DBP 65 of 2022 — In the matter of Cochin Devaswom Board – Ernakulam Siva Temple – Matter pertaining to the pathetic condition of Ernakulathappan Ground; Suo Motu proceedings initiated based on a complaint

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE N. NAGARESH ``` ``` WEDNESDAY, THE 24[TH] DAY OF MAY 2023 / 3RD JYAISHTA, 1945 ``` ``` DBP NO.65OF 2022 ``` ``` IN THE MATTER OF COCHIN DEVASWOM BOARD - ERNAKULAM SIVA TEMPLE - MATTER PERTAINING TO THE PATHETIC CONDITION OF ERNAKULATHAPPAN GROUND-SUO MOTU PROCEEDINGS INITIATED BASED ON A COMPLAINT - REG. ``` ``` ------- ``` ``` PETITIONER: ``` ## **`SUO MOTU`** ## **`RESPONDENTS:`** - **`1 COCHIN DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, ROUND NORTH, THRISSUR - 680001.`** - **`2 ASSISTANT COMMISSIONER, COCHIN DEVASWOM BOARD, THRIPUNITHURA GROUP, THRIPUNITHURA - 682301.`** - **`3 DEVASWOM OFFICER, ERNAKULAM SIVA TEMPLE, ERNAKULAM - 682011.`** - **`*ADDL.R4 ERNAKULAM KSHETHRA KSHEMA SAMITHI`** - **`ERNAKULAM SIVA TEMPLE, DURBAR HALL ROAD, MARINE DRIVE, ERNAKULAM, KERALA, PIN - 682 011`** - **`*IS SUO MOTU IMPLEADED AS ADDITIONAL 4TH RESPONDENT VIDE ORDER DATED 29.11.2022 IN DBP 65 OF 2022`** 2 DBP 65 of 2022 ``` BY ADV.SRI.K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD ``` ``` SRI.S.RAJMOHAN, SR.GOVT.PLEADER ``` ``` ADV.SRI.AJITH VISWANATHAN FOR ADDL.R4 ``` ``` SRI.PRAVEEN H., ADV. COMMISSIONER ``` ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 DBP 65 of 2022 ## **ORDER** ## Anil K. Narendran, J. This DBP is registered _suo motu_ based on the proceedings dated 25.10.2022. The pathetic condition in which Ernakulathappan Ground in Ernakulam Siva Temple, is being maintained, was brought to the notice of this Court by a Former Judge of this Court. 2. On 27.10.2022, when this DBP came up for consideration, this Court appointed Adv.Praveen H. (P-783, K/736/2011), a lawyer of this Court, as the Advocate Commissioner to conduct an inspection of Ernakulathappan Ground on that itself and submit a report before this Court by 01.11.2022. 3. On 01.11.2022, when this DBP came up for consideration, the learned Advocate Commissioner submitted that he had conducted an inspection and submitted a report dated 27.10.2022. By the order dated 01.11.2022, the learned Standing Counsel for Cochin Devaswom Board was directed to get an explanation from the 2[nd] respondent Assistant Commissioner and also the 3[rd] respondent Devaswom Officer, with specific reference to the photographs, which form part of the report of the learned Advocate Commissioner, for not properly maintaining Ernakulathappan ground. 4. On 08.11.2022 when this DBP came up for consideration, the report of the learned Advocate Commissioner was placed on record, producing therewith Exts.C1 to C16 photographs. In the order dated 08.11.2022, this Court re-produced Annexures C3, C4, C5 and C8 4 DBP 65 of 2022 photographs produced by the learned Advocate Commissioner, which are reproduced hereunder; **==> picture [185 x 184] intentionally omitted <==** **==> picture [196 x 178] intentionally omitted <==** **==> picture [191 x 201] intentionally omitted <==** **==> picture [195 x 194] intentionally omitted <==** 5. By the order dated 08.11.2022, this Court directed the 3[rd] respondent Devaswom Officer to ensure that Ernakulathappan Ground is maintained properly, after clearing waste materials on the ground, within one week from the date of receipt of a copy of that order. The 3[rd] respondent was also directed to ensure that any waste materials on Ernakulathappan Ground in connection with ‘Flower-show’ and ‘Grihopakarana Mela’, are cleared by the organisations of that show/mela. The learned Advocate Commissioner was directed to conduct another inspection of 5 DBP 65 of 2022 Ernakulathappan Ground on 21.11.2022, to verify whether the directions contained in the order dated 08.11.2022 are complied with. 6. After conducting an inspection on 21.11.2022, the learned Advocate commissioner submitted a report dated 22.11.2022 producing therewith Annexures C17 to C28 photographs. 7. By the order dated 29.11.2022, Ernakulam Kshethra Kshema Samithi, was _suo motu_ impleaded as the additional 4[th] respondent. On 13.12.2022, the 4[th] respondent entered appearance through counsel. By the order dated 22.12.2022 the 3[rd] respondent Devaswom Officer and also the 4[th] respondent the Kshethra Kshema Samithi were directed to ensure that Ernakulathappan ground is maintained properly after cleaning waste materials lying on the ground. 8. Thereafter, this DBP was listed along with DBP No.41 of 2022, which was registered _suo motu_ as per the order dated 29.07.2022 in DBP No.31 of 2022 relating to the conduct of trade fares in Ernakulathappan ground by the 3[rd] respondent Kshethra Kshema Samithi, which has been grated the status of Temple Advisory Committee vide order dated 23.01.2016 of the cochin Devaswom Board, with the approval of this Court dated 18.05.2016 in DBA No.4 of 2016. In DBP No.41 of 2022 this Court passed detailed order on 24.03.2023, which was followed by the order dated 30.03.2023 and 6 DBP 65 of 2022 12.04.2023. In the order dated 12.04.2023 in DBP No.41 of 2022 it was ordered that Ernakulathappan ground shall be maintained as such, without any permanent construction whatsoever. The said ground shall be maintained clean and tidy. I the maintenance and management of Ernakulathappan ground, hall, koothambalam, etc., the Cochin Devaswom Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. Any default on the part of the Board and its officials in this regard would certainly amount to breach of trust. 9. Though, by the order dated 12.04.2023, this DBP along with DBP No.41 of 2022 was ordered to be listed on 02.06.2023, by the order dated 23.05.2023 in W.P.(C)No.15798 of 2023, Registry was directed to list this matter today, along with that writ petition and also DBP No.41 of 2022. In W.P.(C)No.15798 of 2023 and DBP No.41 of 2022, we have passed separate orders. 10. In the order dated 22.12.2022, this Court directed the 3[rd] respondent Devaswom Officer and the 4[th] respondent Kshethra Kshema Samithi to ensure that Ernakulathappan ground is maintained properly after cleaning the waste materials lying on the ground. The said order was followed by the order dated 12.04.2023 in DBP No.41 of 2022 to maintain that ground clean and tidy. Two photographs showing the condition of Ernakulathappan ground on 7 DBP 65 of 2022 ## 05.05.2026 are re-produced hereunder; **==> picture [161 x 214] intentionally omitted <==** **==> picture [223 x 168] intentionally omitted <==** Two photographs of the cleaning activities undertaken at Ernakulathappan ground on 06.05.2023 are re-produced hereunder; **==> picture [201 x 113] intentionally omitted <==** **==> picture [196 x 111] intentionally omitted <==** 11. Heard the learned Standing Counsel for Cochin Devaswom Board, the learned Senior Government Pleader and also the learned Senior Counsel for the 3[rd] respondent Kshethra kshema Samithi. 12. 'Deva' means God and 'swom' means ownership in Sanskrit and the term 'Devaswom' denotes the property of God in common parlance. [see: **Prayar Gopalakrishnan and another v. State of Kerala and others** - **2018 (1) KHC 536].** 8 DBP 65 of 2022 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 ‘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. 14. 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]** 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 9 DBP 65 of 2022 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. 15. 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. 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 10 DBP 65 of 2022 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. 16. Section 62A of the Act, inserted by Act 14 of 1990, deals with Devaswom properties. As per Section 62A, all 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. 17. 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 11 DBP 65 of 2022 funds and property for such purposes. As per sub-section (2) of Section 68, notwithstanding anything 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. 18. 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. ## 19. 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 12 DBP 65 of 2022 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. 20. Section 76A of the Travancore-Cochin Hindu Religious Institutions Act deals with formation of Temple Advisory Committee in temples under the management of the Cochin Devaswom Board. As per sub-section (1) of Section 76A, a committee for each temple in the name “Temple Advisory Committee” (name of the temple) may be constituted in order to ensure participation of Hindu devotees. As per sub-section (2) of Section 76A, the Temple Advisory Committee constituted under sub-section (1) may be approved by the Board. As per sub-section (3) of Section 76A, the composition of a Temple Advisory Committee under sub-section (1) shall be such as may be prescribed by rules made by the Board, not inconsistent with any practice, prevailing, if any. In terms of the provisions under subsection (3) of Section 76A, the Cochin Devaswom Board has framed the rules (bye-laws) regarding formation of Temple Advisory Committees in temples under its management. ## 21. In **Major Vellayani Devi Temple Advisory Committee** ## **v. State of Kerala [2023 (2) KHC 290]** , in the context of Section 31A of the Travancore-Cochin Hindu Religious Institutions Act and the 13 DBP 65 of 2022 Rules framed by the Travancore Devaswom Board under sub-section (3) of Section 31A for the formation of Temple Advisory Committees in temples under its management, which are _pari materia_ to the provisions under Section 76A of the Act and the Rules framed by the Cochin Devaswom Board under sub-section (3) of Section 76A for the formation of Temple Advisory Committees in temples under its management, a Division Bench of this Court, in which both of us were parties, held that the Travancore Devaswom Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in Vellayani Bhadrakali Devi Temple are performed promptly; and to establish and maintain proper facilities in Vellayani Bhadrakali Devi Temple for the devotees. Subject to the provisions of Part I of the Act and the Rules made thereunder, the Travancore Devaswom Board shall manage the properties and affairs of Major Vellayani Devaswom and arrange for the conduct of the daily worship and ceremonies and of festivals in Vellayani Bhadrakali Devi Temple according to the usage. The Temple Advisory Committee of a temple under the management of the Travancore Devaswom Board, which consists of devotees who fall under the eligibility criteria prescribed in clause (3) of the Rules framed under sub-section (3) of Section 31A is duty bound to render necessary assistance to the Board and its 14 DBP 65 of 2022 ## officials for the smooth functioning of the temple activities and ## festivals according to the usage. 22. In view of the law laid down in the decisions referred to supra, the Cochin Devaswom Board and its officials have to protect Ernakulathappan ground, which is a Devaswom land and maintain the said ground clean and tidy. Therefore, the 3[rd] respondent Devaswom Officer has to ensure that there is periodical removal of waste materials from Ernakulathappan ground, at regular intervals. The Temple Advisory Committee constituted under Section 76A of the Travancore-Cochin Hindu Religious Institutions Act has to render necessary assistance to the 1[st] respondent Cochin Devaswom Board and the 3[rd] respondent Devaswom Officer in protecting the said ground without any encroachment whatsoever and maintaining the same clean and tidy. In the result, this DBP is disposed of by directing the 3[rd] respondent Devaswom Officer to take necessary steps to ensure that Ernakulathappan ground, which is a Devaswom land, is protected appropriately without any encroachment whatsoever and the said ground is maintained clean and tidy, by removing waste materials from that said ground, at regular intervals. The permissions granted by the Cochin Devaswom Board for conducting Onam/Christmas/trade fair shall contain specific provision for 15 DBP 65 of 2022 periodical removal of waste materials from Ernakulathappan ground, during the fair, and return of security deposit by the successful bidder for conducting such fairs shall be made only after ensuring removal of entire waste materials from that ground. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **N. NAGARESH, JUDGE** bkn/-