A.K. Chandran & B. Hrishikesan Nair v. Travancore Devaswom Board & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944 W.P.(C) NO. 9273 OF 2005** ## **PETITIONER:** - **1 A.K.CHANDRAN, S/O KUTTY, SIVAPARVATHY, KIZHAKKEKARA, ETTUMANOOR, KOTTAYAM.** - **2 B.HRISHIKESAN NAIR S/O.BALAKRISHNAN NAIR, PULICKAL HOUSE, KAIPPUZHA, ETTUMANOOR, KOTTAYAM. BY ADVS. SRI.N.RATHEESH SMT.SUMA RATHEESH** ## **RESPONDENTS:** - **1 THIRUVITHAMKOOR DEVASWOM BOARD OFFICE OF THE DEVASWOM BOARD, THIRUVANANTHAPURAM, REPRESENTED BY ITS, SECRETARY.** - **2 ASSISTANT DEVASWOM COMMISSIONER ETTUMANOOR TEMPLE, ETTUMANOOR, KOTTAYAM.** - **3 STATE OF KERALA REPRESENTED BY ITS SECRETARY `DEVASWAMS', SECRETARIAT, THIRUVANANTHAPURAM. R1-R2 BY ADV SRI.K.N.VENUGOPALA PANICKER, SC, TDB SRI G.BIJU- SC, TDB R3 BY SRI S.RAJMOHAN- SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P.(C) No.9273 of 2005 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioners, who are devotees of Ettumanoor Mahadeva Temple, which is under the management of the 1[st] respondent Travancore Devaswom Board, have filed this Writ Petition under Article 226 of the Constitution of India, seeking a declaration that it is the duty of the respondents to ensure that proper management is rendering in all the affairs of Ettumanoor Mahadeva Temple under the control and management of the 1[st] respondent and the respondents are duty bound to implement advices in Devaprasnam of the said Temple for the welfare and upliftment of all the affairs of the temple and its deity. The petitioners have also sought for a writ of mandamus commanding the 1[st] respondent to comply the advices and directions of Tantris and Purohits in Ext.P1 devaprasna vidhi for the welfare of the Temple and a direction to the respondents to take all immediate steps to comply the advices and directions of Ext.P1 from the point of view of upliftment and welfare of the Temple and to submit a report to this Court. 3 W.P.(C) No.9273 of 2005 ## 2. On 13.01.2006, when this Writ Petition came up for consideration, this Court passed the following order: “This writ petition is also filed by two devotees of the Ettumanoor Mahadeva Temple. Their contention is that the temple has large income, but the administration does not do anything to keep the temple premises clean or to conduct rituals properly. An ashtamangalyaprashnam was conducted in the temple. Ext.P1 is the prashna charthu containing the remedial measures to be taken to restore the glory of the temple. The people of the locality are very much interested in seeing that the temple is administered properly. It is evident from the fact that even for the conduct of ashtamangalyaprashnam contribution received was Rs.4,42,710/- whereas was only Rs.3,03,736.22. It is pointed out that inspite of spending such large amount and obtaining Ext.P1 report, nothing was done to implement Ext.P1 and the temple authorities are not inclined to implement the same. It is also pointed out that as per Ext.P1, nobody should be sleep in the Naalambalam and the temple pond should be cleaned every week. There are several other recommendations made in Ext.P1. The writ petition is therefore filed for a direction to the respondents to ensure proper management of the affairs of the Ettumanoor Mahadeva Temple and to implement the recommendations in the Devaprashnam. 4 W.P.(C) No.9273 of 2005 We feel that this is a fit case where the 1[st] respondent has to file a counter-affidavit pointing out the steps taken to implement Ext.P1. The counter-affidavit must also contain as to which items in Ext.P1 have been carried out and which are yet to be carried out and whether any step has been taken to comply with the suggestions made in Ext.P1.” 3. The 1[st] respondent has filed a counter affidavit. Paragraph Nos.5 to 12 of that counter read thus,- “5. It is respectfully submitted the respondents are only desirous that the standard of purity pertaining to the affairs of the Ettumanoor Mahadeva Temple, is of the top order. The Ashtamangalya Devaprasnam is conducted periodically in every temple in order to understand the desires of the deity as well as to decide on the remedial measures which are necessary for cleaning the impurities that might arise. Respondents are wholly aware of the importance of the Devaprasnam and have never under-estimated its relevance in regard to the upliftment and welfare of any temple coming under its wings. In fact, the respondents had given its whole-hearted support to Ashtamangalya Devaprasnam' by the 'Thiruettumanoor Appan Bhaktajana Sangham'. Through its order ROC 8108/01 dated 11.09.01, it had authorised the said Sangham to carry out the advices enumerated in the Ashtamangalya Devaprasnam. 5 W.P.(C) No.9273 of 2005 6. Though it was the sole responsibility of the Sangham, it was impossible for them to do it alone. The respondent had to step in, thereby making it their combined responsibility to implement the advices, as enumerated in the Ashtamangalya Devaprasnam. As per the Devaprasnam, five stages are enumerated for implementation. All these five stages have been detailed in pages 3 and 4 of the Exhibit P1 booklet. 7. It is submitted that works that are enumerated in each of the stages except the last stage had been completed jointly by the Sangham as well as the respondents. The amounts required for the Devaprasnam and its Pariharakriyas were contributed by the devotees of the temple and the same had been remitted in the joint account maintained in the name of the President and Treasurer of the Sangham as well as of the Assistant Devaswom Commissioner of the Ettumanur Group. The funds in this joint account were jointly utilised by the Sangham and respondents for the successful completion of all the 4 stages. 8. It is submitted that the Finance Officer of the 1[st] respondent detected certain irregularities in the accounts maintained by the Sangham for the period from 01.10.2001 till 31.03.2004. Pursuant to the same, the Sangham was given a notice to stop collecting money further from the devotees. True copy of the notice issued by the Devaswom Board to the Devaswom 6 W.P.(C) No.9273 of 2005 Commissioner dated 25.05.2005 is produced herewith and marked as Exhibit R1(a). Various anomalies have been detailed in the audit report submitted by the Finance and Accounts officer, after examining the details of the income and the expenditure incurred by the Sangham for the period from 1.10.01 to 31.03.04 with respect to the conduct of the Devaprashnam Pariharakriyakal. A true copy of the above-mentioned Audit Report is produced herewith and marked as Exhibit R1(b). A true copy of the remarks of the Law Officer dated 31.03.2005 in this regard is also produced herewith and marked as Exhibit R1(c). 9. It is submitted that throughout the execution of work in all the 4 stages, the major share was expended by the 1[st] respondent, Travancore Devaswom Board. 10. It is submitted that activities like copper plating of the roof of the Krishnan Kovil as well as covering the Vilakkumadom of the Ettumanoorappan with brass were the major construction activities undertaken by the 1[st] respondent. Besides, it had directly conducted the resurrection work of all the temples that were in a dilapidated condition, as per the stipulations in the Devaprasnam vidhi. The resurrection work of the Anthimahakaalan Temple has been done. The resurrection work of the Sevapandal has also been done. The yearly ritual of' Varshika Anusmaranam' required to be performed in the Aarpookkara Devaswom, as well as 7 W.P.(C) No.9273 of 2005 the Perookavu Devaswom, and Kumaranelloor Devaswom and the other Devaswoms are being done in the proper manner. The custom of 'Swearing in' of the Melshanti is also being done in the proper manner. The department is properly discharging all its duties with respect to all the other matters enumerated in Exhibit P1, Devaprasnam vidhi. 11. It is submitted that only the execution of the work in the 5[th] stage, namely, reconstruction and installation of a wooden flagstaff at the Ettumanoor Mahadeva Temple remains. The existing flagstaff in the temple is made of concrete. It was seen in the Devaprasnam that some damage, which is not technically decipherable, has been caused to the flagstaff. The Devaprasnam Vidhi therefore recommends replacing of the existing concrete flagstaff with a wooden one. The above-mentioned replacement would necessitate the performance of many rituals. Besides, this replacement would entail a lot of expenditure as well. Moreover, in most of the temples under the 1[st] Respondent Devaswom, the wooden flagstaffs are being replaced by concrete ones. Allowing the Ettumanur Dewaswom to have a wooden flagstaff in the place of a concrete one may set a precedent for the other temples to follow suit. Similar demands from them would result in a huge financial burden to the Board. It would therefore not be practical to accede to this demand with respect to the Ettumanur Temple. Due to 8 W.P.(C) No.9273 of 2005 these considerations, the Board has not initiated the work of the reconstruction and installation of a wooden flagstaff at the Ettumanoor Mahadeva Temple. 12. It is submitted that with regard to the protection of oxen and other animals offered to the Temple, the Board is bound by the dictates of this Honorable Court and is doing accordingly.” 4. Paragraphs 13 to 15 of the counter affidavit filed by the 1[st] respondent deal with the averments contained in paragraphs 7 to 9 of the Writ Petition. Paragraphs 13 to 15 read thus: 13. It is submitted that the averments in paragraph 7 are not fully correct. The statement shown in Exhibit P1(a) relates to the income and expenditure of not only Ashtamangalya Devaprasnam but also the subsequent pariharakriyas jointly conducted by the Sangham and the respondents. The amount from coupon collection had been deposited in a joint account opened in the names of the President and Treasurer of the Sangham as well as Assistant Devaswom Commissioner of the Ettumanur Group. The said account was operated not only for the conduct of Ashtamangalya Devaprasnam but also for the conduct of the subsequent pariharakriyas, as recommended in the Devaprasnam. For the 4 out of 5 stages, the money in the account was jointly utilised by the sangham as well as the respondents and the above 9 W.P.(C) No.9273 of 2005 aspect is within the knowledge of the sangham also. Hence there is no substance in the averment of the petitioner that a balance of Rs.1,40,796.78 is with the respondent and that the respondents are doing nothing with it. Therefore, the allegation that even though huge amounts were collected from the devotees as evidenced by Ext.P1 (a) for conducting Ashtamangalya Devaprasnam, nothing has been initiated for implementing its observations is not in tune with the real facts. 14. The averments in 8[th] paragraph are absolutely false and hence denied. The averment that the respondents are least bothered about the observations of the Devaprasnam and is not inclined to implement the directions of the Tantris who have conducted the Devaprasnam is not at all true. The mandate that nobody should sleep in the Naalambalam is strictly followed The only exception to this rule is made in the case of 4 security guards posted inside the Naalambalam to cater to the security concerns there. The Villukulam is also cleaned periodically. Similarly, the customary practice from time immemorial of starting the Ezhazaponnana from the Kovilppadam is also being duly followed. 15. The averments in paragraph 9 are not fully correct. The averment that the respondents are showing high negligence in implementing the directives pursuant to the Ashtamangalya Devaprasnam of the temple and that 10 W.P.(C) No.9273 of 2005 their interest lies only in tapping maximum income from the temple is a baseless allegation. In fact, it is the respondents who have the findings of the expended huge amounts in carrying out Ashtamangalya Devaprasnam through its various construction activities and the like.” 5. Heard the learned counsel for the petitioners, the learned Standing Counsel for Travancore Devaswom Board for respondents 1 and 2 and also the learned Senior Government Pleader for the 3[rd] respondent. 6. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per Section 15A of the Act, which deals with duties of the Board, it shall be the duty of the Board to perform the functions enumerated in clauses (i) to (iv) of Section 15A, which includes duty to see that regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; to monitor whether the administrative officials and employees 11 W.P.(C) No.9273 of 2005 and also the employees connected with religious rites are functioning properly; and to establish and maintain proper facilities in the temples for the devotees. As per Section 31 of the Act, which deals with management of Devaswoms, subject to the provisions of Part-I of the Act and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated and unincorporated as heretofore and arrange for the conduct of the daily worship and ceremonies and of festivals in every temple according to its usage. 7. The provisions under the Travancore-Cochin Hindu Religious Institutions Act make it explicitly clear that the role assigned to the Travancore Devaswom Board in the administration, supervision and control of incorporated and unincorporated Devaswoms is that of a trustee in the management of the properties vested in the Deity, which is bound to administer, supervise and control incorporated and unincorporated Devaswoms in accordance with the provisions under the said Act. The Board and its officials are duty bound to 12 ## W.P.(C) No.9273 of 2005 function within the framework of the statute, by scrupulously following the stipulations contained therein and acting strictly in accordance with the settled legal principles relating to the administration of Hindu religious trust. The Board, being a trustee in the management of Devaswom properties, is legally bound to perform its duties with utmost care and caution. 8. In **M.V. Ramasubbiar v. Manicka Narasimachara** **[(1979) 2 SCC 65]** , in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court explained the nature of the fiduciary position of the trustee and his duties and obligations. It is the duty of the trustees of the property to be faithful to the Trust and execute any document with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. A trustee could not therefore occasion any loss to the Trust and it is his duty to sell the property, if at all that was necessary, to best advantage. Paragraph 4 of that decision reads thus; “4. There is some controversy on the question whether Defendant 1 made an outright purchase of the suit property for and on behalf of the trust for 13 W.P.(C) No.9273 of 2005 Rs.21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs. 21,500, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed Ext.B13 dated July 14, 1960. The fact, however, remains that Defendant 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the trust and it was his duty to sell the property, if at all that was necessary, to best advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose 14 W.P.(C) No.9273 of 2005 unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee's partner or son, for that would, in fact and substance, indirectly benefit the trustee. Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner. The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law although it had a direct bearing on the controversy before it.” (underline supplied) 9. Therefore, it is for the 1[st] respondent Travancore Devaswom Board and its officials to ensure proper 15 ## W.P.(C) No.9273 of 2005 management of the affairs of Ettumanoor Mahadeva Temple. They shall ensure that regular traditional rites and ceremonies according to the practice prevalent in Ettumanoor Mahadeva Temple is performed promptly, in discharge of the statutory duties under Section 15A of the Act. With the above directions, this Writ Petition is disposed of. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 16 W.P.(C) No.9273 of 2005 ## **APPENDIX** ## **PETITIONER EXHIBITS** **EXHIBIT P1 PHOTOCOPY OF THE BOOKLET DATED 13.08.2004 REGARDING THE REPORT OF DEVAPRASNAM.** **EXHIBIT P2 PHOTOCOPY OF THE STATEMENT OF INCOME AND EXPENDITURE OF THE DEVAPRASNAM.** **RESPONDENT EXHIBITS** **EXHIBIT R1(A) TRUE COPY OF THE NOTICE ISSUED BY THE DEVASWOM BOARD TO THE DEVASWOM COMMISSIONER DATED 25.05.2005. EXHIBIT R1(B) TRUE COPY OF THE AUDIT REPORT. EXHIBIT R1(C) TRUE COPY OF THE REMARKS OF THE LAW OFFICER DATED 31.03.2005.**