Anil V v. State of Kerala, Guruvayur Devaswom Managing Committee & Commissioner, Guruvayur Devaswom

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941** **WP(C).No.19035 of 2019** ## **PETITIONER:** **ANIL V AGED 33 YEARS PUTHANVEEDU, CHIRAKANDAM EAST, P.O.KANJIRAPPALLY.** **BY ADVS. SRI.R.KRISHNA RAJ SMT.E.S.SONI SMT.KUMARI SANGEETHA S.NAIR** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF DEVASWOM, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2 GURUVAYOOR DEVASWOM MANAGING COMMITTEE, REPRESENTED BY ITS ADMINISTRATOR, GURUVAYOOR. 3 COMMISSIONER, GURUVAYOOR DEVASWOM, GURUVAYOOR. BY ADV. SRI.T.K.VIPINDAS SR. GOVT. PLEADER SRI. P. NARAYANAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) No.19035 of 2019** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Ravikumar, J.**_ The petitioner, who is a devotee of Guruvayurappan and a member of Antharashtra Hindu Parishath, which is a Hindu Service Organisation registered under the Trust Act, filed this writ petition seeking the following reliefs:- _" (a) quash Exts.P1 and P2 by the issue of certiorari or such other writ or order or direction._ _(b) direct the 1[st] respondent to return Rs.5 crores with interest from the date of receipt to the Guruvayur Devaswom Fund by the issue of a writ of mandamus or such other order or direction._ _(c) direct the 3[rd] respondent to pay the cost of this proceedings to the petitioner from Devaswom fund and realise the same from the members of the Managing Committee personally treating it as surcharge under Section 26 of the Act by the issue of a writ of mandamus or such other writ or order or direction. ”_ **WP(C) No.19035 of 2019** **3** 2. Last year, viz. in the year 2018, the State of Kerala was shaken by the torment due to torrential rain causing spate and landslide. Swollen rivers, stampede and landslides created unprecedented havoc throughout the length and breadth of the State. The haves and havenots made donations. Strength of unity and featherbedding from everywhere redound to the re-creation and revamping processes undertaken by the State. The 2[nd] respondent - Guruvayur Devaswom Managing Committee in that regard took a decision as per Ext.P1 and contributed an amount of `5 crores to the Chief Minister's Distress Relief Fund ('CMDRF', for short). The said decision and the consequential action from the part of the 2[nd] respondent were ratified by the 3[rd] respondent as per Ext.P2. It is seeking quashment of Exts.P1 and P2 and a consequential direction to the 1[st] respondent to return the said amount with interest from the date of receipt to Guruvayur Devaswom Fund and such reliefs that the captioned writ petition has been filed. **WP(C) No.19035 of 2019** **4** 3. We have heard the learned counsel for the petitioner, learned Standing Counsel Sri. T. K. Vipindas for respondents 2 and 3 and Sri. P. Narayanan, learned Senior Government Pleader for the 1[st] respondent. 4. The administration of Guruvayur Devaswom is entrusted with the Guruvayur Devaswom Managing Committee established under the Guruvayur Devaswom Act, 1978 (for short, 'the Act'). The petitioner assails the decision in Ext.P1 and consequential contribution of `5 crores to the CMDRF and the ratification of such acts by the 3[rd] respondent under Ext.P2 contending that effecting such contribution is violative of the specific provisions under Sections 11 and 27 of the Act. The petitioner further contends that the said action also violates Section 12 which deals with the limitation of borrowing or lending powers of Guruvayur Devaswom. The contention is that going by Section 12, borrowing or lending of money can be effected only for the benefit of the Devaswom and the impugned action is not only not beneficial to Guruvayur Devaswom **WP(C) No.19035 of 2019** **5** but also resulted in erosion. The petitioner also contends that if at all any such contribution could be effected, it could have been effected only after following procedures prescribed under the Act. According to him, in terms of Section 11, alienation of movable property could be effected only after publishing the details therefor and hearing objections, if any, from persons having interest in the temple. Those and other procedures were not followed while effecting the aforesaid contribution. Ergo, the action in contributing `5 crores to CMDRF is liable to be interfered with, it is contended. Section 27 deals with the authority of the Managing Committee to incur expenditure for certain purposes. The contention is that none of the specific purposes mentioned thereunder will embrace the assailed action of contribution of ₹5 crores to the CMDRF. In short, the contention of the petitioner is founded on Sections 11, 12 and 27 of the Act and his contention is that the funds of Guruvayur Devaswom cannot be dolled out and contributing to CMDRF may be laudable but, it will be **WP(C) No.19035 of 2019** **6** unauthorised inasmuch as it was effected for an irreligious purpose and therefore, it is liable to be realised. 5. _Per contra_ , the learned counsel appearing for respondents 2 and 3 and also the learned Government Pleader submitted that there is no legal or procedural impediment or illegality involved in the impugned action and therefore, the challenge against Exts.P1 and P3 must fail. Before adverting to the rival contentions in the light of the legal provisions referred supra, it is only befitting to refer to certain other aspects. The catastrophe created by the devastating deluge occurred in the year 2018 was an instance where Keralites united in all respects to overcome its ill effects and impacts. As stated earlier, to enable the State to raise resources to redeem the situations and to render help to the victims, many a persons and organisations, religious or otherwise, made contributions to CMDRF. In such circumstances, the 2[nd] respondent took a decision under Ext.P1 to contribute `5 crores to CMDRF and made the contribution. The said decision and the **WP(C) No.19035 of 2019** **7** action of contribution were ratified by the 3[rd] respondent, the Commissioner of Guruvayur Devaswom. We referred to the aforesaid aspects only to highlight the situation that constrained the 2[nd] respondent to effect contribution to CMDRF. 6. We will now refer to the contentions of the petitioner. As already noticed, the contentions of the petitioner are founded on the allegation of violation of Sections 11, 12 and 27 of the Act. Hence, it is only appropriate to refer to Sections 11, 12 and 27 of the Act which reads thus:- ## “ _11. Alienation of Devaswom properties -_ _- (1) No movable property of non perishable nature which is in the possession of the committee and the value of which is more than five thousand rupees and no jewelleries shall be sold, pledged or otherwise alienated unless it is sanctioned by the Commissioner as being necessary or beneficial to the Devaswom._ _(2) Any exchange, sale or mortgage and any lease_ **WP(C) No.19035 of 2019** **8** _of any immovable property belonging to or given or endowed for the purposes of the Devaswom shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the Devaswom_ . _(3) Before according sanction under sub-section (1) or sub-section (2), the Commissioner shall publish the particulars relating to the proposed transaction in such manner as may be prescribed inviting objections and suggestions with respect thereto and shall duly consider all objections and suggestions received from the Committee or other persons having interest in the Temple._ _(4) When according sanction under sub section (1) or sub-section (2), the commissioner may impose such conditions and give such directions as he may deem necessary regarding the utilisation of the amount raised by the transaction, the investment thereof and, in the case of a mortgage, regarding the discharge of the same within a reasonable period._ _(5) A copy of the order made by the Commissioner under this section shall be communicated to the Government and to the Committee and shall be published in such manner as may be prescribed._ _(6) The Committee may, within three months from_ **WP(C) No.19035 of 2019** **9** _the date of receipt by it of a copy of the order, and any person having interest in the Temple may, within three months from the date of publication of the order, institute a suit in the Court to modify the order or set it aside._ _- (7) Not withstanding anything contained in sub section (1), no antiquity belonging to the Devaswom shall be sold, pledged or otherwise alienated._ _12. Limitation of borrowing and lending powers -_ _(1) The Committee shall have no power to borrow money from or to lend money to any person unless it is sanctioned by the Commissioner as being necessary or beneficial to the Devaswom._ _(2) The Commissioner shall not refuse sanction under sub section (1) unless the Committee has been given an opportunity of making representation against such refusal._ _(3) Where sanction is refused under sub section (1), the Committee may, within three months from the date of receipt by it of the decision of the Commissioner, institute a suit in the court to set aside the decision._ (Underline supplied) **WP(C) No.19035 of 2019** **10** As stated earlier, the challenge is against the contribution of ₹5 crores to 'CMDRF'. The contentions raised are to be appreciated bearing in mind the said aspect. 7. A perusal of Section 11(1) would reveal that the prohibition thereunder is in relation to certain types of movable properties in the possession of Devaswom viz., those satisfy the twin conditions specified therein. Firstly, the movable property shall be of 'non-perishable nature'. Secondly, the value of the same shall be more than `5,000/-. True that the second limb of Section 11(1) puts prohibition on sale, pledging or any other mode of alienation of jewelleries unless it is sanctioned by the Commissioner as being necessary or beneficial to the Devaswom. The very description of the kind of movable property that would attract Section 11(1) itself would reveal that it would not suit to the property involved in the case on hand viz., ₹5 crores. Going by the description, the movable property mentioned therein should be movable property in possession of the **WP(C) No.19035 of 2019** **11** Committee of non-perishable nature and having a value of more than five thousand rupees. Above all, going by the said provision, what is prohibited thereunder is sale, pledging or alienation otherwise of such a property. The aspects would reveal the non-application of Section 11(1) of the Act in this case. Section 11(2) pertains to immovable property. The prohibition is against exchange, sale or mortgage and of lease of any immovable property and hence, the said provision is irrelevant and inapplicable in the case on hand. Similar prohibition is there under Section 11(7) and it pertains sale, pledging or alienation otherwise of antiquity belonging to the Devaswom. 8. Section 12 of the Act puts limitation on the borrowing and lending powers on the Committee. The action assailed is neither an act of 'borrowal' or an act of 'lending'. As noticed earlier, the impugned action is 'contribution' of ₹5 crores from the fund. Therefore, the question is whether 'lending' and 'contribution' are synonymous words. The meaning of the said words, going **WP(C) No.19035 of 2019** **12** by the 'New International Webster's Comprehensive Dictionary of the English Language - Encyclopedic edition' are as follows:- _“Lend : To grant the temporary use of without further compensation than the understanding that the thing or its equivalent will be returned._ _Contribute : To give for a common purpose.”_ Thus, it is obvious that the word 'lending' constitute an act of granting something for temporary possession on condition of the return of the same or its equivalent. On the contrary, the word 'contribution' connotes an act of giving something for a common purpose. Thus, in respect of an action of 'lending', the granting of the thing is only for temporary possession and the same or its equivalent is to be returned and as regards an action of contribution, the parting of the thing is permanent and in other words, sans the condition to return the same or its equivalent. Therefore, if the property is 'money' when it is lent, it is **WP(C) No.19035 of 2019** **13** liable to be returned and when it is contributed, it is not liable to be returned. In short, the words 'lending' and 'contribution' are distinct and different and one is not synonymous to the other. In such circumstances, it can certainly be said that Section 12 of the Act is not relevant and applicable in the case on hand. 9. Now, we will consider the contentions based on Section 27 of the Act. For appreciating the same appropriately, it is necessary to refer to Section 27 of the Act and it reads thus:- ## “ _27. Authority of Committee to incur expenditure for certain purposes_ - _The Committee may, after making adequate - provision for the purposes referred to in sub section (2) of section 21, incur expenditure out of the funds of the Devaswom for all or any of the following purposes, namely: -_ _(a) maintenance, management and administration of the Temple, its properties and the temples subordinate thereto;_ - _(b) training of archakas to perform the religious_ **WP(C) No.19035 of 2019** **14** _worship and ceremonies in the Temple and the temples subordinate thereto;_ _(c) medical relief, water supply and other sanitary arrangements for the worshippers and the pilgrims and construction of building for their accommodation;_ _(d) culture and propagation of the tenets and philosophy associated with the Temple ;_ _(e) the establishment and maintenance of or the making of any grant or contribution to, any poor home or other similar institution which is maintained for the benefit mainly of persons belonging to the Hindu Community; [(ee) the construction of buildings connected with the affairs of the Devaswom:]_ _(f) the establishment and maintenance of any educational institution which provides for encouragement of education in the [Sanskrit or Malayalam Language] the maintenance of any such educational institution owned or managed by the Devaswom or in which the Devaswom has interest; and_ _(g) the making of any contribution to any religious institution:_ _Provided that nothing contained in clause (e) shall prevent the continuance of any grant or_ **WP(C) No.19035 of 2019** **15** _contribution to any poor home or other similar institution which is maintained by or for the benefit of persons other than those belonging to the Hindu Community, if such grant or contribution was being made to such poor home or institution before the commencement of this Act as the customary practice associated with the Temple:_ _Provided further that no expenditure shall be incurred for any of the purposes mentioned in clauses (f) and (g) unless the same is sanctioned by custom or practice associated with the Temple.”_ (Underline supplied) 10. Section 27 thus deals with the authority of the Committee to incur expenditure for certain purposes. Going by the said provision, the Committee may, after making adequate provision for the purposes referred to in sub-section (2) of Section 21, incur expenditure out of the funds of the Devaswom on all or any of the purposes mentioned under Clauses (a) to (g) therein. The very caption of the Section, “Authority of Committee to incur expenditure for certain purposes' would _prima facie_ indicate that the Section dealt with the authority to incur expenditures not exhaustively, but for certain purposes **WP(C) No.19035 of 2019** **16** only. True that head-note cannot be conclusive and cannot be taken as determinative of the scope of power imbedded in an empowering provision in a statute. Certainly, in that regard, the contents of the relevant provision have to be analysed. But before that, one aspect has to be taken note of. Section 27, as already noted, deals with the authority of the Committee to incur expenditure for certain purposes and it is not a provision specifically prohibitting incurring of expenses for any other purpose. In such circumstances, if there is nothing in Clauses (a) to (g) in Section 27 of the Act indicating that the Committee got authority only to incur expenses in respect of the purposes very specifically mentioned under Clauses (a) to (g) thereunder, then the word 'certain purposes' used in the head-note of Section 27 can be taken as a clear indicative of the non-exhaustive nature of items/issues wherein the Committee can have authority to use the funds of the Devaswom. We may hasten to add that we are not indicating that the Committee is having power to doll out the funds of the Devaswom in any manner they like. In the decision in _**Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and others** [AIR_ **WP(C) No.19035 of 2019** **17** _1996 SC 1113],_ the Apex Court held that ordinarily Hindutwa is understood as a way of life or a state of mind and it is not equated with or understood as religious Hindu fundamentalism. Further, it was held “the word 'Hindutva' is used and understood as a synonym of 'Indianisation' i.e., development of uniform culture by obliterating the differences between all the cultures co-existing in the country”. Hindu religion is said to have born out of the principles of Sanathana Dharma. Hinduism is all about bestowing attention to everything with great reverence and perceiving what best can be done. All the aforesaid matters are to be borne in mind while considering the aforesaid question. 11. Taking into account all such circumstances, we are of the considered view that this is not a case where this Court should exercise the discretionary jurisdiction under Article 226 of the Constitution of India to interfere with contribution made by the 2[nd] respondent, which was ratified by the 3[rd] respondent, for the aforesaid purpose and to direct the 1[st] respondent to return the same with interest to **WP(C) No.19035 of 2019** **18** Guruvayur Devaswom Fund. In that view of the matter, we find no merits in the writ petition and consequentially, it is dismissed. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **N. NAGARESH, JUDGE** aks/26.07.2019 **WP(C) No.19035 of 2019** **19** ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 COPY OF THE DECISION OF THE 2ND RESPONDENT DATED 20.8.2018 EXHIBIT P2 COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 8.11.2018**