DBP No.12 of 2022 (In the matter of Travancore Devaswom Board – Ayamanam Sri Narasimhaswami Auditorium (Sadyalayam) – Suo Motu Proceedings Initiated as Directed by the Honourable Court in Judgment Dated 09.02.2023 in WP(C) No.2254 of 2022 - 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`** ``` THURSDAY, THE 30[TH] DAY OF MARCH 2023/9TH CHAITHRA, 1945 ``` ## **`DBP NO.12 OF 2022`** ``` IN THE MATTER OF TRAVANCORE DEVASWOM BOARD – AYAMANAM SRI.NARASIMHASWAMI AUDITORIUM (SADYALAYAM) – SUO MOTU PROCEEDINGS INITIATED AS DIRECTED BY THE HONOURABLE COURT IN JUDGMENT DATED 09.02.2023 IN WP(C) No.2254/2022 - TDB PROCEEDINGS INITIATED - REG. ``` ``` ------------ ``` ## **`PETITIONER:`** ``` SUO MOTU. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.`** - **`2 THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM- 695 003.`** - **`3 DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM-695 003.`** - **`4 THE ESTATE OFFICER, O/O.THE EXECUTIVE ENGINEER, ESTATE DIVISION, TRAVANCORE DEVASWOM BOARD, OPPOSITE TO AYURVEDA COLLEGE, PUTHEN CHANTHU, M.G. ROAD, THIRUVANANTHAPURAM-685 001.`** DBPl No.12 of 2022 - 2 - ``` 5 DEPUTY EXAMINER OF LOCAL FUND AUDIT, THIRUVANANTHAPURAM 695 003. ``` ``` BY ADVS. SRI.S.RAJMOHAN, SENIOR GOVERNMENT PLEADER SRI.G.BIJU, SC, TRAVANCORE DEVASWOM BOARD SRI.P. RAMACHANDRAN, AMICUS CURIAE ``` ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` DBPl No.12 of 2022 - 3 - ## **ORDER** ## **Anil K.Narendran, J.** This DBP is registered _suo motu_ pursuant to the directions contained in the judgment of this Court dated 09.02.2022 in W.P.(C) No.2254 of 2022 - **Abu K.S. v. Travancore Devaswom Board [2022/KER/6409 : 2022 SCC OnLine Ker 1642]** . 2. In paragraph 28 of the said judgment, this Court noticed that the petitioner, who participated in the auction conducted by the Estate Division of the Travancore Devaswom Board for running Aymanam Sri. Narasimhaswami Auditorium (Sadyalayam) under Kottayam Group, for the period from 01.08.2019 to 31.07.2021, bid auction for an amount of Rs.2,41,000/-. He remitted 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 Assistant Commissioner, Kottayam Group and the Sub Group Officer, Thiruvarppu/Parappadam Devaswoms did not taken any action against the petitioner, till the order of this Court dated 01.02.2022 in that writ petition, whereby they were directed to take over possession of the 'Sadyalayam' forthwith, if found necessary, with police assistance. In the judgment dated 09.02.2022, this Court deprecated in the strongest DBPl No.12 of 2022 - 4 - words, the conduct of the Assistant Commissioner, the Sub Group Officer and the concerned officers in the Estate Division of the Board in taking no action against the petitioner, who was a defaulter. This Court observed that they have not shown reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. This Court noticed that, since the auction amount for running Aymanam Sri. Narasimhaswami Auditorium (Sadyalayam) for a period of two years from 01.08.2019 to 31.07.2021 was only 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 is only Rs.10,000/-. Such irregularities in the conduct of auctions for running auditoriums/ sadyalayams in the temples under the management of the Travancore Devaswom Board cannot be permitted in future. Therefore, Registry was directed to initiate _suo motu_ proceedings in the above matter. 3. On 07.04.2022, when this DBP came for consideration, the 4[th] respondent Estate Officer was directed to file a detailed affidavit furnishing the particulars of auditoriums/sadyalayams in the temples under the management of the Travancore Devaswom Board and also the details of the successful bidders, the period of the auction, the bid amount and arrears, if any, payable by the DBPl No.12 of 2022 - 5 - successful bidders, the amount collected per day by the bidders for the use of auditoriums/sadyalayams and whether any such bidders are in occupation of the auditoriums/sadyalayams after defaulting payment of electricity charges and other statutory dues. The learned Senior Government Pleader sought time to file a statement on behalf of the 5[th] respondent Deputy Examiner of Local Fund Audit, Thiruvananthapuram. 4. On 01.06.2022, when this DBP came for consideration, the learned Standing counsel for Travancore Devaswom Board submits that an affidavit of the 4[th] respondent Estate Officer is being filed. The learned Senior Government Pleader submitted that after perusing the affidavit of the 4[th] respondent, the remarks, if any, of the 5[th] respondent shall be placed on record within two weeks. 5. On 22.06.2022, when this DBP came up for further consideration, along with the affidavit filed by the 4[th] respondent Estate Officer, Annexure R4(a) statement showing the particulars of Sadyalayams/Oottupuras/Auditoriums in the temples under the management of the Travancore Devaswom Board is placed on record. By the order dated 22.06.2022, this Court directed the 4[th] respondent-Estate Officer to file a statement showing the income generated from the Sadyalayams/Oottupuras/Auditoriums included in Annexure R4(a) list, from the year 2015-16 till 2021-22, within DBPl No.12 of 2022 - 6 - ## a period of three weeks. 6. By the order dated 30.09.2022, the learned Standing Counsel for Travancore Devaswom Board was directed to make available for the perusal of this Court, the registers maintained in respect of the Oottupuras/Auditoriums/Sadyalayams in Haripad Group, i.e., Serial Nos.117 to 126 in Annexure R4(a) list, on the next posting date. The concerned Assistant Commissioner was directed to be personally present in Court, along with the registers and also the relevant records regarding the fixation of daily rent/license fee of the respective Oottupuras. 7. On 25.10.2022, when this DBP came up for consideration, the Assistant Commissioner, Haripad Group, was personally present in Court, along with the relevant registers. By the order dated 25.10.2022, having perused the registers maintained in respect of Oottupuras, which are Serial Nos.117 of 126 in Annexure R4(a) list, this Court directed the Assistant Commissioner, Haripad Group, to file a report in the form of an affidavit, on the present condition of the Oottupuras in question, with two photographs of each Oottupura, within a period of three weeks. In the said report, the Assistant Commissioner shall also state the steps that can be taken to ensure that proper income is generated from those Oottupuras. DBPl No.12 of 2022 - 7 - 8. On 28.02.2023, an affidavit on behalf of the 2[nd] respondent Travancore Devaswom Board is placed on record, producing therewith Annexure R2(a) to R2(g) statements showing the details of Sadyalayams in Evoor Sub Group, Nangiarkulangara Sub Group, Pathiramkulangara Sub Group, Valiyakulangara Sub Group, Ramapuram Sub Group, Karuvattakulangara Sub Group and Thrippakudam Sub Group. Two photographs of each Sadyalayams are enclosed along with those statements. 9. Heard the learned Senior Government Pleader for respondents 1 and 5, the learned Standing Counsel for Travancore Devaswom Board for respondents 2 to 4 and the learned Amicus Curiae for the learned Ombudsman. 10. 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. 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 DBPl No.12 of 2022 - 8 - 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. 11. 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 upliftment, social and cultural advancement and economic betterment of the Hindu community. 12. 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 DBPl No.12 of 2022 - 9 - daily worship and ceremonies and of the festivals in every temple according to its usage. 13. Under the provisions of the Travancore-Cochin Hindu Religious Institutions Act, the Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in Sabarimala are performed promptly; to monitor whether the administrative officials and the employees, and also the employees connected with religious rites are functioning properly; and to establish and maintain proper facilities in Sabarimala for the devotees. The Board shall, out of the Devaswom Fund, maintain and administer Sabarimala Devaswom in accordance with recognised usages and meet the expenditure for the customary religious ceremonies. The Board shall manage the properties and affairs of Sabarimala Devaswom and arrange for the conduct of the daily worship and ceremonies and of the festivals in Sabarimala according to the usage. 14. In **Rajani P. Kuttan v. State of Kerala [2021 (6) KHC 513]** a Division Bench of this Court noticed that among the 1250 Temples managed by the Travancore Devaswom Board, only - 60 major Temples are self sufficient and the rest are being managed utilising the surplus income from Sabarimala Devaswom. The total number of sanctioned posts in various categories in the DBPl No.12 of 2022 - 10 - Travancore Devaswom Board is 5692 and the total number of pensioners is 5749. The major source of revenue of the Travancore Devaswom Board is the income received by way of offerings by the devotees, the amount received from Vazhipadu and the revenue generated through the auction of temple premises for various activities in connection with rituals and festivals in the Temples. Paragraph 59 of the said decision reads thus; “59. The financial position of the Devaswom Board:- The competent officer of the Devaswom Board filed an affidavit dated 14.06.2021 stating its financial position. It is submitted that there are 1250 temples under the Administrative Control of the Devaswom Board. The total number of sanctioned posts in various categories in the Devaswom Board is 5692, and the total number of pensioners is 5749. It is further submitted that the major sources of revenue of the Devaswom Board are the income received by way of offerings from devotees, the amount received from Vazhipadu, and the revenue generated through the auction of the temple premises for various activities in connection with rituals and festivals in the temples. Besides this, the Devaswom Board gets an approximate sum of 14 crores per annum by way of the rent of the buildings owned by it. The annual contribution from the State Government under Article 290A of the Constitution of India is Rs. 80 lakhs. It is further submitted that among the 1250 temples managed by the Devaswom Board, only 60 - major temples are self sufficient, and the rest are being managed utilising the surplus income from Sabarimala DBPl No.12 of 2022 **==> picture [33 x 9] intentionally omitted <==** Devaswom. Now, due to the spread of the Covid-19 pandemic, the temples remain closed, and the major source of income has come down. The Devaswom Board is finding it difficult even to pay the salary of the existing employees. The pleadings regarding the financial position of the Devaswom Board in the affidavit dated 14.06.2021 have not been controverted by the petitioners.” (underline supplied) ## 15. 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 the 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 DBPl No.12 of 2022 - 12 - 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 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 DBPl No.12 of 2022 - 13 - 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) ## 16. In **Abu K.S. [2022/KER/6409 : 2022 SCC OnLine** **Ker 1642]** , relying on the decision of the Apex Court in **M.V. Ramasubbiar [(1979) 2 SCC 65]** , a Division Bench of this Court, in which both of us were parties, found that the concerned officers of the Travancore Devaswom Board, who have permitted the successful bidder (who has remitted only 50% of the auction amount) to continue to occupy the sadyalayam, even beyond the period of the auction, have not shown reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. ## 17. In **Sunil Kumar P.G. v. State of Kerala and others** **[2022/KER/71822]** a Division Bench of this Court, in which both of us were parties, the entire e-tender for Kuthaka items in Sabarimala Devaswom, from Mandala-Makaravilakku festival season of 1199 ME (2023-24) onwards shall be conducted, after publishing an auction notification specifying the highest bid for the DBPl No.12 of 2022 - 14 - previous three years, excluding the period during which there were - restrictions on account of Covid 19 pandemic. After completion of the tender process, the details of the successful bidders along with the bid amount, the balance bid amount payable, its due date, etc., shall be exhibited on the official website of the Board. The list of those who have defaulted payment of the balance bid amount shall also be exhibited on the official website. The list of defaulters shall be forwarded to the Devaswom Commissioner for necessary action. A copy of that list shall also be forwarded to the Special Commissioner, Sabarimala. ## 18. In **Sunil Kumar P.G. [2022/KER/71822]** this Court directed the Travancore Devaswom Board to adopt a similar procedure in respect of all major temples under its management, in which the annual income is above Rs.2 Crore. In respect of such temples, the list of defaulters shall be forwarded to the Devaswom Commissioner for necessary action. The Kuthaka holders, who have defaulted payment of the balance bid amount, shall be proceeded against, in accordance with the tender conditions. In appropriate cases, proceedings shall also be initiated for blacklisting. In the said decision, this Court ordered that the successful bidders and their staff, if any, in respect of Kuthaka items in Sabarimala Devaswom and other Devaswoms under the management of the Travancore DBPl No.12 of 2022 - 15 - Devaswom Board shall be issued with photo identity cards. They shall be required to produce police clearance certificate. In respect of Kuthaka items above Rs.5,00,000/-, the Travancore Devaswom Board shall insist on the Income Tax particulars of the bidders. 19. In **T. Krishnakumar v. Cochin Devaswom Board** **[2022 (4) KLT 798 : 2022 (5) KHC SN 8]** , 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. [2022/KER/6409 : 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 a mere landlord. The best interest of the Devaswoms under the control of the Board would be subserved only if income is generated. 20. When the major source of revenue of the 2[nd] respondent Travancore Devaswom Board is the income received by way of offering by the devotees, the amount received from Vazhipadu and DBPl No.12 of 2022 - 16 - the 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, while dealing with the buildings owned by the Devaswoms, the 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 tack 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 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. DBPl No.12 of 2022 - 17 - 21. In view of the provisions under Section 15A of the Act, the 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. The Board and its officials have to ensure that Oottupuras/Auditoriums/ Sadyalayams are maintained properly, by conducting periodical repairs so that proper income is generated from such buildings. 22. Having considered the materials on record and also the submissions made at the Bar, we deem it appropriate to dispose of this DBP by directing the 2[nd] respondent Travancore Devaswom Board and the 4[th] respondent Estate Officer to place before the learned Ombudsman ‘group-wise’ reports on Oottupuras/ Auditoriums/Sadyalayams in the temples under the management of the Board, along with the relevant extract of the registers, copy of the proceedings regarding fixation of daily rent/license fee, the inspection report of the concerned Assistant Engineer and also a few photographs, within four months from the date of receipt of a certified copy of this order. In case, any of the Oottupuras/ Auditoriums/Sadyalayams in the temples under the management of the Travancore Devaswom Board is not properly maintained, by conducting periodical repairs, or the Board and its officials have DBPl No.12 of 2022 - 18 - failed to ensure that proper income is generated from any such buildings, group-wise reports of the learned Ombudsman, based on the enquiry conducted, shall be placed before the Devaswom Bench, which shall be numbered as DBPs, in which the Travancore Devaswom Board, represented by its Secretary, the Chief Engineer, the Executive Engineer, the Estate Officer and the concerned Assistant Engineer in the Maramath Wing of the Board, the concerned Executive Officer/Sub Group Officer of the temple and also the Deputy Director, Kerala State Audit Department, Travancore Devaswom Board Audit shall be arrayed as the respondents. A copy of this order shall also form part of those DBPs. Registry to communicate a copy of this order to the learned Ombudsman, along with a copy of this DBP, the affidavit filed by the 2[nd] respondent Board and that filed by the 4[th] respondent Estate Officer. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** ww DBPl No.12 of 2022 - 19 - ## **`APPENDIX`** ## `RESPONDENTS' ANNEXURES:` ``` ANNEXURE-R1(A) TRUE COPY OF THE STATEMENT SHOWING THE DETAILS OF SADYALAYAMS IN EVOOR SUB GROUP ALONG WITH TWO PHOTOGRAPHS. ANNEXURE-R2(B) TRUE COPY OF THE STATEMENT SHOWING THE DETAILS OF SADYALAYAMS IN NANGIARKULANGARA SUB GROUP ALONG WITH TWO PHOTOGRAPHS. ANNEXURE-R2(C) TRUE COPY OF THE STATEMENT SHOWING THE DETAILS OF SADYALAYAMS IN PATHIRAMKULANGARA SUB GROUP ALONG WITH TWO PHOTOGRAPHS. ANNEXURE-R2(D) TRUE COPY OF THE STATEMENT SHOWING THE DETAILS OF SADYALAYAMS IN VALIYAKULANGARA SUB GROUP ALONG WITH TWO PHOTOGRAPHS. ANNEXURE-R2(E) TRUE COPY OF THE STATEMENT SHOWING THE DETAILS OF SADYALAYAMS IN RAMAPURAM SUB GROUP ALONG WITH TWO PHOTOGRAPHS. ANNEXURE-R2(F) TRUE COPY OF THE STATEMENT SHOWING THE DETAILS OF SADYALAYAMS IN KARUVATTAKULANGARA SUB GROUP ALONG WITH TWO PHOTOGRAPHS. ANNEXURE-R2(G) TRUE COPY OF THE STATEMENT SHOWING THE DETAILS OF SADYALAYAMS IN THRIPPAKUDAM SUB GROUP ALONG WITH TWO PHOTOGRAPHS. ```