DBP No. 81 of 2022 (In the matter of Travancore Devaswom Board - TDB Proceedings Initiated - Reg.)

# **`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 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 ``` ``` DBP NO. 81 OF 2022 ``` ``` IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - TDB PROCEEDINGS INITIATED - REG. ``` ``` ------------ ``` ``` TDB REPORT NO. 32/2022 IN COMPLAINT NO. 75/2022 - REGARDING THE IRREGULARITIES IN THE CONSTRUCTION OF EDATHAVALAM ``` ## **`COMPLAINANT/:`** ``` AJOY L.S THIRUVONAM, KEEZHCHERIMEL, CHENGANNUR P.O., ALAPPUZHA DISTRICT , PIN 689121 BY ADVS. Suomotu GEORGE SEBASTIAN ``` ## **`RESPONDENT/S:`** ``` 1 THE SECRETARY TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM 695003 2 THE DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM, KERALA, PIN 695003 3 THE CHIEF ENGINEER (GENERAL) TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM, KERALA 695003 4 ADDL R4- THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM, PIN - 695 001 *IS SUO MOTU IMPLEADED AS ADDITIONAL 4TH RESPONDENT VIDE ORDER DATED 25/11/2022 IN DBP.NO.81/2022 BY ADV Biju ``` ``` DBP NO. 81 OF 2022 ``` ``` -2- ``` ``` 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 06.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` DBP NO. 81 OF 2022 ``` ``` -3- ``` ## **ORDER** ## **Anil K. Narendran, J.** This DBP is registered based on the TDB Report No.32 of 2022 of the learned Ombudsman in Complaint No.75 of 2022, made by the complainant herein, in which it is alleged that the Edathavalam under construction at Chengannur Mahadeva Temple involves more than Rs.10 crores, which is funded by the Kerala Infrastructure Investment Fund Board (KIIFB) which in turn has entrusted the construction to the National Building Construction Corporation Limited (NBCC). According to the complainant, the property of the deity, who is a perpetual minor, cannot be encumbered in favour of any agency. Further, work involving more than Rs.20 lakhs requires sanction of this Court. In addition to this, the earth removed from the construction site has been unauthorisedly removed and only a small quantity for name sake has been kept in the maramath office. 2. On receipt of notice, the 2[nd] respondent Devaswom Commissioner submitted Annexure O2 reply dated 24.08.2022 before the learned Ombudsman, wherein it is stated that excess earth is available in Chengannur Devaswom and the Travancore Devaswom Board has permitted removal of earth at the rate of Rs.40/m3, as per Order No.ROC 4715/19/M dated 03.08.2022. As ``` DBP NO. 81 OF 2022 ``` ``` -4- ``` far as the maramath work is concerned, the Chief Engineer was entrusted to file a reply. The 3[rd] respondent Chief Engineer filed Annexure O3 reply through the Liaison Officer, wherein it is stated that the Government entrusted the Travancore Devaswom Board for implementing and monitoring the Sabarimala Edathavalam Project, which provides accommodation and annadanam facilities to Sabarimala pilgrims on their way to Sannidhanam and the entire project expenditure is met by KIIFB and is non-refundable. In Annexure-O3, it is stated that, at the request of the Temple Advisory Committee of Mankombu Devi Temple, the Travancore Devaswom Board accorded sanction to shift the excess earth (800m3) obtained in connection with the execution of Sabarimala Edathavalam Project at Chengannur. Necessary royalty was agreed to be remitted by the Temple Advisory Committee of Mankombu Devi Temple to the Travancore Devaswom Board account and the Revenue Divisional Officer was approached for issuing pass for the transportation of earth from Chengannur to the Mankombu Devi Temple. As per G.O.(Ms.)No.41/2020/RD dated 30.01.2020, the Travancore Devaswom Board has been entrusted as the Special Purpose Vehicle (SPV) and NBCC as the Project Management Consultant (PMC) for implementing and monitoring Sabarimala Edathavalam Project, which envisages for ## **`DBP NO. 81 OF 2022`** **`-5-`** accommodation and annadanam facilities to Sabarimala pilgrims on their way to Sannidhanam. After completing the project, the NBCC will handover the building and property to the Travancore Devaswom Board. Future maintenance of the building has to be attended by the Travancore Devaswom Board. As there is no expenditure incurred from the Devaswom fund, formal approval from this Court need not be obtained. 3. After detailed enquiry, the learned Ombudsman submitted TDB Report No.32 of 2022 in Complaint No.72 of 2022. Paragraphs 5 to 10 of the TDB Report reads thus: “5. As per proceedings dated 25.08.2022, it was noticed that as per the report of the Assistant Devaswom Commissioner the soil removed from the Chengannur Devaswom during the maramath work can be utilized for the maramath work in the Mankombu Devaswom, at the expenditure of the Temple Advisory Committee of that Devaswom. Based on the Commissioner’s report, opinion of the Chief Engineer was sought for and it is stated that the same is allowed to be removed from the Chengannur Mahadeva Temple to the Mankombu Devaswom at the rate of Rs.40/m2 as per Board Order dated 03.08.2022. 6. As regards the complaint regarding dismantling of the Kunnathumala Bhajana Madhom, the same was auctioned for Rs.10 lakhs and construction of the new building has started, as stated in the complaint. According to the complainant, the work is not done by the Devaswom, but by some other agency. According to him, there shall not be any encumbrance created on a minor’s property and the Devaswom Board is bound to obtain sanction from the Hon’ble High Court for work involving ``` DBP NO. 81 OF 2022 ``` ``` -6- ``` more than Rs.20 lakhs. 7. No specific reply to the above contention is filed and it is not known whether the Edathavalam is actually constructed on the place after dismantling the Bhajana Madhom. The Liaison Officer representing the Board submits that the KIIFB project is actually in the dismantled site. But, no official reply by the Chief Engineer is filed in this regard. 8. Though the complainant submits that the earth found to be in excess available at Chengannur should be utilized in the same temple for filling up at the temple, this is a matter which has to be decided by the Board. Since the Board has already passed an order permitting the usage of excess earth for use in another temple under the same Devaswom, the same cannot be interfered with by exercise of advisory jurisdiction. 9. As regards the work entrusted to the KIIFB, the allegation is that they have transferred the same to NBCC. The reply by the Chief Engineer is that the entire expenditure is met by KIIFB and as per the Government Order, the TDB has entrusted the SPV & NBCC as PMC for implementing and monitoring the Sabarimala Edathavalam Project. The expansion of these terms are not given in the reply. The reply is also silent as to whether the property is assigned in favour of any agency as alleged in the complaint. Whether the ownership of the property still continues with the Devaswom Board is not stated. 10. In the above circumstances, it is for the Board to state clearly - (i) as to whether the KIIFB Project is done in the property belonging to the TDB and whether the land is assigned in favour of any agency or continues to be in the ownership of the Devaswom; (ii) whether the site where the Sabarimala Edathavalam construction is after dismantling the Bhajana Madhom; and (iii) though the reply suggests that after completion, the building will be handed over to the Board, there is no specific ## **`DBP NO. 81 OF 2022`** ``` -7- ``` denial that the land or the site where the construction is done is not encumbered to any agency. This requires clarification.” 4. On 25.11.2022, when this report came up for consideration, the State of Kerala represented by Secretary to Government Revenue (Devaswom) Department was suo motu impleaded as additional 4[th] respondent. The learned Standing Counsel for the Travancore Devaswom Board entered appearance for respondents 1 to 3 and the learned Senior Government Pleader entered appearance for the additional 4[th] respondent. Notice was ordered to the complainant by speed post. The 3[rd] respondent was directed to place on record a copy of the memorandum of understanding (MOU) between the Board and the KIIFB in the matter of construction of the Edathavalam in question. 5. Pursuant to the directions contained in the order dated 25.11.2022, the MOU between the Board and KIIFB in the matter of construction of Edathavalam was placed on record along with a memo dated 23.01.2023 filed by the learned Standing Counsel for the Travancore Devaswom Board. In the said MOU it is provided that the Travancore Devaswom Board shall be the end user and the owner of the developed infrastructure. 6. Heard the learned Counsel for the complainant, the learned Standing Counsel for the Travancore Devaswom Board, ``` DBP NO. 81 OF 2022 ``` ``` -8- ``` respondents 1 to 3, and also the learned Government Pleader. 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. As per sub-section (3) of Section 1 of the Act, substituted by the Kerala Adaptation of Laws Order, 1956, Part I of the Act shall extend to Travancore, Part II of the Act shall extend to Cochin and Part III of the Act shall extend to the whole of the State of Kerala, excluding the Malabar District. 8. Clause (a) of Section 2 of the Act defines the term ‘Board’ to mean the Travancore Devaswom Board constituted under Chapter II of the Act in accordance with the covenant. Clause (c) of Section 2 defines the term ‘incorporated Devaswoms’ to mean the Devaswoms mentioned in Schedule I, and ‘unincorporated Devaswoms’ to mean those Devaswoms including Hindu Religious Endowments whether in or outside Travancore which were under the management of the Ruler of Travancore and which have separate accounts of income and expenditure and are separately dealt with. 9. Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with vesting of ``` DBP NO. 81 OF 2022 ``` ``` -9- ``` 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. 10. 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 behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board. 11. 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 ``` DBP NO. 81 OF 2022 ``` ``` -10- ``` 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 subsection (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. 12. 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; (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 ``` DBP NO. 81 OF 2022 ``` ``` -11- ``` all officers and servants of the Board and of the Devaswom Department. 13. Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. As per Section 24, the Board shall, out of the Devaswom Fund constituted under Section 25, maintain the Devaswoms mentioned in Schedule I [i.e. incorporated Devaswoms], keep in a state of good repair the temples, buildings, and other appurtenances thereto, administer the said Devaswoms in accordance with recognised usages, make contributions to other Devaswoms in or outside the State and meet the expenditure for the customary religious ceremonies and may provide for the educational uplift, social and cultural advancement and economic betterment of the Hindu community. 14. Section 27 of the Act deals with Devaswom properties. As per Section 27, immovable properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30[th] Meenam, 1097 corresponding to the 12[th] April, 1922, shall be dealt with as Devaswom properties. The provisions of the Land Conservancy Act of 1091 (IV of 1091) shall be applicable to Devaswom lands as in the case of Government lands. ``` DBP NO. 81 OF 2022 ``` ``` -12- ``` 15. 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. 16. '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].** 17. 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 ``` DBP NO. 81 OF 2022 ``` ``` -13- ``` 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. 18. 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 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 parents 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 ``` DBP NO. 81 OF 2022 ``` **`-14-`** same can be gone into by the High Court in these proceedings. ## 19. In **Nandakumar v. District Collector and others** **[2018 (2) KHC 58]** a Division Bench of this Court noticed that the legal position has been made clear by the Apex Court as to the role to be played by the High Court in exercising the ‘parens patriae’ jurisdiction in **Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]** . The said decision was referred to and relied on by a Division Bench of this Court in **Travancore** **Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]** . In the said circumstances, the properties of the Devaswom, if at all encroached by anybody and if any assignment/conveyance has been effected without involvement of the Devaswom, securing ‘pattayam’ or such other deeds, the same cannot confer any right upon the parties concerned, unless the title so derived is clear in all respects. There cannot be any dispute that the remedy to retrieve such property belonging to the Devaswom is by resorting to the course stipulated in the Kerala Land Conservancy Act, 1957. 20. In **A.A. Gopalakrishnan v. Secretary, Cochin Devaswom Board [2018 (3) KHC 549]** a Division Bench of this Court found that the task undertaken by the complainant to ensure that the property of the Devaswom is protected and ``` DBP NO. 81 OF 2022 ``` ``` -15- ``` preserved has ultimately brought out the plain truth that the said property was sought to be appropriated by strangers and that the property in Sy.No.1042/2 has been successfully retrieved by the Devaswom, based on the intervention made by this Court and also by the Apex Court **[A.A. Gopalakrishnan - (2007) 7 SCC 482]** . Proceedings have to be taken to a logical conclusion in respect of the land in Sy.No. 1043 as well. This is more so since in view of the ‘parens patriae’ jurisdiction being entrusted with the Court in this regard and there is a duty cast upon the Court to take every step to ensure that the property of the deity is protected. 21. In the complaint the apprehension of the complainant in connection with the construction of Edathavalam at Chengannur Mahadeva Temple, under a project funded by KIIFB, is that the Devaswom land, i.e., the land of the deity, who is a perpetual minor, cannot be encumbered in favour of KIIFB or any other agency on account of the construction of an Edathavalam by spending more than Rs.10 Crores. 22. Pursuant to the direction contained in the order dated 25.11.2022, the MOU between the Travancore Devaswom Board and the KIIFB was placed on record along with a memo dated 23.01.2023 filed by the learned Standing Counsel, which provides that the Travancore Devaswom Board shall be the end user and ``` DBP NO. 81 OF 2022 ``` **`-16-`** owner of the developed structure. Therefore, the above apprehension made by the complainant is absolutely without any basis. 23. The learned Standing Counsel would submit that the demolition of Kunnathumala Bhajana Madhom was made after auctioning the same for Rs.10 lakhs. Thereafter, the construction of the new building for the Edathavalam was started. The soil removed from the Chengannur Devaswom was ordered to be utilised for the maramath work in Mankombu Devaswom, which is another temple under the management of the 1[st] respondent Board. Permission was granted to remove soil to Mankombu Devaswom at the rate fixed by the Board, in its order dated 03.08.2022. In the above circumstances, this DBP is disposed of, taking note of the fact that as per the MOU executed between the 1[st] respondent Board and KIIFB, the Board shall be the end user and owner of the developed structure for Edathavalam constructed at Chengannur Mahadeva Temple. Sd/- ## **ANIL K.NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** uu