K.N. Krishnakumar v. Cochin Devaswom Board and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` MONDAY, THE 21[ST] DAY OF NOVEMBER 2022/30TH KARTHIKA, 1944 ``` ``` WP(C) NO. 16433 OF 2016 ``` ``` PETITIONER: ``` ``` K.N.KRISHNAKUMAR, SECRETARY, THEKKAN CHITTOOR SREEKRISHNA SWAMY KSHETHRA SAMRAKSHANA SAMITHI, SOUTH CHITTOOR, COCHIN 27 ``` ``` BY ADV SRI.R.DIVAKARAN ``` ``` RESPONDENTS: ``` - **`1 COCHIN DEVASWOM BORD, REPRESENTED BY ITS SECRETARY, COCHIN DEVASWOM BOARD, THRISSUR 695 001`** - **`2 DEVASWOM OFFICER, SOUTH CHITTOOR SREEKRISHNA SWAMY TEMPLE, SOUTH CHITTOOR, KOCHI 682 027`** - **`3 ASSISTANT COMMISSIONER (ESTATE) COCHIN DEVASWOM BOARD,THRISSUR 695 001`** - **`4 VENUGOPAL, AGED ABOUT 65 YEARS,S/O. KRISHNA MENON, CHERUVELIL HOUSE,SOUTH CHITTOOR,COCHIN 27`** - **`*ADDL.R5 DEVASWOM COMMISSIONER, COCHIN DEVASWOM BOARD, ROUND NORTH, THRISSUR 1, DEVASWOM BUILDING, SWARAJ ROUND, 688 001 IS SUO MOTU IMPLEADED AS THE ADDTIIONAL 5[TH] RESPONDENT BY ORDER DATED 21.11.2022`** ``` BY ADVS. SRI.KRISHNA MENON, SC, CDB SRI.G.RAJAGOPAL, SC, COCHIN DEVASWOM BOARD SRI.SUNIL N.SHENOI SRI.G.RAJAGOPAL, SC, COCHIN DEVASWOM BOARD SRI.SUMEESH K.S., SC, COCHIN DEVASWOM BOARD SRI.P.VISWANATHAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- W.P.(C)No.16433 of 2016 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner, who is a devotee of Sree Krishnaswamy Temple at South Chittoor, who is also the Secretary of South Chittoor Sree Krishnaswamy Kshethra Samrakshana Samithi, which is a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent Cochin Devaswom Board to abstain from renting out building No.III/735 owned by the Devaswom, in violation of Section 86 of the Travancore-Cochin Hindu Religious Institutions Act, 1950. The petitioner has also sought for a writ of mandamus commanding the 3[rd] respondent Assistant Devaswom Commissioner to cancel the steps taken to let out the building in question to the 4[th] respondent. 2. On 29.04.2016, when this writ petition came up for admission, this Court admitted the matter on file. The learned -3- W.P.(C)No.16433 of 2016 Standing Counsel for Cochin Devaswom Board took notice for respondents 1 to 3. Urgent notice by speed post was ordered to the 4[th] respondent, returnable within ten days. 3. On 19.10.2022, when this writ petition came up for consideration, this Court noticed that the 1[st] respondent Board has not chosen to file counter affidavit and therefore two weeks' time was granted as last chance. 4. Today, when this matter is taken up for consideration, the learned Standing Counsel for Cochin Devaswom Board would submit that the proposal made by the Board to demolish the existing building, including the shop room in question, for the purpose of constructing a multistoried shopping complex has already been approved. 5. The learned counsel for the 4[th] respondent would submit that the said respondent was inducted into the shop room in question, on the strength of a lease deed dated 20.11.2015, specifying the period lease till demolition of the building. The learned counsel has handed over a copy of the lease deed dated 20.11.2015, which does not even contain -4- W.P.(C)No.16433 of 2016 the signature of the 1[st] party, i.e., the Secretary of Cochin Devaswom Board. The learned counsel has also handed over a copy of the rental receipt dated 31.12.2018 regarding payment of rent in respect of shop room No.III/735 in the Devaswom Building Complex. Registry to incorporate the copy of the lease deed and the rental receipt, in the Judges’ papers of this writ petition. 6. The Travancore-Cochin Hindu Religious Institutions Act, 1950, was made for making provisions for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. Chapter VIII of the Act deals with Cochin Devaswom Board. Section 62 of the Act deals with vesting of administration in the Board. As per sub-section (1) of Section 62, the administration of incorporated and unincorporated Devaswoms and Hindu Religious Institutions which were under the management of the Ruler of Cochin immediately prior to the first day of July, 1949 either under Section 50G of the Government of Cochin Act, XX of 1113, or -5- W.P.(C)No.16433 of 2016 under the provisions of the Cochin Hindu Religious Institutions Act, 1 of 1081, and all their properties and funds and of the estates and all institutions under the management of the Devaswom Department of Cochin, shall vest in the Cochin Devaswom Board. As per sub-section (2) of Section 62, notwithstanding the provisions contained in sub-section (1), the regulation and control of all rituals and ceremonies in the temple of Sree Poornathrayeesa at Trippunittura and in the Pazhayannur Bhagavathy temple at Pazhayannur shall continue to be exercised as hitherto by the Ruler of Cochin. 7. Section 62A of the Act, inserted by Act 14 of 1990, deals with Devaswom properties. As per Section 62A, all immovable properties vested in the Cochin Devaswom Board - under sub section (1) of Section 62 shall be dealt with as Devaswom Properties. The provisions of the Kerala Land Conservancy Act, 1957 shall be applicable to Devaswom lands as in the case of Government lands. As per Section 62B, all unassigned lands belonging to the Devaswom under the sole management of the Board shall be deemed to be the property -6- W.P.(C)No.16433 of 2016 of the Government for the purpose of the Kerala Land Conservancy Act, 1957 and all the provisions of that Act shall, so far as they are applicable, apply to such lands. 8. Section 68 of the Act provides for administration by the Board as a trustee. As per sub-section (1) of Section 68, subject to the provisions of the Act and of any other law for the time being in force, the Board shall be bound to administer the affairs of incorporated and unincorporated Devaswoms and institutions under its management in accordance with the objects of the trust, the established usage and customs of the institutions and to apply their funds and property for such purposes. As per sub-section (2) of Section 68, notwithstanding anything contained in sub-section (1), the Board may, out of the funds under their control, set apart such sum as they deem fit for the educational uplift, cultural advancement and economic betterment of the Hindu community, after providing adequately for the purposes of the institutions which have to be met from the said fund. 9. Section 73A of the Act deals with duties of the -7- W.P.(C)No.16433 of 2016 Board. As per Section 73A, it shall be the duty of the Board to perform the functions enumerated in clauses (i) to (iv), namely, (i) to see that the regular traditional rites according to the practice prevalent in the religious institution are performed promptly; (ii) to monitor whether the administrative staff 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 major temples for the devotees. 10. Section 74 of the Act deals with vesting of jurisdiction in the Board. As per Section 74, subject to the provisions of sub-section (2) of Section 62, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Cochin prior to the 1[st] day of July, 1949 in respect of incorporated and unincorporated Devaswoms and Institutions shall vest in and be exercised by the Board in accordance with the provisions of the Act. Section 74 of the Act deals with superintendence and control by the Board. As per Section 64, -8- W.P.(C)No.16433 of 2016 the Board shall, subject to the provisions of Part II 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. 11. Section 86 of the Act provides that alienation of property without sanction of Board void. As per sub-section (1) of Section 86, any exchange, sale, mortgage, pledge, lease or other alienation of the property of an institution executed or made or any debt contracted on its behalf, shall be void unless it is executed or made or contracted with the previous sanction of the Board or with the previous sanction of the Civil Court when in any suit, appeal or other proceedings in relation to the institution a Receiver has been appointed by the civil court for the management of the properties of the institution. As per the proviso to sub-section (1) of Section 86, the court shall before granting or refusing such sanction give notice to the Board and hear the objections, if any, of the Board. As per sub-section (2) of Section 86, the Board may prefer an appeal to the High Court -9- W.P.(C)No.16433 of 2016 from the order passed by such court within thirty days of the order and such appeal shall be heard and disposed of by a Bench of not less than two Judges. As per sub-section (3) of Section 86, any person aggrieved by an order under subsection (1) may appeal to the High Court within thirty days from the date of publication of the order in the Gazette and such appeal shall be heard and disposed of by a Bench of not less than two Judges. As per sub-section (4) of Section 86, every order of the Board under sub-section (1) shall be published in the Gazette. 12. In **T.Krishnakumar v. Cochin Devaswom Board** **[2022 (5) KHC SN 8 : 2022 (4) KLT 798]** , 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. v. Travancore Devaswom Board [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 -10- W.P.(C)No.16433 of 2016 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 mere landlord. The best interest of the Devaswoms under the control of the Board would be subserved only if income is generated. 13. In **T. Krishnakumar [2022 (5) KHC SN 8]** , the Division Bench noticed that the major source of revenue of Cochin 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 and also the rental income generated from the buildings owned by the respective Devaswoms. Therefore, while dealing with the buildings owned by the Devaswoms, Cochin Devaswom Board and its officials have to ensure that proper income is generated from the said -11- W.P.(C)No.16433 of 2016 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 rack 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. In view of the provisions under Section 73A of the Act, Cochin Devaswom Board is duty -12- W.P.(C)No.16433 of 2016 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. 14. As held by this Court in **T. Krishnakumar [2022** **(5) KHC SN 8]** while leasing out the buildings owned by the Devaswom in question, the 1[st] respondent 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 best interest of the Devaswom, which is under the control of the Board, would be subserved only if proper income is generated by letting out the building. Having considered the materials on record and also the submissions made at the Bar, we deem it appropriate to dispose of this writ petition by directing the additional 5[th] -13- W.P.(C)No.16433 of 2016 respondent Devaswom Commissioner to conduct a detailed enquiry on the letting out of shop room No.III/735 in the Devaswom Shopping Complex at South Chittoor and take appropriate action, if found necessary, against the officers concerned, who have not shown reasonable diligence in that transaction with the 4[th] respondent, in the manner of an ordinary prudent man conducting his own affairs. Such enquiry shall be conducted with notice to the petitioner and also the 4[th] respondent, which shall be finalised, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV -14- W.P.(C)No.16433 of 2016 ## **`APPENDIX OF WP(C) 16433/2016`** |**`PETITIONER`**|**`EXHIBITS`**| |---|---| |**`EXT.P1`**|**`A TRUE COPY OF THE APPLICATION DATED`**| ||**`19-09-2014`**| |**`EXT.P2`**|**`A TRUE COPY OF THE PROCEDINGS OF THE`**| ||**`3RD RESPONDENT DATED 16-09-2014`**| |**`EXT.P3`**|**`A TRUE COPY OF PROCEEDINGS OF THE 1ST`**| ||**`RESPONDENT DATED 17-11-2015`**| |**`EXT.P4`**|**`THE TRUE COPY OF THE REPRESENTATION`**| ||**`DATED 21-4-2016`**|