N. Thankappan and Others v. Travancore 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 ``` ``` TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022/17TH KARTHIKA, 1944 WP(C) NO. 2275 OF 2021 ``` ``` PETITIONER: ``` - **`1 N.THANKAPPAN, AGED 63 YEARS S/O.NEELAKANTAN, PULLAMPLAVIL VEEDU, KADATHOOR, K.S.PURAM P.O., SHOP NO.5, BLOCK NO.II, PUTHIYAKAVU DEVASWOM SHOPPING COMPLEX, PUTHIYAKAVU, KARUNAGAPPALLY.`** ## **`2 K.N.RAVEENDRAN AGED 87 YEARS`** ``` S/O.THANKAPPAN, RAVIMANDIRAM, EDAKULANGARA P.O., SHOP NO.5, BLOCK NO.II, PUTHIYAKAVU DEVASWOM SHOPPING COMPLEX, PUTHIYAKAVU, KARUNGAPPALLY. ``` ``` 3 ANILKUMAR AGED 48 YEARS S/O.LATE LAMBODHARAN PILLAI, VAZHAPLETHU THEKKATHIL, S.V.MARKET P.O., KOZHIKODU MEKKU, KARUNAGAPPALLY, SHOP NO.4, BLOCK NO.II, PUTHIYAKAVU DEVASWOM SHOPPING COMPLEX, PUTHIYAKAVU, KARUNAGAPPALLY. ``` - **`4 KUSUMAM`** ``` W/O.LATE MANOHARAN, ASWATHI BHAVANAM, PULI SOUTH, EDAKULANGARA P.O., SHOP NO.4, BLOCK NO.II, PUTHIYAKAVU DEVASWOM SHOPPING COMPLEX, PUTHIYAKAVU, KARUNAGAPPALLY. ``` ## **`5 VIDHYADHARAN K.`** ``` S/O.KARUNAKARAN, VIDYA, THARAYIL JUNCTION, PADA; SOUTH, KARUNAGAPPALLY, SHOP NO.2, BLOCK NO.II, PUTHIYAKAVU DEVASWOM SHOPPING COMPLEX, PUTHIYAKAVU, KARUNAGAPPALLY. ``` -2- W.P.(C). No.2275 of 2021 ## **`6 GEETHAKRISHNAN`** ## **`AGED 58 YEARS`** ``` S/O.NARAYANAPILLAI, VALIYATHU VEEDU, KADATHOOR P.O., THAZHAVA, SHOP NO.1, BLOCK NO.II, PUTHIYAKAVU DEVASWOM SHOPPING COMPLEX, PUTHIYAKAVU, KARUNAGAPPALLY. ``` ## **`7 YASODHARAN`** ``` AGED 87 YEARS ``` ``` S/O.KUNJURAMAN, VELMURUKA BHAVANAM, PULI NORTH, THAZHAVA P.O., THODIYOOR, SHOP NO.3, BLOCK NO.II, PUTHIYAKAVU DEVASWOM SHOPPING COMPLEX, PUTHIYAKAVU, KARUNAGAPPALLY. ``` - **`8 RAMACHANDRAN`** ``` AGED 77 YEARS ``` ``` S/O.PAPPU, KADUVINAL KIZHAKKATHIL, KADATHOOR, K.S.PURAM P.O., SHOP NO.1, BLOCK NO.II, PUTHIYAKAVU DEVASWOM SHOPPING COMPLEX, PUTHIYAKAVU, KARUNAGAPPALLY. ``` - **`9 THANKAMANI`** ``` AGED 55 YEARS ``` ``` D/O.NARAYANAN, KAIRALI, KOTTAKKUPURAM, CLAPPANA P.O., SHOP NO.5, BLOCK NO.I, PUTHIYAKAVU DEVASWOM SHOPPING COMPLEX, PUTHIYAKAVU, KARUNAGAPPALLY. ``` ## **`10 KOMALA NARAYANAN AGED 58 YEARS`** ``` D/O.NARAYANAN, AISWARYA, KUTHIRAPANTHY P.O., THAZHAVA - 690 525, SHOP NO.6, BLOCK NO.I, PUTHIYAKAVU DEVASWOM SHOPPING COMPLEX, PUTHIYAKAVU, KARUNAGAPPALLY. ``` ## **`11 LATHIKA AGED 61 YEARS`** ``` D/O.RAMAN NAIR, THIRUVAMPALATHU, PUNNAKKULAM, K.S.PURAM P.O. , SHOP NO.4, BLOCK NO.I, PUTHIYAKAVU DEVASWOM SHOPPING COMPLEX, PUTHIYAKAVU, KARUNAGAPPALLY. ``` -3- W.P.(C). No.2275 of 2021 - **`12 VINOD KRISHNAN AGED 48 YEARS`** ``` S/O.KUNJU PILLAI, THYYIL VEEDU, PUNNAKULAM P.O., KS PURAM, SHOP NO.4, BLOCK NO.I, PUTHIYAKAVU DEVASWOM SHOPPING COMPLEX, PUTHIYAKAVU, KARAUNAGAPPALLY. ``` ``` BY ADV R.RANJANIE ``` ## **`RESPONDENTS:`** - **`1 TRAVANCORE DEVASWOM BOARD NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM - 695 003, REP. BY THE SECRETARY.`** - **`2 THE ASSISTANT DEVASWOM COMMISSIONER OFFICE OF THE ASSISTANT DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, KARUNAGAPPALLY DEVASWOM GROUP, KARUNAGAPPALLY - 691 583.`** - **`3 THE SUB GROUP OFFICER KULASEKHARAPURAM, TRAVANCORE DEVASWOM BOARD, KARUNAGAPPALLY DEVASWOM GROUP, KARUNAGAPPALLY - 691 583.`** - **`*ADDL.R4 THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM – 695 003 IS SUO MOTU IMPLEADED AS THE ADDITIONAL 4[TH] RESPONDENT AS PER ORDER DATED 08.11.2022`** ``` BY ADV SRI.G.SANTHOSH KUMAR (P). ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -4- W.P.(C). No.2275 of 2021 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioners, who are in occupation of shop rooms in Puthiyakavu Devaswom Shopping Complex owned by Puthiyakavu Devaswom, which is under the management of the 1[st] respondent Travancore Devaswom Board, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exts.P1 to P11 notices issued by the 3[rd] respondent Sub Group Officer and Ext.P12 order dated 22.05.2020 issued by the 1[st] respondent Board, whereby they were required to pay revised rent and security deposit in respect of their shop rooms, as demanded in those notices, and Ext.P18 order dated 22.05.2020 of the 1[st] respondent Board fixing the revised rent of shop rooms in the shopping complexes in Karunagappally Group as per DSR (plinth area rate 2019), whereby the 2[nd] respondent Assistant Commissioner is directed to execute fresh agreement with the respective occupants and the concerned Administrative Officer/Sub Group Officer is directed to collect revised rent and security deposit from the respective occupants, with annual revision at the rate of 10%. The petitioners have also -5- W.P.(C). No.2275 of 2021 sought for a declaration that the respondents are not entitled in law, to re-fix/enhance the rent payable by the occupants of the shop rooms belonging to the 1[st] respondent Board and demand additional security deposit from the occupants, that too unilaterally, as has been done in Exts.P1 to P11 notices. The further relief sought for is a writ of mandamus commanding the respondents to consider the claim for waiver of rent payable by the petitioners, during the period from April to July 2020, when lockdown was declared by the Government, due to spread of Covid 19 pandemic. The document marked as Ext.P13 is few photographs of the Devaswom Board shopping complex. In the writ petition, it is contended that Ext.P12 order dated 22.05.2020 and also the consequential notices issued by the 3[rd] respondent Sub Group Officer, i.e., Exts.P1 to P11 are arbitrary, illegal and unsustainable. 2. The respondents have filed a counter affidavit dated 10.01.2022, opposing the reliefs sought for in this writ petition, producing therewith Ext.R1(a) copy of the judgment of this Court dated 16.07.2019 in W.P.(C)No.18779 of 2019. -6- W.P.(C). No.2275 of 2021 The respondents have also filed an additional counter affidavit dated 15.06.2022 producing therewith Ext.R1(b) specimen copy of rent calculation as per DSR. The contentions raised by the respondents are that, in view of the provisions under the Travancore Cochin Hindu Religious Institutions Act, 1950, the Travancore Devaswom Board is bound to protect and preserve all movable and immovable properties of the Devaswoms under its management. The major source of revenue of the Travancore Devaswom Board is the income received by way of offering by the devotees, the amount received from vazhipadu, 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. Many buildings have been constructed and rooms have been rented out to get better revenue from the immovable properties of the various Devaswoms under the Travancore Devaswom Board. Some of the tenants have breached the terms of the contract and kept the rent in arrears. Some of them have illegally sublet the shop rooms. -7- W.P.(C). No.2275 of 2021 The rental income from some of those buildings is much lower than the current market rate. As directed by the Board, its Estate Department has submitted reports regarding redetermination of rent and accordingly it was decided that redetermination shall be based on Delhi Schedule of Rates (DSR). Based on that decision the Board directed the Devaswom Commissioner to redetermine the rent of all shopping complexes and to enter into fresh agreements with the tenants. Based on that order, the concerned Assistant Devaswom Commissioner issued notice to the individual tenants to execute fresh agreement on the revised rates. The Board would place reliance on the decision of the Apex Court in **Travancore Devaswom Board v. Thanath International [2004 (13) SCC 44]** and also the decision of this Court in **V. Haridasan Pillai and others v. Travancore Devaswom Board and others** [Judgment dated 16.07.2019 in W.P.(C)No.18779 of 2019]. 3. On 30.09.2022, when this writ petition came up for consideration, the learned counsel on both sides sought time to address arguments taking note of the law laid down by this -8- W.P.(C). No.2275 of 2021 Court in **Krishnakumar v. Cochin Devaswom Board [2022** **(4) KLT 798]** . An additional counter affidavit has also been filed by the respondents producing therewith Annexure R1(b) copy of the specimen showing the rent calculation fixed by respondents 1 to 3 as per DSR dated nil. 4. Heard the learned counsel for the petitioners and also the learned Standing Counsel for Travancore Devaswom Board for the respondents. 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 Endowments and Funds. As per subsection (3) of Section 1 of the Act, substituted by the Kerala Adaptation of Laws Order, 1956, Part I of the Act shall extend to Travancore, Part II of the Act shall extend to Cochin and Part III of the Act shall extend to the whole of the State of Kerala, excluding the Malabar District. 6. Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with vesting of -9- W.P.(C). No.2275 of 2021 administration in Board. As per Section 3, the administration of incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds as well as the fund constituted under the Devaswom Proclamation, 1097 M.E. and the surplus fund constituted under the Devaswom (Amendment) Proclamation, 1122 M.E. which were under the management of the Ruler of Travancore prior to the first day of July, 1949, except the Sree Padmanabhaswamy Temple, Sree Pandaravaka properties and all other properties and funds of the said temple, and the management of all institutions which were under the Devaswom Department shall vest in the Travancore Devaswom Board. 7. Section 4 of the Act deals with constitution of the Travancore Devaswom Board. As per sub-section (2) of Section 4, the Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the -10- W.P.(C). No.2275 of 2021 management of the Board. 8. Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub-section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per sub-section (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their jurisdiction. 9. 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 -11- W.P.(C). No.2275 of 2021 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. Section 16 of the Act deals with supervision and control by the Board. As per Section 16, 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. 10. Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. As per Section 24, the Board shall, out of the Devaswom Fund constituted under Section 25, maintain the Devaswoms mentioned in Schedule I [i.e. incorporated Devaswoms], keep in a state of good repair the temples, buildings, and other appurtenances thereto, administer the said Devaswoms in accordance with recognised usages, make contributions to other Devaswoms in or outside the State and meet the expenditure for the customary religious ceremonies and may provide for the -12- W.P.(C). No.2275 of 2021 educational upliftment, social and cultural advancement and economic betterment of the Hindu community. 11. Section 27 of the Act deals with Devaswom properties. As per Section 27, immovable properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30[th] Meenam, 1097 corresponding to the 12[th] April, 1922, shall be dealt with as Devaswom properties. The provisions of the Land Conservancy Act of 1091 shall be applicable to Devaswom lands as in the case of Government lands. 12. Section 31 of the Act deals with management of Devaswoms. As per Section 31, subject to the provisions of Part I 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 the festivals in every temple according to its usage. 13. In **M.V. Ramasubbiar v. Manicka** -13- W.P.(C). No.2275 of 2021 **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 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 -14- W.P.(C). No.2275 of 2021 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 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 -15- W.P.(C). No.2275 of 2021 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) 14. 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 are required 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 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 fences eating the crops should be dealt with sternly. The Government, members or trustees of boards/trusts, and -16- W.P.(C). No.2275 of 2021 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. 15. 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]** 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 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 therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of parens patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of -17- W.P.(C). No.2275 of 2021 properties of the Temple itself, the truth of the same can be gone into by the High Court in these proceedings. 16. In **Abu K.S. v. Travancore Devaswom** **Board [2022 SCC OnLine Ker 1642]** [judgment dated 09.02.2022 in W.P.(C) No. 2254 of 2022] a Division Bench of this Court, in which both of us were parties, was dealing with a case in which Kuthaka right for running Aymanam Sri. Narasimha-swami Auditorium (sadyalayam) constructed by the Travancore Devaswom Board was auctioned for a period of two years from 01.08.2019 to 31.07.2021, for Rs. 2,41,000/-. The average monthly income generated from the said building constructed by the Travancore Devaswom Board by spending several lakhs of rupees was only Rs. 10,000/-. Relying on the law laid down by the Apex Court in **M.V. Ramasubbiar [(1979) 2 SCC 65]** this Court held that, while auctioning the right for running that sadyalayam, the Travancore Devaswom Board and its officials have to ensure that proper income to the Board is generated from the said building. In case of any default committed by the successful bidder in remitting the balance auction amount, electricity -18- W.P.(C). No.2275 of 2021 charges or any other statutory dues payable as per the tender conditions, the concerned Assistant Devaswom Commissioner and the Sub Group Officer have to take prompt action against such bidder and the said fact has to be promptly reported to the concerned officer in the Estate Division of the Travancore Devaswom Board. 17. In **Abu K.S. [2022 SCC OnLine Ker 1642]** the writ petitioner, the successful bidder, remitted only 50% of the auction amount on 18.07.2019. Though he had defaulted payment of the balance amount of Rs. 1,20,500/-, he was permitted to continue to occupy the sadyalayam, even beyond the period of auction, i.e., 31.07.2021. The concerned Assistant Commissioner and the Sub Group Officer have not taken any action against the successful bidder till the order of this Court dated 01.02.2022, whereby they were directed to take over possession of the sadyalayam forthwith, if found necessary with police assistance. In such circumstances, in the said decision, this Court deprecated in the strongest words the conduct of the concerned Assistant Commissioner and the Sub Group Officer and also the concerned officers in the -19- W.P.(C). No.2275 of 2021 Estate Division of the Travancore Devaswom Board in taking no action against the successful bidder, who was a defaulter. In the said decision, this Court found that, the concerned officers of the Travancore Devaswom Board have not shown reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. Since, such irregularities in the conduct of auction for running auditoriums/sadyalayams in the temples under the management of the Travancore Devaswom Board cannot be permitted in future, this Court directed Registry to initiate _suo motu_ proceedings in the that matter. 18. In **Suneesh K.S. v. Travancore Devaswom Board and others [ILR (2022) 1 Ker 1091 : 2022 SCC** **OnLine Ker 611]** a Division Bench of this Court, in which both of us were parties, was dealing with the Kuthaka right for sale of pooja items in Valliamkavu Devi Temple under the Management of the Travancore Devaswom Board. In the said decision, this Court held that, the properties of deities and temples are required to be protected and safeguarded from usurpation or encroachment in any manner. Persons entrusted -20- W.P.(C). No.2275 of 2021 with the duty to manage such properties should be vigilant to prevent such usurpation or encroachment. When such usurpation or encroachment is possible only with the passive or active collusion of the authorities concerned, such acts of ‘fences eating the crops’ should be dealt with sternly. The officers concerned and also the 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 usurpation or encroachment, wrongful claims or misappropriation. Therefore, the concerned Assistant Devaswom Commissioner and the Administrative Officer shall take stern action against those who have defaulted payment of instalments in respect of the Kuthaka items, in violation of the tender conditions, if found necessary, after seeking police assistance. If any such request is received, it is the duty of the concerned Station House Officer to render necessary assistance to the concerned Assistant Devaswom Commissioner or the Administrative Officer, in order to protect and safeguard the properties of -21- W.P.(C). No.2275 of 2021 deities and temples from usurpation or encroachment in any manner. ## 19. In **V. Muraleedharan Nair v. Travancore** **Devaswom Board** [Judgment dated 25.11.2015 in W.P.(C) No. 32975 of 2015] the Division Bench of this Court was dealing with a case in which the writ petitioners were occupiers of different shop rooms in a shopping complex owned by the Travancore Devaswom Board. As per Exhibit P8 series of orders, they have been required to enhance the security deposit and the amounts to be paid for occupation. Before the Division Bench, the learned counsel for the petitioners relied on Ext.P7 judgment dated 07.10.2013 in W.P.(C) No. 25586 of 2012. The Division Bench noticed that, the said judgment was issued essentially on consent of the Board and the concession made by the Board was only for renewal for a period upto 2012. Therefore, Exhibit P7 judgment is no answer for any demand that the Travancore Devaswom Board may make in relation to occupation charges for buildings or rooms belonging to and under its control. The Division noticed that, it cannot also ignore the pristine -22- W.P.(C). No.2275 of 2021 principle that all Devaswom lands vest in Deities and Travancore Devaswom Board are essentially trustees. Therefore, the action of trustees cannot be equated to that of mere landlords. The best interest of the Devaswoms under the control of the Devaswom Boards would be subserved only if income is generated. 20. 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 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 -23- W.P.(C). No.2275 of 2021 mere landlord. The best interest of the Devaswoms under the control of the Board would be subserved only if income is generated. 21. 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 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 -24- ## W.P.(C). No.2275 of 2021 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 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. ## 22. In **H.N.Vijayan v. Devaswom Commissioner** **and another [2022/KER/50584]** (order dated 19.09.2022 -25- W.P.(C). No.2275 of 2021 in DBP.No.47 of 2020) a Divison Bench of this Court in which both of us were parties, was dealing with a case in which the petitioner/complainant, who is the occupant of shop room Nos.2 and 3 in Valiyakulam Shopping Complex owned by Mavelikkara Devaswom under the management of the Travancore Devaswom Board, is in occupation of an area measuring 18m x 4m, in the backyard of shop room bearing Nos.2, 3, 4 and 5, as the godown of his provision store. He is in occupation of the shop room Nos.2 and 3 since June, 1999. Based on an application made by him, by the proceedings of the Devaswom Commissioner, the concerned Assistant Engineer was directed to identify the area for godown. After completing the construction, as per the instructions of the connered Assistant Engineer, he has to execute an agreement with the Assistant Devaswom Commissioner, agreeing to pay the monthly rent fixed by the Board. He constructed the structure for godown and occupied the same from 01.09.2001 onwards, without paying any amount towards rent or executing an agreement with the Board. By Annexure A5 request dated 22.05.2017, the petitioner agreed to pay rent -26- W.P.(C). No.2275 of 2021 - at the rate of Rs.650/ per month with arrears of rent from 01.09.2001 onwards. According to the petitioner, since the monthly rent of the godown was not fixed and the agreement was not executed, he submitted Annexure A2 to A4 requests. As discernible from Annexure A6 notice dated 18.05.2018 of the Sub Group Officer, Mavelikkara, the Board fixed the monthly rent of the temporary structure for godown as Rs.650/-, with effect from 01.09.2001, with 10% increase every year. The demand made in Annexure A8 notice dated 10.02.2019 of the Sub Group Officer is at the rate of Rs.650/per month from 01.09.2001, with 10% annual increase, with penal interest at the rate of 18%. It was followed by Annexure A11 notice dated 08.04.2019. As evidenced by Annexure A12 receipt dated 09.04.2019 and Annexure A13 receipt dated 13.04.2019, the petitioner had already remitted a total sum of Rs.3,73,793/-, towards the demand made in Annexure A11 notice. 23. In **H.N.Vijayan** , it was stated in the counter affidavit dated 05.07.2021 of the Travancore Devaswom Board that, the Board after considering the plinth area report -27- W.P.(C). No.2275 of 2021 of the Assistant Engineer, Mavelikkara and the report dated 30.03.2021 of the Chief Engineer (General) granted permission to realise rent as per Delhi Schedule of Rates (DSR), arrear amount and penal interest at the rate of 18% in respect of shop room No.1 (K.Santhosh), shop room Nos.14, 15 and 16 (K.Sasidharan), shop room No.20, 21 and 22 (V.G.Rajesh Kumar), shop room No.28 (Krishnakumar). Considering the said report, the Board fixed DSR rent and granted permission to realise Rs.1,88,606/- from K.Santhosh, Rs.3,99,113/from K.Sasidharan, Rs.17,406/from V.C.Rajeshkumar and Rs.9,879/- from Krishnakumar. The said fact was communicated to the Chief Engineer (General), vide Annexure R1(a) letter dated 20.04.2021. On adopting DSR, it was found that the amount remitted by the petitioner/complainant is insufficient. Therefore, the issue regarding the fixation of rent payable by the petitioner is placed in the meeting of the Board scheduled on 14.07.2021. 24. In the order dated 05.07.2021, in DBP.No.47 of 2020, this Court noticed that in respect of the buildings constructed by the Board, without putting the Board with -28- W.P.(C). No.2275 of 2021 proper notice, the Devaswom authorities are granting permission to effect additional constructions. Whether any action has been taken by the Board on coming to know about such instances against officers, who on their own, without obtaining the sanction from the Board, granted permission to tenants to do similar things, whether constructions effected based on such unauthorised permissions are of the nature that would interfere with the stability of the building concerned, are matters of importance. As stated in the additional counter affidavit dated 01.11.2021, filed by the 1[st] respondent Travancore Devaswom Board, the Estate Officer inspected the entire shopping complexes and submitted a report on 15.09.2021, reporting that in front of 5 shop rooms in Chengannoor Devaswom Shopping Complex, some space has been extended with tin sheet. In Kamankulangara Devaswom under Karunagappalli Group, in front of 9 shop rooms an average area of 50 to 100 sq.ft. has been extended temporarily. In Padanayarkulangara Devaswom, under Karunagapalli Group, 4 shop rooms have been extended by an average area of 100 sq.ft. with RCC roof. In Kaduthuruthi -29- W.P.(C). No.2275 of 2021 Devaswom, 1,000 sq. ft. terrace area of the shop room has been covered with GI Sheet. In Mavelikkara Devaswom, 9 shop rooms have been extended by an average area of 50 to 100 sq.ft. with temporary roof. In Oachira Shopping Complex, an area 25 sq.ft. has been extended with temporary roof. Except in Kamankulangara, Puthiyakavu and Oachira Devaswoms and the shop rooms occupied by the petitioner/ complainant in Mavelikkara Devaswom, all extensions are temporary in nature. In the additional counter affidavit dated 01.11.2021, it is stated that, the extensions are not built with the permission of the Local Authorities, which are to be demolished at any moment, if ordered by the Local Authorities. Therefore, no special rent is charged for the extensions or the area of those extensions is included in the agreement. However, in the case of shop rooms as mentioned above, which have been extended by permanent construction, further explanation is sought from the Assistant Devaswom Commissioner concerned. Immediately upon receipt of the same, further action will be taken by the Board. The petitioner/complainant made extension in the shop room in -30- ## W.P.(C). No.2275 of 2021 the year 2001. After verification of the records, the complaint made by the petitioner/complainant will be reconsidered by the Board, after rendering him an opportunity of being heard, and fresh orders will be passed within a time frame to be fixed by this Court. In the additional counter affidavit, it is stated that, in future, if any alterations are made in the shopping complex without prior permission of the Board, it will be treated as the personal liability of the officers who are in charge of that shopping complex, and strict departmental action will be initiated against them and penal liability will be fixed against them. 25. In **H.N.Vijayan** , this Court noticed that the major source of revenue of Travancore 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, Travancore Devaswom -31- W.P.(C). No.2275 of 2021 Board and its officials have to ensure that proper income is generated from the said 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 exorbitant 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 the said decision, this Court held that in view of -32- W.P.(C). No.2275 of 2021 the provisions under Section 15A of the Act, Travancore Devaswom Board is duty 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. In view of the law laid down in the decisions referred to supra, while leasing out buildings owned by the Devaswoms, the 1[st] respondent Board and its officials have to ensure that proper income is generated from the said buildings. The lease rental or licence fee of such buildings shall not be lower than the prevailing market rent or licence fee. No tenant or licensee can be permitted to have additional construction/extension to the premises in question, without the prior permission of the 1[st] respondent Travancore Devaswom Board. Any such additional construction/extension can be made only with the approval of the concerned Engineer in the Maramath wing of the Board and after obtaining necessary building permit from the concerned Local Authority. Before executing fresh lease deed or licence agreement or even at the time of its renewal the competent -33- W.P.(C). No.2275 of 2021 authority in the Maramath wing of the Board has to measure the area of the building or shop room and ensure that no additional construction/extension is made by the tenant or the licensee, without the prior permission of the Board. He shall also ensure that any such additional construction/extension made in the premises in question is after obtaining necessary permission from the concerned Local Authority. 26. In **H.N.Vijayan** , this Court directed the Travancore Devaswom Board and its officials to take necessary steps to fix rent/licence fee for all the shops/buildings owned by Devaswoms under its management, at the prevailing market rate. The area of the premises in question shall be measured by the competent authority in the Maramath wing of the Board, at the time of execution/renewal of the lease deed/licence agreement or while granting a fresh lease/licence. Any additional construction/ extension made by the tenants/licensee, without prior permission of the Board and obtaining necessary permission from the concerned Local Authority shall be demolished, without any further delay and -34- W.P.(C). No.2275 of 2021 the loss sustained to the Board on account of occupation of such unauthorised construction/extension by the tenant/licensee has to be recovered from him, at the rate equal to the prevailing market rent/licence fee. The Board shall take necessary steps in this regard against the petitioner/complainant and also other tenants/licensees of buildings/shop rooms owned by Devaswoms under its management, taking note of the law laid down by this Court in **Suneesh K.S. [ILR (2022) 1 Ker. 1091]** and **T. Krishnakumar [2022 (5) KHC SN 8]** . Necessary steps in this regard shall be taken, as expeditiously as possible, at any rate, within a period of two months from the date of production of a certified copy of this order. 27. Today, when this matter is taken up for consideration, the learned counsel for the petitioners and also the learned Standing Counsel for Travancore Devaswom Board would submit that the shop rooms occupied by petitioners 9 to 12 have already been demolished in connection with the widening/four lining of National Highway-66 and therefore, now petitioners 1 to 8 alone are in occupation of the shop -35- W.P.(C). No.2275 of 2021 rooms in question. 28. The issue raised in this writ petition is covered by the law laid down by this Court in **T. Krishna Kumar v. Cochin Devaswom Board [2022 (4) KLT 798]** , which is reiterated in **H.N.Vijayan v. Travancore Devaswom Board** **[2022/KER/50584]** . In view of the law laid down in the said decisions, the challenge made in this writ petition against Exts.P12 order dated 22.05.2020 of the 1st respondent Board and Exts.P1 to P11 notices issued by the 3[rd] respondent Sub Group Officer cannot be sustained. The Travancore Devaswom Board has to ensure that proper rental income/licence fee is generated from the shop rooms in the shopping complexes owned by the respective Devaswoms under its management, which shall not be lower than the prevailing market rent in the locality. 29. Therefore, the additional 4[th] respondent Devaswom Commissioner shall refix the market rent/licence fee of the respective shop rooms with individual notice to petitioners 1 to 8, within a period of two months from the date of receipt of a certified copy of this judgment, after affording them an -36- W.P.(C). No.2275 of 2021 opportunity of being heard. It would be open to petitioners 1 to 8 to submit written submission before the Devaswom Commissioner, raising appropriate contentions. The decision taken by the Devaswom Commissioner shall be strictly in terms of the law laid down by this Court in the decisions referred to supra. While refixing the monthly rent or licence fee of the shop rooms, the Devaswom Commissioner shall ensure that the rate of the monthly rent or licence fee is not lower than the prevailing market rent in the locality. Any decision taken by the Devaswom Commissioner shall be subject to approval by the Travancore Devaswom Board, which shall be obtained within a further period of one month. While granting such approval, the Board shall ensure that the monthly rent/licence fee of the respective shop rooms so fixed is not lower than the prevailing market rent in the locality. The writ petition disposed of as above. No order as to costs. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** AV/23/11 -37- W.P.(C). No.2275 of 2021 ## **`APPENDIX OF WP(C) 2275/2021`** ``` PETITIONER COURT EXHIBITS ``` - **`EXHIBIT P1`** ``` THE PHOTOCOPY OF NOTICE DATED 9/6/2020 ISSUED BY THE 3RD RESPONDENT TO THE FIRST PETITIONER. ``` ``` EXHIBIT P2 THE PHOTOCOPY OF NOTICE DATED 9/6/2020 ISSUED BY THE 3RD RESPONDENT TO THE 3RD PETITIONER. ``` - **`EXHIBIT P3 THE PHOTOCOPY OF NOTICE DATED 9/6/2020 ISSUED BY THE 3RD RESPONDENT TO THE 4TH PETITIONER.`** ``` EXHIBIT P4 THE PHOTOCOPY OF NOTICE DATED 27/8/2020 ISSUED BY THE SECOND RESPONDENT TO THE 5TH PETITIONER. ``` - **`EXHIBIT P5 THE PHOTOCOPY OF NOTICE DATED 9/6/2020 ISSUED BY THE 3RD RESPONDENT TO THE 6TH PETITIONER.`** - **`EXHIBIT P6 THE PHOTOCOPY OF NOTICE DATED 27/8/2020 ISSUED BY THE SECOND RESPONDENT TO THE 7TH PETITIONER.`** - **`EXHIBIT P7 THE PHOTOCOPY OF NOTICE DATED 27/8/2020 ISSUED BY THE SECOND RESPONDENT TO THE 8TH PETITIONER.`** - **`EXHIBIT P8 THE PHOTOCOPY OF NOTICE DATED 9/6/2020 ISSUED BY THE 3RD RESPONDENT TO THE 9TH PETITIONER.`** ``` EXHIBIT P9 THE PHOTOCOPY OF NOTICE DATED 9/6/2020 ISSUED BY THE 3RD RESPONDENT TO THE 10TH PETITIONER. ``` -38- W.P.(C). No.2275 of 2021 ``` EXHIBIT P10 ``` ``` THE PHOTOCOPY OF NOTICE DATED 27/8/2020 ISSUED BY THE SECOND RESPONDENT TO THE 11TH PETITIONER. ``` ``` EXHIBIT P11 THE PHOTOCOPY OF NOTICE DATED 27/8/2020 ISSUED BY THE SECOND RESPONDENT TO THE 12TH PETITIONER. ``` ``` EXHIBIT P12 THE PHOTOCOPY OF NOTICE DATED 22/05/2020 BEARING NO.ROC 3939/20/M ISSUED BY 1ST RESPONDENT. ``` - **`EXHIBIT P13 PHOTOGRAPH OF THE SUBJECT MATTER SHOP ROOMS.`** ``` RESPONDENT EXHIBITS ``` ``` EXHIBIT R1(a) TRUE COPY OF THE JUDGMENT DATED 16.07.2019 IN WPC NO.18779/2019 OF THIS HON'BLE COURT. ``` ``` Exhibit R1b TRUE COPY OF THE SPECIMEN SHOWING THE RENT CALCULATION FIXED BY THE RESPONDENTS 1 TO 3 AS PER DSR DATED NIL. ```