Narayana Pisharadi 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** **WEDNESDAY, THE 30[TH] DAY OF MARCH 2022 / 9TH CHAITHRA, 1944** ## **W.P.(C)NO.10566 OF 2022** ## **PETITIONERS:** - **1 NARAYANA PISHARADI AGED 62 YEARS S/O.ACHUTA PISHARADI, GOVINDAPURATHU PISHARAM, ETTUMANOOR, KOTTAYAM-686631** - **2 NEELAKANDA SHARMA, AGED 61 YEARS S/O.DAMODARAN UNNI, BRAHMINIYIL MADOM, ETTUMANOOR, KOTTAYAM-686631** - **3 SREEDEVI, W/O. DAMODARAN UNNI, PUSHPAKATHU MADOM, ETTUMANOOR, KOTTAYAM-686631** - **4 RAJESH, S/O. MURALIDHARA WARRIER, KIZHAKEVARIAM, ETTUMANOOR, KOTTAYAM-686631** - **BY ADVS. C.S.MANILAL S.NIDHEESH** ## **RESPONDENTS:** - **1 THE TRAVANCORE DEVASWOM BOARD, REP. BY THE SECRETARY, NANTHANCODE, TRIVANDRUM-695011.** - **2 THE DEPUTY DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, VAIKOM, KOTTAYAM-686141.** - **3 THE ASSISTANT DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, ETTUMANOOR GROUP, ETTUMANOOR, KOTTAYAM-686562.** - **BY ADV SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD** ## **SRI G BIJU - STANDING COUNSEL , TRAVANCORE DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P.(C) No.10566 of 2022 ## **J U D G M E N T** ## Anil K. Narendran, J The petitioners, who are Kazhakakars of Sree Mahadeva Temple, Ettumanoor, 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 Ext.P4 proceedings dated 17.03.2022 of the 1[st] respondent Board, Ext.P5 auction notice dated 22.03.2022 issued in respect of Sree Mahadeva Temple and Ext.P6 auction notice dated 22.03.2022 issued in respect of Krishnan Kovil, by the 2[nd] respondent Deputy Devaswom Commissioner, Vaikom, for making and selling flower garlands in those Temples under Ettumanoor Devaswom. The petitioners have also sought for a writ of mandamus commanding the respondents not to interfere with the Karanma of their family for supply of flower and flower garlands in Ettumanoor Devaswom, which is being enjoyed by the members of their family from time to time; and a declaration that the decision to auction the right to supply flower and flower garlands in Ettumanoor Devaswom, as evidenced by Exts.P4 to P6, are illegal and contrary to Ext.P2 judgment dated 17.11.1071 ME of the High Court of Travancore 3 ## W.P.(C) No.10566 of 2022 in A.S.No.95 of 1071 and against the statutory mandate of Section 28 of the Travancore-Cochin Hindu Religious Institutions Act, 1950. Vide Ext.P4 proceedings dated 17.03.2022, which is under challenge in this writ petition, the 1[st] respondent Board took a decision to auction the Kuthaka right for making and selling flower garlands in Sree Mahadeva Temple and Krishnan Kovil under Ettumanoor Devaswom, for the year 2022-23, fixing the upset price as Rs.3,50,000/- and Rs.3,00,000/- respectively. 2. On 29.03.2022, when this writ petition came up for admission, the learned Standing Counsel for Travancore Devaswom Board sought time to get instructions. 3. Heard the learned counsel for the petitioners and also the learned Standing Counsel for Travancore Devaswom Board, for respondents 1 to 3. 4. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P4 proceedings dated 17.03.2022 of the 1[st] respondent Travancore Devaswom Board and also Exts.P5 and P6 auction notices issued by the 2[nd] respondent Deputy Devaswom Commissioner, to auction the Kuthaka right for making and selling flower garlands in Sree Mahadeva Temple and Krishnan Kovil under Ettumanoor 4 W.P.(C) No.10566 of 2022 Devaswom, for the year 2022-23. 5. The learned counsel for the petitioners would contend that five families, namely, Pisharath, Brahminiyil Madom, Pushpakath Madom, Kizhakkevariam and Padinjarevariam are holding Karanma to supply flower and flower garlands to Sree Mahadeva Temple and Krishnan Kovil under Ettumanoor Devaswom and also to supply flower garlands to the worshipers and receive remuneration from them. As of now, the members of Padinjarevariam are not performing Karanma, which is now confined to four families to which petitioners 1 to 4 belong to. The Karanma is conclusive and binding on the 1[st] respondent Board, in view of the judgment and decree in O.S.No.33 of 1070 ME of the District Court, Alleppey (Ext.P1) and the judgment of the High Court of Travancore in A.S.No.95 of 1071 ME (Ext.P2). The 1[st] respondent Board has no power or authority to interfere with the Karanma of the petitioners' family, invoking the provisions under Section 28 of the Travancore-Cochin Hindu Religious Institutions Act. In the year 2003, there was an attempt by the 1[st] respondent Board to interfere with the Karanma of the petitioners' family. The said attempt by the Board was under challenge before this Court in W.P.(C)No.19366 5 ## W.P.(C) No.10566 of 2022 of 2003, which was disposed of by judgment dated 26.09.2003 directing the Board to reconsider the matter. Pursuant to the direction contained in that judgment, the 1[st] respondent Board issued Ext.P3 order dated 30.12.2003 to continue the existing arrangement. The learned counsel for the petitioner would contend that the decision taken in Ext.P4 proceedings to auction the right for making and selling flower garlands in Sree Mahadeva Temple and Krishnan Kovil under Ettumanoor Devaswom interferes with the Karanma of the petitioners' family, which is legally impermissible. In such circumstances, interference of this Court on Ext.P4 proceedings of the 1[st] respondent Board and Exts.P5 and P6 auction notices issued by the 2[nd] respondent Deputy Devaswom Commissioner is warranted. 6. Per contra, the learned Standing Counsel for Travancore Devaswom Board, on instructions, would submit that the Karanma of the petitioners' family to supply flower and flower garlands to Sree Mahadeva Temple and Krishnan Kovil under Ettumanoor Devaswom is unaffected by the issuance of Ext.P4 proceedings by the 1[st] respondent Board and Exts.P5 and P6 auction notices issued by the 2[nd] respondent Deputy 6 ## W.P.(C) No.10566 of 2022 Devaswom Commissioner, since the petitioners can make flower garlands within the Nalambalam of those two temples for the performance of various rituals and they can even sell flower garlands to worshipers inside Nalambalam. The decision taken by the 1[st] respondent Board in Ext.P4 proceedings is for the sale of flower garlands, as a Kuthaka item, in the premises of Ettumanoor Devaswom, for the worshipers of Sree Mahadeva Temple and Krishnan Kovil. The Kuthaka right proposed to be auctioned as per Exts.P5 and P6 is not the right to sell flower garlands inside the Nalambalam to the worshipers of those temples. At present, worshipers are permitted to offer flower garlands to the deity of Sree Mahadeva Temple and Krishnan Kovil, other than those sold by the petitioners, on payment of the prescribed fee for 'Samarppanam'. As per the decision taken in Ext.P4, the worshipers are given an option to purchase flower garlands from the stalls in the premises of Ettumanoor Devaswom. 7. 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 7 ## W.P.(C) No.10566 of 2022 Endowments and Funds. As per Section 15A of the Act the duties of the Board include the duty to to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly. As per Section 31 of the Act, 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. 8. In the instant case, the petitioners are Kazhakakars of Sree Mahadeva Temple, Ettumanoor, which is under the management of the 1[st] respondent Travancore Devaswom Board, and they are being paid salary for their services. They are holding Karanma for supply of flower garlands, inside the Nalambalam, for the purpose of various rituals in Sree Mahadeva Temple and Krishnan Kovil under Ettumanoor Devaswom. They are also permitted to sell flower garlands to worshipers, inside the Nalambalam. 9. During the course of arguments, on a query made by this Court, the learned counsel for the petitioners would submit 8 ## W.P.(C) No.10566 of 2022 that the devotees are permitted to offer flower garlands to the deity of Sree Mahadeva Temple and Krishnan Kovil under Ettumanoor Devaswom, other than those sold by the petitioners, on payment of the prescribed fee for 'Samarppanam'. Therefore, there is no prohibition in Ettumanoor Devaswom that the flower garlands made by those who are having Karanma right alone can be offered by the worshipers to the deity of those two temples. 10. In **Rajani P. Kuttan and another v. State of Kerala and others [2021 (6) KHC 513]** a Division Bench of this Court noticed that among the 1250 Temples managed by the Travancore Devaswom Board, only 60 major Temples are - self sufficient and the rest are being managed utilising the surplus income from Sabarimala Devaswom. The total number of sanctioned posts in various categories in the Travancore Devaswom Board is 5692 and the total number of pensioners is 5749. 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 and the revenue generated through the auction of temple premises for various activities in connection with rituals and festivals in the Temples. Paragraph 9 W.P.(C) No.10566 of 2022 ## 59 of the said decision reads thus; “59. The Financial position of the Devaswom Board:- The competent officer of the Devaswom Board filed an affidavit dated 14.06.2021 stating its financial position. It is submitted that there are 1250 temples under the Administrative Control of the Devaswom Board. The total number of sanctioned posts in various categories in the Devaswom Board is 5692, and the total number of pensioners is 5749. It is further submitted that the major sources of revenue of the Devaswom Board are the income received by way of offerings from devotees, the amount received from vazhipadu, and the revenue generated through the auction of the temple premises for various activities in connection with rituals and festivals in the temples. Besides this, the Devaswom Board gets an approximate sum of 14 crores per annum by way of the rent of the buildings owned by it. The annual contribution from the State Government under Article 290A of the Constitution of India is Rs.80 lakhs. It is further submitted that among the 1250 temples managed by the Devaswom - Board, only 60 major temples are self sufficient, and the rest are being managed utilising the surplus income from Sabarimala Devaswom. Now, due to the spread of the Covid-19 pandemic, the temples remain closed, and the major source of income has come down. The Devaswom Board is finding it difficult even to pay the salary of the existing employees. The pleadings regarding the financial position of the Devaswom Board in the affidavit dated 14.06.2021 have not been controverted by the petitioners.” (underline supplied) 10 ## W.P.(C) No.10566 of 2022 11. The learned Standing Counsel for Travancore Devaswom Board would submit that the apprehension of the petitioners that the decision taken by the 1[st] respondent in Ext.P4 proceedings will affect the Karanma of the petitioners' family is absolutely without any basis, since the said decision deals with auctioning of Kuthaka right for sale of flower garlands in the temple premises, outside the Nalambalam of Sree Mahadeva Temple and Krishnan Kovil. The learned Standing Counsel would point out that the petitioners are not remitting any amount to the Department towards 'Muthalkoottu', out of the amount collected from the worshipers for sale of flower garlands inside the Nalambalam. In case the petitioners have defaulted remittance of any amount payable to the Department towards 'Muthalkoottu', it is for the 1[st] respondent Board to take necessary steps to realise the same, in discharge of its duties and obligations as a trustee. 12. 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 duty of the trustees of the property to be faithful to the Trust 11 W.P.(C) No.10566 of 2022 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 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 12 W.P.(C) No.10566 of 2022 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 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) 13. In the above circumstances, we find no merit in the 13 ## W.P.(C) No.10566 of 2022 contention of the petitioners that the decision taken by the 1[st] respondent Board in Ext.P4 proceedings dated 17.03.2022 to conduct auction of Kuthaka item for the sale of flower garlands in Ettumanoor Devaswom and also Exts.P5 and P6 auction notices dated 22.03.2022 issued by the 2[nd] respondent Deputy Devaswom Commissioner interfere with the Karanma of the petitioners' family to supply flower garlands in the temples in question. 14. The petitioners are not entitled to any of the reliefs sought for in this writ petition. The writ petition fails and the same is accordingly dismissed. No order as to cost. Sd/- **ANIL K.NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** PV 14 W.P.(C) No.10566 of 2022 ## **APPENDIX OF WP(C) 10566/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT OF THE DISTRICT COURT ALAPPEY IN O.S.33/1070 ME DATED 5TH OF EDAVAM 1070 ME (MALAYALAM ERA). Exhibit P2 TRUE COPY OF THE JUDGMENT OF HIGH COURT OF TRAVANCORE IN A.S.95/1071 ME DATED 14TH MIDHUNAM 1071 ME. Exhibit P3 TRUE COPY OF THE PROCEEDINGS OF THE TRAVANCORE DEVASWOM BOARD DATED 30.12.2003. Exhibit P4 TRUE COPY OF THE PROCEEDINGS OF THE TRAVANCORE DEVASWOM BOARD DATED 17.3.2022. Exhibit P5 TRUE COPY OF THE AUCTION NOTIFICATION ISSUED BY THE 2ND RESPONDENT DATED 22.3.2022. Exhibit P6 TRUE COPY OF THE AUCTION NOTIFICATION ISSUED BY THE 2ND RESPONDENT DATED 22.3.2022.