J.

1. The petitioner is the hereditary trustee of 32 Temples, which are governed by the provisions of the Hindu Religious and Charitable Endowments Act, 1951 (for brevity 'HR&CE Act'). The office of the petitioner functions at the Central Devaswom office near Valayanadu Temple, which is one among the said 32 Temples.

2. Going by the averments in the Writ Petition, on 05.10.2021, at around 11.30 a.m. the 2nd respondent along with a Deputy Commissioner and an Audit Inspector, inspected the said Central Devaswom Office. The 2nd respondent did so without giving any notice to the petitioner or his Personal Secretary, who supervises the functioning of the office. During the inspection, which went on till 4.30 p.m, the 2nd respondent and other officials behaved rudely and the whole episode was in the nature of a raid. The employees in the office were not permitted to contact the Personal Secretary of the petitioner or the Administrative Officer, who happened to be away due to illness. Advocate Sri.Rajesh Chandran, the lawyer of the petitioner, reached the office during that time, but he was not allowed to intervene saying that he did not have authorisation. Since the inspection was without any legal sanctity and in violation of the principles of natural justice, the petitioner has filed this Writ Petition seeking to issue a writ of certiorari or such other order or direction declaring the inspection on 05.10.2021 was without authority and in violation of principles of natural justice and the fundamental rights of the petitioner and also to direct the 1st respondent-Government by a writ of mandamus to initiate appropriate action against the 2nd respondent for conducting such an illegal inspection.

3. On 01.11.2021, the 2nd respondent issued a show cause notice, Ext.P5, to the petitioner, presumably under Section 45 of the HR&CE Act asking him to submit his reply within seven days. Pointing out a number of discrepancies, infractions, and irregularities in the administration of the Temples under the petitioner, Ex.P5 notice was issued. Thereupon, the petitioner filed I.A.No.1 of 2021 seeking to amend the Writ Petition by adding additional statement of facts, grounds and reliefs. The petitioner produced Ext.P5 notice therewith. In the amended Writ Petition, it was further contended that since the Apex Court declared Section 21, among a few other provisions in the HR&CE Act, unconstitutional, the very inspection conducted by the 2nd respondent was without any sanctity of law. Therefore, all the actions initiated pursuant to such inspection are liable to be declared null and void. The 2nd respondent is an adjudicating authority in the inquiry being conducted with respect to the allegation regarding gold plating of the flag mast in Valayanad Bhagavathy Temple in which he has passed Ext.P1 order on 24.08.2021. It was in such circumstances that the inspection permeated with bias and malafides. Ext.P5 was issued by the 2nd respondent after having taken time from this Court on 29.10.2021. It is issued with an oblique motive and, to circumvent the Court proceedings. The inspection as well as Ext.P5 is illegal. Accordingly, the petitioner claimed amended reliefs as follows:

“(ai) Issue a Writ of Declaration or such other appropriate writ, order or direction, declaring that the inspection dated 05.10.2021 of the Zamorin's Central Devaswom Office at Tali, Calicut by the 2nd respondent and his officials and the procedure followed therein was without authority in violation of the principles of natural justice and in violation of the Fundamental Right of the petitioner

(aii) Issue a Writ of Certiorari to call for the records leading to Ext.P5 dated 01.11.2011 and to quash the same as illegal and without jurisdiction

(aiii) Issue a Writ of Mandamus to restrain the 2nd respondent from seeking to exercise powers under Section 21 of the Madras HR&CE Act, 1951 which has been declared void and unconstitutional..

b) Direct the 1st respondent by a Writ of Mandamus or such other appropriate writ, order or direction, to take appropriate action against the 2nd respondent for the illegalities committed by him in respect of the inspection dated 05.10.2021 of the Zamorin's Central Devaswom Office at Valayanadu, Calicut; and

(c) Grant such other or further relief as this Honourable Court deems fit to grant in the particular facts and circumstances of the case.”

4. The learned Standing Counsel for the Malabar Devaswom Board filed a statement for and on behalf of the 2nd respondent. All the allegations levelled against the 2nd respondent are denied. The inspection conducted on 05.10.2021 by the 2nd respondent is justified by contending that he has acted only within his powers as invested on him by Sections 21 and 28 of the HR&CE Act. Further, it is contended that the Writ Petition is not maintainable.

5. I.A.No.4 of 2021 was filed by Samoothiri Raja Kudumba Kendra Samithy seeking to implead its Secretary and a member as additional respondents 3 and 4, which was allowed. They filed a counter-affidavit. They alleged that the petitioner is not capable of taking any decision by himself due to old age, physical weakness, and loss of memory. His children, particularly a daughter, and her husband misusing the said situation, have been doing every act which is detrimental to the devotees of the Temples under the trusteeship of the petitioner as well as other junior members of the family. It is further alleged that there have been several irregularities in the administration of the Temples, including misuse of funds. Besides, they would contend that the petitioner has got an effective alternative remedy under Section 99 of the HR&CE Act, and therefore, the Writ Petition under Article 226 of the Constitution of India is not maintainable. Further, it is contended that no Writ Petition for correction of procedural irregularities, as sought by the petitioner is tenable.

6. The petitioner filed a rejoinder controverting the contentions in the counter statements and also produced therewith Exts.P6 to P11. More allegations were raised against the 2nd respondent and reasons in support of the maintainability of the petitions are stated in the rejoinder.

7. The petitioner in W.P.(C) No.23304 of 2021 is the petitioner herein. Regarding the gold plating of the flag mast (Dwajasthampam) in the Valayanadu Bhagavathy Temple, there arose allegations of irregularities and malfeasance and an enquiry in that regard under Section 45 of the HR&CE Act has been going on. Writ Petitions have been filed before this Court in regard to the said enquiry at its various stages. Ext.P17 is the memo of charges dated 12.10.2020 in that matter. When Ext.P15 order was passed on 13.05.2019 in the enquiry, W.P.(C) No.15901 of 2019 was filed before this Court challenging the same. That, along with another connected Writ Petition and R.P.No.407 of 2019 in W.P.(C) No.40648 of 2018, was disposed of by this Court on 19.12.2019 as per Ext.P16, which was challenged by the petitioner before the Apex Court by filing S.L.P.(C) No.3073 of 2021. That S.L.P. was disposed of as per order dated 05.03.2021 observing that the petitioner would have a full opportunity to respond to the proceedings, and thereafter if he is aggrieved to pursue the remedies which are available in law. As regards grievance of nonfurnishing of copies of documents and denial of opportunity to cross-examine the witness on the prosecution side, the petitioner filed I.A.Nos.26, 27 and 28 of 2021 in enquiry No.J2/2994/2019. As per Ext.P21, the 1st respondent Commissioner allowed I.A.No.26 of 2021; however dismissed I.A.Nos.27 and 28 of 2021. A reasonable opportunity for the petitioner of being heard is thereby denied.

There occurred denial of natural justice. Therefore, the petitioner seeks to issue a writ of certiorari quashing Ext.P21 order and a mandamus directing the 1st respondent to allow I.A.Nos.27 and 28 of 2021 in J2/2994/2019.

8. The learned Standing Counsel appearing for the Malabar Devaswom Board raised objection regarding the maintainability of the Writ Petition specifically contending that the remedy available to the petitioner is under Section 99 of the HR&CE Act.

9. The petitioners are the trustees of Sree Kadaparambath Kavu Bhagavathy Temple, Kondoorkara in Pattambi Taluk in Palakkad District. They filed this Writ Petition seeking a writ of certiorari quashing Ext.P6 order by which an Executive Officer was appointed for the said Temple by giving additional charge to the 4th respondent, who presently has been working as the Executive Officer in Padinjare Madam Devaswom. Sree Kadaparambath Kavu Bhagavathy Temple is administered under Ext.P1 scheme. Ext.P2 complaint happened to be preferred before the President, Malabar Devaswom Board, pursuant to some difference of opinion among the worshippers of the Temple. That complaint was withdrawn following the settlement of the disputes. However, an inquiry in the matter was conducted in disregard of the settlement, copies of the memorandum of which are Exts.P3 and P4. When a notice was issued to the Manager of the Temple from the office of the 1st respondent, he did not take serious note of the same since the matter has already been settled. The 1st respondent ignoring all such developments proceeded to appoint the Executive Officer as per Ext.P6. The said order is vitiated for the non-observance of principles of natural justice. The remedy available under Section 99 of the HR&CE Act is not effective.

10. The learned Standing Counsel for the Malabar Devaswom Board filed a statement for and on behalf of the 1st respondent contending that the allegations in the Writ Petition are incorrect and further, that it is not maintainable since the remedy under Section 99 of the HR&CE Act is not exhausted.

11. The 3rd respondent filed a counter affidavit practically supporting the case of the petitioners. The 3rd respondent produced Exts.R3(a) to R3(e) along with the counter affidavit.

12. Heard the learned Senior Counsel Sri.Krishnanunni, who appeared on instructions for the petitioners, Senior Government Pleader for the respondent-State, the learned Standing Counsel for Malabar Devaswom Board and the learned Senior Counsel Sri.K.Ramakumar appeared on instructions for additional respondents 3 and 4 in W.P.(C) No.23304 of 2021.

13. The respondents would contend that these Writ Petitions are not maintainable for more than one reason. Since an alternative remedy is available under Section 99 of the HR&CE Act and the same is not exhausted, the petitioners have no right to invoke the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. In W.P.(C) No.23304 of 2021 it has been further contended that the inspection conducted by the 2nd respondent and its sequelae are acts authorized under the provisions of the HR&CE Act, and at this stage, the petitioner is not entitled to invoke the discretionary jurisdiction of this Court under Article 226 of the Constitution of India.

14. The pleadings on record would show that at 11.30 a.m., on 05.10.2021, the 2nd respondent along with the Deputy Commissioner and an Audit Inspector of the Malabar Devaswom Board, reached the office of the petitioner in the premises of the Central Devaswom Office, Valayanadu Temple, Kozhikode. Obviously, the inspection was done by invoking the powers of the 2 nd respondent under Sections 20, 21 and 28 of the HR&CE Act. The learned Senior Counsel appearing for the petitioners would submit that since Section 21 of the HR&CE Act was held unconstitutional by the Apex Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [AIR 1954 SC 282], the inspection on 05.10.2021 had no sanction of law and was illegal. Every action taken in consequence of the inspection, including Ext.P5 show cause notice dated 20.10.2021, is illegal. Since the inspection dated 05.10.2021 itself has been in question in this Writ Petition, issuance of Ext.P5 amounted to a frontal attack on the authority of this Court. Therefore, the petitioner did not choose to submit any reply.

15. The learned Standing Counsel for the Malabar Devaswom Board, on the other hand, contended that the 2nd respondent has every authority to inspect the office of the petitioner, which has nothing to do with the rites and rituals in the Temples, and therefore, there was no illegality or even irregularity in conducting the inspection. The learned Senior counsel appearing for additional respondents 3 and 4 would submit that in the matter of administration of the Temple affairs, the trustee cannot claim any fundamental right, and therefore, the inspection did not imply anything in conflict with the right of the petitioner under Article 25 or 26 of the Constitution of India, if at all he has any.

16. The learned Senior Counsel appearing for the petitioners pointed out various provisions in the HR&CE Act in order to fortify his contention that the office of Temple functioning at the Central Devaswom Office, Valayanad has immunity from being inspected by the 2nd respondent. To buttress the contention the learned Senior Counsel derived support from the Shirur Mutt case (supra), where Section 21 of the HR&CE Act was held unconstitutional, and also Devaraja Shenoy and others, Trustees of Sri. Venkataramana Temple v. The State of Madras and others [1960 (38) MysLJ 245] in which a Division Bench of Mysore High Court held a subsequent amendment brought about by the Madras Legislature in 1954 to be ultra vires the Constitution. The learned Senior Counsel further would submit that the Apex Court referred the said Mysore decision with approval in Commissioner of Hindu Religious and Charitable Endowments, Mysore v. U.Krishna Rao and others [(1969) 3 SCC 451]. Therefore no authority under the HR&CE Act can resort to Section 21 to conduct an inspection and the inspection by the 2nd respondent on 05.10.2021 was without the sanction of law. It is further contended that Section 21(3) of the HR&CE Act obligates the Commissioner to give advance notice, but the inspection was conducted by the 2nd respondent without giving any notice to the petitioner. That resulted in total negation of the rights of the petitioner guaranteed not only under the said provision but also under Articles 25 and 26 of the Constitution of India.

17. Constitutionality or not of Section 21 in the HR&CE Act was considered by the Apex Court in Shirur Mutt case (supra) at paragraph No.27, which is extracted below:

“27. We agree, however, with the High Court in the view taken by it about Section 21. This section empowers the Commissioner and his subordinate officers and also persons authorised by them to enter the premises of any religious institution or place of worship for the purpose of exercising any power conferred or any duty imposed by or under the Act. It is well known that there could be no such thing as an unregulated and unrestricted right of entry in a public temple or other religious institution, for persons who are not connected with the spiritual functions thereof. It is a traditional custom universally observed not to allow access to any outsider to the particularly sacred parts of a temple as for example, the place where the deity is located. There are also fixed hours of worship and rest for the idol when no disturbance by any member of the public is allowed. Section 21, it is to be noted, does not confine the right of entry to the outer portion of the premises; it does not even exclude the inner sanctuary "the Holy of Holies" as it is said, the sanctity of which is zealously preserved. It does not say that the entry may be made after due notice to the head of the institution and at such hours which would not interfere with the due observance of the rites and ceremonies in the institution. We think that as the section stands, it interferes with the fundamental rights of the Mathadhipati and the denomination of which he is head guaranteed under articles 25 and 26 of the Constitution. Our attention has been drawn in this connection to Section 21 of the Act which, it is said, provides a sufficient safeguard against any abuse of power under Section 21. We cannot agree with this contention. Clause (a) of Section 21 excepts from the saving clause all express provisions of the Act within which the provision of Section 21 would have to be included. Clause (b) again does not say anything about custom or usage obtaining in an institution and it does not indicate by whom and in what manner the question of interference with the religious and spiritual functions of the Math would be decided in case of any dispute arising regarding it. In our opinion, Section 21 has been rightly held to be invalid.”

18. The Apex Court held Section 21 to be invalid for the reason that, it does not confine the right of entry to the outer portion of the premises; but it does not even exclude the inner sanctuary "the Holy of Holies". It is observed that the sanctity of the inner sanctuary is zealously preserved, but the safeguards provided under Section 91 against any abuse of power under Section 21 do not put in place a mechanism for resolution of dispute, if any, arises regarding such entry as the other reason for the invalidation Section 21. The Apex Court in paragraph 24 of the Shirur Mutt case (supra) extracted the operative part of the judgment of the Madras High Court, which reads:

"To sum up, we hold that the following Sections are 'ultra vires' the State Legislature in so far as they relate to this Mutt : and what we say will also equally apply to other Mutts of a similar nature. The Sections of the new Act are: Sections 18, 20, 21, 25(4), Section 26 (to the extent Section 25(4) is made applicable), Section 28 (though it sounds innocuous, it is liable to abuse as we have already pointed out earlier in the judgment), Section 29, Clause (2) of Section 30, Section 31, Section 39(2), Section 42, Section 53 (because Courts have ample powers to meet these contingencies), Section 54, Clause (2) of Section 55, Section 56 Clause (3) of Section 58, Sections 63 to 69 in Chapter 6. Clauses (2), (3) and (4) of Section 70, Section 76, Section 89 and Section 99 (to the extent it gives the Government virtually complete control over the Mathadhipati and Maths)" (emphasis supplied)

19. Although, did not agree with the Madras High Court in invalidating all those provisions, the Apex Court declared Sections 21, 30(2), 31, 55, 57, and 63 to 69 as invalid. It is pertinent to note that the declaration was that those provisions are ultra-vires the State Legislature insofar as they relate to the petitioner-Mutt and also in relation to the other mutts of similar nature. When the Apex Court upheld that, of course, limiting to Sections 21, 30(2), 31, 55, 57 and 63 to 69, the question is, whether those provisions got deleted from the statute book altogether, or invalidation has only a limited effect.

20. The relevant definitions are the following:

"(i) 'Religious institution' means a Math, Temple or specific endowment [Section 6(15) of the HR&CE Act];

(ii) ‘Math’ is a Hindu religious institution with properties attached thereto and presided over by a person whose duty it is to engage himself in imparting religious instruction or rendering spiritual service to a body of disciples or who exercises or claims to exercise spiritual headship over such a body; and includes places of religious worship or instruction which are appurtenant to the institution [Section 6(10)];

(iii) 'Temple', is a place by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of or used as of right by the Hindu Community or any section thereof, as a place of public religious worship” [Section 6(17)];

(iv) 'Specific endowment' means any property or money endowed for the performance of any specific service or charity in a math or temple, or for the performance of any other religious charity, but does not include an inam of the nature described in Explanation (1) to clause (14) [Section 6(16)], and

(v) "Religious endowment" or "endowment" means all property belonging to or given or endowed for the support of maths or temples, or given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity; and includes the institution concerned and also the premises thereof, but does not include gifts of property made as personal gifts to the archaka, service-holder or other employee of a religious institution; [Section 6(14)]."

21. The definitions delineate Maths, Temples and specific endowments as independent institutions. The declaration in Shirur Mutt case (supra) of Section 21, 30(2), 31, 55, 57 and 63 to 69 as ultra vires is insofar as they relate to Maths only. The consequence is that the said provisions lose their applicability to Maths as defined in Section 6(10) of the HR&CE Act. Whether the said provisions lost validity insofar as the Temples and specific endowments are concerned is then a moot question.

22. The petitioners in Devaraj Shenoy (supra) were trustees of Venikataramana Temple of Mulki in South Canara. The question was as to the validity of the provisions in the HR&CE Act as amended by the Amendment Act, 1954. The Mysore High Court relying on the principle laid down in Shirur Mutt case (supra) came to the conclusion that the provisions in the Amended Act corresponding to Sections 21, 30(2), 31, 55, 57, and 63 to 69 also could not stand the test of constitutionality. The learned Senior Counsel appearing for the petitioners would therefore contend that invalidation of Section 21 and other provisions does have application in respect of the Temples as well. It is especially so, it is contended, since the decision in Deveraja Shenoy got the approval of the Apex Court in U.Krishna Rao (supra). In it, the Apex Court specifically observed that “this Court in the Commissioner of Hindu Religious and Charitable Endowments, Madras v. Sri.Lakshmindra Thirtha Swamiar of Sri Shirur Mutt held that Sections 21, 30(2), 31, 55, 57 and 63 to 69 of Act 19 of 195 were ultra vires, since they infringed the guarantee of the fundamental rights in Articles 19(1)(f), 25 and 26 of the Constitution of India. The question has to be approached in the light of that observation.

23. The essential contention considered by the Apex Court in the Shirur Mutt case (supra) was that having regard to the fundamental rights guaranteed under the Constitution in matters of religion and religious institutions belonging to particular religious denominations, whether the law regulating the framing of a scheme interfering with the management of the Math and its affairs by the Mathadhipati conflicted with the provisions of Articles 19(1)(f) and 26 of the Constitution of India and was hence void under Article 13. The Apex Court in that context observed: 

“As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under Article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies.”

(emphasis supplied)

The following observations in the Shirur Mutt case also appear relevant.

“The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to the administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the article applies.”

(emphasis supplied)

24. The principles enunciated by the Apex Court in the following subsequent decisions require mention. In Ratilal Panachand Gandhi and others v. State of Bombay and others [AIR 1954 SC 388], the Apex Court has held that the power to take over the administration in the event of maladministration financial/mismanagement certainly cannot be termed as a violation of Article 26(b) of the Constitution of India. It is, undoubtedly, the right of religious denominations to administer such property, but such exercise can only be in accordance with the law. This means that the State can regulate the administration of trust properties by means of laws validly enacted; but here again, it should be remembered that under Article 26(d), it is the religious denomination itself that has been given the right to administer its property in accordance with any law which the state may validly impose.

25. In Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and others v. State of U. P. and others [(1997) 4 SCC 606], the Apex Court drew the distinction between religious and non-religious activities in the context of Articles 25 and 26 of the Constitution of India as follows:

“It is not every aspect of the religion that requires protection of Articles 25 and 26 nor has the Constitution provided that every religious activity would not be interfered with. Every mundane and human activity is not intended to be protected under the Constitution in the garb of religion. Articles 25 and 26 must be viewed with pragmatism. By the very nature of things it would be extremely difficult, if not impossible, to define the expression "religion" or "matters of religion" or "religious beliefs or practice". Right to religion guaranteed by Articles 25 and 26 is not absolute or unfettered right to propagate religion which is subject to legislation by the State limiting or regulating every non religious activity. The right to observe and practise rituals and right to manage in matters of religion are protected under these Articles. But right to manage the Temple or endowment is not integral to religion or religious practice or religion as such which is amenable to statutory control. These secular activities are subject to State regulation but the religion and religious practices which are integral part of religion are protected. It is well settled law that administration, management, and governance of the religious institution or endowment are secular activities and the State could regulate them by appropriate legislation.”

(emphasis supplied)

26. In Shri Jagannath Temple Puri Management Committee v. Chintamani Khuntia [(1997) 8 SCC 422], the Apex Court after a survey of previous decisions held,

“49. A review of all these judgments goes to show that the consistent view of this Court has been that although the State cannot interfere with freedom of a person to profess, practise and propagate his religion, the State, however, can control the secular matters connected with religion. All the activities, in or connected with a temple are not religious activities. The management of a temple or maintenance of discipline and order inside the temple can be controlled by the State. If any law is passed for taking over the management of a temple it cannot be struck down as violative of Article 25 or Article 26 of the Constitution. The management of the temple is a secular act.”

27. The above discussion follows that the real purpose and intendment of Articles 25 and 26 is to guarantee the religious denominations in the Country the freedom to profess, practice and propagate their religion, to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire properties and to administer such properties in accordance with law. The Apex Court invalidated Sections 21, 30(2), 31, 55, 57, and 63 to 69 HR&CE Act for the reason and to the extent of their infringing on the guarantee of fundamental rights. Administration of its property by a religious denomination has been held to be not a fundamental right. Can then it be said that, invalidation of the said Sections has universal application to every activity of all religious institutions, and they got effaced from the statute book altogether

28. On a close reading of the observations and findings in the Shirur Mutt case itself the conclusion is irresistible that invalidation of the said Sections was in relation to the religious activities as guaranteed under Articles 19(1)(f) (since omitted with effect from 20.06.1971), 25 and 26 of the Constitution of India. Although the Madras High declared the Sections invalid restrictively; insofar as they relate to petitioner-Mutt therein and other Mutts of a similar nature, it has to be understood from the findings of the Apex Court that Sections 21, 30(2), 31, 55, 57 and 63 to 69 of the HR&CE Act insofar as they relate to the religious activities of all the religious institutions as defined in Section 6(15), are violative of Articles 25 and 26 of the Constitution of India and hence void under Article 13(1). Subsequent decisions of the Apex Court referred to above also iterate the same view.

29. The Apex Court has thus invalidated Section 21 of the HR&CE Act only to the extent to which it violates Articles 25 and 26 of the Constitution of India as it empowers the Commissioner to enter even place of worship for exercising power conferred by the Act; and such power was unregulated and unrestricted. The petitioner in W.P.(C) No.23304 of 2021 has no case that the Commissioner has entered any place of worship. Going by the pleadings in the Writ Petition itself the activities in his office at the Central Devaswom Office at Valayanadu are matters connected to the administration of the properties and affairs of the temples to which he is the trustee. Those are secular activities subservient to the law, coming under Article 26(d) of the Constitution of India. No rites and ceremonies connected to the religious denomination, which alone have insulation under Articles 25 and 26 of the Constitution of India, are being practiced in that office. The petitioner cannot, therefore, contend that Section 21 of the HR&CE Act could not be invoked by the 2nd respondent to enter the said office for the purposes mentioned therein. That apart, Section 28 of the HR&CE Act gives authority to the 2nd respondent to hold an inspection of the movable and immovable properties belonging to, and all records, correspondence, documents, etc. relating to, any religious institution. In the circumstances, we hold that the inspection held on 05.10.2021 by the 2nd respondent is under a valid law and not liable to be assailed on the ground that Section 21 of the HR&CE Act was not available to be invoked.

30. Section 21(3) of the HR&CE Act reads:

“(3) In entering the premises of a religious institution or place of worship, the person authorised by, or under sub-section (2) or the police officer referred to in sub-section (2) shall, if practicable, give notice to the trustee and shall have due regard to the practices and usages of the institution.”

31. The learned Senior Counsel for the petitioners would submit in the light of the above provision that the 2nd respondent should not have shown the audacity of barging into the office under the guise of inspection without giving notice. That amounted to denial of natural justice and blatant violation of the autonomy of the petitioner in the matters of administration of the temple affairs. It is submitted that this Court in Bhanunni A.C. and others v. Commissioner, Hindu Religious & Charitable Endowments (Administration) Department, Kozhikode and others [2011 (4) KLT 230] in unmistakable terms held that a hereditary trustee is not a subordinate of the Board and as such a ‘raid’ should not have been ventured by the 2nd respondent.

32. In Bhanunni, this Court held that there is sufficient power given to the Commissioner as well as the authorities under the Board to ensure that the affairs of the institution are properly administered, but that does not mean that the hereditary trustee is under the absolute control or is an employee of the Board. The mere fact that supervisory powers are given to the Board and its officers does not make the hereditary trustee a subordinate of the Board. The learned Senior Counsel also relies on a passage from ‘A Treatise on Malabar and Aliyasanthana Law’ by P.R Sundara Aiyer, “The Karnavan of the tarwad and uralan exercises his uraima right not on behalf of the family, but as a personal right and on his own responsibility. The other members of the family may be possible future heirs to the trusteeship but have no concurrent right in the uraima”, to contend that the right of the petitioner as trustee cannot unconscionably be interfered with by the authorities under the HR&CE Act or junior members of the family whom respondent Nos.3 and 4 represent.

33. Section 21(3) of the HR&CE Act insists that before entering the premises of a religious institution, the authorised person, shall, if practicable, give notice to the trustee. It implies that it is always proper to give notice. But the provision cannot be interpreted to mean that a notice is always mandatory. Depending upon the facts and circumstances of each case it has to be decided whether lack of notice affected validity of the inspection. Being a disputed question of fact, a decision thereon cannot be had in a Writ Petition, especially at a stage of show cause notice. We held above that the 2nd respondent has the empowerment to conduct an inspection. We are therefore of the view that the failure to give notice by itself would not make the inspection illegal.

34. The next contention of the petitioner is that the show cause notice, and as the show cause notice is actuated by predetermination and bias, and hence the same is liable to be quashed as the one vitiated in law.

35. When Writ Petitions filed against show cause notices on similar grounds were dismissed as not maintainable by the High Court of Judicature at Bombay, the matter was taken up before the Apex Court in Siemens Ltd. v. State of Maharashtra [(2006) 12 SCC 33]. The Apex Court reversed the said view on the ground that the show cause notice was issued without jurisdiction and also on the ground that the respondent already determined the liability of the appellant and the only question that remains was the quantification thereof. It was held, 

“Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179], Special Director v. Mohd.Ghulam Ghouse [(2004) 3 SCC 440], and Union of India v. Kunisetty Satyanarayana [(2006) 12 SCC 28], but the question herein has to be consideredfrom a different angle, viz. When a notice is issued with premeditation, a writ petition would be maintainable.”

36. This Court in Secretary, Aruvikkara Grama Panchayat v. Anandakumal [2015 (1) KHC 720: 2015 (1) KLT SN 143] has summarized the precedential position on the adjudicability of a show cause notice thus:

"16. There is no invariable principle that a show-cause notice should not be a subject matter of judicial adjudication under any circumstance. Courts have held time and again that when the notice (i) suffers from the vice of ultra vires; (ii) is a fait accompli or premeditated; or (iii) is a product of malice or mala fides, it is justiciable without the party going through the procedural rigmarole."

37. In this case, the position is different. We found above that the inspection held on 05.10.2021 is not illegal. The contention that the show cause notice is vitiated for that reason cannot therefore be countenanced. There is no reason to find primafacie that Ext.P5 was issued on a pre-determination or with bias. In such circumstances, the conclusion is irresistible that W.P.(C) No.23304 of 2021 has to be held to be premature, and not maintainable. The petitioner is bound to answer Ext.P5 and the 2nd respondent can proceed with it, of course, strictly in accordance with law.

38. The learned Senior Counsel on behalf of the petitioners would submit that for the exercise of jurisdiction under Article 226 of the Constitution of India, the alternative remedy is not a bar always. Reliance in this regard has been placed in State of M.P. and others v. Sanjay Nagayach and others [(2013) 7 SCC 25], where it was held that exercise of jurisdiction under Article 226 of the Constitution of India is not barred merely because there is an alternative remedy of appeal. If the order passed by the authority is arbitrary or in clear violation of its jurisdiction, the Court can interfere.

39. The learned Standing Counsel for Malabar Devaswom Board as well as the learned Senior Counsel for respondent Nos.3 and 4 in W.P.(C) No.23304 of 2021, on the other hand, would rely on M/s Magadh Sugar and Energy Limited v. State of Bihar [2021 (5) KLT 667 (SC)] to fortify their contention that none of the exceptions to the rule, that if an effective and alternative remedy is available no writ petition is maintainable, exists in any of these cases. This decision was rendered after considering all the previous decisions on the point starting from Whirpool Corporation v. Registrar of Trademarks, Mumbai [(1998) 8 SCC 1]. As such, we do not propose to refer to all those decisions, although some are placed reliance on by the learned Counsel on either side. In Magadh Sugar the Apex Court held, “19. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai (1999 (1) KLT OnLine 908 (SC) = (1998) 8 SCC 1) and Harbanslal Sahni v. Indian Oil Corporation Ltd. (2003 (1) KLT OnLine 1161 (SC) = (2003) 2 SCC 107). Recently, in Radha Krishan Industries v. State of Himachal Pradesh & Ors. (2021 (2) KLT OnLine 1158 (SC) = 2021 SCC OnLine SC 334) a two judge Bench of this Court of which one of us was a part of (Justice D.Y.Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:

“19. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai (1999 (1) KLT OnLine 908 (SC) = (1998) 8 SCC 1) and Harbanslal Sahni v. Indian Oil Corporation Ltd. (2003 (1) KLT OnLine 1161 (SC) = (2003) 2 SCC 107). Recently, in Radha Krishan Industries v. State of Himachal Pradesh & Ors. (2021 (2) KLT OnLine 1158 (SC) = 2021 SCC OnLine SC 334) a two judge Bench of this Court of which one of us was a part of (Justice D.Y.Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed: 

“28. The principles of law which emerge are that:

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a Writ Petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where

(a) the Writ Petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice;

(c) the order or proceedings are wholly without jurisdiction; or

(d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a Writ Petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”

(emphasis supplied)

40. Section 99(1) of the HR&CE Act reads: “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 State Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, they may pass orders accordingly.”

41. A Division Bench of this Court in the judgment dated 17.10.2012 in WP(C) No. 23885 of 2012 (Kesavan Moosad v. State of Kerala) has considered the scope of revision under Section 99 of the HR&CE Act. That was a case relating to an order of the Commissioner under Section 18 of that Act. It was held,

“The revisional power of Government under Section 99 is not confined to be as against original orders of the Commissioner. There is no such statutory embargo in Section 99. Not only that, the only two interdictions in Section 99 are that an order which can be subjected to a suit or appeal cannot be carried to the Government by way of revision. Therefore, the petitioner has efficacious alternate statutory remedy under section 99 of the Act.”

42. We have delved deep into the materials placed on record in these matters. There is nothing to find even prima facie that there has been violation of the principles of natural justice or lack of jurisdiction in issuing Ext.P21 in W.P.(C) No.27286 of 2021 and Ext.P6 in W.P.(C) No.27288 of 2021. Ext. P21 in W.P.(C) No.27286 of 2021 was passed by the Commissioner after hearing the parties in detail. Ext.P6 in W.P.(C) No.27288 of 2021 was issued by the Deputy Commissioner invoking the provisions in Ext.P1 scheme, as per which only the administration of the Temple in question is being carried out. Correctness or not of those orders is a matter to be looked into by the Government in exercise of the powers invested in it under Section 99 of the HR&CE Act after analysing and appreciating the materials in the file, including the disputed questions of fact. It may be uncharitable to say that such a statutory remedy is not effective. Suffice it to say that the apprehension of the petitioners, that the Revisional Authority may not act fairly and judicially, is no reason to entertain a Writ Petition. A plea based on violation of any fundamental right of the respective petitioners is rather not available in these cases. They do not call in question the vires of any statutory provision. In the said circumstances, the petitioners should not have rushed to this Court at this stage. Hence, we hold that W.P.(C) Nos.27286 and 27288 of 2021 are also not maintainable.

43. The result is: W.P.(C) No.23304 of 2021, W.P.(C) No.27286 of 2021 and W.P.(C) No.27288 of 2021 are dismissed as not maintainable. The petitioner in W.P.(C) No.23304 of 2021 is bound to answer Ext.P5 therein and the 2nd respondent can proceed with it, of course, strictly in accordance with law. We make it clear that none of our observations would trammel the factual and legal contentions of petitioners in the proceedings before the respective statutory authorities.