Guruvayur Devaswom v. Guruvayur Sree Krishna Temple – Suo Motu Petition, DBP No.88 of 2022

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 16[TH] DAY OF DECEMBER 2022/25TH AGRAHAYANA, 1944 ``` ## **`DBP NO.88 OF 2022`** ``` IN THE MATTER OF GURUVAYUR DEVASWOM – GURUVAYUR SREE KRISHNA TEMPLE – MATTER PERTAINING TO ALLEGED ENCROACHMENT OF TRADERS ON THE TAR ROAD AND INSTALLATION OF UNAUTHORISED FLEX BOARDS IN THE ``` ``` NADAPPANTHAL OF THE TEMPLE – SUO MOTU PROCEEDINGS INITIATED BASED ON A COMPLAINT DATED 29.11.2022 – REG:- ------------ ``` ## **`PETITIONER:`** ## **`SUO MOTU`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001`** - **`2 GURUVAYUR DEVASWOM MANAGING COMMITTEE, REPRESENTED BY ITS ADMINISTRATOR, GURUVAYUR DEVASWOM, GURUVAYUR, PIN - 680101`** - **`3 DISTRICT POLICE CHIEF, THRISSUR SAKTHAN NAGAR, THRISSUR CITY - 680001`** - **`4 STATION HOUSE OFFICER, GURUVAYUR TEMPLE POLICE STATION, GURUVAYUR - 680101`** - **`5 GURUVAYUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, GURUVAYUR - 680101`** 2 DBP No.88 of 2022 ``` BY SRI S.RAJMOHAN- SR GOVERNMENT PLEADER ; SRI T.K.VIPINDAS, SC, GURUVAYUR DEVASWOM MANAGING COMMITTEE SRI V.N.HARIDAS, SC, GURUVAYUR MUNICIPALITY ``` ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 16.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 DBP No.88 of 2022 ## **ORDER** ## **Anil K. Narendran, J.** This DBP is registered _suo motu_ based on a complaint dated 29.11.2022 made by a devotee of Lord Guruvayurappan of Guruvayur Sree Krishna Temple, alleging encroachments made by traders on both sides of the road leading from Manjulal to Padinjare Nada, erection of huge flex boards in nadapanthal, in connection with Vilakku Vazhipadu during Guruvayur Ekadashi, etc. 2. On 09.12.2022, when this DBP came up for consideration, the learned Senior Government Pleader, the learned Standing Counsel for Guruvayur Devaswom Managing Committee and also the learned Standing Counsel for Guruvayur Municipality sought time to get instructions. 3. Today, when this matter is taken up for consideration, the learned Standing Counsel for Guruvayur Devaswom Managing Committee would submit that flex boards erected in the nadapanthal of Guruvayur Sree Krishna Temple by those who offered Vilakku Vazhipadu during Guruvayur Ekadashi have already been removed. The Administrator of Guruvayur Devaswom Managing Committee 4 DBP No.88 of 2022 has already made complaints to the Secretary of the 5[th] respondent Guruvayur Municipality, on the encroachments made by traders on the public roads leading to Guruvayur Sree Krishna Temple, which are causing obstructions to the movement of devotees through footpaths and road pavements. 4. The learned Standing Counsel for Guruvayur Municipality would submit that the Secretary of Guruvayur Municipality has already removed the encroachments made by traders on the footpaths and pavements of the public roads leading to Guruvayur Sree Krishna Temple. The Secretary shall ensure that such instances are not repeated in future. 5. The learned Senior Government Pleader, on instructions, would submit that the 5[th] respondent Municipality has already removed encroachments on the footpaths and pavements of the public roads leading to Guruvayur Sree Krishna Temple. The police shall have a constant vigil, in order to ensure that there is no encroachment by traders on the footpaths and pavements of the public roads leading to Guruvayur Sree Krishna Temple. 6. The Guruvayur Devaswom Act, 1978, enacted by 5 DBP No.88 of 2022 the State Legislature, which received the assent of the President on 18.03.1978, makes provision for the proper administration of the Guruvayur Devaswom. Clause (c) of Section 2 of the Act defines ‘Committee’ to mean Guruvayur Devaswom Managing Committee constituted under Section 3. In view of the provisions under sub-section (1) of Section 3, the administration, control and management of Guruvayur Devaswom shall be vested in Guruvayur Devaswom Managing Committee constituted in the manner provided in the said Section. Section 10 of the Act deals with the duties of the Committee. As per clause (a) of Section 10, subject to the provisions of the Act and the Rules made thereunder, it shall be the duty of the Committee, subject to the custom and usage in the temple, to arrange for the proper performance of the rites and ceremonies in the temple and the subordinate temples attached thereto in accordance with the dittam or scale of expenditure fixed for the temple and the subordinate temples under Section 20 or, till the dittam or scale of expenditure is fixed under that Section, in accordance with the dittam or scale of expenditure fixed for the temple and the subordinate temples under Section 51 of the Madras 6 DBP No.88 of 2022 Hindu Religious and Charitable Endowments Act, 1951; and as per clause (b) of Section 10, to provide facilities for the proper performance of worship by the worshippers. 7. The role assigned to Guruvayur Devaswom Managing Committee constituted under Section 3 of the Guruvayur Devaswom Act, 1978, is that of a trustee in management of the properties vested in the deity. The Managing Committee is duty bound to scrupulously follow the stipulations contained in the Act of 1978. Unless a contrary intention, either expressly or by necessary implication, arises from the provisions of the statute in any particular subject or context, Guruvayur Devaswom Managing Committee is legally bound to administer and manage the Devaswom and its properties in accordance with the settled legal principles relating to the administration of Hindu Religious Trusts. The Committee, being the trustee in the management of Devaswom properties, is legally bound to perform its duties with utmost care and caution. ## 8. In **Suo Motu v. Guruvayur Devaswom Managing Committee and others [2022 (6) KLT 849]** this Court noticed that all the properties, including movable 7 DBP No.88 of 2022 and immovable properties and money, dedicated to or endowed in the name of Lord Guruvayurappan or any property acquired in any manner by Guruvayur Devaswom shall vest in the idol of Lord Guruvayurappan, consecrated in Sree Krishna Temple, Guruvayur. Guruvayur Devaswom Managing Committee is legally bound to administer, control and manage all the properties belonging to Guruvayur Devaswom in accordance with the provisions of the Guruvayur Devaswom Act, 1978. The Administrator and the Commissioner shall also function within the framework of the statute. Guruvayur Devaswom Managing Committee, which functions as a trustee, is bound to administer, control and manage the properties belonging to Guruvayur Devaswom in accordance with public interest and in the interest of the worshippers. In view of the prohibition contained in subsection (1) of Section 35 of the Act, neither the Managing Committee nor the Commissioner or the Government shall interfere with the religious or spiritual matters pertaining to Guruvayur Devaswom. In view of the provisions under Rule 6 of the Rules, the Managing Committee shall not alter or cause to alter the performance of customary rites and 8 DBP No.88 of 2022 ## ceremonies in Guruvayur Temple. 9. Clause (f) of Section 2 of the Guruvayur Devaswom Act, 1978 defines ‘person having interest in the temple’ to mean a person who is entitled to attend at, or is in the habit of attending, the performance of worship or service in the temple or who is entitled to partake, or is in the habit of partaking, in the benefit of the distribution of gifts thereat. 10. In **Suo Motu [2022 (6) KLT 849]** this Court held that, as per clause (a) of Section 10 of the Guruvayur Devaswom Act, 1978, subject to the provisions of the said Act and the Rules made thereunder, it shall be the duty of the Committee, subject to the custom and usage in the temple, to arrange for the proper performance of the rites and ceremonies in the temple and as per clause (b) of Section 10, to provide facilities for the proper performance of worship by the worshippers. In the Act, there is no definition for the expression ‘worshipper’. According to _Oxford Dictionary_ , ‘worshipper’ is a person who shows reverence and adoration for a deity. Right to worship is a civil right, of course in an accustomed manner and subject to the practice and tradition in each temple. A ‘worshipper’, who shows reverence and 9 DBP No.88 of 2022 adoration for Lord Guruvayurappan, is duty bound to exercise his right to worship in an accustomed manner and subject to the practice and tradition in Guruvayur Sree Krishna Temple. 11. In the complaint dated 29.11.2022, which forms part of this DBP, it is alleged that huge flex boards were erected in connection with Vilakku Vazhipadu during Guruvayur Ekadashi. The learned Standing Counsel for Guruvayur Devaswom Managing Committee would submit that flex boards erected in the nadapanthal of Guruvayur Sree Krishna Temple by those who offered Vilakku Vazhipadu during Guruvayur Ekadashi have already been removed. 12. As already noticed hereinbefore, a ‘worshipper’, who shows reverence and adoration for Lord Guruvayurappan, is duty bound to exercise his right to worship in an accustomed manner and subject to the practice and tradition in Guruvayur Sree Krishna Temple. A worshipper of Lord Guruvayurappan or a group of worshippers who offer Vilakku Vazhipadu during Guruvayur Ekadashi cannot erect flex boards in the Nadappanthal or in the premises of Guruvayur Sree Krishna Temple. Therefore, the 2[nd] respondent Guruvayur Devaswom Managing Committee 10 DBP No.88 of 2022 cannot permit a worshipper or a group of worshippers, who offer Vazhipadu in Guruvayur Sree Krishna Temple, to erect flex boards in the Nadappanthal or in the premises of the temple. The 2[nd] respondent Managing Committee and the Administrator of Guruvayur Devaswom shall ensure that no such incidents are repeated in Guruvayur Sree Krishna Temple in future. ## 13. In **C.S.S. Motor Service v. Madras State [AIR** **1953 Madras 279]** a Division Bench of the Madras High Court held that all public streets and roads vest in the State, but that the State holds them as trustee on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally. ## 14. In **Saghir Ahmad v. State of U.P. [AIR 1954** **SC 728]** a Constitution Bench of the Apex Court agreed with the statement of law made by the Division Bench of the 11 DBP No.88 of 2022 Madras High Court in Para.24 of the decision in **C.S.S. Motor** ## **Service [AIR 1953 Madras 279]** . 15. In **Sodan Singh v. New Delhi Municipal Committee [(1989) 4 SCC 155]** a Constitution Bench of the Apex Court held that the primary object of building roads is undoubtedly to facilitate people to travel from one point to another. ## 16. In **Suo Motu v. Travancore Devaswom Board and others [2021/KER/46194 : 2021 SCC OnLine Ker.** **13182]** - order dated 16/11/2021 in SSCR No.9 of 2021 - a Division Bench of this Court, in which both of us were parties, noticed that despite the enactment of the Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 by the State Legislature, the law laid down by the Apex Court in **Union of India v. State of Gujarat** [orders in SLP(Civil)No.8519 of 2006] and the law laid down by this Court in **Centre for Consumer Education v. State of Kerala [2019 (3) KHC 957]** , **Shani Johnson v. Kochi Corporation [2019 (3) KHC 928]** , **Shali v. State of Kerala [2019 (5) KHC 118]** , **Kottamom (Kottiyar Mangalam) Sri. Darmasastha Temple Advisory** 12 DBP No.88 of 2022 **Committee v. State of Kerala [2019 (5) KHC SN 27 : 2019/KER/48273]** , **Sivaprasad v. State of Kerala [2020** **(6) KHC 373]** , the State of Kerala and the law enforcement machinery have not taken necessary steps to ensure strict enforcement of the relevant statutory provisions and also the Guidelines for Pedestrian Facilities formulated by Indian Roads congress (IRC:103-2012), in order to prevent encroachment of any nature, in any form, either temporary or permanent, on the right of way or on the pedestrian facilities on public roads, since any such encroachment will adversely affect the mobility and safety of all pedestrians including those with disabilities and reduced mobility. 17. In **Suo Motu [2021/KER/46194 : 2021 SCC OnLine Ker. 13182]** this Court directed respondents 2 to 4 in SSCR No.9 of 2021 to take necessary steps to ensure strict compliance of the directions contained in the decision referred to supra by all concerned, in letter and spirit, by maintaining the roads and pedestrian facilities in the State strictly in conformity with the relevant standards and guidelines, without any encroachment whatsoever on the right of way or on the pedestrian facilities provided as per such standards 13 DBP No.88 of 2022 and guidelines, in order to ensure the safety of most vulnerable road users, such as pedestrians, cyclists, children, elderly and the differently-abled persons. 18. Pursuant to the direction contained in the order of a Division Bench of this Court dated 08.06.2021 in W.P. (C)No.11886 of 2021 - **Trivandrum Chamber of Commerce and Industry v. State of Kerala and others** - in which one among us (Anil K. Narendran, J.) was a party, whereby the State of Kerala was directed to file a counter affidavit explaining the steps already taken to ensure strict enforcement of the orders of the Apex Court, including the order dated 18.01.2013 in SLP(C)No.8519 of 2006, the decision of this Court in **Shivaprasad [2020 (6) KHC 373]** , etc., the relevant statutory provisions and also the Guidelines for Pedestrian Facilities formulated by Indian Roads Congress (IRC:103-2012), in order to prevent encroachment of any nature, in any form, either temporary or permanent, on the right of way or pedestrian facilities on public road, the 1[st] respondent therein has issued a Circular dated 16.08.2021, whereby the Director of Urban Affairs and the Director of Panchayats are directed not to grant any permission for 14 DBP No.88 of 2022 installation of any statue or construction of any structure in public roads, pavements, sideways and other public utility places, except for installation of high mast lights, street lights or construction relating to electrification, traffic, toll or for the development and beautification of streets, roads, highways, etc. and relating to public utility and facilities in connection with the direction of the Apex Court. The Director Urban Affairs and the Director of Panchayats are directed to instruct Local Self Government Institutions accordingly and shall regularly monitor removal of unauthorized constructions from the roads as per the provisions in the respective Statutes in compliance with the directions contained in the orders referred to therein. 19. In **Suo Motu v. State of Kerala and others [2022 (7) KHC 185]** a Division Bench of this Court, in which both of us were parties, held that, once roads are constructed as per the standards and guidelines prescribed by the Indian Roads Congress, it has to be maintained as such without any encroachment on the right of way or on the pedestrian facilities provided as per such standards and guidelines. Footpaths are not intended for stocking articles for trade or 15 DBP No.88 of 2022 for the display of goods by traders, in front of their shops or establishments. Similarly, footpaths are not intended for the purpose of holding campaigns, demonstrations, etc., by political parties and other organisations, by causing any obstruction whatsoever to the free movement of pedestrians. No political party or organisation can be permitted to encroach upon footpaths or right of way of public roads, in connection with any such protest, demonstrations, etc.; by erecting any temporary structures on the right of way or on the pedestrian facilities, forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances. Showing scant regard to the law laid down in the decisions referred to _supra_ , political parties and various organisations are permitted to put up structures on footpaths and even on the right of way on public roads, all over the State. The protesters/agitators having political backing are even permitted to lay carpet and place chairs on the footpath. On account of such encroachments, pedestrians including those with disabilities and reduced mobility are forced to walk through the right of way of public roads, in unsafe circumstances. In view of the provisions under clause (4) of 16 DBP No.88 of 2022 Regulation 5 of the Motor Vehicles (Driving) Regulations, 2017, the driver and the riders shall take special care and precautions to ensure the safety of the most vulnerable road users such as pedestrians, cyclists, children, elderly and the - differently abled persons. As per sub-clause (c) of clause (2) of Regulation 22, a vehicle shall not be parked on footpath, cycle path and pedestrian crossing. 20. In view of the statutory provisions referred to hereinbefore and the law laid down in the decision referred to _supra_ , the roads constructed as per the standards and guidelines prescribed by the Indian Roads Congress has to be maintained as such, without any encroachment on the right of way or on the pedestrian facilities provided as per such standards and guidelines. No political party, organisation or trader can be permitted to encroach upon footpaths or right of way of public roads, in connection with any protests, demonstrations or trade, by erecting any temporary structures on the right of way or on the pedestrian facilities or by stocking articles for trade forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances. Since the State holds public roads as a trustee 17 DBP No.88 of 2022 on behalf of the public, the inaction on the part of the State and the Local Self Government Institutions in preventing such encroachments upon footpaths or right of way of public roads will amount to breach of trust. Any failure on the part of the designated authorities, contractor, consultant or concessionaire in maintaining the safety standards of public roads will attract the penal consequences provided under Section 198A of the Motor Vehicles Act, 1988. 21. In the above circumstances, the Secretary of the 5[th] respondent Guruvayur Municipality and the 4[th] respondent Station House Officer, Guruvayur Temple Police Station are directed to prevent encroachment of any nature, in any form, either temporary or permanent, on the right of way or pedestrian facilities on public roads leading to Guruvayur Sree Krishna Temple, strictly in terms of the law laid down in the decisions referred to _supra_ , to ensure the safety of the road users, including children, senior citizen and differently-abled persons. They shall conduct periodical inspections, in order to ensure that roads and pedestrian facilities on the public road leading to Guruvayur Temple are maintained without any encroachments whatsoever. Any such encroachments around 18 DBP No.88 of 2022 Guruvayur Sree Krishna Temple, which would force the road users including those with disabilities and reduced mobility to walk in unsafe circumstances, shall be brought to the notice of the 4[th] respondent Station House Officer and also the Secretary of the 5[th] respondent Guruvayur Municipality, by the Administrator of Guruvayur Devaswom, by submitting representations, which shall be acted upon by respondents 4 and 5, taking note of the law laid down in the decisions referred to supra. In the result, this DBP is disposed of with the directions contained hereinbefore at paragraphs 12 and 21. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** MIN