KUMARAN NAMBOOTHIRI v Travancore Devaswom Board and others

1 W.P.(C)No.37974 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ## **`THE HONOURABLE MR.JUSTICE G.GIRISH`** ``` FRIDAY, THE 5[TH] DAY OF JANUARY 2024 / 15TH POUSHA, 1945 ``` ``` W.P.(C)NO.37974 OF 2023 ``` ## **`PETITIONER:`** ``` KUMARAN NAMBOOTHIRI AGED 57 YEARS S/O NARAYANAN NAMBOOTHIRI, TC.55/1849, DEVI NAGAR, KALADI, KARAMANA P.O., THIRUVANANTHAPURAM, PIN - 695002 ``` ``` BY ADV D.AJITHKUMAR ``` ## **`RESPONDENTS:`** - **`1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM, PIN - 695003`** - **`2 DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM, PIN - 695003`** - **`3 DIRECTOR CULTURAL AFFAIRS, TRAVANCORE DEVASWOM BOARD, TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM, PIN - 695003`** - **`4 FINANCE AND ACCOUNTS OFFICER TRAVANCORE DEVASWOM BOARD, TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM, PIN - 695003`** - **`5 JOINT DIRECTOR KERALA STATE AUDIT DEPARTMENT, TRAVANCORE DEVASWOM`** 2 W.P.(C)No.37974 of 2023 ## **`BOARD AUDIT, THIRUVANANTHAPURAM, PIN - 695003`** - **`6 ASSISTANT DIRECTOR CULTURAL AFFAIRS, TRAVANCORE DEVASWOM BOARD, TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM, PIN - 695003`** - **`7 ASSISTANT MANAGER`** - **`DEVASWOM BOARD PRESS, TRAVANCORE DEVASWOM BOARD, TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM, PIN - 695003`** - **`8 CHIEF VIGILANCE OFFICER (SUPERINTENDENT OF POLICE-VIGILANCE), TRAVANCORE DEVASWOM BOARD, TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM, PIN - 695003`** - **`9 *[MADHUSOODHANAN NAIR DIRECTOR, CULTURAL AFFAIRS, TRAVANCORE DEVASWOM BOARD, TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM, PIN -695003]`** ``` *[AS PER ORDER DATED 28.11.2023 IN I.A-1/2023 IN WP(C) 37974/2023, THE ADDRESS OF R9 IS CORRECTED AS: "MADHUSOODHANAN NAIR B., MELE NADUVEEDU, MURIATHOTTAM, PARASSALA, THIRUVANANTHAPURAM-695502. (NOW WORKING AS DEPUTY DEVASWOM COMMISSIONER, HARIPPAD GROUP, ALAPPUZHA - 690514)"] ``` ``` BY ADVS. K.MOHANAKANNAN H.PRAVEEN (KOTTARAKARA)(K/736/2011) ``` ## **`OTHER PRESENT:`** ## **`ADV K.MOHANAKANNAN -R8`** ## **`SRI S.RAJMOHAN- SR GOVERNMENT PLEADER`** ``` SRI G.BIJU- STANDING COUNSEL- TRAVANCORE DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.37974 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who was a Shanti under the Travancore Devaswom Board, who retired from service on attaining the age of superannuation, who is also a devotee, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent Travancore Devaswom Board to take effective action to do the printing works of the Travancore Devaswom Board in the Devaswom Board Press itself; a writ of mandamus commanding the 5[th] respondent Joint Director, Kerala State Audit Department, Travancore Devaswom Board Audit to conduct audit of the Devaswom Board Press; a writ of mandamus commanding the 8[th] respondent Chief Vigilance Officer, Travancore Devaswom Board to conduct enquiry on the irregularities committed by the 9[th] respondent in the matter of appointments, purchase of printing materials in Devaswom Board Press, outsourcing the printing works of the Board, etc. 2. On 16.11.2023, when this writ petition came up for admission, the learned Standing Counsel for Travancore Devaswom Board took notice on admission for respondents 1 to 4 4 ## W.P.(C)No.37974 of 2023 and 6 to 8 and the learned Senior Government Pleader for the 5[th] respondent. Urgent notice on admission by speed post was ordered to the 9[th] respondent, returnable within four weeks. The learned Standing Counsel for Travancore Devaswom Board was directed to get instructions and file a counter affidavit. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board for respondents 1 to 4 and 6 to 8, the learned Senior Government Pleader for the 5[th] respondent and also the learned counsel for the 9[th] respondent. 4. The grievance of the petitioner is regarding various irregularities in the Devaswom Board Press, alleged to have been committed by the 9[th] respondent, who is presently working as Deputy Devaswom Commissioner, Harippad Group. The petitioner has submitted Ext.P6 representation dated 20.10.2023 before the 1[st] respondent Travancore Devaswom Board, pointing out various issues. 5. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious 5 W.P.(C)No.37974 of 2023 Endowments and Funds. Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with duties of the Board. As per Section 15A, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials 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 the temples for the devotees. As per Section 16 of the Act, the Board shall, subject to the provisions of Part I 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. 6. In **Ram Mohan Das v. Travancore Devaswom Board [1975 KLT 55]** a learned Single Judge of this Court held that, under Section 31 of the Travancore-Cochin Hindu Religious Institutions Act, the Travancore Devaswom Board shall manage the properties and affairs of the Devaswoms, both incorporated and unincorporated and arrange for the conduct of the daily 6 ## W.P.(C)No.37974 of 2023 worship and ceremonies and of the festivals in every temple according to its usage. The position of the Board in regard to the Devaswoms - incorporated and unincorporated - is analogous to that of trustees. Any improper act of the Trustees could be questioned by a worshipper. ## 7. 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 necessary, to the best advantage. 8. In **A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]** a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/ archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the 7 W.P.(C)No.37974 of 2023 properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fence eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. 9. In **Travancore Devaswom Board v. Mohanan Nair [(2013) 3 KLT 132]** a Division Bench of this Court noticed that in **A.A. Gopalakrishnan [(2007) 7 SCC 482]** a ThreeJudge Bench of the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The Division Bench further noticed that the relevant principles under the Hindu law will show that the deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court is the guardian of the deity and apart from the revisional jurisdiction under Section 103 of the Kerala Land 8 ## W.P.(C)No.37974 of 2023 Reforms Act, 1963, the High Court is having inherent jurisdiction and the doctrine of _parens patriae_ will also apply in exercising the jurisdiction. 10. In view of the law laid down by this Court in **Suo motu** **v. State of Kerala and others [2022 (2) KHC 411]** , in the light of the provisions under the Travancore-Cochin Hindu Religious Institutions Act and the law laid down in the decisions referred to supra, the Travancore Devaswom Board is duty bound to ensure proper administration, supervision and control of the Devaswoms - incorporated and unincorporated – and also the institutions under its management. The Board has a statutory duty to monitor whether its administrative officials and employees and also the employees connected with religious rites are functioning properly. The Board is duty bound to exercise proper supervision and control over the acts and proceedings of all officers and servants and to manage the properties and affairs of the Devaswoms - incorporated and unincorporated - and also the institutions under its management. The position of the Board in this regard is analogous to that of trustees, as held by this Court in **Ram Mohan Das [1975 KLT 55]** . Any improper act of the trustees could be questioned by a worshiper. Any wrongful claims, theft or 9 ## W.P.(C)No.37974 of 2023 misappropriation, with the passive or active collusion of the authorities concerned, which are acts of ‘fence eating the crops’, should be dealt with sternly. 11. Having considered the submissions made at the Bar, we deem it appropriate to dispose of this writ petition, by directing the 1[st] respondent Travancore Devaswom Board to take an appropriate decision on Ext.P6 representation dated 20.10.2023 made by the petitioner, with notice to the petitioner, the 3[rd] respondent and the 9[th] respondent, after obtaining the remarks of the 5[th] respondent Joint Director and the report of the 8[th] respondent Chief Vigilance Officer, taking note of the law laid down in the decisions referred to supra, 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. The petitioner and the 9[th] respondent shall be furnished with a copy of the remarks of the 5[th] respondent Joint Director and the report of the 8[th] respondent Chief Vigilance Officer. It would be open to the petitioner and the 9[th] respondent to submit written submissions before the 1[st] respondent. 12. In **Mohinder Singh Gill v. Chief Election** ## **Commissioner [(1978) 1 SCC 405]** Apex Court reiterated that 10 ## W.P.(C)No.37974 of 2023 when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. Therefore, the order passed by the 1[st] respondent Travancore Devaswom Board shall be a ‘reasoned order’, after adverting to the legal and factual contentions raised by both sides. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **G. GIRISH, JUDGE** MIN 11 W.P.(C)No.37974 of 2023 ## **`APPENDIX OF WP(C) 37974/2023`** ## **`PETITIONER EXHIBITS`** |**`Exhibit P1`**|**`TRUE COPY OF THE LIST OF VACANCIES VACANT`**| |---|---| ||**`IN THE DEVASWOM BOARD PRESS WHICH IS`**| ||**`OBTAINED UNDER RIGHT TO INFORMATION ACT`**| ||**`FROM THE SECRETARY, TRAVANCORE DEVASWOM`**| ||**`BOARD BEARING NO.80/23/CA1 DATED 30.6.2023`**| |**`Exhibit P2`**|**`TRUE COPY OF THE VIGILANCE REPORT OF THE`**| ||**`VIGILANCE OFFICER, VIGILANCE AND SECURITY`**| ||**`OFFICE, TRAVANCORE DEVASWOM BOARD`**| ||**`NO.PTN.194/18/TDB/VIG DATED 01.11.2019`**| ||**`SUBMITTED BEFORE THE SUPERINTENDENT OF`**| ||**`POLICE, VIGILANCE AND SECURITY, TRAVANCORE`**| ||**`DEVASWOM BOARD OBTAINED UNDER RIGHT TO`**| ||**`INFORMATION ACT`**| |**`Exhibit P3`**|**`TRUE COPY OF THE REPORT OF THE DEVASWOM`**| ||**`ACCOUNTS OFFICER SUBMITTED BEFORE THE`**| ||**`DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM`**| ||**`BOARD BEARING DA NO.3404/17/E3 DATED`**| ||**`22.5.2017 EVIDENCING THE PUNISHMENTS`**| ||**`SUFFERED BY THE 9TH RESPONDENT`**| |**`Exhibit P4`**|**`TRUE COPY OF THE COMMUNICATION OF THE`**| ||**`DEPUTY DEVASWOM COMMISSIONER,`**| ||**`THIRUVANANTHAPURAM TO THE DEVASWOM`**| ||**`COMMISSIONER, TRAVANCORE DEVASWOM BOARD`**| ||**`VIDE R.O.C. NO.992/1/2018/INSP. DATED`**| ||**`09.07.2018 WHICH IS OBTAINED UNDER RIGHT TO`**| ||**`INFORMATION ACT`**| |**`Exhibit P5`**|**`TRUE COPY OF THE PAPER REPORT APPEARED IN`**| ||**`"BIG NEWS DAILY" DATED 14.12.2021`**| |**`Exhibit P6`**|**`TRUE COPY OF THE REPRESENTATION SUBMITTED`**| ||**`BY PETITIONER BEFORE THE 1ST RESPONDENT`**| ||**`TRAVANCORE DEVASWOM BOARD DATED 20.10.2023`**|