Cochin Devaswom Board v. Deputy Director, Local Fund Audit, Thrissur

## **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 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944** **D.B.P.NO.37 OF 2020** **IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - TDB PROCEEDINGS** **INITIATED - REG.** **------------** **APPLICANT:** **COCHIN DEVASWOM BOARD, REPRESENTED BY ITS EXECUTIVE ENGINEER, OFFICE OF COCHIN DEVASWOM BOARD, SWARAJ ROUND, THRISSUR – 680 001.** **BY ADV K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD** ## **RESPONDENT:** **DEPUTY DIRECTOR, LOCAL FUND AUDIT, COCHIN DEVASWOM AUDIT, THRISSUR – 680 001. SRI S.RAJMOHAN- SR GOVERNMENT PLEADER** **OTHER PRESENT:** ## **SRI P.RAMACHANDRAN- AMICUS CURIAE** **THIS DEVASWOM BOARD PETITION HAVING COME UP FOR FINAL HEARING ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 D.B.P.No.37 of 2020 ## **O R D E R** ## Ajithkumar, J. The Cochin Devaswom Board submitted Petition No.14 of 2019 before the learned Ombudsman with a prayer that the Board may be permitted to implement Annexure A11 order as per which it has decided to undertake construction of a commercial complex in accordance with Annexure A4 building permit issued by the Cheranalloor Grama Panchayat. The Cochin Devaswom Board proposes to execute the work of construction of the commercial complex through a contractor for an estimated amount of Rs.69 lakhs, subject to permission from this Court. 2. The learned Ombudsman called for the remarks of the audit. The Cochin Devaswom Board submitted a reply before the learned Ombudsman explaining the queries posed by the audit. The discrepancy in the area was explained to be on account of the omission to add the area of the staircase column in the first plan. It was pointed out that the area as per the approved plan is 457.49 sq.m. As regards the viability 3 D.B.P.No.37 of 2020 of constructing such a commercial complex, it was explained that the building would fetch reasonable rent considering its locational advantage and commercial importance of the place. As regards the availability of funds also, the Devaswom Board submitted sufficient explanation. It was stated that necessary fund has been earmarked in the budget for the year 2019-20 and and also that there is the possibility of raising funds in an alternative method. 3. The learned Ombudsman after considering the matter submitted report No.30 of 2020. The explanation offered by the Board regarding the discrepancy in the built-up area between the original plan and the revised plan has been accepted. The proposed commercial complex takes in two halls also. Pointing out that there already exists a marriage hall in the temple, the feasibility of constructing a new one has been doubted by the learned Ombudsman. Further, the need to ensure availability of the required funds has been emphasised. 4. The Executive Engineer of the Cochin Devaswom 4 D.B.P.No.37 of 2020 Board filed an affidavit producing therewith Annexures A12 to A14 before this Court. 5. Heard the learned Standing Counsel appearing for the Cochin Devaswom Board and also the learned Senior Government for the respondent. 6. The proposal is to construct a commercial complex in the property of Cheranalloor Sree Krishna Swamy Temple. The property having an area of 4.10 Ares of land where the construction is proposed, is on the eastern side of the Temple, abutting the public road. The Cheranalloor Gama Panchayat issued a permit as per Annexure A4 in favour of the Cochin Devaswom Board to construct a commercial complex, having an area of 445.95 sq.m. in 4.10 Ares of land belonging to the Board comprised in Sy.No.297/1 of Cheranalloor Village. It is explained that the actual built up area is 457.49 sq. m. and the discrepancy is only an error in calculation. 7. The learned Ombudsman, after considering the matter in detail, referred the matter to this Court with the suggestions that there should be provision for making use of 5 D.B.P.No.37 of 2020 the proposed halls on the first floor of the building for letting out as separate rooms/units in case functioning of marriage halls is turned out to be not viable. It is also suggested that the Board can take steps for raising funds for the construction by inviting the potential occupiers of the building to make deposits. 8. A report of the Assistant Devaswom Commissioner is Annexure A13. He has reported that the proposed construction is in a commercially important area and a rent at the rate of Rs.25 to 30 per sq.ft. can be expected for the building. In his view, the building would be commercially viable. Annexure A14 is the revised permit issued by the Cheranalloor Grama Panchayat on 11.01.2022. Permit as per Annexure A4 expired on 30.01.2022. Now, as per Annexure A14 its period is extended till 13.01.2025. 9. The proposal is to construct a building expending Rs.69 lakhs. An amount of Rs. 50 lakhs is said earmarked in the budget of the Devaswom Board for the year 2019-20. An alternative proposal for raising funds by pledging fixed deposit 6 D.B.P.No.37 of 2020 of the amounts received as compensation for the acquisition of the Devaswom property is also contemplated. The Board would expect that the repayment would be possible within five years, making use of the rent derived from the proposed construction itself. ## 10. 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 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 7 D.B.P.No.37 of 2020 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 unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or 8 D.B.P.No.37 of 2020 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.” 11. Viewed so, it is the duty and obligation of the Board to ensure that the every work undertaken by the Board is carried out with utmost faith and care. The Board also should ensure that the interest of the religious institution is 9 D.B.P.No.37 of 2020 protected while executing the work. The Assistant Devaswom Commissioner has submitted a report, Annexure A13. The Executive Engineer of the Board filed an affidavit undertaking to carry out the construction honestly and punctually and the Board is confident of carrying out the construction of the commercial complex and utilising it profitably and in the best interest of the devotees. We record it. In the circumstances, we are of the view that permission to undertake construction of a commercial complex in accordance with Annexure A14 building permit issued by the Cheranalloor Grama Panchayat can be accorded. We observe that it will be the absolute obligation of the Cochin Devaswom Board to discharge its duties as a trustee in such a way as to safeguard the interest of the Deity and the devotees at large. Any lapse on the part of the Board or the executing agency will amount to breach of trust, entailing appropriate action. 12. With the above observations, this D.B.P. is disposed of by according sanction to the Cochin Devaswom Board to undertake the construction as per Annexure A14 building 10 D.B.P.No.37 of 2020 permit issued by the Cheranelloor Grama Panchayat. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 11 D.B.P.No.37 of 2020 ## **APPENDIX OF DBP 37/2020** ## **RESPONDENT EXHIBITS** **ANNEXURE A1 TRUE COPY OF ORDER NO.H1.1290/17 DATED 05.06.2017 ISSUED BY COCHIN DEVASWOM BOARD.** **ANNEXURE A2 TRUE COPY OF ORDER NO.H1.1324/17 DATED 11.05.2018 ISSUED BY COCHIN DEVASWOM BOARD.** **ANNEXURE A3 TRUE COPY OF ORDER NO.H1.1324/17 DATED 15.12.2018 ISSUED BY COCHIN DEVASWOM BOARD.** - **ANNEXURE A4 TRUE COPY OF BUILDING PERMIT NO.C4BA(7652)/2019 DATED 14.01.2019 ISSUED BY CHERANELLOOR GRAMA PCNAHAYT.** - **ANNEXURE A5 TRUE COPY OF APPROVED PLAN OF PROPOSED BUILDING IN THE COCHIN DEVASWOM BOARD LAND.** - **ANNEXURE A6 TRUE COPY OF REPORT NO.R1.2847/18 DATED 23.02.2019 OF DEVASWOM ASSISTANT COMMISSIONER.** - **ANNEXURE A7 TRUE COPY OF TECHNIAL SANCTION OF MARAMATH WING OF COCHIN DEVASWOM BOARD DATED 25.04.2019.** **ANNEXURE A8 TRUE COPY OF ORDER NO.H1.1324/17 DATED 28.05.2019 ISSUED BY COCHIN DEVASWOM BOARD.** - **ANNEXURE A9 TRUE COPY OF NOTIFICATION PUBLISHED IN MATHRUBHOOMI DAILY DATED 12.06.2019.** - **ANNEXURE A10** - **TRUE COPY OF NOTIFICATION PUBLISHED IN DESHABHIMANI DAILY DATED 12.06.2019.** 12 D.B.P.No.37 of 2020 **ANNEXURE A11** **TRUE COPY OF ORDER NO.H1.1324/17 DATED 05.08.2019 ISSUED BY COCHIN DEVASWOM BOARD.** **ANNEXURE A12 TRUE COPY OF PROCEEDINGS NO.H1.1324/17 ISSUED BY COCHIN DEVASWOM BOARD.** **ANNEXURE A13** **TRUE COPY OF COMMUNICATION DATED 04.12.2021 ISSUED BY THE COMMISSIONER, COCHIN DEVASWOM BOARD.** **ANNEXURE A14** **TRUE COPY OF ORDER NO.A4-98/22 DATED 11.01.2022 ISSUED BY CHERANELLOOR GRAMA PANCHAYAT.**