Cochin Devaswom Board v. Thrissur Municipal Corporation & Kerala Water Authority and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 ``` ``` WP(C) NO.33293OF 2022 ``` ## **`PETITIONER:`** ``` COCHIN DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, COCHIN DEVSAWOM BOARD OFFICE, ROUND NORTH, THRISSUR, PIN - 680001 ``` ``` BY ADV K.P.SUDHEER ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE DISTRICT COLLECTOR THRISSUR, FIRST FLOOR, CIVIL STATION, CIVIL LINE ROAD, KALYAN NAGAR, AYYANTHOLE - THRISSUR DISTRICT, PIN - 680003`** - **`3 THRISSUR CORPORATION* (CORRECTED) OFFICE OF THE THRISSUR MUNICIPAL CORPORATION MUNICIPAL ROAD, KURUPPAM, THEKKINKADU MAIDAN, THRISSUR REPRESENTED BY ITS SECRETARY. * THE DESCRIPTION OF THE 3RD RESPONDENT IS CORRECTED AS " THRISSUR MUNICIPAL CORPORATION (AS PER ORDER DATED 10-11-2022 IN WP(C), PIN - 680001`** - **`4 KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM - 695001., PIN - 695001`** - **`5 THE EXECUTIVE ENGINEER KERALA WATER AUTHORITY, PH DIVISION, THRISSUR, PIN - 680001`** - **`6 ADDL.R6. THE DEPUTY DIRECTOR, KERALA STATE AUDIT DEPARTMENT, COCHIN DEVASWOM`** 2 W.P.(C)Nos.33293 & 19687 of 2022 ``` BOARD AUDIT, THRISSUR. (IS SUO MOTU IMPLEADED AS PER ORDER DATED 20-10-2022 IN WP(C) ``` ``` BY ADVS. SHRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION GEORGIE JOHNY ``` ``` SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2023, ALONG WITH WP(C).19687/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)Nos.33293 & 19687 of 2022 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 ``` ``` WP(C) NO. 19687OF 2022 ``` ``` PETITIONER: ``` ``` K.B.SUMODH, AGED 52 YEARS, S/O. LATE K.V. BALAN, BALA NIVAS, CIVIL LANE, AYYANTHOLE, THRISSUR DISTRICT-680003. BY ADVS. I.SHEELA DEVI PRADEEP BABU P.D. ``` ## **`RESPONDENTS:`** |**`1`**|**`STATE OF KERALA,`**| |---|---| ||**`REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT`**| ||**`SECRETARIAT, CENTRAL; STADIUM, MAHATMA GANDHI`**| ||**`ROAD, PALAYAM, THIRUVANANTHAPURAM, PIN-695001.`**| |**`2`**|**`THE DISTRICT COLLECTOR,`**| ||**`COLLECTORATE, THRISSUR, FIRST FLOOR, CIVIL`**| ||**`STATION, AYYANTHOLE, THRISSUR DISTRICT-680003.`**| |**`3`**|**`THE THRISSUR MUNICIPAL CORPORATION,`**| ||**`REPRESENTED BY ITS SECRETARY, THRISSUR`**| ||**`CORPORATION OFFICE, M.O. ROAD, THRISSUR-680001.`**| |**`4`**|**`COCHIN DEVASWOM BOARD, REPRESENTED BY ITS`**| ||**`SECRETARY, DEVASWOM HEAD QUARTERS, SWARAJ ROUND`**| ||**`WEST, THRISSUR, PIN-680001.`**| |**`5`**|**`THE SPECIAL COMMISSIONER,`**| ||**`COCHIN DEVASWOM BOARD, DEVASWOM HEAD QUARTERS,`**| ||**`SWARAJ ROUND WEST, THRISSUR, PIN-680001.`**| ||**`BY ADV SANTHOSH P.PODUVAL, SC THRISSUR`**| ||**`CORPORATION`**| ||**`ADV.S. RAJMOHAN, SR.GP`**| ||**`ADV.K.P. SUDHEER, CDB`**| ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2023, ALONG WITH WP(C).33293/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 W.P.(C)Nos.33293 & 19687 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** Since common issues are raised, these writ petitions are heard together and are being disposed of by this common judgment. 2. W.P.(C)No.33293 of 2022:- Cochin Devaswom Board, represented by its Secretary, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P36 letter dated 18.03.2022 issued by the 3[rd] respondent Thrissur Municipal Corporation. The petitioner has also sought for an appropriate writ declaring that the 3[rd] respondent Thrissur Municipal Corporation and the 4[th] respondent Kerala Water Authority are liable to pay annual rent in terms of Ext.P35 order dated 05.10.2021 issued by Cochin Devaswom Board; and a writ of mandamus commanding the said respondents to pay the amount demanded in the said order; an order directing respondents 3 and 4 to give vacant possession of the property covered by Ext.P35 order, if fair rent is not paid to Cochin Devaswom Board for the property covered by Ext.P3 agreement and more clearly described in Ex.P35 order. 5 W.P.(C)Nos.33293 & 19687 of 2022 2.1. On 20.10.2022, when this writ petition came up for admission, the learned Standing Counsel for Thrissur Municipal Corporation and also the learned Standing Counsel for Kerala Water Authority sought time to get instructions. The learned Senior Government Pleader sought time to get instructions from the additional 6[th] respondent Deputy Director, Keala State Audit Department. 2.2. The 3[rd] respondent has filed a counter affidavit dated 20.12.2022, opposing the reliefs sought for in this writ petition, which was followed by a statement dated 05.01.2023 filed by the learned Standing Counsel for Thrissur Municipal Corporation. 2.3. On 09.06.2023, when this writ petition came up for consideration, the learned Standing Counsel for Water Authority submitted that the 4[th] respondent is yet to be communicated with a copy of Ext.P35 order. The learned Standing Counsel for Cochin Devaswom Board was directed to make available for the perusal of this Court the files relating to Ext.P35 order. 3. W.P.(C)No.19687 of 2022:- The petitioner, who is a devotee of Vadakkumnathan Temple, Thrissur, has filed this writ 6 ## W.P.(C)Nos.33293 & 19687 of 2022 petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 4 and 5 to retrieve the property having an extent of 98 cents in Sy.No.1437 of Thrissur Village, which is owned by Vadakkumnathan Devaswom, from the 3[rd] respondent Thrissur Municipal Corporation. Going by the averments in the writ petition, Devaswom property having an extent of 98 cents in Sy. No.1437 of Thrissur Village was leased out to Thrisuur Municipal Corporation for 99 years by the Vadakkumnathan Devaswom. To the knowledge of the petitioner, the monthly rent was 70 paise and the period of lease had expired in the year 2012. The document marked as Ext.P1 is a copy of the relevant extract of Settlement Register in Sy. No.1437 of Thrissur Village and Ext.P2 is the relevant page of the Field Register. 3.1. On 23.06.2022, when this writ petition came up for admission, the learned Senior Government Pleader, the learned Standing Counsel for Thrissur Municipal Corporation and also the learned counsel for Cochin Devaswom Board sought time to get instructions and file statement/counter affidavit. 7 W.P.(C)Nos.33293 & 19687 of 2022 3.2. The 3[rd] respondent Thrissur Municipal Corporation has filed a counter affidavit dated 01.12.2022, opposing the reliefs sought for in this writ petition. 4. Heard the learned Standing Counsel for Cochin Devaswom Board for the petitioner in W.P.(C)No.33293 of 2022 and for respondents 4 and 5 in W.P.(C)No.19687 of 2022, the learned counsel for the petitioner in W.P.(C)No.19687 of 2022, the learned Standing Counsel for Thrissur Municipal Corporation for the 3[rd] respondent in both the writ petitions, the learned Standing Counsel for the Water Authority for the 4[th] respondent in W.P.(C)No.33293 of 2022 and the learned Senior Government Pleader for respondents 1 and 2 in both the writ petitions. 5. The issue raised in both the writ petitions relates to the Devaswom land of Vadakkumnathan Devaswom, which is under the management of the Cochin Devaswom Board. 6. The Travancore-Cochin Hindu Religious Institutions Act, 1950, was made for making provisions for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. 8 ## W.P.(C)Nos.33293 & 19687 of 2022 Chapter VIII of the Act deals with Cochin Devaswom Board. Section 62 of the Act deals with vesting of administration in the Board. As per sub-section (1) of Section 62, the administration of incorporated and unincorporated Devaswoms and Hindu Religious Institutions which were under the management of the Ruler of Cochin immediately prior to the first day of July, 1949 either under Section 50G of the Government of Cochin Act, XX of 1113, or under the provisions of the Cochin Hindu Religious Institutions Act, 1 of 1081, and all their properties and funds and of the estates and all institutions under the management of the Devaswom Department of Cochin, shall vest in the Cochin Devaswom Board. As per sub-section (2) of Section 62, notwithstanding the provisions contained in sub-section (1), the regulation and control of all rituals and ceremonies in the temple of Sree Poornathrayeesa at Trippunittura and in the Pazhayannur Bhagavathy temple at Pazhayannur shall continue to be exercised as hitherto by the Ruler of Cochin. 7. Section 62A of the Act, inserted by Act 14 of 1990, deals with Devaswom properties. As per Section 62A, 9 W.P.(C)Nos.33293 & 19687 of 2022 immovable properties vested in the Cochin Devaswom Board - under sub section (1) of Section 62 shall be dealt with as Devaswom Properties. The provisions of the Kerala Land Conservancy Act, 1957 shall be applicable to Devaswom lands as in the case of Government lands. As per Section 62B, all unassigned lands belonging to the Devaswom under the sole management of the Board shall be deemed to be the property of the Government for the purpose of the Kerala Land Conservancy Act, 1957 and all the provisions of that Act shall, so far as they are applicable, apply to such lands. 8. Section 68 of the Act provides for administration by the Board as a trustee. As per sub-section (1) of Section 68, subject to the provisions of the Act and of any other law for the time being in force, the Board shall be bound to administer the affairs of incorporated and unincorporated Devaswoms and institutions under its management in accordance with the objects of the trust, the established usage and customs of the institutions and to apply their funds and property for such purposes. As per sub-section (2) of Section 68, notwithstanding anything 10 ## W.P.(C)Nos.33293 & 19687 of 2022 contained in sub-section (1), the Board may, out of the funds under their control, set apart such sum as they deem fit for the educational uplift, cultural advancement and economic betterment of the Hindu community, after providing adequately for the purposes of the institutions which have to be met from the said fund. 9. Section 73A of the Act deals with duties of the Board. As per Section 73A, it shall be the duty of the Board to perform the functions enumerated in clauses (i) to (iv), namely, (i) to see that the regular traditional rites according to the practice prevalent in the religious institution are performed promptly; (ii) to monitor whether the administrative staff and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu Religious Institutions; (iv) to establish and maintain proper facilities in major temples for the devotees. 10. Section 74 of the Act deals with vesting of jurisdiction in the Board. As per Section 74, subject to the provisions of subsection (2) of Section 62, all rights, authority and jurisdiction 11 W.P.(C)Nos.33293 & 19687 of 2022 belonging to or exercised by the Ruler of Cochin prior to the 1[st] day of July, 1949 in respect of incorporated and unincorporated Devaswoms and Institutions shall vest in and be exercised by the Board in accordance with the provisions of the Act. Section 74 of the Act deals with superintendence and control by the Board. As per Section 64, the Board shall, subject to the provisions of Part II of the Act, exercise supervision and control over the acts and proceedings of all officers and servants of the Board and of the Devaswom Department. 11. Section 86 of the Act provides that alienation of property without sanction of Board void. As per sub-section (1) of Section 86, any exchange, sale, mortgage, pledge, lease or other alienation of the property of an institution executed or made or any debt contracted on its behalf, shall be void unless it is executed or made or contracted with the previous sanction of the Board or with the previous sanction of the Civil Court when in any suit, appeal or other proceedings in relation to the institution a Receiver has been appointed by the civil court for the management of the properties of the institution. As per the 12 ## W.P.(C)Nos.33293 & 19687 of 2022 proviso to sub-section (1) of Section 86, the court shall before granting or refusing such sanction give notice to the Board and hear the objections, if any, of the Board. As per sub-section (2) of Section 86, the Board may prefer an appeal to the High Court from the order passed by such court within thirty days of the order and such appeal shall be heard and disposed of by a Bench of not less than two Judges. As per sub-section (3) of Section 86, any person aggrieved by an order under sub-section (1) may appeal to the High Court within thirty days from the date of publication of the order in the Gazette and such appeal shall be heard and disposed of by a Bench of not less than two Judges. As per sub-section (4) of Section 86, every order of the Board under sub-section (1) shall be published in the Gazette. ## 12. 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 13 W.P.(C)Nos.33293 & 19687 of 2022 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 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 14 W.P.(C)Nos.33293 & 19687 of 2022 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 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 15 W.P.(C)Nos.33293 & 19687 of 2022 controversy before it.” (underline supplied) ## 13. 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 are required to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and 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 ‘fence 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. ## 14. In **Travancore Devaswom Board v. Mohanan Nair** 16 W.P.(C)Nos.33293 & 19687 of 2022 **[2013 (3) KLT 132]** a Division Bench of this Court noticed that in **A.A. Gopalakrishnan [(2007) 7 SCC 482]** 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. 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 High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High 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 Temple 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 these proceedings. 15. In **Abu K.S. v. Travancore Devaswom Board and others [2022 SCC OnLine Ker 1642]** [judgment dated 09.02.2022 in W.P.(C)No.2254 of 2022] a Division Bench of this 17 W.P.(C)Nos.33293 & 19687 of 2022 Court, in which both of us were parties, was dealing with a case in which Kuthaka right for running Aymanam Sri Narasimhaswami Auditorium (sadyalayam) constructed by the Travancore Devaswom Board was auctioned for a period of two years from 01.08.2019 to 31.07.2021, for Rs.2,41,000/-. The average monthly income generated from the said building constructed by the Travancore Devaswom Board by spending several lakhs of rupees was only Rs.10,000/-. Relying on the law laid down by the Apex Court in **M.V. Ramasubbiar [(1979) 2 SCC 65** ] this Court held that, while auctioning the right for running that sadyalayam, the Travancore Devaswom Board and its officials have to ensure that proper income to the Board is generated from the said building. In case of any default committed by the successful bidder in remitting the balance auction amount, electricity charges or any other statutory dues payable as per the tender conditions, the concerned Assistant Devaswom Commissioner and the Sub Group Officer have to take prompt action against such bidder and the said fact has to be promptly reported to the concerned officer in the Estate Division of the 18 W.P.(C)Nos.33293 & 19687 of 2022 Travancore Devaswom Board. 16. In **Abu K.S. [2022 SCC OnLine Ker 1642]** the writ petitioner, the successful bidder, remitted only 50% of the auction amount on 18.07.2019. Though he had defaulted payment of the balance amount of Rs.1,20,500/-, he was permitted to continue to occupy the sadyalayam, even beyond the period of auction, i.e., 31.07.2021. The concerned Assistant Commissioner and the Sub Group Officer have not taken any action against the successful bidder till the order of this Court dated 01.02.2022, whereby they were directed to take over possession of the sadyalayam forthwith, if found necessary with police assistance. In such circumstances, in the said decision, this Court deprecated in the strongest words the conduct of the concerned Assistant Commissioner and the Sub Group Officer and also the concerned officers in the Estate Division of the Travancore Devaswom Board in taking no action against the successful bidder, who was a defaulter. In the said decision, this Court found that, the concerned officers of the Travancore Devaswom Board have not shown reasonable diligence in the 19 W.P.(C)Nos.33293 & 19687 of 2022 manner of an ordinary prudent man of business to conduct his own affairs. Since, such irregularities in the conduct of auction for running auditoriums/sadyalayams in the temples under the management of the Travancore Devaswom Board cannot be permitted in future, this Court directed Registry to initiate _suo motu_ proceedings in the that matter. 17. In **Suneesh K.S. [ILR 2022 (1) Ker. 1091: 2022 SCC OnLine Ker 611]** a Division Bench of this Court, in which both of us were parties, was dealing with the Kuthaka right for sale of pooja items in Valliamkavu Devi Temple under the Management of the Travancore Devaswom Board. In the said decision, this Court held that, the properties of deities and temples are required to be protected and safeguarded from usurpation or encroachment in any manner. Persons entrusted with the duty to manage such properties should be vigilant to prevent such usurpation or encroachment. When such usurpation or encroachment is possible only with the passive or active collusion of the authorities concerned, such acts of ‘fence eating the crops’ should be dealt with sternly. The officers concerned 20 W.P.(C)Nos.33293 & 19687 of 2022 and also the 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 usurpation or encroachment, wrongful claims or misappropriation. Therefore, the concerned Assistant Devaswom Commissioner and the Administrative Officer shall take stern action against those who have defaulted payment of instalments in respect of the Kuthaka items, in violation of the tender conditions, if found necessary, after seeking police assistance. If any such request is received, it is the duty of the concerned Station House Officer to render necessary assistance to the concerned Assistant Devaswom Commissioner or the Administrative Officer, in order to protect and safeguard the properties of deities and temples from usurpation or encroachment in any manner. 18. In **V. Muraleedharan Nair and v. Travancore Devaswom Board and others** **[2015:KER:49207]** the Division Bench of this Court was dealing with a case in which the writ petitioners were occupiers of 21 W.P.(C)Nos.33293 & 19687 of 2022 different shop rooms in a shopping complex owned by the Travancore Devaswom Board. As per Exhibit P8 series of orders, they have been required to enhance the security deposit and the amounts to be paid for occupation. Before the Division Bench, the learned counsel for the petitioners relied on Ext.P7 judgment dated 07.10.2013 in W.P.(C)No.25586 of 2012. The Division Bench noticed that, the said judgment was issued essentially on consent of the Board and the concession made by the Board was only for renewal for a period upto 2012. Therefore, Exhibit P7 judgment is no answer for any demand that the Travancore Devaswom Board may make in relation to occupation charges for buildings or rooms belonging to and under its control. The Division noticed that, it cannot also ignore the pristine principle that all Devaswom lands vest in Deities and Travancore Devaswom Board are essentially trustees. Therefore, the action of trustees cannot be equated to that of mere landlords. The best interest of the Devaswoms under the control of the Devaswom Boards would be subserved only if income is generated. 19. In **T.Krishnakumar v. Cochin Devaswom Board** 22 W.P.(C)Nos.33293 & 19687 of 2022 **and others [2022 (5) KHC SN 8 : 2022 (4) KLT 798]** 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. 20. In **T.Krishnakumar [2022 (4) KLT 798]** , 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 23 W.P.(C)Nos.33293 & 19687 of 2022 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 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 24 W.P.(C)Nos.33293 & 19687 of 2022 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. 21. The learned Standing Counsel for Cochin Devaswom Board would point out that the proceedings in Ext.P35 was pursuant to the Audit objection in Ext.P21 of the Local Fund Audit. Paragraphs 3.54.12.3 and 3.54.12.4 read thus; “3.54.12.3 RENT OF LAND FOR WATER TANK NOT REVISED 95.567 Cents of land in Thekkinkadu Maidan owned by Cochin Devaswom Board was leased to Public Health Department for constructing an over Head water tank which is part of Thrissur Water Supply Scheme. In 1963, the Government by order G.O.(MS)472/63/HLD dated 24.06.1963, had agreed to fix the rent of leased out land at Rs.3,000/- per acre. Thus the rent for 95.567 cents of land was fixed at Rs.2,867.01. The rent of land for Water Tank was fixed 51 years ago. It is not 25 W.P.(C)Nos.33293 & 19687 of 2022 seen revised during the last 5 decades. On 08.01.2010, the Secretary of Cochin Devaswom Board had given a memo to the then Devaswom Manager of Wadakkumnathan Devaswom to take steps to revise the rent of land for Over Head Water Tank from Rs.2,867.01/- to Rs.10,000/- per year retrospectively with effect from 01.04.2002. Hence arrears of rent comes to Rs.1,19,400.39 /- from 01.04.2002 to 31.03.2014. But this arrear demand was not recorded in Part I of the Miscellaneous Demand Register. Besides this, the revised demand as per the memo dated 08.01.2010 of the Board secretary was not recorded in Part I of the Miscellaneous Demand Register. This is a serious laxity on the part of the Devaswom manager. No file or agreement is kept in the Devaswom office in connection with the leasing out of the land of Over Head Water Tank. The issue was raised in the Audit Report for the year 2010-11, 201112, and 2012-13. As a result of this, the rent upto 31.03.2014 (unrevised) was remitted Rs.54,804.51 as per chalan No.2435599 dated 02.12.2013 of SBT, Thrissur main branch and as per chalan No.521493 dated 29.01.2014 of SBT, Thrissur main. Still the rent of Over Head Water Tank is not revised. No fruitful action was taken to revise the rent. The file and agreement connected with this were not forth coming. Hence the Board file and agreement connected with the lease out have to be produced. In the absence of these, audit could not verify the conditions of lease agreement. Urgent steps may be taken to enhance the rent and to realise the arrears of rent from the Thrissur Corporation. 26 W.P.(C)Nos.33293 & 19687 of 2022 ## 3.54.12.4 CHILDREN'S PARK A children's park is working in the land of Wadakkumnathan Devaswom (Sy.No.1437) and it is run by Thrissur Corporation. An amount of Rs.19.05/- is seen fixed as yearly rent as per page 56 of Part I of Miscellaneous Demand Register. No file is kept in Devaswom connected with the rent collection of the park or the lease out of the land. The lease agreement is not produced for verification. Nobody in Devaswom know how many cents of land is given in lease and the period of leasing. The period of leasing of the land is said to be for 99 years. From which date and year, the lease deed came into force is also not known. As no file in connection with the lease is forthcoming from Devaswom it is suggested in audit that steps may be taken to trace out the file kept in the Board office in connection with this and the same may be produced for verification. Steps should be taken to fix the extent of land given in lease and to revise the present rent of the Children's Park.” 22. The challenge made in W.P.(C)No.33293 of 2022 filed by Cochin Devaswom Board is against Ext.P36 communication dated 18.03.2022 of the Secretary of the 3[rd] respondent Thrissur Municipal Corporation, which is one addressed to the Secretary of Cochin Devaswom Board, whereby the demand made by Cochin Devaswom Board for ground rent in terms of Ext.P35 order dated 05.10.2021 stands rejected. 27 W.P.(C)Nos.33293 & 19687 of 2022 23. The 3[rd] respondent Thrissur Municipal Corporation is in occupation of Devaswom land on the strength of Ext.P3 agreement. In Ext.P35 order passed by Cochin Devaswom Board, the Municipal Corporation has been directed to pay ground rent for the area occupied, at the rate specified in that order. If the Corporation is feeling aggrieved by the fixation of ground rent, it has to take recourse to legal remedies in accordance with law, instead of issuing a communication like Ext.P36 in W.P.(C)No.33293 of 2022. In that view of the matter, we find no reason to sustain Ext.P36 communication dated 18.03.2022 of the Secretary of Thrissur Municipal Corporation and the same is accordingly set aside. 24. On a query made by this Court, the learned Standing Counsel for Cochin Devaswom Board would submit that, though Ext.P35 order is one passed with notice to the 3[rd] respondent Thrissur Municipal Corporation, no such notice was given to the 4[th] respondent Kerala Water Authority. The learned Standing Counsel would submit that the Devaswom Board is prepared to conduct a hearing with notice to the 4[th] respondent Kerala Water 28 W.P.(C)Nos.33293 & 19687 of 2022 Authority and thereafter the Board shall take an appropriate decision in the matter. 25. In the result, W.P.(C)No.33293 of 2022 is disposed of by setting aside Ext.P36 communication dated 18.03.2022 of the Secretary of the 3[rd] respondent Thrissur Municipal Corporation and directing the Cochin Devaswom Board to fix the annual rent payable by the 4[th] respondent Kerala Water Authority in respect of the Devaswom land in occupation, with notice to the said respondent, after taking note of the law laid down by this Court in **T.Krishnakumar [2022 (4) KLT 798]** . It is for the Board to initiate appropriate proceedings against the 3[rd] respondent Thrissur Municipal Corporation for recovering the arrears of annual rent in terms of Ext.P35 order dated 05.10.2021. The Board shall take necessary steps to revise the annual rent for the Devaswom land in occupation of the 3[rd] respondent Municipal Corporation, after taking note of the law laid down by this Court in **T.Krishnakumar [2022 (4) KLT 798]** with a notice to the said respondent. In view of the directions contained hereinbefore in 29 W.P.(C)Nos.33293 & 19687 of 2022 W.P.(C)No.33293 of 2022 filed by the Cochin Devaswom Board, the W.P.(C)No.19687 of 2022 is disposed of leaving open the legal and factual contentions raised by the petitioner and without prejudice to the right of the petitioner to move this Court in a fresh writ petition, seeking appropriate reliefs, in case there is default on the part of Thrissur Municipal Corporation in remitting the annual rent of the Devaswom land in its possession, despite the demand made by the Cochin Devaswom Board. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE yd** 30 W.P.(C)Nos.33293 & 19687 of 2022 ## **`APPENDIX OF WP(C) 33293/2022`** |**`PETITIONER EXHIBITS`**|| |---|---| |**`EXHIBIT P1`**|**`TRUE COPY OF AGREEMENT DATED 27/04/1957`**| ||**`EXECUTED BETWEEN THE THEN SECRETARY OF COCHIN`**| ||**`DEVASWOM BOARD AND THE OFFICE BEARERS OF`**| ||**`TRICHUR CHILDREN'S PARK CONSTRUCTION COMMITTEE.`**| |**`EXHIBIT P2`**|**`TRUE COPY OF TRIPARTITE AGREEMENT DATED`**| ||**`11/08/1962 EXECUTED BETWEEN COCHIN DEVASWOM`**| ||**`BOARD, THE CHILDREN'S PARK COMMITTEE AND`**| ||**`TRICHUR MUNICIPALITY.`**| |**`EXHIBIT P3`**|**`TRUE COPY OF AGREEMENT DATED 27/09/1962`**| ||**`EXECUTED BETWEEN COCHIN DEVASWOM BOARD AND THE`**| ||**`ERSTWHILE TRICHUR MUNICIPALITY.`**| |**`EXHIBIT P4`**|**`TRUE COPY OF JUDGMENT DATED 26/03/2009 IN WRIT`**| ||**`PETITION (CIVIL) NO. 2480/2009 PASSED BY THIS`**| ||**`HONOURABLE COURT.`**| |**`EXHIBIT P 5`**|**`TRUE COPY OF G.O. (MS) NO. 472/63/HLD DATED`**| ||**`24.6.1963 ISSUED BY THE 1ST RESPONDENT.`**| |**`EXHIBIT P6`**|**`TRUE COPY OF LETTER NO. R. 3590/89 DATED`**| ||**`21.5.2013 ISSUED BY THE PETITIONER TO THE`**| ||**`PRINCIPAL SECRETARY, PUBLIC HEALTH DEPARTMENT,`**| ||**`SECRETARIAT, THIRUVANANTHAPURAM`**| |**`EXHIBIT P7`**|**`TRUE COPY OF NOTICE NO. R 3031/08 DATED`**| ||**`26/02/2011 ISSUED BY THE PETITIONER TO THE`**| ||**`SECRETARY, 3RD RESPONDENT CORPORATION.`**| |**`EXHIBIT P8`**|**`TRUE COPY OF NOTICE NO. R. 3031/08 DATED`**| ||**`4.7.2012 ISSUED BY THE PETITIONER TO THE 3RD`**| ||**`RESPONDENT.`**| |**`EXHIBIT P9`**|**`TRUE COPY OF NOTICE NO. R 3031/08 DATED`**| ||**`17/11/12 ISSUED BY THE PETITIONER TO THE 3RD`**| ||**`RESPONDENT CORPORATION.`**| |**`EXHIBIT P10`**|**`TRUE COPY OF NOTICE NO. 3031/08 DATED 12/02/13`**| ||**`ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT.`**| |**`EXHIBIT P11`**|**`TRUE COPY OF NOTICE NO. R. 3031/08 DATED`**| ||**`12/03/2013 ISSUED BY THE PETITIONER TO THE 3RD`**| ||**`RESPONDENT.`**| |**`EXHIBIT P12`**|**`TRUE COPY OF LETTER NO. R.3031/08 DATED`**| ||**`15/05/13 ISSUED BY THE PETITIONER TO THE 3RD`**| ||**`RESPONDENT CORPORATION.`**| |**`EXHIBIT P13`**|**`TRUE COPY OF NOTICE NO. E. 3031/08 DATED`**| ||**`08/07/2013 ISSUED BY THE PETITIONER TO THE 3RD`**| ||**`RESPONDENT CORPORATION.`**| |**`EXHIBIT P14`**|**`TRUE COPY OF LETTER NO. DW6/25983/13 DATED`**| ||**`3/12/13 ISSUED BY THE EXECUTIVE ENGINEER OF 3RD`**| ||**`RESPONDENT CORPORATION TO THE PETITIONER`**| |**`EXHIBIT P15`**|**`TRUE COPY OF LETTER DW6/25983/13 DATED`**| ||**`20/2/2014 ISSUED BY EXECUTIVE ENGINEER OF THE`**| 31 W.P.(C)Nos.33293 & 19687 of 2022 ||**`3RD RESPONDENT CORPORATION TO THE PETITIONER.`**| |---|---| |**`EXHIBIT P16`**|**`TRUE COPY OF LETTER NO. DW6/ 25983/13 DATED`**| ||**`21/04/15 ISSUED BY THE 3RD RESPONDENT`**| ||**`CORPORATION TO THE PETITIONER`**| |**`EXHIBIT P17`**|**`TRUE COPY OF LETTER NO. DW6/ 25983/13 DATED`**| ||**`13/11/2015 ISSUED BY THE 3RD RESPONDENT TO THE`**| ||**`PETITIONER.`**| |**`EXHIBIT P 18`**|**`TRUE COPY OF ORDER NO. R 3031/08 DATED 01/01/16`**| ||**`ISSUED BY THE PETITIONER.`**| |**`EXHIBIT P 19`**|**`TRUE COPY OF ORDER NO. R.3031/08 DATED 08/02/16`**| ||**`ISSUED BY THE PETITIONER.`**| |**`EXHIBIT P 20`**|**`TRUE COPY OF ORDER NO. R. 3031/08 DATED`**| ||**`29.2.2016 ISSUED BY THE PETITIONER.`**| |**`EXHIBIT P 21`**|**`TRUE COPY OF THE RELEVANT PORTION OF THE`**| ||**`OBJECTION OF THE LOCAL FUND AUDIT IN RESPECT OF`**| ||**`THE WATER TANK AND THE CHILDREN'S PARK.`**| |**`EXHIBIT P 22`**|**`TRUE COPY OF ORDER NO. R.3031/08 DATED 30/09/16`**| ||**`ISSUED BY THE SPECIAL DEVASWOM COMMISSIONER.`**| |**`EXHIBIT P 23`**|**`TRUE COPY OF LETTER NO. A. 169/2017 (2) DATED`**| ||**`28.7.2017 ISSUED BY THE SPECIAL TAHASILDAR,`**| ||**`COCHIN DEVASWOM BOARD TO THE PETITIONER.`**| |**`EXHIBIT P 24`**|**`TRUE COPY OF LETTER DATED 9/11/2017 ISSUED BY`**| ||**`THE SPECIAL TAHASILDAR TO THE PETITIONER AND`**| ||**`THE SKETCH ATTACHED TO THE SAID LETTER.`**| |**`EXHIBIT P 25`**|**`TRUE COPY OF ORDER NO. R. 3031/08 DATED`**| ||**`21/02/2018 ISSUED BY THE PETITIONER.`**| |**`EXHIBIT P 26`**|**`TRUE COPY OF LETTER NO. PW2/AMRUT/ 13395/18`**| ||**`DATED 16/07/2018 ISSUED BY THE 3RD RESPONDENT.`**| |**`EXHIBIT P 27`**|**`TRUE COPY OF LETTER NO. R. 3031/08 DATED`**| ||**`05.08.2019 ISSUED BY THE PETITIONER TO THE`**| ||**`EXECUTIVE ENGINEER OF 3RD RESPONDENT.`**| |**`EXHIBIT P 28`**|**`TRUE COPY OF ORDER NO. R1-834/16 DATED 24/08/19`**| ||**`ISSUED BY THE PETITIONER`**| |**`EXHIBIT P 29`**|**`TRUE COPY OF NOTICE NO. DW6 - 25983/13 DATED`**| ||**`10/10/2019 ISSUED BY THE MAYOR OF THE 3RD`**| ||**`RESPONDENT CORPORATION TO THE PETITIONER.`**| |**`EXHIBIT P 30`**|**`TRUE COPY OF COMMUNICATION NO. R-3031/08 DATED`**| ||**`28/04/2020 ISSUED BY THE PETITIONER TO THE`**| ||**`SPECIAL TAHASILDAR (LC UNIT).`**| |**`EXHIBIT P 31`**|**`TRUE COPY OF NOTE NO. R. 3031/08 DATED 5.8.2020`**| ||**`FORWARDED BY THE ASSISTANT COMMISSIONER`**| ||**`(ESTATE) TO THE ASSISTANT COMMISSIONER (AUDIT).`**| |**`EXHIBIT P 32`**|**`TRUE COPY OF THE NOTICE NO. R. 3031/08 DATED`**| ||**`30/10/2020 ISSUED BY THE PETITIONER TO 3RD`**| ||**`RESPONDENT.`**| |**`EXHIBIT P 33`**|**`TRUE COPY OF LETTER NO. B. 265/2020 DATED`**| ||**`05.10.2020 FROM SPECIAL TAHASILDAR, COCHIN`**| ||**`DEVASWOM BOARD TO THE PETITIONER.`**| |**`EXHIBIT P 34`**|**`TRUE COPY OF PROCEEDINGS OF THE LEARNED`**| 32 W.P.(C)Nos.33293 & 19687 of 2022 ``` OMBUDSMAN DATED 9.12.2020 IN DBAR NO. 7/2015. EXHIBIT P 35 TRUE COPY OF ORDER NO. R. 3031/08 DATED 5.10.2021 ISSUED BY THE PETITIONER. EXHIBIT P 36 TRUE COPY OF LETTER NO. DW6-25983/13 DATED 18.3.2022 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P 37 TRUE COPY OF ORDER NO. R. 3031/2008 DATED 13.6.2022 ISSUED BY THE PETITIONER ``` ``` 3RD RESPONDENT EXHIBITS Exhibit - R1(a) . A copy of Order No. G.O.(Rt) 42/2020/LSGD dated 4/1/20 3RD RESPONDENT ANNEXURE Annexure - R1(a) Photograph of different areas of the Nehru Park ``` 33 W.P.(C)Nos.33293 & 19687 of 2022 ## **`APPENDIX OF WP(C) 19687/2022`** |**`PETITIONER EXHIBITS`**|| |---|---| |**`Exhibit P1`**|**`TRUE COPY OF THE RELEVANT PAGE OF THE`**| ||**`SETTLEMENT REGISTER IN SY. NO.1437 OF THRISSUR`**| ||**`VILLAGE ISSUED BY SUPERINTENDENT, ARCHIVES,`**| ||**`ERNAKULAM ZONE, KOCHI-11.`**| |**`Exhibit P2`**|**`TRUE COPY OF THE RELEVANT PAGE OF THE FIELD`**| ||**`REGISTER IN SY. NO.1437 OF THRISSUR VILLAGE`**| ||**`ISSUED BY THE SUPERINTENDENT, ARCHIVES,`**| ||**`ERNAKULAM ZONE, KOCHI-11.`**| |**`Exhibit P3`**|**`TRUE COPY OF REPRESENTATION DATED 31/03/2022`**| ||**`SUBMITTED BY THE PETITIONER BEFORE THE`**| ||**`RESPONDENTS HEREIN.`**| |**`3RD RESPONDENT EXHIBITS`**|| |**`Exhibit R3(a)`**|**`A copy of tripartite agreement dated 11/8/1962`**| |**`Exhibit - R3(b)`**|**`A copy of the agreement dated 27/9/1962`**| ||**`executed between the Commissioner, Thrissur`**| ||**`Municipality and Secretary, Cochin Devaswom`**| ||**`Board`**|