DBP No. 48 of 2022 IN THE MATTER OF TRAVANCORE DEVASWOM BOARD – REGARDING THE NON-USE OF THE AUDITORIUM OF SREE KARTHIYAYINI DEVI TEMPLE, CHERTHALA – SUO MOTU PROCEEDINGS INITIATED AS DIRECTED IN ORDER DATED 26.08.2022 IN W.P.(C)NO.31630 OF 2013 - REG.

## **`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 9[TH] DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944 ``` ## **`DBP NO. 48 OF 2022`** ``` IN THE MATTER OF TRAVANCORE DEVASWOM BOARD – REGARDING THE NON- USE OF THE AUDITORIUM OF SREE KARTHIYAYINI DEVI TEMPLE, CHERTHALA – SUO MOTU PROCEEDINGS INITIATED AS DIRECTED IN ORDER DATED 26.08.2022 IN W.P.(C)NO.31630 OF 2013 - REG. ``` ``` ------------ ``` ## **`PETITIONER:`** ## **`SUO MOTU`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM-695001`** - **`2 TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHENCODE, KOWDIAR POST, THIRUVANANTHAPURAM 695 003.`** - **`3 THE JOINT DIRECTOR KERALA STATE AUDIT DEPARTMENT, TRAVANCORE DEVASWOM BOARD AUDIT NANTHANCODE, THIRUVANANTHAPURAM - 695003`** - **`4 ASSISTANT DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, AMBALAPPUZHA GROUP, ALAPPUZHA - 688561`** - **`5 SUB-GROUP OFFICER, KARTHIYAYINI DEVI TEMPLE, CHERTHALA`** - **`6 THE EXECUTIVE ENGINEER, TRAVANCORE DEVASWOM BOARD, OFFICE OF THE EXECUTIVE ENGINEER MAVELIKKARA DIVISION - 690101`** - **`7 ADDL R7- THE DEPUTY DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, HARIPAD - 690 514`** - **`8 ADDL R8- THE CHIEF ENGINEER TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD HEAD`** 2 DBP No.48 of 2022 ``` QUARTERS, NANTHANCODE, KOWDIAR P.O., PIN - 695 003 *ARE SUO MOTU IMPLEADED AS ADDITIONAL RESPONDENTS 7 AND 8 VIDE ORDER DATED 29/08/2022 IN DBP.NO.48/2022 BY ADV SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD SRI S.RAJMOHAN- SR GOVERNMENT PLEADER ; SRI D.ANIL KUMAR- ADVOCATE COMMISSIONER , SRI P.RAMACHANDRAN- AMICUS CURIAE ``` ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 09.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 DBP No.48 of 2022 ## **ORDER** ## **Anil K. Narendran, J.** This DBP is registered _suo motu_ based on the order of this Court dated 26.08.2022 in W.P.(C) No.31630 of 2013, which relates to the demand for property tax by Cherthala Municipality in respect of Building No.208A in Ward No.14 of Cherthala Municipality. The said building was constructed as auditorium of Sree Karthiyayini Devi Temple, Cherthala, a temple under the management of the 2[nd] respondent Travancore Devaswom Board. 2. On 26.08.2022, when W.P.(C)No.31630 of 2013 came up for consideration, the learned Standing Counsel for Travancore Devaswom Board has made available for the perusal of this Court few photographs of the said building. The learned Standing Counsel submitted that the building is not being used as auditorium for quite long. The learned Standing Counsel could not offer proper explanation for non-use of the building constructed as an auditorium of Sree Karthiyayini Temple. Four photographs of the said building which were extracted in paragraph 3 of the order dated 26.08.2022 in W.P.(C)No.31630 of 2013 are re-produced hereunder: **==> picture [213 x 210] intentionally omitted <==** 4 DBP No.48 of 2022 **==> picture [275 x 295] intentionally omitted <==** 3. By the order dated 26.08.2022 in W.P.(C)No.21630 of 2013, Registry was directed to initiate _suo motu_ proceedings regarding the non-use of the auditorium of Sree Karthiyayini Devi Temple, Cherthala and list the matter before the Devaswom Bench on 29.08.2022 at 2.00 p.m. 4. On 11.10.2022, when this DBP came up for consideration, having considered the materials on record, this Court appointed Adv.D.Anilkumar, a lawyer of this Court, as an Advocate Commissioner to conduct inspection of the building in the premises of Sree Karthiyayini Devi Temple, Cherthala and to submit a report as to its present condition. The concerned officers of the Travancore Devaswom Board were directed to render necessary assistance to the learned Advocate Commissioner at the time of inspection. The remuneration of the learned Advocate Commissioner was fixed as Rs.25,000/-, which was directed to be paid by the 2[nd] respondent Travancore Devaswom 5 DBP No.48 of 2022 Board. In the report, the learned Advocate Commissioner was directed to state as to whether the building can be put to use for any purpose, without spending much amount. The report of the learned Advocate Commissioner was directed to be placed on record within three weeks. 5. On 10.11.2022, when this DBP came up for consideration, the learned Advocate Commissioner filed a report dated 07.11.2022. Sri.D.Anil Kumar, the learned Advocate Commissioner, expressed his desire to discharge the duty of the Advocate Commissioner as an offering to the Deity of Sree Karthiyayini Devi Temple, Cherthala, without accepting the remuneration. The learned Advocate Commissioner has also returned Cheque No.244174 dated 25.10.2022 drawn on Dhanalakshmi Bank, Alappuzha Branch to Adv.Sri.G.Biju, the learned Standing Counsel for Travancore Devaswom Board. The learned Standing Counsel submitted that he shall return the cheque for Rs.25,000/- to the concerned officer in the Board along with a certified copy of this order, for cancellation. 6. On 30.11.2022, when this DBP came up for consideration, the learned Standing Counsel for Travancore Devaswom Board submitted that based on the report submitted by the 5[th] respondent Sub Group Officer, the 4[th] respondent Assistant Devaswom Commissioner has instructed the concerned Assistant Engineer to submit a report on the minimum repairs required to put to use the auditorium of Sree Karthiyayini Devi Temple, Cherthala. The concerned Assistant Engineer is yet to submit a report before the 4[th] respondent. 7. Today, when this DBP is taken up for consideration, the learned 6 DBP No.48 of 2022 Standing Counsel for Travancore Devaswom Board would submit that the 5[th] respondent Sub Group Officer has suggested certain repair works for the Sadhyalayam in his report dated 25.01.2023 submitted before the 4[th] respondent Assistant Devaswom Commissioner. Based on that report, the Assistant Devaswom Commissioner has already forwarded a report dated 27.01.2023 to the concerned Assistant Engineer, who has to place his report before the 6[th] respondent Executive Engineer. 8. Heard the learned Senior Government Pleader for the 1[st] respondent, the learned Standing Counsel for Travancore Devaswom Board for respondents 2 to 8 and also the learned Advocate Commissioner, who has submitted a report dated 07.11.2022. 9. In the report dated 07.11.2022 of the learned Advocate Commissioner, a rough sketch of the auditorium of Sree Karthiyayini Devi Temple, Cherthala is furnished. The auditorium is situated on the southern side of the temple. It is adjacent to the temple compound. There is a compound wall separating the two properties. The auditorium is having a separate entrance from Alappuzha-Cherthala road. Therefore, it can be put to use, without causing any hindrance to the property where the temple is situated. The auditorium is also having a door which is opening to the temple property. The auditorium is having a porch, a hall, an elevated stage, two anterooms and some vacant space at the end. The fact that none has bothered to maintain the auditorium properly is evident from the report of the learned Advocate Commissioner. The auditorium does not have a separate dining hall. For constructing a dining hall-cum-kitchen considerable amount 7 DBP No.48 of 2022 (Rs.46,00,000/-) has to be spent as per Annexure A3 rough estimate prepared by the concerned Engineer. In addition to the said amount, considerable amount (Rs.26,00,000/-) will have to be spent for repairing the existing structure. In the report the learned Advocate Commissioner has pointed out that after spending that much amount for constructing a dining hall-cum-kitchen, the building may not give a proper return on that investment. The learned Advocate Commissioner was informed that the building was let out on daily rent for conducting exhibitions, etc. in the year 2004, 2005, etc. Therefore, it is suggested in the report that that could be done even now, after carrying out necessary repairs of the building, which will bring in some income without huge amount on the existing structure. Another option is to convert the hall into shop rooms and let out the same on monthly rent. 10. 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 in 8 DBP No.48 of 2022 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. 11. In **Abu K.S. v. Travancore Devaswom Board [2022 SCC OnLine Ker 1642]** [judgment dated 09.02.2022 in W.P.(C) No. 2254 of 2022] a Division Bench of this 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 v. Manicka Narasimachara [(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 Travancore Devaswom Board. ## 12. In **T. Krishnakumar v. Cochin Devaswom Board [2022 SCC** 9 DBP No.48 of 2022 **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 [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. 13. The report of the 4[th] respondent Assistant Devaswom Commissioner on the repair works suggested to the auditorium of Sree Karthiyayini Devi Temple, Cherthala is pending before the Assistant Engineer, Ambalapuzha Section, who has to place it before the 6[th] respondent Executive Engineer, Mavelikkara Division. The 6[th] respondent has to forward the same to the 8[th] respondent Chief Engineer and based on the report of the said respondent, the Board has to take an appropriate decision in the matter. In the above circumstances, this DBP is disposed of by directing the 2[nd] respondent Board/the 8[th] respondent Chief Engineer to take an appropriate decision on the minimum repair works required to put the building in question, which is situated in the premises of Sree Karthiyayini Devi Temple, Cherthala can be put to use, generating proper income from that building. While taking 10 ## DBP No.48 of 2022 such a decision, the Board shall take note of the law laid down by this Court in **Abu K.S. [2022 SCC OnLine Ker 1642]** and **T. Krishnakumar [2022 SCC OnLine Ker 3700]** in which this Court relied on the law laid down by the Apex Court in **M.V. Ramasubbiar [(1979) 2 SCC 65]** . Sd/- ## **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd**