Arunkumar S. v. District Collector Kollam District; The Commissioner, Travancore Devaswom Board; Deputy Devaswom Commissioner Pathanamthitta; S. Kamaladevi; The Dy. Chief Controller of Explosives

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` MONDAY, THE 8TH DAY OF AUGUST 2022 / 17TH SRAVANA, 1944 WP(C) NO. 26407 OF 2013 ``` ## **`PETITIONER:`** ``` ARUNKUMAR S., CHEENIVILA VEEDU, VAYYANAM P.O., AYOOR (VIA), KOLLAM - 691533. ``` ``` BY ADV SRI.S.M.ALTHAF ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR KOLLAM DISTRICT - 691 001`** - **`2 THE COMMISSIONER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM - 695 012`** - **`3 DEPUTY DEVASWOM COMMISSIONER PATHANAMTHITTA - 690 112.`** - **`4 S.KAMALADEVI, PATHANAPURATHU HOUSE, MANALIYIL, ALTHARAMOODU, KADAKKAL P.O., KOLLAM DISTRICT. PIN - 691536`** - **`5 THE DY.CHIEF CONTROLLER OF EXPLOSIVIES KAKKANAD, ERNAKULAM 682 020.`** - **`BY ADVS.SRI.D.SREEKUMAR, SC, TDB SRI.R.KRISHNAKUMAR, SC, TDB`** ``` SRI S.RAJMOHAN- SR GOVERNMENT PLEADER ; SRI G.SANTHOSH KUMAR – SC, TDB ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 W.P.(C)No.26407 of 2013 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner, who is a devotee of Kadakkal Peedika Devi Temple under the management of the Travancore Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 auction notification dated 05.07.2013 issued by the 3[rd] respondent Deputy Devaswom Commissioner inviting tenders for “Kuttivedi” in Kadakkal Peedika Devaswom for the period from 01.08.2013 to 31.07.2014 and Ext.P7 order dated 05.10.2013 issued by the 2[nd] respondent Commissioner; a writ of mandamus commanding respondents 2 and 3 to conduct the auction after giving wide publicity, in a fair manner, and in accordance with law; a declaration that the right to explode “Kuttivedi” using gunpowder in the Kadakkal Peedika Devi Temple can be given only to a person having valid Short Firer’s Permit issued by the competent authority in accordance with the Explosives Act, 1884 and Rules; a direction to the 2[nd] respondent to consider the validity of the licence of the 4[th] respondent, in view of the directions contained in Ext.P2 judgment of this Court dated 10.04.2013 in W.P.(C)No.8641 of 3 W.P.(C)No.26407 of 2013 2013 and DBA No.7 of 2013; and a direction to the 2[nd] respondent to return Rs.76,000/-, which is the amount remitted by the petitioner in connection with the auction conducted on 08.02.2013. 2. On 03.01.2014, when this writ petition came up for admission, this Court admitted the matter on file and the learned Standing Counsel took notice for the 2[nd] respondent. This Court issued urgent notice to respondents 1, 3, 4 and 5. 3. On 18.08.2014, when this writ petition came up for consideration, the learned Standing Counsel pointed out that as on that date, the period of the last year’s tender (from 01.08.2013 to 31.07.2014) is over and a fresh notification has been issued and that the Board has filed a separate application for approving the action taken for the next year. Therefore, this writ petition was ordered to be listed along with DBA No.14 of 2014. 4. In DBA No.14 of 2014, the Board sought for sanction for the finalisation of the tender in favour of one S.Kamala Devi with regard to the right to conduct “Kuttivedi” in Kadakkal Peedika Devaswom in Punalur Group, for the period from 01.08.2014 to 31.07.2015. By the order dated 4 W.P.(C)No.26407 of 2013 03.09.2014, the said DBA was disposed of granting sanction for finalization of the tender. 5. 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 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 5 W.P.(C)No.26407 of 2013 and ceremonies and of festivals in every temple according to its usage. 6. 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 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. ## 7. 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 6 W.P.(C)No.26407 of 2013 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 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 7 W.P.(C)No.26407 of 2013 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 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 8 W.P.(C)No.26407 of 2013 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) 8. In view of the statutory provisions referred to hereinbefore, the Board has got a statutory duty to ensure that regular traditional rites and ceremonies according to the practice prevalent in Kadakkkal Peedika Devi Temple are performed promptly. While tendering Kuthaka Right for ‘Kuttivedi’ in Kadakkal Peedika Devaswom, the Board as a trustee in management of the properties vested in the Deity, is legally bound to perform its duties utmost care and caution, with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. Therefore, the Board has to ensure strict compliance of the statutory requirements of the Explosives Act, 1884 and the Rules made thereunder. With the above directions this writ petition is disposed of. 9. In case the petitioner is yet to be returned Rs.76,000/- remitted in connection with the auction conducted on 08.02.2013, the petitioner shall make a claim before the 3[rd] respondent Deputy Devaswom Commissioner, along with the 9 W.P.(C)No.26407 of 2013 original receipt, within two months from the date of this judgment, in which event, the 3[rd] respondent shall consider that claim, in accordance with law, and the decision taken thereon shall be communicated to the petitioner, within a period of two months. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV/11/8 10 W.P.(C)No.26407 of 2013 ## **`APPENDIX OF WP(C) 26407/2013`** ``` PETITIONER EXHIBITS ``` ``` EXT.P-1: TRUE COPY OF THE NOTIFICATION DATED 5.7.2013 ISSUED BY THE 3RD RESPONDENT INVITING TENDERS EXT.P-2: TRUE COPY OF THE JUDGEMENT DATED 10.4.2013 OF THIS HON'BLE COURT IN WPC NO.8641/2013 & D.B.A. NO.7/2013 EXT.P-3: TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 24.6.2013 EXT.P-4: TRUE COPY OF THE LE-3 LICENCE ISSUED TO THE 4TH RESPONDENT. EXT.P-5: TRUE COPY OF THE REPRESENTATION GIVEN BY THE MURPHY DATED 19.7.2013 EXT.P-6: TRUE COPY OF THE JUDGEMENT IN WPC NO.18280/2013 DATED 19.8.2013 EXT.P-7: TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 5.10.2013 ```