K.P. Ramesan @ K.P. Karthikeyan v. The Assistant Commissioner, Travancore Devaswom Board; The Sub Group Officer, Travancore Devaswom Board; The Secretary Temple Advisory Committee, Ekadasa Perumthrikkovil Mahadeva Temple; Addl. R4 (Secretary Travancore Devaswom Board)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944 ``` ``` WP(C) NO. 23901 OF 2022 ``` ## **`PETITIONER:`** ``` K.P. RAMESAN @ K.P. KARTHIKEYAN AGED 62 YEARS S/O. PURUSHOTHAMAN KURAVANPARAMBIL HOUSE, UDAYAMPEROOR P.O., ERNAKULAM, PIN – 682307 ``` ``` BY ADVS.DR. K.P. SATHEESAN (SR.) P.MOHANDAS (ERNAKULAM) K.SUDHINKUMAR S.K.ADHITHYAN SABU PULLAN GOKUL D. SUDHAKARAN ``` ## **`RESPONDENTS:`** ``` 1 THE ASSISTANT COMMISSIONER TRAVANCORE DEVASWOM BOARD, VAIKOM GROUP, VAIKOM, KOTTAYAM, PIN – 686141 ``` ``` 2 THE SUB GROUP OFFICER TRAVANCORE DEVASWOM BOARD, EKADASA PERUMTHRIKKOVIL MAHADEVA TEMPLE, UDAYAMPEROOR, ERNAKULAM, PIN – 682307 ``` - **`3 THE SECRETARY TEMPLE ADVISORY COMMITTEE, EKADASA PERUMTHRIKKOVIL MAHADEVA TEMPLE, UDAYAMPEROOR, ERNAKULAM, PIN – 682307`** ``` W.P.(C)No.23901 of 2022 ``` 2 ``` 4 *ADDL. R4 IS IMPLEADED ``` ``` THE SECRETARY, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM-682 307. ``` ``` *(ADDL.R4 IS IMPLEADED AS PER ORDER DATED 25-07- 2022 IN I.A. NO. 1/2022) ``` ``` R1, R2 & R4 BY ADVS.SRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD R3 BY SRI. K.S.ARUN KUMAR ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C)No.23901 of 2022 ``` 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is a devotee of Ekadasa Perumthrikkovil Mahadeva Temple, Udayamperoor, a temple under the management of the Travancore Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 1[st] respondent Assistant Commissioner, Vaikom Group to consider and pass appropriate orders on Ext.P3 complaint dated 19.07.20222, at any rate, before 27.07.2022. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent Sub Group Officer, Ekadasa Perumthrikkovil Mahadeva Temple, Udayamperor to take appropriate steps to prevent the conduct of ‘Vavubali’ scheduled to be held on 28.07.2022 at Ekadasa Perumthrikkovil Mahadeva Temple, Udayamperor; and a declaration that the conduct of ‘Vavubali’ in Ekadasa Perumthrikkovil Mahadeva Temple is contrary to the custom and belief of that temple. In the writ petition it is averred that, as per the custom no ‘Vavubali’ is conducted in Ekadasa Perumthrikkovil Mahadeva Temple from time immemorial. It was not allowed to be conducted within the temple or its premises. However, the 3[rd] respondent, who is ``` W.P.(C)No.23901 of 2022 ``` 4 the Secretary of the Temple Advisory Committee of Ekadasa Perumthrikkovil Mahadeva Temple is taking hasty steps to conduct ‘Vavubali’ in the temple on 28.07.2022, as evidenced by Ext.P1 notice. The document marked as Ext.P2 is the opinion of the Tantri of the temple, which is against the conduct of ‘Vavubali’ within the temple compound. The petitioner has enclosed copy of Exts.P1 and P2 along with Ext.P3 complaint. 2. On 22.07.2022, when this writ petition came up for admission, the learned Standing Counsel for the Travancore Devaswom Board took notice on admission for respondents 1 and 2. Urgent notice on admission was ordered to the 3[rd] respondent by special messenger, returnable by 25.07.2022. The learned Standing Counsel for the Travancore Devaswom Board was directed to get instructions as to whether the 1[st] respondent Assistant Devaswom Commissioner is already in receipt of Ext.P2 opinion of the Tanthri of Ekadasa Perumthrikkovil Mahadeva Temple, Udayamperror. 3. On 25.07.2022, when this writ petition came up for consideration, this Court allowed I.A.No.1 of 2022 filed by the petitioner seeking an order to implead the Secretary of the Travancore Devaswom Board as additional 4[th] respondent. ``` W.P.(C)No.23901 of 2022 ``` 5 Regarding Ext.P2 opinion of the Tantri, which is dated 18.07.2022, the learned Standing Counsel for Travancore Devaswom Board placed reliance on Clause 16 of Chapter IV, Vol-II of Travancore Devaswom Manual (Office Manual). The learned Standing Counsel submitted that the devotees are permitted to perform ‘Vavubali’, after remitting the requisite fee to the Devaswom and it is being conducted outside the Chuttambalam of Ekadasa Perumthrikkovil Mahadeva Temple. 4. A statement has been filed on behalf of respondents 1, 2 and 4. Paragraphs 5 to 11 of the statement read thus; “5. It is submitted that Udayamperoor Ekadasi Perumthrikkovil Temple is an ancient Shiva temple with a Valiya Vatta Sreekovil. This temple is a classic example of the architectural style of Kerala and has a tower at the entrance. The temple is situated in an extent of 4 acres of land. The temple has a big pond having an extent of one acre. It is one of the big Shiva temples among the 108 famous Shiva temples installed by Sri Parasurama. The sub deities are Ganapathi, Goddess Parvathi, Subramoniyan, Sreekrishna, Sasthavu, Yakshi and Dakshina Moorthy. 6. It is submitted that the Bali Tharpanam ritual is conducted in different styles and practices in different temples. In Thiruvallam Sree Parasurama Temple, Balitharpanam is conducted inside the Nalambalam of the temple. In Aluva Mahadevar temple, Balitharpanam is performed in the temple premises on the banks of the ``` W.P.(C)No.23901 of 2022 ``` 6 river Peryar. It is pertinent to note that Baltharpanam is conducted in all Shiva temples on the day of Maha Shivratri Balitharpanam is conducted in the premises of thousands of small and big temples across the State. 7. People believe that departed souls attain moksha if this ritualistic homage is performed on Karkidaka vavu day on the Malayalam month of Karkidakam. In the year 2019, Karkidaka Vavu Balitharpanam was performed in Udayamperoor Ekadasi Perumthrikkovil Temple inside the Chuttambalam in front of the subdiety Sreekrishna Bhagavan and thousands of persons done Bali Tharpanam in the temple. Thereafter due to COVID restrictions no Balitharpanam was conducted in the temple during the years 2021 & 2022. 8. It is submitted that even though Exhibit-P2 is not binding on the Board or its officials, considering the opinion of the tantri of the temple as reflected in Exhibit P2, the first respondent directed the 2[nd] respondent to make arrangements to conduct the Bali Tharpanam outside the temple compound. Thus a temporary pandal is being made in the temple maithanam outside the compound wall with facilities to do Bali Tharpanam for 100 persons at a time. The Balitharpanam will be conducted under the auspicious control of the keezh santhi of the temple. 9. It is submitted that Devaswom will collect Rs 75/per person for the Balitharpanam on issuing receipt for the same. The ritual is conducted with the active cooperation of the Temple advisory Committee of the temple. Exhibit-P1 notice is issued jointly by the 2[nd] and 3[rd] respondents announcing the conduct of ``` W.P.(C)No.23901 of 2022 ``` 7 Balitharpanam in the temple premises. The petitioner, who is presumed to be a member of the rival faction of the TAC, is making attempts to stall the Balitharpanam organized jointly by the Devaswom and the TAC of the temple. The Tantri of the temple had no objection while the ritual was conducted in the temple in 2019. The people residing near the temple are benefited by getting an opportunity to pay homage to their departed ancestors in their nearby temple by providing facilities for Bai Tharpanam by the temple authorities. During 2019 nearly 1000 people performed their pitru pooja in the temple. 10. It is submitted that Exhibit-P2 opinion of the Tantri is produced by the petitioner along with Exhibit-P3 complaint. The Tantri is a not expected to give opinion to private persons or send the opinion to the Board or its officers through private persons in temple matters as done here at the instance of the petitioner herein. 11. As per clause 16 of Chapter IV of the Travancore Devaswom Manual, the Tantries may send official communications relating to Devaswoms to the officers of the Department not below the rank of an Assistant Devaswom Commissioner, and they may send such covers superscribed as "Devaswom Matters” with the name of the Tantri. Tantries are barred from communicating their opinions on temple matters through private individuals or Samithies and under no circumstances such communications will be entertained by the Board and by the officers of the department. Therefore the action of the Tantri in giving Exhibit-P2 opinion/objection to the petitioner is inappropriate and ``` W.P.(C)No.23901 of 2022 ``` 8 is liable to be prevented in future.” 5. The 3[rd] respondent has also filed a counter affidavit dated 26.07.2022. Paragraphs 4 to 7 of that counter affidavit read thus; “4. It is humbly submitted that the temple is established before centuries. It is surrounded by 'Pradikshina Vazhi' and "Gopuramathil' which is situated in 2 acres out of the 4 acres of land. The proposed 'Vavubali' is going to be conducted on outside the 'Gopuramathil' of the temple. Therefore, the allegation of the petitioner that the 'Vavubali' is conducting inside the temple is wrong and hence denied. 5. It is humbly submitted that the proposed 'Vavubali' is a sacrificial ritual and is conducted in every year. The committee was unable to conduct the proposed 'Vavubali', only in the last two years, due to Covid-19 pandemic. 6. It is humbly submitted that the 3 respondent has not received any letter or communication from the 'Thanthri' of the temple about the proposed 'Vavubali'. The 3[rd] respondent has not received any complaint from the petitioner also regarding the same. 7. It is humbly submitted that the proposed 'Vavubali' is not against the religious and sentimental feelings of the worshipers of the temple as it is going to be conducted on outside the temple.” 6. Heard the learned counsel for the petitioner, the learned Standing Counsel for the Travancore Devaswom Board on behalf of respondents 1, 2 and additional 4[th] respondent and also the learned counsel for the 3[rd] respondent. ``` W.P.(C)No.23901 of 2022 ``` 9 7. The petitioner filed this writ petition mainly relying on Ext.P2 opinion of the Tantri of Ekadasa Perumthrikkovil Mahadeva Temple. The said opinion, which according to the petitioner is the objection of the Tantri, which was enclosed along with Ext.P3 complaint. 8. Clause 16 of Chapter IV, Vol-II of Travancore Devaswom Manual (Office Manual) provides that Tantries may send official Communications relating to Devaswoms to the officers of the Department not below the rank of an Assistant Devaswom Commissioner, and they may send such covers superscribed as ‘Devaswom matters’. with the name of the Tantri. Tantries are barred from communicating their opinions on temple matters through private individuals or Samithies and under no circumstances such communications will be entertained by the Board and by the officers of the department. In view of provisions under Clause 16, any opinion or even objection of the Tantri has to be communicated in the manner prescribed thereunder. It is for the Board to issue necessary instructions in this regard. 9. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and ``` W.P.(C)No.23901 of 2022 ``` 10 unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per Section 15A of the Act, which deals with duties of the Board, it shall be the duty of the Board to perform the functions enumerated in clauses (i) to (iv) of Section 15A, which includes duty to see that regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; to monitor whether the administrative officials and employees and also the employees connected with religious rites are functioning properly; and to establish and maintain proper facilities in the temples for the devotees. As per Section 31 of the Act, which deals with management of Devaswoms, subject to the provisions of Part-I of the Act 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 festivals in every temple according to its usage. 10. The provisions under the Travancore-Cochin Hindu Religious Institutions Act make it explicitly clear that the role assigned to the Travancore Devaswom Board in the administration, supervision and control of incorporated and ``` W.P.(C)No.23901 of 2022 ``` 11 unincorporated Devaswoms is that of a trustee in the management of the properties vested in the Deity, which is bound to administer, supervise and control incorporated and unincorporated Devaswoms in accordance with the provisions under the said Act. The Board and its officials are duty bound to function within the framework of the statute, by scrupulously following the stipulations contained therein and acting strictly in accordance with the settled legal principles relating to the administration of Hindu religious trust. The Board, being a trustee in the management of Devaswom properties, is legally bound to perform its duties with utmost care and caution. 11. 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 the 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 ``` W.P.(C)No.23901 of 2022 ``` 12 ## 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 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 ``` W.P.(C)No.23901 of 2022 ``` 13 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, 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) 12. Section 31A of the Travancore-Cochin Hindu Religious Institutions Act deals with the formation of the Temple Advisory Committees. In **Chandu K. and others v.** **Travancore Devaswom Board and others [2021 (3) KHC** ``` W.P.(C)No.23901 of 2022 ``` 14 **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. 13. The 3[rd] respondent Temple Advisory Committee of Ekadasa Perumthrikkovil Mahadeva Temple, constituted under Section 31A of the Act, consisting of 'persons interested' in the said temple, as defined under clause (d) of Section 2 of the Act, is duty bound to function within the framework of the statute by scrupulously following the stipulations contained therein and acting strictly in accordance with the settled legal principles relating to the administration of Hindu religious trust. The Committee is legally bound to perform its duties with utmost care and caution. The Temple Advisory Committee, constituted under Section 31A of the Act, consisting of 'persons interested' in the said temple, as defined under clause (d) of Section 2 of the Act, is duty bound to function within the framework of the statute, which is bound to render necessary assistance to the Travancore Devaswom Board to perform its functions enumerated in clauses (i) to (iv) of Section 15A, in relation to the temple. ``` W.P.(C)No.23901 of 2022 ``` 15 14. In the statement filed on behalf of respondents 1, 2 and 4, the specific stand taken by the Board is that considering the opinion of the Tantri of the temple as reflected in Ext.P2, the 1[st] respondent has directed the 2[nd] respondent to make arrangements to conduct Balitharpanam outside the temple compound. Thus, a temporary pandal is being made in the temple maithanam, outside the compound wall with facility to do Balitharpanam for 100 persons at a time. The Balitharpanam will be conducted under the auspicious control of keezhshanti of the temple. Recording the aforesaid stand taken in the statement filed on behalf of respondents 1, 2 and 4, this writ petition is disposed of. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** DCS/26.07.2022 ``` W.P.(C)No.23901 of 2022 ``` 16 ## **`APPENDIX`** ``` PETITIONER EXHIBITS ``` ``` Exhibit-P1 TRUE COPY OF THE NOTICE PUBLISHED BY THE 3RD RESPONDENT ``` ``` Exhibit-P2 TRUE COPY OF THE LETTER GIVEN BY THE THANTHRI OF THE EKADASA ``` ``` PERUMTHRIKKOVIL MAHADEVA TEMPLE TO THE 1ST RESPONDENT DATED 18-07-2022 ``` ``` Exhibit-P3 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 19-07-2022 ``` ``` Exhibit-P4 TRUE COPY OF THE POSTAL RECEIPT FORWARDING EXT. P3 TO THE 1ST RESPONDENT DATED 20-07-2022 ```