K.M. Babu v. Travancore Devaswom Board

1 W.P.(C) No.30702 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 THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 W.P.(C)NO.30702 OF 2022** ## **PETITIONER:** **K.M. BABU AGED 54 YEARS, S/O. K.K. MANIYAN, KANDATHIL, AVALOOKUNNU P.O. ARYAD SOUTH, ALAPPUZHA DISTRICT, PIN – 688006.** **BY ADVS. B.PRAMOD BIJU VIGNESWAR ASWATHI SURESH AYYAPPADAS V** ## **RESPONDENTS:** - **1 TRAVANCORE DEVASWOM BOARD, DEVASWOM HEADQUARTERS, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM, KERALA, REP. BY ITS SECRETARY, PIN – 695003.** - **2 THE DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, DEVASWOM HEADQUARTERS, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM, KERALA, PIN – 695003.** - **3 THE ASSISTANT COMMISSIONER, TRAVANCORE DEVASWOM BOARD, AMBALAPPUZHA , ALAPPUZHA DISTRICT, PIN – 688561.** - **4 THE SUB GROUP OFFICER, MULLAKKAL SREE RAJARAJESWARI TEMPLE,PAZHAVANGADI CHURCH ROAD, MULLACKAL P.O, ALAPPUZHA DISTRICT, PIN – 688011.** - **5 S. RAJAN,** - **PRESIDENT OF THE TEMPLE ADVISORY COMMITTEE, MULLAKKAL SREE RAJARAJESWARI TEMPLE, MULLACKAL** 2 W.P.(C) No.30702 of 2022 ## **P.O, ALAPPUZHA DISTRICT, PIN – 688011.** - **6 K. RAMACHANDRAN NAIR, VICE PRESIDENT OF THE TEMPLE ADVISORY COMMITTEE, MULLAKKAL SREE RAJARAJESWARI TEMPLE, MULLACKAL P.O., ALAPPUZHA DISTRICT, PIN – 688011.** - **7 VENKITESH KUMAR R., SECRETARY OF THE TEMPLE ADVISORY COMMITTEE , MULLAKKAL SREE RAJARAJESWARI TEMPLE, MULLACKAL P.O, ALAPPUZHA DISTRICT, PIN – 688011.** - **8 S.KRISHNAMMA,** - **MEMBER OF THE TEMPLE ADVISORY COMMITTEE , MULLAKKAL SREE RAJARAJESWARI TEMPLE, MULLACKAL P.O, ALAPPUZHA DISTRICT, PIN – 688011.** - **9 V. GOPAN, MEMBER OF THE TEMPLE ADVISORY COMMITTEE , MULLAKKAL SREE RAJARAJESWARI TEMPLE, MULLACKAL P.O., ALAPPUZHA DISTRICT, PIN – 688011.** - **10 R. PADMAKUMAR, MEMBER OF THE TEMPLE ADVISORY COMMITTEE , MULLAKKAL SREE RAJARAJESWARI TEMPLE, MULLACKAL P.O., ALAPPUZHA DISTRICT, PIN – 688011.** - **11 K. RAJU, MEMBER OF THE TEMPLE ADVISORY COMMITTEE , MULLAKKAL SREE RAJARAJESWARI TEMPLE, MULLACKAL P.O., ALAPPUZHA DISTRICT, PIN – 688011.** - **12 K.U.KALADHARAN,** - **MEMBER OF THE TEMPLE ADVISORY COMMITTEE , MULLAKKAL SRI RAJARAJESWARI TEMPLE, MULLACKAL P.O., ALAPPUZHA DISTRICT, PIN – 688011.** - **13 N. CHANDRAN,** - **MEMBER OF THE TEMPLE ADVISORY COMMITTEE , MULLAKKAL SREE RAJARAJESWARI TEMPLE, MULLACKAL P.O., ALAPPUZHA DISTRICT, PIN – 688011.** - **14 R. SREENIVASAN, MEMBER OF THE TEMPLE ADVISORY COMMITTEE , MULLAKKAL SREE RAJARAJESWARI TEMPLE, MULLACKAL P.O., ALAPPUZHA DISTRICT, PIN – 688011.** 3 W.P.(C) No.30702 of 2022 - **15 PREM J., MEMBER OF THE TEMPLE ADVISORY COMMITTEE , MULLAKKAL SREE RAJARAJESWARI TEMPLE, MULLACKAL P.O., ALAPPUZHA DISTRICT, PIN – 688011.** - **16 M. MURUKAN,** - **MEMBER OF THE TEMPLE ADVISORY COMMITTEE , MULLAKKAL SREE RAJARAJESWARI TEMPLE, MULLACKAL P.O., ALAPPUZHA DISTRICT, PIN – 688011.** - **17 P.S. BINDUSEKHARAN,** **MEMBER OF THE TEMPLE ADVISORY COMMITTEE ,** - **MULLAKKAL SREE RAJARAJESWARI TEMPLE, MULLACKAL P.O., ALAPPUZHA DISTRICT, PIN – 688011.** **BY ADVS.** - **SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 W.P.(C) No.30702 of 2022 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner, who is a devotee of Goddess Durga of Mullakkal Sree Rajarajeswari Temple, Alappuzha, which is a temple under the management of the 1[st] respondent Travancore Devaswom Board, has filed this Writ Petition under Article 226 of the Constitution of India, seeking to issue a writ of mandamus commanding respondents 1 to 5 to take necessary steps to nullify the election of respondents 5 to 17 as members of the Temple Advisory Committee of Mullakkal Sree Rajarajeswari Temple, which was conducted pursuant to Ext.P3 notice published by the 4[th] respondent Sub Group Officer of that temple. The petitioner has also sought for a writ of mandamus commanding respondents 1 to 4 to conduct a fresh election to the Temple Advisory Committee of Mullakkal Sree Rajarajeswari Temple, Alappuzha, strictly in terms of Ext.P1 Rules for the formation of the Temple Advisory Committees in the temples under the management of the Travancore Devaswom Board. 2. On 27.09.2022, when this matter came up for admission, this Court admitted the matter on file. The learned Standing Counsel for Travancore Devaswom Board took notice 5 W.P.(C) No.30702 of 2022 for respondents 1 to 4. Urgent notice by speed post was ordered to respondents 5 to 17, returnable within three weeks. 3. The 1[st] respondent has filed a counter affidavit dated 03.02.2023, producing therewith Ext.R1(a) order dated 05.09.2022 of the Devaswom Commissioner, granting approval for the Temple Advisory Committee of Mullakkal Sree Rajarajeswari Temple, for the year 2022-2024, based on the election held on 30.08.2022. 4. On 23.02.2023, when this Writ Petition came up for consideration, the learned Standing Counsel for the Travancore Devaswom Board was directed to make available for the perusal of this Court the files relating to the election conducted on 30.08.2022 to the Temple Advisory Committee of Mullakkal Sree Rajarajeswari Temple. 5. Heard the learned counsel for the petitioner and the learned Standing Counsel for the Travancore Devaswom Board for respondents 1 to 4. Despite service of notice, none appears for respondents 5 to 17. 6. We have perused the files relating to the election conducted on 30.08.2022 to the Temple Advisory Committee of Mullakkal Sree Rajarajeswari Temple, made available by 6 W.P.(C) No.30702 of 2022 the learned Standing Counsel for Travancore Devaswom Board. 7. Section 31A of the Travancore-Cochin Hindu Religious Institutions Act, 1950, deals with the formation of the Temple Advisory Committees. As per sub-section (1) of Section 31A of the Act, a Committee for each temple in the name ‘Temple Advisory Committee’ (name of the temple) may be constituted in order to ensure participation of Hindu devotees. As per sub-section (2) of Section 31A, the Temple Advisory Committee constituted under sub-section (1) may be approved by the Board. As per sub-section (3) of Section 31A, the composition of an Advisory Committee under sub-section (1) shall be in such manner as may be prescribed by the rules made by the Board, not inconsistent with any practice, prevailing, if any. 8. In terms of sub-section (3) of Section 31A of the Act, the Travancore Devaswom Board framed Ext.P1 Rules for the formation of Temple Advisory Committees in the temples under the Board. The draft rules have been approved by this Court, by the order dated 03.11.2011 in DBA No. 153 of 2019. As per Clause (11) of Ext.P1 Rules, the term of an elected Temple Advisory Committee shall be two years from 7 W.P.(C) No.30702 of 2022 the date on which the Devaswom Commissioner grants approval, under Clause (8) of Ext.P1 Rules, to the list of elected members forwarded by the Assistant Devaswom Commissioner. 9. In **Chandu K. v. Travancore Devaswom Board [2021 (3) KHC 379]** a Division Bench of this Court held that, with the insertion of Section 31A to the Travancore Cochin Hindu Religious Institutions Act the formation of Temple Advisory Committees in temples has become statutory. 10. Clause (3) of Ext.P1 Rules deals with membership. The provisions under Clause (3) make it explicitly clear that the membership in ‘registered mandalam’ is mainly for the devotees who are residing within a distance of 5 kms from the temple, who are regular worshipers and had contributed considerably for the betterment of the temple and the devotees. 11. Clause (5) of Ext.P1 Rules deals with election. As per Clause (5), the Assistant Devaswom Commissioner shall convene a general meeting of registered devotees to elect members other than the permanent members of the Advisory Committee. For that purpose, notice shall be given to the members at least one week before the scheduled meeting. 8 W.P.(C) No.30702 of 2022 At the meeting so convened the members of the Advisory Committee shall be elected by consensus. If, for any reason, names of more than the prescribed number of members to be nominated are suggested, the names of prescribed number of members shall be drawn by lots in front of the sanctum sanctorum, in the presence of the Assistant Devaswom Commissioner. 12. In **Santharam Roy T.S. v. Travancore Devaswom Board and others** [ **2022 (2) KLT SN 24]** a Division Bench of this Court in both of us are parties held that the provisions under Clause (3) of Ext.P1 Rules, which deals with qualification for membership, makes it explicitly clear that the membership in ‘registered mandalam’ is mainly for the devotees who are residing within a distance of 5 kms from the temple, who are regular worshipers and had contributed to a considerable extent for the betterment of the temple and the devotees. When no particular form of notice is provided in Clause (5) of Ext.P1 Rules, the publication of notice convening a general meeting of registered devotees to elect members other than the permanent members to the Advisory Committee on the notice board of the Travancore Devaswom Board inside the temple premises as well as on all ‘gopurams’ 9 W.P.(C) No.30702 of 2022 of the temple is sufficient compliance of the requirement of notice provided in Clause (5) of the said Rules. 13. In the instant case, admittedly the notice convening the general meeting of registered devotees to elect members other than the permanent members of the Temple Advisory Committee of Mullakkal Sree Rajarajeswari Temple was given by the 4th respondent Sub Group Officer, instead of the 3rd respondent Assistant Commissioner. The proceedings in that meeting convened under Clause (5) of Ext.P1 Rules were in the presence of the 4th respondent Sub Group Officer, instead of the 3rd respondent Assistant Commissioner. As borne out from the files, as authorised by the 3rd respondent Assistant Commissioner, vide authorisation letter dated 26.08.2022, the proceedings in that meeting of registered devotees held on 30.08.2022 to elect members of the Temple Advisory Committee were in the presence of the 4th respondent Sub Group Officer. As per that letter, the 3rd respondent Assistant Commissioner authorised the 4th respondent Sub Group Officer to conduct the meeting of registered devotees, since he has to attend the counting of Kanikka in Erattakulangara Temple scheduled on 30.08.2022. 14. It is well settled that, when the Statute requires to 10 W.P.(C) No.30702 of 2022 do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods or modes of performance are impliedly and necessarily forbidden. The said proposition of law is based on a legal maxim " _expressio unius est exclusion alteris_ " meaning thereby that, if the Statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner, and following other course is not permissible. The said proposition of law about limitation of the exercise of statutory power has first been identified by Jassel M. R. in the case of **Taylor v. Taylor [(1876) 1 Ch.D. 426]** , wherein it was laid down that, where a power is given to do a certain thing in a certain way, that thing must be done in that way, or not at all, and that other methods of performance are necessarily forbidden. The Privy Council applied the said principle in the case of **Nazir Ahmed v. King Emperor [AIR 1936 PC 253]** . 15. Since the notice convening the general meeting of registered devotees to elect members other than the permanent members of the Temple Advisory Committee of Mullakkal Sree Rajarajeswari Temple was given by the 4th respondent Sub Group Officer, instead of the 3rd respondent Assistant Commissioner, and since the proceedings in that 11 W.P.(C) No.30702 of 2022 meeting convened on 30.08.2022, under Clause (5) of Ext.P1 Rules, were in the presence of the 4th respondent Sub Group Officer, instead of the 3rd respondent Assistant Commissioner, by openly flouting the procedure contemplated under Clause (5) of the said Rules, the election of respondents 5 to 17 as members of the Temple Advisory Committee of Mullakkal Sree Rajarajeswari Temple is declared _void ab initio_ . Consequently, the approval granted by the 2[nd] respondent Devaswom Commissioner, vide Ext.R1(a) order dated 05.09.2022 to the Temple Advisory Committee of Mullakkal Sree Rajarajeswari Temple, is set aside. The 3[rd] respondent Assistant Commissioner is directed to convene the general meeting of registered devotees to elect members other than the permanent members of the Temple Advisory Committee of Mullakkal Sree Rajarajeswari Temple, in strict compliance of the provisions contained under Ext.P1 Rules, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. The audited accounts of the Temple Advisory Committee of Mullakkal Sree Rajarajeswari Temple till date shall be submitted for audit, through the 3[rd] respondent Assistant Commissioner, within a period of three weeks. 12 W.P.(C) No.30702 of 2022 This writ petition is disposed of as above. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 13 W.P.(C) No.30702 of 2022 ## **APPENDIX OF W.P.(C)NO.30702/2022** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE RULES FRAMED BY THE 1ST RESPONDENT BOARD IN THE MATTER OF CONSTITUTION AND FUNCTIONING O THE TAC** - **EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 23.08.2022 PUBLISHED BY THE 4TH RESPONDENT** - **EXHIBIT P3 TRUE COPY OF THE UNDATED NOTICE PUBLISHED BY THE 4TH RESPONDENT** - **EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 01.09.2022 ISSUED BY THE ASSISTANT COMMISSIONER, VAIKOM OF THE 1ST RESPONDENT BOARD INFORMING ABOUT THE MEETING FOR THE PURPOSE OF CONSTITUTION OF THE TAC IN THURAVOOR MAHA KSHETHRAM, ANOTHER TEMPLE UNDER THE CONTROL OF THE 1ST RESPONDENT BOARD** - **EXHIBIT P5 TRUE COPY OF THE ELECTION REPORT PUBLISHED IN THE JANMABHUMI DAILY DATED 16.09.2022** - **EXHIBIT P6 TRUE COPY OF THE PRINTOUT OF THE E-MAIL DATED 31.08.2022 SENT BY THE PETITIONER TO THE 2ND RESPONDENT** - **EXHIBIT P7 TRUE COPY OF THE E-MAIL DATED 31.08.2022 BY THE PETITIONER TO THE 3RD RESPONDENT** ## **RESPONDENT EXHIBITS** - **EXHIBIT-R1(A) TRUE COPY OF THE ORDER DATED 05/09/2022 ISSUED BY THE DEVASWOM COMMISSIONER ALONG WITH THE LIST OF APPROVED MEMBERS OF THE TAC.**