Cochin Devaswom Board v. Deputy Director, Kerala State Audit Department

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` THURSDAY, THE 24[TH] DAY OF NOVEMBER 2022/3RD AGRAHAYANA, ``` ``` 1944 DBA NO. 7 OF 2022 ``` ## **`PETITIONER:`** ``` COCHIN DEVASWOM BOARD, ROUND NORTH, THRISSUR – 680001, REPRESENTED BY ITS SECRETARY. ``` ``` BY ADV K.P.SUDHEER ``` ## **`RESPONDENTS:`** ``` 1 THE DEPUTY DIRECTOR, KERALA STATE AUDIT DEPARTMENT, COCHIN DEVASWOM AUDIT, ROUND NORTH, THRISSUR, PIN - 680001 2 P. S. BABU, S/O. P.M. SEBASTIAN, PROPRIETOR, UNITED ENTERTAINMENT, PARAVATTANI, EAST FORT, THRISSUR, PIN - 680005 R1 BY SR.GOVERNMENT PLEADER SRI.S.RAJMOHAN R2 BY ADV.SRI.DINESH MATHEW J.MURICKEN ``` ``` THIS DEVASWOM BOARD APPLICATION HAVING COME UP FOR ADMISSION ON 24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 DBP No.7 of 2022 ## **ORDER** Anil K. Narendran, J. The Cochin Devaswom Board has filed this application seeking permission to rent out the stalls/pavilions erected pursuant to the permission granted by this Court in Annexure A1 order dated 29.07.2022 in DBP No.31 of 2022, for conducting exhibition/trade fair during Christmas/New year, as sought for in Annexure A2 order dated 07.11.2022 of the Board. 2. DBP No.31 of 2022 was one registered based on CDB Report No.18 of 2022 in Petition No.3 of 2022 of the learned Ombudsman for Travancore and Cochin Devaswom Boards. The Board filed Petition No.3 of 2022 before the learned Ombudsman, seeking permission to conduct exhibitions and trade fairs in Thrissur Pooram Exhibition Ground in Thekkinkad Maidan, during the period other than Thrissur Pooram exhibition. That DBP was disposed of by Annexure A1 order dated 29.07.2022 **[Cochin Devaswom Board v. Deputy Director, Kerala State audit Department- 2022 SCC OnLine Ker 4050]** . Paragraphs 23 to 30 of that order read thus; 3 DBP No.7 of 2022 “23. In **T.Krishnakumar v. Cochin Devaswom Board and others [2022 SCC OnLine Ker. 3700]** , a Division Bench of this Court, in which both of us were parties, held that in view of the law laid down by this Court in **Abu K.S. v. Travancore Devaswom Board and others [2022 SCC OnLine Ker 1642]** , relying on the decision of the Apex Court in **M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65]** , while leasing out the buildings owned by the Devaswoms, the Cochin Devaswom Board and its officials have to ensure that proper income is generated from the said buildings. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. The action of the Board as a trustee cannot be equated to that of mere landlord. The best interest of the Devaswoms under the control of the Board would be subserved only if income is generated. 24. In **T.Krishnakumar [2022 SCC OnLine Ker. 3700],** the Division Bench noticed that the major source of revenue of the 1[st] respondent Board is the income received by way of offering by the devotees, the amount received from Vazhipadu and the revenue generated through the auction of temple premises for various activities in connection with rituals and festivals in the temples and also the rental income generated from the buildings owned by the respective Devaswoms. Therefore, while dealing with the buildings owned by the Devaswoms, the 1[st] respondent Board and its officials have to ensure that 4 DBP No.7 of 2022 proper income is generated from the said building. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs, by ensuring that the lease rental or licence fee of the buildings owned by the Devaswoms is not lower than the prevailing market rent. The action of the Board in demanding lease rental or licence fee for the buildings owned by the Devaswoms taking into consideration the prevailing market rent cannot be termed as an action of the Board demanding - exhorbitant or rack rent, since, while leasing out the buildings owned by the Devaswoms, the Board and its officials have to ensure that proper income is generated from the said buildings. Any default committed by the tenant or licensee of the buildings owned by the Devaswoms in payment of the monthly rent or licence fee, electricity charges, water charges, statutory dues, etc. has to be dealt with appropriately, so also the use of the building for another purpose or making material alteration or addition to the building. In view of the provisions under Section 73A of the Act, the 1[st] respondent Board is duty bound to monitor whether its administrative staff and employees in the Maramath wing are functioning properly, by taking prompt action against any such default or violation of the terms and conditions of the lease deed or the licence deed. 25. The fact that the Cochin Devaswom Board is facing acute financial crisis due to Covid-19 pandemic and other reasons is not in serious dispute. The specific stand taken 5 DBP No.7 of 2022 by the Board before the learned Ombudsman was that, around Rs.9 to 12 Crores is required for meeting the monthly expenses for the rituals in the temples and wages of the employees. In view of the continued fall of income, the Board has to explore the means to diversify its finances to augment the income and tide over the crisis. Therefore, in the 34[th] meeting of the Board held on 30.09.2021, it was decided to seek permission of this Court to conduct exhibition and trade fairs in Thrissur Pooram exhibition ground in Thekkinkad Maidan, during the period other than Thrissur Pooram exhibition. 26. In the interim order dated 08.06.2011 in D.B.P.No.48 of 2010, which was made absolute by Annexure A3 order dated 08.07.2013 the Division Bench found that out of the total extent of Thekkinkad Maidan, which is around 61.34 Acres, the land actually required for conducting the Pooram festival and also for such further purposes for which this Court has granted permission in terms of earlier orders in different proceedings have to be identified and the remaining portion is to be put to afforestation activity by planting teak or such other trees as may be advised by the competent Forest officials. As per Annexure A3 order in DBP.No.48 of 2010, from the date of that order there shall be no construction, beautification or other activities in the Thekkinkad Maidan by the Government or the Corporation of Thrissur or any other authority without obtaining specific orders from this Court. The Cochin Devaswom Board was directed to protect the Thekkinkad Maidan appropriately, since it is the property of the Board. 6 DBP No.7 of 2022 27. In Annexure A4 order dated 30.09.2013 in DBP.No.78 of 2013 the Division Bench reiterated that Annexure A3 order passed in DBP No.48 of 2010 will take care of all matters which may arise in future in relation to Thekkinkad Maidan. DBP No.78 of 2013 was registered based on CDB Report No.81 of 2013 of the learned Ombudsman in Petition No.23 of 2013 filed by the Cochin Devaswom Board, seeking permission to use Thekkinkad Maidan for commercial purposes like conducting exhibitions, etc., and also for conducting meetings, etc., by political parties. The Division Bench in Annexure A4 order dated 30.09.2013 took a view that, if any other unrestricted activities are permitted it will have an adverse impact on the property, which is one of the important locations as far as the entire town is concerned. In the said order it was clarified that, whenever fresh applications or proposals are received from interested parties, the Cochin Devaswom Board will place the matter before this Court for consideration and only after sanction by this Court any such activities can be permitted. 28. The permission sought for in Petition No.3 of 2022 filed by the Cochin Devaswom Board, based on which the learned Ombudsman has filed CDB Report No.18 of 2022, was one filed by the Board seeking permission to conduct exhibitions and trade fairs in Thrissur Pooram exhibition ground in Thekkinkad Maidan during the period other than Thrissur Pooram exhibition. In the said exhibition ground, which forms part of Thekkinkad Maidan, Thrissur Pooram exhibition is being conducted by Thiruvambadi Devaswom 7 DBP No.7 of 2022 and Paramekkavu Devaswom, as permitted by the Cochin Devaswom Board. 29. Considering the fact that Cochin Devaswom Board is facing acute financial crisis due to Covid-19 pandemic and other reasons, which is not in serious dispute, we deem it appropriate to grant permission to the Board to conduct Onam exhibition/trade fair in Thrissur Pooram exhibition ground in Thekkinkad Maidan, for the current year, i.e., 2022, subject to the condition that the conduct of exhibition/trade fair shall be confined to the exhibition ground in Thekkinkad Maidan where there is no afforestation activity by planting teak or such other trees. 29.1. There shall be no semi or permanent construction in the exhibition ground in connection with the Onam exhibition/trade fair. Only temporary structures shall be erected in the exhibition ground, as per the layout in Annexure A8 of the proposed exhibition stalls and pavilions produced along with the memo filed by the learned Standing Counsel for the Board dated 19.07.2022. The Board shall obtain necessary licence/ permission/consent from the statutory authorities for the conduct of Onam exhibition/trade fair in the exhibition ground. The traders shall obtain necessary licence/permission/consent from the statutory authorities, for the respective stalls/pavilions. The activities in connection with Onam exhibition/trade fair shall in no manner affect the afforestation activity in Thekkinkad Maidan. 29.2. The Board shall conduct auction of the right to conduct stalls/pavilions in the Onam exhibition/trade fair, 8 DBP No.7 of 2022 strictly in accordance with law, and the layout of the stalls/pavilions shall be published in its official website, along with other particulars. The Board shall publish notice inviting tenders in leading dailies, in order to ensure wide publicity. In the said notice it shall be specified that the layout of the stalls/pavilions and other particulars are available in its official website. The Board shall also consider the feasibility of conducting e-tender, giving option to the traders to quote amount for individual stalls/pavilions. 29.3. The Board shall ensure that proper income is generated by conducting auction of the right to conduct stalls/pavilions in the Onam exhibition/trade fair. In such transactions, the Board and its officials have to show due diligence in the manner of an ordinary prudent man of business to conduct his own affairs, since the Board is essentially a trustee of Devaswom land which vests in the deity. Since Thekkinkad Maidan is a Devaswom property no sale/trade of any objectionable substances shall be permitted in Onam exhibition/trade fair in the exhibition ground. 29.4. The terms and conditions and other matters relating to the conduct of Onam exhibition/trade fair shall be placed before the learned Ombudsman for approval. The expenditure incurred by the Board in connection with the conduct of Onam exhibition/trade fair and also the income generated therefrom, by auctioning the right to conduct stalls/pavilions, shall be subjected to audit by the State 9 DBP No.7 of 2022 Audit Department, immediately after the exhibition/trade fair is over. 30. With the above directions this DBP is disposed of.” 3. In terms of the directions contained in Annexure A1 order, exhibition/trade fair during Onam season was conducted from 03.09.2022 to 24.10.2022. The 2[nd] respondent herein, who is the successful bidder, has erected stalls in the exhibition ground of Thekkinkad Maidan, as per the lay out approved by the Board. After the exhibition/trade fair, the 2[nd] respondent submitted Annexure A3 request dated 01.11.2022 before the Board, seeking permission to conduct exhibition/trade fair during Christmas/New Year. Based on that application, the Cochin Devaswom Board passed Annexure A2 order dated 07.11.2022 permitting him to conduct consumer exhibition for the period from 15.12.2022 to 15.01.2023, after obtaining orders from this Court. Accordingly, the Board has filed this DBA seeking the aforesaid relief. 4. On 15.11.2022, when this DBA came up for consideration, this Court passed the following order; “During the course of arguments, on a query made by this Court, the learned Standing Counsel for Cochin Devaswom Board would submit that though the Exhibition and Trade 10 DBP No.7 of 2022 Fair in the Exhibition Ground of Thekkinkad Maidan, conducted after Annexure A1 order dated 29.07.2022 in DBP No.31 of 2022 is over by 24.10.2022, the 2[nd] respondent has not removed the stalls put up as per the approved layout. 2. The learned Standing Counsel seeks time to get instructions as to the circumstances in which such stalls were not removed from the Exhibition Ground of Thekkinkad Maidan immediately after 24.10.2022. 3. The learned Senior Government Pleader enters appearance for the 1[st] respondent. Issue notice to the 2[nd] respondent, through the Assistant Devaswom Commissioner, Cochin Devaswom Board, Thrissur. 4. The learned Standing Counsel for Cochin Devaswom Board to furnish the e-mail ID of the Assistant Devaswom Commissioner, Thrissur to the Registry today itself. 5. The learned Standing Counsel shall make available for the perusal of this Court, the approved layout of stalls in the Exhibition Ground of Thekkinkad Maidan and a few photographs of the stalls, which are yet to be removed by the 2[nd] respondent.” 5. The said order was followed by another order dated ## 17.11.2022, which reads thus; “The learned Standing Counsel for Cochin Devaswom Board would submit that notice has already been served on the 2[nd] respondent, through the Assistant Devaswom Commissioner, Thrissur. Registry to verify whether there is any appearance for the 11 DBP No.7 of 2022 ## 2[nd] respondent. The learned Standing Counsel has made available for the perusal of this Court a few photographs of the stalls put up by the 2[nd] respondent in the Exhibition Ground of Thekkinkadu Maidan and also the approved layout of the stalls.” 6. The 2[nd] respondent has filed a counter affidavit dated 20.11.2022, wherein it is stated that, though the exhibition was concluded on 24.10.2022, he could not remove the stalls immediately, since the vendors had not removed their articles from the shops. Therefore, he submitted Annexure A3 application dated 01.11.2022 before the Board seeking permission to conduct consumer exhibition from 15.12.2022 to 15.01.2023, based on which the Board has taken Annexure A2 decision dated 07.11.2022. 7. Heard the learned Standing Counsel for Cochin Devaswom Board for the applicant, the learned Senior Government Pleader for the 1[st] respondent and also the learned counsel for the 2[nd] respondent. 8. In the light of the law laid down by this Court in **T.Krishnakumar v. Cochin Devaswom Board and others** **[2022 SCC OnLine Ker. 3700]** , while granting permission to 12 DBP No.7 of 2022 conduct exhibition/trade fair in the exhibition ground in Thekkinkad Maidan, the Cochin Devaswom Board has to ensure that proper income is generated by granting such permission to a third party. While granting such permission, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. The best interest of the Devaswom under the control of the Board would be subserved only if income is generated by granting such permission. 9. Having considered the averments in the affidavit filed in support of this application, that contained in the counter affidavit filed by the 2[nd] respondent and also the submissions made by the learned Standing Counsel for Cochin Devaswom Board, the Senior Government Pleader for the 1[st] respondent and the learned counsel for the 2[nd] respondent, we find that the grant of permission for conducting exhibition/trade fair during Christmas/New year as sought for in Annexure A2 order dated 07.11.2022 can be granted by the Cochin Devaswom Board only in a transparent manner, by conducting a public auction, in order to ensure that proper income is generated by granting such 13 DBP No.7 of 2022 permission. Though Onam exhibition/trade fair conducted in terms of the Annexure A1 order was over on 24.10.2022, the Board permitted the 2[nd] respondent to occupy the exhibition ground without removing the temporary structures. Thereafter, based on Annexure A3 request made by the 2[nd] respondent on 01.11.2022, the Board cannot grant permission to the 2[nd] respondent to conduct exhibition/trade fair in that exhibition ground, during Christmas/New Year season, without conducting a proper auction. In such circumstances, we deem it appropriate to dispose of this DBA by directing the Cochin Devaswom Board to conduct a public auction of the right to conduct exhibition/trade fair during Christmas/New Year season, i.e., from 15.12.2022 to 15.01.2023, in Thrissur Pooram Exhibition Ground in Thekkinkad Maidan, after publishing a proper notification, as per the layout in Annexure A8 produced in DBP No.31 of 2022. This order will be subject to the conditions stipulated in paragraph Nos.29 to 29.4 of Annexure A1 order dated 29.07.2022, which we have extracted hereinbefore in paragraph No.2. The income and expenditure of the exhibition/trade fair during Christmas/New 14 DBP No.7 of 2022 Year shall be subjected to audit by the State Audit Department, immediately after the exhibition/trade fair is over. This direction is issued considering the fact that the exhibition/trade fair has to commence from 15.12.2022. The terms and conditions and other matters relating to the conduct of exhibition/trade fair during Christmas/New Year shall be as per the approval granted by the learned Ombudsman, pursuant to the directions contained in paragraph 29.4 of Annexure A1 order, subject to any modifications found necessary. Any matter placed before the learned Ombudsman in that regard shall be considered expeditiously, since the exhibition/trade fair has to commence from 15.12.2022. The 2[nd] respondent can also be permitted to participate in the auction, subject to the eligibility criteria and on fulfillment of other conditions of the tender notification. In case the 2[nd] respondent is not the highest bidder, he shall remove the entire structures in the exhibition ground, within a period of one week, failing which he will be held personally liable for the loss caused to the 1[st] respondent Board. The Board shall commence steps in this regard, immediately on receipt of a certified copy of this order. The Board shall ensure that there is no cartel 15 DBP No.7 of 2022 formation by the traders in the auction. This DBA is disposed of accordingly. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV/25/11 16 DBP No.7 of 2022 ## **`APPENDIX OF DBA 7/2022`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1 TRUE COPY OF ORDER DATED 29/07/2022 IN DBP NO. 31 OF 2022 OF THIS HONOURABLE COURT. ANNEXURE A2 TRUE COPY OF ORDER NO. 11792/22 DATED 07.11.2022 ISSUED BY COCHIN DEVASWOM BOARD. Annexure A3 A TRUE COPY OF REQUEST DATED 01.11.2022 ISSUED BY THE 2ND RESPONDENT TO THE APPLICANT ```