K.N. SREEKUMAR v. Travancore Devaswom Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932** **WP(C).No. 18725 of 2010(M)** **----------------------------------------** ## **PETITIONER(S):** **-----------------------** **K.N. SREEKUMAR, KAVUMGUMPALLY HOUSE, KANAKKARI P.O., ETTUMANOOR, KOTTAYAM DISTRICT.** **BY ADV. SRI.S.KRISHNAMOORTHY** ## **RESPONDENT(S):** **--------------------------** **1. TRAVANCORE DEVASWOM BOARD, REP. BY ITS SECRETARY, NANDANCODE, THIRUVANANTHAPURAM.** **2. DEVASWOM COMMISSIONER, O/O. DEVASWOM COMMISSIONER, NANDANCODE, THIRUVANANTHAPURAM.** ## ***ADDL. R3 IMPLEADED** **ADDL. R3: JAYAPRAKASH NARAYANAN, S/O.NARAYANAN NAIR, THENGUMPALLIL VEEDU, PAKALOMATTOM P.O., KURAVILANGAD, KOTTAYAM DISTRICT.** ***ADDL. R3 IS IMPLEADED AS PER ORDER DATED 08/07/2010 IN I.A.NO.8658/2010 IN WP(C) NO. 18725/2010.** **R1 & R2 BY ADV. SRI.K.N.VENUGOPALA PANICKER, SC, TDB. ADDL.R3 ADV. SRI.ANCHAL C.VIJAYAN.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2010, ALONG WITH WP(C) NO. 33204 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** **“C.R.”** ## **THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ.** ---------------------------------------------------------------------------IA No.1597/10 in DBA No.153/09, WP(C)Nos.33204/09, 18725/10, 20399/10, 20546/10 & 33914/10 ---------------------------------------------------------------------------Dated 10th November 2010 ## Judgment ## Thottathil.B.Radhakrishnan, J. All the captioned writ petitions relate to the challenge raised to what has been issued by the Travancore Devaswom Board as bye-laws for the constitution of the Temple Advisory Committees for various temples coming under it. It is a matter of record that the Board had filed DBA No.153/09 seeking approval of what it prepared as bye-laws and this court requested the learned Ombudsman for the Devaswom Board to make suggestions to the same. The learned Ombudsman made suggestions regarding the contents of the suggested byelaws and they were recorded by this court in its order dated 15.01.2010 in DBA No.153/09. WP(C) No.18725/10 & connected cases 2 2. The writ petitions raise the ground that the so called bye-laws have no legal standing and that this court was not appraised of the relevant statutory provisions when the Board sought approval of what it called as bye-laws. 3. Section 31A was introduced into the Travancore Cochin Hindu Religious Institutions Act, 1950 by the amendment brought as per Act 5 of 2007, which reads as follows : ## _“31A._ _**Formation of Temple Advisory Committees** –_ _(1) 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._ - _(2) The Temple advisory committee constituted under subsection (1) may be approved by the Board_ _(3) The composition of an Advisory Committee under subsection (1) shall be in such manner as may be prescribed by rules made by the Board, not inconsistent with any practice, prevailing, if any.”_ WP(C) No.18725/10 & connected cases 3 In terms of sub-section (3) of Section 31A, the composition of an Advisory Committee shall be in such manner as may be prescribed by the Rules made by the Board. Section 35 of the Travancore Cochin Hindu Religious Institutions Act, 1950 provides and regulates the rule-making power of the Board. Section 35(2)(a) provides power to the Board to make Rules relating to matters expressly required by the Act to be prescribed. Sub-section (3) of Section 35 provides that the power to make rules shall be subject to the conditions of previous publication. Therefore, when the Board proceeds to make any rule, prescribing the composition of an Advisory Committee in terms of Section 31A(3), it has necessarily to follow the prescription of Section 35(3) as to previous publication. Therefore, the Board cannot make any rules for the purpose of Section 31A(3) except by following the requirement of previous publication, which is a condition prescribed by Section 35 (3) for the making of the rules. Section 22 of the Travancore Cochin Interpretation and General Clauses Act, WP(C) No.18725/10 & connected cases 4 1125 contains the provisions applicable to the making of rules or bye-laws or to the issuance of notification after previous publication. With this, we cannot, but hold that what is now made available by the Travancore Devaswom Board as bye-laws for the Temple Advisory Committees, do not have a statutory backing and cannot be enforced on the face of the clear provisions in Section 31A of the Travancore Cochin Hindu Religious Institutions Act, 1950. 4. As a consequence, the material that is held out by the Travancore Devaswom Board as bye-laws, is to be treated only as one which is a draft and further proceedings on it has necessarily to be in terms of the statutory provisions after following the prescribed requirement of previous publication. We notice that apart from the bye-laws and the comments made by the learned Ombudsman on that, as also the final order issued in DBP No.153/09 dated 15.01.2010, there are further orders issued by this court on 22.07.2010, all intended to indicate to the Board, the manner in which an effective Temple WP(C) No.18725/10 & connected cases 5 Advisory Committee could be provided for the purpose of a temple and in the larger interest of the devotees. We are also shown that this court had dealt with quite elaborately, on the concept of the Temple Advisory Committee, in _**Vijayan v. Cochin Devaswom Board**_ (2004(3) KLT 670). We may also indicate that Section 31A(3) provides that the Rules that may be prescribed for the composition of the Advisory Committees shall not be inconsistent with any practice prevailing, if any. The general practices regarding the constitution and functioning of Advisory Committees in different temples under the Travancore Devaswom Board would be the general yardsticks. However, to modulate the constitution, composition and working of the Advisory Committee of any particular temple, depending upon any particular practice that may be exceptional and prevailing in relation to such temple and its advisory committee, the Board should necessarily preserve with it the power to grant exemption or relaxation or modification, as the case may be. WP(C) No.18725/10 & connected cases 6 5. In the aforesaid context, we direct that the Travancore Devaswom Board would make a fresh draft of what could be the Rules that may be prescribed in terms of Section 31A(3) of the 1950 Act, taking into consideration the draft Rules already prepared, the views of the learned Ombudsman and the orders of this court as are referred to above and any other matter as may be relevant. Such draft shall be published and the Rules shall be made and issued without fail within a period of three months from now. In the interregnum, the committees constituted with the concurrence of the Board authorities in terms of the practice that was in vogue before the issuance of the present draft bye-laws impeached in these proceedings, will be permitted to continue, however that if such committees have erred in any manner in relation to submission of accounts etc., the Board authorities will be at liberty to remove such committees and appoint ad hoc committees, pending finalisation of the rules. After considering the objections, if any, to the draft Rules by WP(C) No.18725/10 & connected cases 7 following the procedure as afore indicated, the Board will obtain prior approval of the final version of the Rules from this Court before its final publication. Such approval will be sought for after obtaining a report of the learned Ombudsman also. The captioned writ petitions and interlocutory application are ordered accordingly. ## **THOTTATHIL.B.RADHAKRISHNAN, JUDGE** ## **P.BHAVADASAN, JUDGE** sta WP(C) No.18725/10 & connected cases 8