C. Gopinath and V.A. Narayana Menon v. Cochin Devaswom Board, Thiruvambadi Devaswom and Madathil Ramankutty

## **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 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944** ## **WP(C) NO. 29780 OF 2022** ## **PETITIONER/S:** **1 C. GOPINATH, AGED 59 YEARS S/O. BHASKARA MENON, GOPI NIVAS, KOTTAPURAM ROAD, POOTHOLE POST, THRISSUR - 680 004.** - **2 V.A.NARAYANA MENON, AGED 54 YEARS S/O.LATE CA MENON, NANDANAM (VATTEKKAT), SKV COLLEGE ROAD, KANATTUKARA, THRISSUR-680 011.** **BY ADVS. M.P.SREEKRISHNAN A.MUHAMMED MUSTHAFA** ## **RESPONDENT/S:** - **1 COCHIN DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, DEVASWOM BOARD BUILDING, THRISSUR - 680 020.** - **2 THIRUVANMBADI DEVASWOM, REPRESENTED BY ITS PRESIDENT, THIRUVAMBADI DEVASWOM BUILDING, ROUND WEST, SWARAJ ROUND, THRISSUR -680 001.** **3 MADATHIL RAMANKUTTY, RETURNING OFFICER, THIRUVAMBADI DEVASWOM, THIRUVAMBADI DEVASWOM BUILDING, ROUND WEST, SWARAJ ROUND, THRISSUR - 680 001.** **BY ADVS. K.RAMAKUMAR (SR.) B.PREMNATH (E) SARATH M.S. N.K.SUBRAMANIAN V.M.SYAM KUMAR KRIPA ELIZABETH MATHEWS** 2 WP(C) No.29780 of 2022 **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 WP(C) No.29780 of 2022 ## **J U D G M E N T** ## Anil K.Narendran, J. The petitioners, who are members of the General Body of the 2[nd] respondent Thiruvambadi Devaswom, which is a controlled institution under the 1[st] respondent Cochin Devaswom Board, have filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 2[nd] respondent Thiruvambadi Devaswom to conduct the General Body meeting scheduled to be held on 25.09.2022 for deliberating items 1 to 8 and 10 to 12 in the Agenda of Ext.P4 notice and re-schedule item No.9 election in Ext.P4 notice, after complying with clause 46 of Ext.P1 bye-laws. The petitioners have also sought for orders directing the 2[nd] respondent Thiruvambadi Devaswom to prepare running minutes of the proceedings of its General Body meeting and to appoint an observer for supervising the conduct of the General Body meeting scheduled to be held on 25.09.2022, for ensuring transparency and fair play in the conduct of the General Body meeting; or in the alternative direct the 1[st] respondent Cochin Devaswom Board to depute a competent officer to supervise the General Body meeting scheduled to be held on 25.09.2022. 4 WP(C) No.29780 of 2022 2. On 19.09.2022, when this writ petition came up for admission, the learned Standing Counsel for Cochin Devaswom Board took notice on admission for the 1[st] respondent. Urgent notice on admission was ordered to respondents 2 and 3 by special messenger, returnable by 22.09.2022. The learned Standing Counsel was directed to get instructions. 3. On 23.09.2022, when this writ petition came up for consideration, having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, this Court appointed Senior Advocate, Sri.G.Sreekumar, as an Observer to oversee the conduct of Annual General Body Meeting of Thiruvambadi Devaswom scheduled to be held on 25.09.2022, vide Ext.P4 notice dated 24.08.2022. The initial remuneration payable to the Observer was fixed at Rs.50,000/-, which was directed to be paid by the petitioners on or before 24.09.2022 and the writ petition was ordered to be listed on 10.10.2022 for the report of the Observer. 4. On 10.10.2022, when this writ petition came up for consideration, the report dated 07.10.2022 of the Observer was placed on record. The learned counsel for the 2[nd] respondent Devaswom and also the learned counsel for the 3[rd] respondent 5 WP(C) No.29780 of 2022 sought time to get instructions. On 19.10.2022, the learned counsel for the 2[nd] respondent Devaswom sought time to represent the objection to the report of the Observer, in the form of an affidavit. 5. The petitioners have filed I.A.Nos.1 and 2 of 2022. In I.A.No.1 of 2022, the petitioners seek an order to appoint an administrator for administering the affairs of the 2[nd] respondent Thiruvambadi Devaswom and to conduct a forensic audit by the audit wing of the Cochin Devaswom Board or the auditors from Revenue (Devaswom) Department, Government of Kerala. I.A.No.2 of 2022 is filed to place on record Exts.P7 and P8 additional documents. The 2[nd] respondent Devaswom has filed a counter affidavit dated 19.12.2022 in I.A.No.1 of 2022. 6. On 31.01.2023, when I.A.No.1 of 2022 came up for consideration, this Court passed a detailed order, which reads thus: “During the course of arguments, the learned counsel for the petitioner would refer to the averments in paragraphs 4 and 5 of the affidavit filed in support of I.A.No.1 of 2022. After referring to Ext.P7 profit and loss account for the year 202021 of Thiruvambadi Devaswom, the learned counsel would submit that the rent arrears due from one Ullas Babu, who is in occupation as tenant in Sreevalsom Building, amounting to Rs.2,47,33,926/- was settled in mediation for a sum of WP(C) No.29780 of 2022 6 Rs.1,55,00,000/-. In addition to the said amount, a sum of Rs.13,41,443/- is due from Ullas Babu towards electricity charges and a further sum of Rs.27,09,475/- toward service tax. The learned counsel for the petitioner would submit that as alleged in paragraph 5 of the affidavit filed in support of I.A.No.1 of 2022, the settlement was arrived at behind the back of the General Body and without the knowledge of the members. 2. On 16.03.2022, when O.P(RC) Nos.64 and 100 of 2021 came up for consideration, it was submitted by the learned counsel on both sides that those original petitions can be referred for mediation before the Ernakulam Mediation Centre, in the premises of this Court. The petitioner, the President and the Secretary of Thiruvambady Devaswom were directed to appear before the Ernakulam Mediation Centre on 25.03.2022 at 10.15 a.m. 3. From the Judge’s papers in O.P.(RC) Nos.64 and 100 of 2021, we notice that the mediation agreement dated 18.04.2022, was placed on record along with the report dated 18.04.2022 of the Mediator, Ernakulam Mediation Centre. Based on the said settlement, O.P(RC) Nos.64 and 100 of 2021 filed by T.S.Ullas Babu were disposed of by the judgment dated 26.04.2022. Now Contempt Case(Civil) Nos.1639 of 2022 and 1641 of 2022 filed by T.S.Ullas Babu are pending before the Division Bench, which rendered the judgment in O.P.(RC) Nos.64 and 100 of 2021. 4. The learned counsel for the 2[nd] respondent would submit that the said respondent has already filed a counter affidavit dated 19.12.2022 in I.A.No.1 of 2022. 5. The learned counsel seeks a short adjournment. WP(C) No.29780 of 2022 7 List on 07.02.2023.” 7. Respondents 2 and 3 have filed counter affidavits in the writ petition. 8. Heard the learned counsel for the petitioners; the learned Standing Counsel for Cochin Devaswom Board for the 1[st] respondent; the learned Senior Counsel for the 2[nd] respondent Devaswom and also the learned counsel for the 3[rd] respondent. 9. As already noticed hereinabove, the petitioners, who are members of the General Body of the 2[nd] respondent Thiruvambadi Devaswom, which is a controlled institution under the 1[st] respondent Cochin Devaswom Board, have filed this writ petition seeking certain reliefs regarding the conduct of the General Body meeting of the said Devaswom scheduled to be held on 25.09.2022. That General Body was conducted, as scheduled in Ext.P4 notice, and the Observer appointed by the order of this Court dated 23.09.2022, to oversee the conduct of the Annual General Body Meeting of the 2[nd] respondent Devaswom, has filed a report dated 07.10.2022. To the said report, the 2[nd] respondent Devaswom has filed an objection dated 20.10.2022. 10. In the order dated 31.01.2023, this Court noticed the submission of the learned counsel for the petitioners, after 8 WP(C) No.29780 of 2022 referring to Ext.P7 profit and loss account of the 2[nd] respondent Thiruvambadi Devaswom for the year 2020-21, that the rent arrears due from one Ullas Babu, who is in occupation as tenant in - Sreevalsom Building, amounting to Rs.2,47,33,926/ was settled in mediation for a sum of Rs.1,55,00,000/-. In addition to the said amount, a sum of Rs.13,41,443/- is due from Ullas Babu towards electricity charges and a further sum of Rs.27,09,475/- toward service tax. Moreover, as alleged in paragraph 5 of the affidavit filed in support of I.A.No.1 of 2022, the settlement was arrived at behind the back of the General Body and without the knowledge of the members. 11. During the course of arguments, the learned counsel for the petitioners would place reliance on the principles laid down in the decision of this Court in **Devi S. Menon v. State of Kerala and others [2021 (5) KHC 748]** . 12. In **A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]** a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and 9 WP(C) No.29780 of 2022 safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fences eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. 13. In **Travancore Devaswom Board v. Mohanan Nair [(2013) 3 KLT 132]** a Division Bench of this Court noticed that, in **A.A. Gopalakrishnan [(2007) 7 SCC 482]** a Three-Judge Bench of the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. That was a case wherein the alleged encroachment of Temple property was raised in a complaint filed by a devotee. The Division Bench noticed that the relevant principles under the Hindu law will show that the deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The Court is the WP(C) No.29780 of 2022 10 guardian of the deity and apart from the revisional jurisdiction under Section 103 of the Kerala Land Reforms Act, 1963, the Court is having inherent jurisdiction and the doctrine of parens patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Advisory Committee, which was formed by the devotees of the Temple about the loss of properties of the Temple itself, the truth of the same can be gone into by the High Court in the proceedings in DBP No.21 of 2009 and the CRPs filed under Section 103 of the Kerala Land Reforms Act. 14. in **Devi S. Menon v. State of Kerala and others [2021 (5) KHC 748]** , in which a Division Bench of this Court, in which one among us (Anil K. Narendran, J) was a party, held that the deity being a perpetual minor, applying the doctrine of _parens patriae_ , the High Court is having inherent jurisdiction to protect and safeguard the properties of the Temple from any kind of wrongful claims or misappropriation. 15. The learned counsel for the petitioners would submit that since the reliefs sought for in this writ petition are confined to the conduct of the General Body meeting of the 2[nd] respondent Thiruvambadi Devaswom scheduled to be held on 25.09.2022, this 11 WP(C) No.29780 of 2022 writ petition may be disposed of, leaving open the legal and factual contentions raised by the petitioners, and without prejudice to the right of the petitioners to approach the appropriate forum against the serious irregularities and mismanagement in the affairs of the 2[nd] respondent Thiruvambadi Devaswom. Since the reliefs sought for in this writ petition are confined to the conduct of the General Body meeting of the 2[nd] respondent Thiruvambadi Devaswom scheduled to be held on 25.09.2022, which was conducted as scheduled in Ext.P4 notice and the Observer appointed by this Court to oversee the conduct of the Annual General Body Meeting has already filed a report dated 07.10.2022, this writ petition is disposed of recording the said fact; however, leaving open the legal and factual contentions raised by both sides, and without prejudice to the aforesaid right of the petitioners. Sd/- ## **ANIL K. NARENDRAN JUDGE** Sd/- ## **P.G. AJITHKUMAR JUDGE** jg WP(C) No.29780 of 2022 12 ## **APPENDIX OF WP(C) 29780/2022** ## **PETITIONER EXHIBITS** - **Exhibit P1 A TRUE COPY OF THE CONSTITUTION OF THE THIRUVAMBADI DEVASWOM.** - **Exhibit P2 A TRUE COPY OF THE PROFIT AND LOSS ACCOUNT FOR THE PERIOD 2018-'19.** - **Exhibit P3 A TRUE COPY OF THE PROFIT AND LOSS ACCOUNT FOR THE PERIOD 2019-'20.** - **Exhibit P4 A TRUE COPY OF THE NOTICE DATED 24.08.2022 ISSUED BY THE SECRETARY OF THE THIRUVAMBADI DEVASWOM INTIMATING THE GENERAL BODY MEETING OF THE DEVASWOM AND RECEIVED BY THE PETITIONERS ON 01.09.2022.** - **Exhibit P5 A TRUE COPY OF THE REPRESENTATION DATED 05.09.2022 IS PREFERRED TO THE PRESIDENT OF THE 2ND RESPONDENT DEVASWOM.** - **Exhibit P6 A TRUE COPY OF THE REPRESENTATION DATED 05.09.2022 IS PREFERRED TO THE 1ST RESPONDENT DEVASWOM BOARD.** - **Exhibit P7 A TRUE COPY OF THE PROFIT AND LOSS ACCOUNT FOR THE PERIOD 2020-'21** - **Exhibit P8 A TRUE COPY OF THE REPRESENTATION, DATED 22.10.2022 FILED BY THE 1ST PETITIONER BEFORE THE THIRUVAMBADI DEVASWOM** ## **RESPONDENT EXHIBITS** **Exhibit TRUE COPY OF THE NOTICE FOR THE GENERAL BODY, R3(a) ISSUED BY THE 2ND RESPONDENT THIRUVAMBADI DEVASWOM, DATED 26/8/2022** **Exhibit A TRUE COPY OF THE ELECTION NOTIFICATION FOR R3(b) 2022-2025, PUBLISHED IN THE NOTICE BOARDS OF THE THIRUVAMBADI TEMPLE AND DEVASWOM OFFICE, DATED 27/8/2022** WP(C) No.29780 of 2022 13 |**Exhibit**|**TRUE COPY OF THE REQUEST SUBMITTED BY THE**| |---|---| |**R3(C)**|**PETITIONERS AND FOUR ADJOURNING THE SCRUTINY AND**| ||**WITHDRAWAL O THE NOMINATIONS, DATED NIL**| |**Exhibit**|**TRUE COPY OF THE NOTICE ISSUED BY TH RETURNING**| |**R3(d)**|**OFFICER, INFORMING THE ADJOURNMENT OF SCRUTINY**| ||**AND WITHDRAWAL OF NOMINATION, DATED 9/9/2022**| |**Exhibit**|**TRUE COPY OF LIST OF CANDIDATES PUBLISHED BY THE**| |**R2(b)**|**RETURNING OFFICER ON 14/9/2022**| |**Exhibit**|**TRUE COPY OF NOTICE DT.28/6/2022 PUBLISHED BY THE**| |**R2(c)**|**SECRETARY OF THE THIRUVAMBADY DEVASWOM**|