DBP No.21 of 2022 (In the matter of Travancore Devaswom Board – Transfer and posting of Devaswom staff to the Vigilance Wing)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR`** ``` WEDNESDAY, THE 13[TH] DAY OF JULY 2022 / 22ND ASHADHA, 1944 ``` ## **`DBP NO.21 OF 2022`** - **`IN THE MATTER OF TRAVANCORE DEVASWOM BOARD – MATTER RELATING TO TRANSFER AND POSTING OF DEVASWOM STAFF TO THE VIGILANCE WING OF THE TRAVANCORE DEVASWOM BOARD HAVING OFFICES AT THIRUVANANTHAPURAM, MAVELIKKARA AND VAIKOM – SUO MOTU PROCEEDINGS INITIATED BASED ON THE FINAL ORDER DATED 09.06.2022 IN DBA NO.4 OF 2022 – REGARDING.`** ``` PETITIONE ``` ``` R:SUO MOTU ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.`** - **`2 THE PRINCIPAL SECRETARY TO GOVERNEMNT REVENUE (DEVASWOM DEPARTMENT), GOVERNMENT SECRETARIAT,THIRUVANANTHPAURAM-695 001.`** - **`3 THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM-695 003.`** - **`4 DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM-695 003.`** - **`5 CHIEF VIGILANCE SECURITY OFFICER (SUPERINTENDENT OF POLICE - VIGILANCE), TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM-695 003.`** DBP NO.21 OF 2022 2 ``` BY ADV SHRI.G.BIJU, SC, TRAVANCORE DEVASWOM BOARD ``` ## **`OTHER PRESENT:`** ``` SR. GP. S.RAJMOHAN ``` ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 13.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` DBP NO.21 OF 2022 3 **ORDER** ## **Anil K. Narendran, J.** This DBP is registered _suo motu_ based on the order of this Court dated 09.06.2022 in DBA No.4 of 2022. 2. The 3[rd] respondent Travancore Devaswom Board filed DBA No.4 of 2022 seeking permission to effect transfer and postings of officers at Sabarimala, Pamba and Erumeli Devaswoms, for the year 2022-23. By the order dated 09.06.2022, this Court disposed of the said DBA. Considering the averments in the affidavit filed in support of that DBA, the report dated 06.06.2022 (Annexure-3) of the Superintendent of Police, Vigilance and Security Wing of the Board and also the submissions made by the learned Standing Counsel for the Board and the learned Senior Government Pleader for the Local Fund Audit, this Court granted permission to the transfer and posting of the officers mentioned in paragraph 4 of the said order, to the posts shown against their respective names, at Sabarimala, Pamba and Erumeli Devaswoms. 3. By the order dated 14.02.2022, this Court disposed DBP NO.21 OF 2022 4 of DBP No.2 of 2022, which was registered _suo motu_ , based on a news report that appeared in Mathrubhumi online edition on 30.01.2022 alleging huge corruption behind fake food bills submitted by the officials of Travancore Devaswom Board. In the said order – **Suo Motu v. State of Kerala and others** **[2022 (2) KHC 411]** - this Court issued various directions to see that only most efficient and upright Police officers are posted on deputation in the Vigilance Wing of the Travancore Devaswom Board. 4. Taking into consideration the directions contained in the order dated 14.02.2022 in D.B.P.No.2 of 2022, while disposing of DBA No.4 of 2022 by the order dated 09.06.2022, this Court felt the need to conduct an enquiry by the Superintendent of Police, Vigilance and Security Wing of the Board regarding the credentials of the incumbents, before ordering transfer and posting of Devaswom staff to the Vigilance Wing of the Board having offices at Thiruvananthapuram, Mavelikkara and Vaikom. Pursuant to the direction contained in the order dated 09.06.2022 in DBA No.4 of 2022, Registry has DBP NO.21 OF 2022 5 initiated this _suo motu_ proceedings in the matter of transfer and postings of Devaswom staff to the Vigilance Wing of the Board. 5. On 20.06.2022, when this DBP came up for consideration, the learned Senior Government Pleader and also the learned Standing Counsel for Travancore Devaswom Board sought time to get instructions. By the order dated 20.06.2022, the 5[th] respondent Chief Vigilance and Security Officer was directed to place on record an enquiry report on the credentials of the incumbents posted in the Vigilance Wing of the Board having offices at Thiruvananthapuram, Mavelikara and Vaikom, before the next posting date. 6. Pursuant to the direction contained in the order dated 20.06.2022, the 5[th] respondent conducted an enquiry and submitted a report dated 24.06.2022 to the Secretary of the Board. On 28.06.2022, when this DBP came up for consideration, the learned Standing Counsel for the Board has made available for the perusal of this Court a copy of the report dated 24.06.2022, in respect of Sri.G. Muraleedharan Pillai, Sri.K.Manoj Kumar and Sri.M.G.Madhu, who were posted in the ## DBP NO.21 OF 2022 6 Vigilance Wing of the Board at Thiruvananthapuram, Mavelikara and Vaikom, respectively. The report filed by the 5[th] respondent was not favourable to Sri.K.Manoj Kumar and Sri.M.G.Madhu. The learned Standing Counsel submitted that the above report will be placed immediately before the Board for necessary action and that, a copy of the said report and its enclosures shall be placed on record along with an affidavit of the Secretary of the Board. By the order dated 28.06.2022, this Court directed the Board to ensure that before posting any officer in the Vigilance Wing of the Board at Thiruvananthapuram, Mavelikara and Vaikom, the credentials of the officer concerned are ascertained through the report of the 5[th] respondent. 7. On 05.07.2022, when this DBP came up for consideration, the learned Standing Counsel for the Board submitted that the Board has already taken a decision to remove Sri.K. Manoj Kumar and Sri. M.G. Madhu, who were appointed as Vigilance Officer, Mavelikkara and Vaikom respectively. The Board is awaiting the report of the 5[th] respondent on the credential of two persons proposed to be ## DBP NO.21 OF 2022 7 appointed in their place. The learned Standing Counsel sought time to place on record a statement to that effect. 8. Today, when this DBP is taken up for consideration, the learned Standing Counsel for the Board, on instructions, would submit that, in terms of the directions contained in the order of this Court dated 28.06.2022, the Board has issued an order, i.e., ROC No.5066/22/Est-I dated 08.07.2022, whereby Sri. K. Manojkumar, Vigilance Officer, Mavelikkara is transferred and posted as Assistant Audit Officer, Mavelikkara and Sri. M.G. Madhu, Vigilance Officer, Vaikom is transferred and posted as Assistant Devaswom Commissioner, Ettumanoor Group. By the very same order Sri.P.N. Ganeshweran Potty, Assistant Devaswom Commissioner, Ettumanoor Group is posted as Vigilance Officer, Mavelikkara and Sri.Gopakumar, Assistant Audit Officer, Mavelikkara is posted as Vigilance Officer, Vaikom, with immediate effect. A copy of the report dated 04.07.2022 of the 5[th] respondent on the credentials of Sri.P.N. Ganeshweran Potty and Sri.Gopakumar is made available for the perusal of this Court by the learned Standing Counsel for the Board. DBP NO.21 OF 2022 8 9. Heard the learned Senior Government Pleader for respondents 1 and 2 and also the learned Standing Counsel for Travancore Devaswom Board for respondents 3 to 5. 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. 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. Clause (a) of Section 2 of the Act defines the term ‘Board’ to mean the TDB 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 DBP NO.21 OF 2022 9 management of the Ruler of Travancore and which have separate accounts of income and expenditure and are separately dealt with. 11. 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. 12. Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub-section (1) of Section 15, subject to DBP NO.21 OF 2022 10 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. 13. 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; ## DBP NO.21 OF 2022 11 (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. 14. 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. 15. Section 27 of the Act deals with Devaswom ## DBP NO.21 OF 2022 12 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. 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. In **Ram Mohan Das v. Travancore Devaswom Board and others [1975 KLT 55]** a learned Single Judge of this Court held that, under Section 31 of the Travancore-Cochin Hindu Religious Institutions Act the Travancore Devaswom Board ## DBP NO.21 OF 2022 13 shall manage the properties and affairs of the Devaswoms, both incorporated and unincorporated and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. The position of the Board in - - regard to the Devaswoms incorporated and unincorporated is analogous to that of trustees. Any improper act of the Trustees could be questioned by a worshipper. ## 17. 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 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; “4. There is some controversy on the question whether Defendant 1 made an outright purchase of the suit DBP NO.21 OF 2022 14 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, DBP NO.21 OF 2022 15 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 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) ## 18. 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 ## DBP NO.21 OF 2022 16 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. 19. 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 ## DBP NO.21 OF 2022 17 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. 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. 20. In **Rajani P. Kuttan and another v. State of Kerala and others [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 Travancore Devaswom Board is 5692 and the total number of pensioners is DBP NO.21 OF 2022 18 5749. The major source of revenue of the Travancore Devaswom Board is the income received by way of offering 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 DBP NO.21 OF 2022 19 - by the Devaswom Board, only 60 major temples are self sufficient, and the rest are being managed utilising the surplus income from Sabarimala 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) 21. In **Suo Motu v. State of Kerala and others [2022** **(2) KHC 411]** this Court held that, in view of the provisions under the Travancore-Cochin Hindu Religious Institutions Act and also the law laid down in the decisions referred to supra, the Travancore Devaswom Board is duty bound to ensure proper administration, supervision and control of Sabarimala Devaswom, which is an incorporated Devaswom mentioned in Schedule I of the said Act, under the Chengannur Group. The Board has a statutory duty to monitor whether its administrative officials and employees and also the employees connected with religious rites are functioning properly. The Board is duty bound to exercise proper supervision and control over the acts and DBP NO.21 OF 2022 20 proceedings of all officers and servants and to manage the properties and affairs of Sabarimala Devaswom and conduct daily worships and ceremonies and also festivals in the temple according to its usage. Position of the Board in this regard is analogous to that of trustees, as held by this Court in **Ram Mohan Das [1975 KLT 55]** . Any improper act of the trustees could be questioned by a worshiper. The Board and those entrusted with the duty of managing the properties and affairs of Sabarimala Devaswom are duty bound to protect the properties of the deity from any wrongful claims, theft or misappropriation. Any such wrongful claims, theft or misappropriation with the passive or active collusion of the authorities concerned, which are acts of 'fences eating the crops' should be dealt with sternly. Since the deity being a perpetual minor, this Court is having inherent jurisdiction to protect and safeguard the interest and properties of the deity and the doctrine of _parens patriae_ will also apply in the exercise of such jurisdiction. 22. In view of the statutory provisions referred to ## DBP NO.21 OF 2022 21 hereinbefore and also the law laid down in the decision referred to supra, we deem it appropriate to direct the 3[rd] respondent Travancore Devaswom Board to ensure that, before posting any officer/staff in the Vigilance Wing of the Board having offices at Thiruvananthapuram, Mavelikkara and Vaikom, the credentials of the officer/staff concerned are ascertained through the report of the 5[th] respondent Superintendent of Police, Vigilance and Security Wing of the Board. The said report shall be placed before the Board, which shall consider that report before ordering transfer and posting of any officer/staff in the Vigilance Wing of the Board having offices at Thiruvananthapuram, Mavelikkara and Vaikom. While ordering transfer and postings, the Board shall ensure that, only efficient and upright officer/staff are posted in the Vigilance Wing of the Board. With the above directions, this DBP is disposed of. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** MIN