DBP No. 16 of 2022 - In the matter of Travancore Devaswom Board – Sree Chettikulangara Temple, Mavelikkara – Suo Motu Proceedings Initiated Based on a Complaint dated 07.11.2021

## **`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 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 ``` ## **`DBP NO. 16 OF 2022`** ``` IN THE MATTER OF TRAVANCORE DEVASWOM BOARD – SREE ``` ``` CHETTIKULANGARA TEMPLE, MAVELIKKARA – MATTER PERTAINING TO MANAGEMENT OF TRAVANCORE DEVASWOM BOARD – SUO MOTU PROCEEDINGS INITIATED BASED ON A COMPLAINT DATED 07.11.2021 - REG. ``` ``` ------------ ``` ## **`PETITIONER/COMPLAINANT:`** ``` SIVAPALAN PILLAI, KOLIDATHU KIZHAKKATHIL BHAVANI MANDIRAM, KAITHA THEKKU, CHETTIKULANGARA. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.`** - **`2 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.`** - **`3 THE SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT INSTITUTIONS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.`** - **`4 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM - 695003.`** - **`5 ASSISTANT DEVASWOM COMMISSIONER MAVELIKKARA GROUP, MAVELIKKARA - 690101.`** - **`6 ADDL R6: THE ADMINISTRATIVE OFFICER SREE CHETTIKULANGARA TEMPLE, CHETTIKULANGARA, MAVELIKARA, ALAPPUZHA - 690106 * IS SUO MOTU IMPLEADED AS ADDITIONAL 6TH RESPONDENT VIDE ORDER DATED 20.05.2022 IN DBP 16/2022`** 2 DBP No.16 of 2022 ## **`BY ADV GOVERNMENT PLEADER`** ``` SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ; SRI G.BIJU- STANDING COUNSEL-TRAVANCORE DEVASWOM BOARD ; SRI P.RAMACHANDRAN - AMICUS CURIAE ``` ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 DBP No.16 of 2022 ## **ORDER** ## **Anil K. Narendran, J.** This DBP is registered _suo motu_ based on a complaint dated 07.11.2021 submitted by the complainant herein, which contains various allegations in respect of Chettikkulangara Bhagavathy Temple, which is under the management of the Travancore Devaswom Board. 2. On 20.05.2022, when this DBP came up for consideration, Registry was directed to place the matter before the learned Ombudsman, for enquiry and report. 3. Heard the learned Senior Government Pleader for respondents 1 to 3, the learned Standing Counsel for Travancore Devaswom Board for respondents 4 to 6 and also the learned Amicus Curiae for the learned Ombudsman. 4. After conducting an enquiry, the learned Ombudsman has filed TDB Report No.44 of 2022, wherein it is stated that the Board has referred the matter to the Chief Vigilance and Security Officer for enquiry and report. The Chief Vigilance and Security Officer submitted a report dated 28.09.2022, which was enclosed along with the reply filed by the Board dated 30.09.2022 before the learned Ombudsman. In the complaint dated 07.11.2021, it is alleged that the distribution of “Nivedya-Payasam” in Chettikulangara Devaswom is not proper and the Payasam is being filled in plastic containers before cooling. 4 DBP No.16 of 2022 The ingredients used for the Payasam are not clean and hence Payasam contains stones, etc. In addition to this, set mundu offered to the Deity by the employees are being taken by the employees. Gold received as offering to the Deity is kept in the custody of the Melsanthi. 5. In the report of the learned Ombudsman it is stated that the Vigilance and Security Officer, after conducting an enquiry, found that Payasam in Chettikkulangara Bhagavathy Temple is prepared using reasonably good materials and packing is done only after the Payasam is allowed to cool. Guruthi Payasam is also distributed at night to the devotees after Guruthi. The devotees who could not collect Guruthi Payasam during night are given Payasam on the next day. During Covid-19 pandemic season, the set mundu offered by the devotees were kept by the Administrative Officer and they were auctioned on Tuesdays, Fridays, and Sundays. The gold ornaments received are adorned on the Deity and thereafter, it is put in the Vanchi by the devotee himself. The other allegations in the complaint dated 07.11.2021 are found against the complainant. The recommendation made by the Vigilance and Security Officer are that instead of plastic container, paper container can be used as in the case of Ambalappuzha Payasam and the set mundu kept in the Devaswom may be sold in bulk after consultation with the concerned 5 DBP No.16 of 2022 Assistant Devaswom Commissioner and the newly obtained set mundu may be auctioned. The gold ornaments like Thali, etc., should be deposited in the Vanchi and a board shall be exhibited for the information of the devotees. It is also recommended that the ‘vilakku’ (lamps) received as offering may also be sold in public auction without delay. 6. In the report, the learned Ombudsman noticed that there is no Temple Advisory Committee in Chettikkulangara Bhagavathy Temple. The Board in the reply dated 30.09.2022 filed before the learned Ombudsman has stated that the Devaswom Commissioner has already been instructed to take necessary action based on the recommendations made in the report dated 28.09.2022 of the Chief Vigilance and Security Officer. The learned Ombudsman has also noticed that in the enquiry conducted by the Chief Vigilance and Security Officer, the complainant has stated that he has not made any such complaint and that the complaint dated 07.11.2021 is a fake complaint submitted in his name. Before the learned Ombudsman a separate notice was issued to the complainant to ascertain whether the complaint dated 07.11.2021 is one made by him. In the report of the learned Ombudsman it is stated that though such a notice was issued on 06.10.2022, none appeared for the complainant and the complainant has not chosen to submit a reply. 6 DBP No.16 of 2022 7. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with vesting of administration in Board. As per Section 3, the administration of incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds as well as the fund constituted under the Devaswom Proclamation, 1097 M.E. and the surplus fund constituted under the Devaswom (Amendment) Proclamation, 1122 M.E. which were under the management of the Ruler of Travancore prior to the first day of July, 1949, except the Sree Padmanabhaswamy Temple, Sree Pandaravaka properties and all other properties and funds of the said temple, and the management of all institutions which were under the Devaswom Department shall vest in the Travancore Devaswom Board. 8. Section 4 of the Act deals with constitution of the Travancore Devaswom Board. As per sub-section (2) of Section 4, the Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on 7 DBP No.16 of 2022 behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board. 9. Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub-section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per sub-section (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their jurisdiction. 10. Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with duties of the Board. As per Section 15A, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials 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; 8 DBP No.16 of 2022 (iv) to establish and maintain proper facilities in the temples for the devotees. Section 16 of the Act deals with supervision and control by the Board. As per Section 16, the Board shall, subject to the provisions of Part I 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 31 of the Act deals with management of Devaswoms. As per Section 31, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. 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 the 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; 9 DBP No.16 of 2022 “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 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 10 DBP No.16 of 2022 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.” (underline supplied) 13. In **Travancore Devaswom Board v. Mohanan Nair** **[(2013) 3 KLT 132]** a Division Bench of this Court noticed that in **A.A. Gopalakrishnan v. Cochin Devaswom Board [(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 11 DBP No.16 of 2022 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. Having considered the report of the learned Ombudsman in the light of the statutory provisions referred to hereinbefore and the law laid down in the decisions referred to supra, this DBP is disposed of by directing the 4[th] respondent Travancore Devaswom Board to take necessary steps to ensure, through the 5[th] respondent Assistant Devaswom Commissioner, Mavelikkara Group and the 6[th] respondent Administrative Officer, Chettikkulangara Bhagavathy Temple, that “Nivedya-Payasam” in Chettikkulangara Devaswom is prepared maintaining proper standards and the packing of Payasam is done only after it is allowed to cool. The Board shall consider the recommendation made by the Vigilance and Security Officer that paper containers, instead of plastic containers can be used for distributing “Nivedya-Payasam”. Regarding deposit of gold ornaments like Thali in the kanikkavanchi, after adorning the same on the Deity, and also disposal of set mundu and vilakku received as offerings from the devotees, the Board shall evolve a proper method based on the recommendations made by the Vigilance and Security Officer. A 12 DBP No.16 of 2022 decision in this regard shall be taken as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this order. In discharge of the statutory duty under Section 15A of the Act, the Board shall monitor whether the administrative officials and employees and also the employees connected with religious rites in Chettikkulangara Devaswom are functioning properly. In those aspects, the Board and its officials shall act with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. Sd/- ## **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd**