P. D Desaiaged and Others v Travancore Devaswom Board

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024/16TH MAGHA, 1945 WP(C) NO.34570 OF 2023 ``` ## **`PETITIONERS:`** - **`1 P.D DESAIAGED 66 YEARS, S/O.VELU, CHIRAYIL, THEKKENADA, VAIKKOM, KOTTAYAM, PIN – 686 141`** - **`2 SANEESH, AGED 45 YEARS, S/O.HARIDAS, KALATHIPPARAMBIL, V.M.C - 19, VAIKKOM, KOTTAYAM, PIN – 686 141`** - **`3 SABU, AGED 50 YEARS, S/O.LEXMANAN, VAAZHEKKADU, THEKKENADA, VAIKKOM, KOTTAYAM, PIN – 686 141`** - **`4 SUDHEER PEETHAMBARAN, AGED 51 YEARS, S/O.PEETHAMBARAN, PULIKKAKATHU, THEKKENADA, VAIKKOM, KOTTAYAM, PIN – 686 141`** - **`5 VINOD KUMAR, AGED 66 YEARS, S/O.GOPINATHAN NAIR, KUZHIPARAMBIL, KAVARAPPADI, VAIKKOM, KOTTAYAM, PIN – 686 141`** - **`6 ABRAHAM POULOSE, AGED 66 YEARS, S/O.POULOSE, KARIMBOOZHIKKADU, VAIKKOM, KOTTAYAM, PIN – 686 141`** - **`7 MADHUSOODANAN PILLA, AGED 63 YEARS, S/O.BHASKARA PILLAI, AASHA BHAVAN, THEKKENADA, VAIKKOM, KOTTAYAM, PIN – 686 141`** - **`8 SUNILKUMAR, AGED 54 YEARS, S/O.CHANDRASEKHARAN NAIR, KARTHIKASADANAM, THEKKENADA, VAIKKOM, KOTTAYAM, PIN – 686 141`** - **`9 MURALEEDHARAN AGED 65 YEARS, S/O.RAGHAVAN, ANCHUPARAMBIL, CHETTIMANGALAM, THEKKENADA, VAIKKOM, KOTTAYAM, PIN – 686 141`** ``` BY ADVS. ``` 2 W.P.(C)No.34570 of 2023 ``` S.SUJIN KEERTHI M. NITA.N.S. B.BILWIN ``` ``` RESPONDENTS: ``` ``` 1TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANDANCODE, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN – 695 003 2ADMINISTRATIVE OFFICER VAIKKOM DEVASWOM, DEVASWOM OFFICE, VAIKKOM, PIN – 686 142 ``` ``` *ADDL.R3DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM - 695 003 ``` ``` *ADDL.R4ASSISTANT DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, VAIKOM GROUP, KOTTAYAM - 686 141. ``` ``` [ADDL.R3 AND R4 ARE IMPLEADED AS PER ORDER DATED 26.10.2023 IN I.A-1/2023 IN WP(C) 34570/2023] ``` ``` BY ADV ``` ``` SRI N. N.SUGUNAPALAN (SR ) FOR PETITIONERS ``` ``` SRI G. SANTHOSH KUMAR -STANDING COUNSEL - TRAVANCORE DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.34570 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioners, who are the licensees in occupation of the shop rooms in the shopping complex of Vaikom Devaswom under the management of the 1[st] respondent Travancore Devaswom Board, in the land comprised in Survey No.179/12 of Naduvile Village, Vaikom Taluk, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exts.P15 to P21 notices dated 20.09.2023 issued by additional 4[th] respondent Assistant Devaswom Commissioner, Vaikom, whereby the petitioners are required to clear the arrears of licence fee in respect of their shop rooms, together with interest, within 15 days, failing which appropriate proceedings will be initiated against them. The petitioners have also sought for a writ of mandamus commanding the 1[st] respondent Board to conduct an auction of the shop rooms, as per clause 10 of the licence deed and permit them to participate in the auction and match the higher offer to renew the licence. 2. The documents marked as Exts.P1 to P6 are the licence deeds entered into between petitioners 1, 2, 3, 5, 7 and 8 and the 1[st] respondent Board. The licence period of one year in the respective licence deeds entered into between the petitioners and 4 W.P.(C)No.34570 of 2023 the 1[st] respondent Board has already expired. The Administrative Officer, Vaikom Devaswom issued Exts.7 to P13(a) notices dated 17.06.2021 requiring the petitioners to pay the licence fee fixed at the revised rate, as per order No.DBROC 16375/17/M dated 17.04.2021, based on report No.CE(G)/ EO/Rent/2021/03 dated 27.01.2021 of the Chief Engineer (General), with effect from May, 2021, to deposit security deposit at the revised rate and execute a fresh licence agreement. The document marked as Ext.P14 is a tabular statement prepared by the petitioners showing the difference in the licence fee. 3. When the petitioners defaulted payment of the licence fee, the additional 4[th] respondent Assistant Devaswom Commissioner issued Exts.P15 to P20 demand notices, requiring the petitioners to pay the defaulted licence fee at the revised rate and execute the licence agreement, within 15 days from the date of receipt of those notices. On receipt of Ext.P15 to P20 notices, the petitioners submitted Ext.P22 reply pointing out clause 10 of the licence agreements, which provides for the conduct of an auction, after the expiry of the term of the licence. Relying on Para.16.3 of Ext.P23 Policy Guidelines for Land Management by Major Ports, 2014 the petitioners would contend that after the expiry of the term of the licence, the 1[st] respondent Board has to conduct an 5 W.P.(C)No.34570 of 2023 auction, with an option to the licensee to match the highest amount. 4. On 19.10.2023, when this writ petition came up for consideration, the petitioners were directed to file an application to implead the Commissioner, Travancore Devaswom Board and also the Assistant Devaswom Commissioner, Vaikom as additional respondents. By the order dated 26.10.2023 in I.A. No.1 of 2023, the Devaswom Commissioner and the Assistant Devaswom Commissioner were impleaded as additional respondents 3 and 4. The learned Standing Counsel for the Travancore Devaswom Board sought time to get instructions. 5. On 14.11.2023, when this writ petition came up for consideration, the learned Standing Counsel for Travancore Devaswom Board sought time to file a counter affidavit. On a query made by this Court, the learned Standing Counsel submitted that petitioners 1 to 3, 5, 7, 8 and 9 have defaulted payment of monthly rent from 01.05.2021 onwards. The 4[th] and 6[th] petitioners have defaulted payment of monthly rent from 01.11.2019 and 01.03.2020 respectively. By the order dated 14.11.2023, the 1[st] respondent Board was directed to explain in the counter affidavit, the facts and circumstances in which the petitioners were permitted 6 W.P.(C)No.34570 of 2023 to occupy the tenanted premises, despite their default in payment of rent for the last several years. 6. The respondents have filed a counter affidavit dated 18.12.2023. Paragraphs 3 to 11 of the counter affidavit of the Board deal with the default committed by the petitioner, which read thus; “3. It is submitted that the 1[st] petitioner is occupying Room No.1 and 7 at Thottavakkom New Building Shopping Complex of Vaikkom Devaswom situated in Sy No.179/12 of Naduvile Village, Vaikkom Taluk. As per the agreement, the monthly rent agreed by the 1[st] petitioner was Rs.12,048/- per month for shop room No.1. However, from May 2021 onwards till 31.07.2023, the total arrear amount remaining as due comes to Rs.3,47,769/-. As far as Shop No.7 of the petitioner is concerned, the 1[st] petitioner is liable to remit the monthly rent of Rs.12,048/-. However, from May 2021 onwards till 31.07.2023, the total arrear amount remaining as due comes to Rs 3,45,412/-. 4. It may be noted that the 2[nd] petitioner is occupying Shop Room No. 2 at Thottavakkom New Building Shopping Complex of Vaikkom Devaswom situated in Sy.No.179/12 of Naduvile Village, Vaikkom Taluk. As per the agreement, the monthly rent agreed by the 2[nd] petitioner was Rs.4656/- per month for shop room No.2. However, from May 2021 onwards till 31.07.2023, the total arrear amount remaining as due comes to Rs.1,33,180/-. 5. It is submitted that the 3[rd] petitioner is occupying Shop Room No.3 at Thottavakkom New Building Shopping Complex of Vaikkom Devaswom situated in Sy No.179/12 of Naduvile Village, Vaikkom Taluk. As per the agreement, the monthly rent 7 W.P.(C)No.34570 of 2023 agreed by the 3[rd] petitioner was Rs.4656/- per month for shop room No.3. However, from May 2021 onwards till 31.07.2023, the total arrear amount remaining as due comes to Rs.1,33,483/-. 6. It is submitted that the 4[th] petitioner is occupying Shop Room No.4 at Thottavakkom New Building Shopping Complex of Vaikkom Devaswom situated in Sy No.179/12 of Naduvile Village, Vaikkom Taluk. As per the agreement, the monthly rent agreed by the 4[th] petitioner was Rs.12,048/- per month for shop room No.4. However, from November 2019 onwards till 31.07.2023, the total arrear amount remaining as due comes to Rs.4,28,251/-. 7. It is submitted that the 5[th] petitioner is occupying Shop Room No.5 at Thottavakkom New Building Shopping Complex of Vaikkom Devaswom situated in Sy. No.179/12 of Naduvile Village, Vaikkom Taluk. As per the agreement, the monthly rent agreed by the 5[th] petitioner was Rs.4656/- per month for shop room No.5. However, from May 2021 onwards till 31.07.2023, the total arrear amount remaining as due comes to Rs.1,33,483/-. 8. It may be noted that the 6[th] petitioner is occupying Shop Room No.6 at Thottavakkom New Building Shopping Complex of Vaikkom Devaswom situated in Sy.No.179/12 of Naduvile Village, Vaikkom Taluk. As per the agreement, the monthly rent agreed by the 6th Petitioner was Rs.4656/- per month for shop room No.6. However, from March 2020 onwards till 31.07.2023, the total arrear amount remaining as due comes to Rs.1,80,390/-. 9. It is submitted that the 7[th] petitioner is occupying Shop Room No.8 at Thottavakkom New Building Shopping complex of Vaikkom Devaswom situated in Sy. No. 179/12 of Naduvile Village, Vaikkom Taluk. As per the agreement, the monthly rent agreed by the 7[th] petitioner was Rs.4656/- per month for shop 8 W.P.(C)No.34570 of 2023 room No.8. However, from May 2021 onwards till 31.07.2023, the total arrear amount remaining as due comes to Rs.1,33,483/-. 10. It may be noted that the 8[th] petitioner is occupying Shop Room Nos.9 and 10 at Thottavakkom New Building Shopping Complex of Vaikkom Devaswom situated in Sy. No.179/12 of Naduvile Village, Vaikkom Taluk. As per the agreement, the monthly rent agreed by the 8[th] petitioner for room No.9 was Rs.4656/- per month and for shop room No.10, the 8[th] petitioner is liable to pay an amount of Rs.12,048/- per month. However, from May 2021 onwards till 31.07.2023, the total arrear amount remaining as due comes to Rs.1,33,483/- by the 8[th] petitioner for shop Room No.9. Similarly, from May 2021 onwards till 31.07.2023, the total arrear amount remaining as due comes to Rs 3,45,412/- by the 8[th] petitioner for shop Room No.10. 11. It is submitted that the 9[th] petitioner is occupying Shop Room No.3 at Thottavakkom Old Building Shopping Complex of Vaikkom Devaswom. As per the agreement, the monthly rent agreed by the 9[th] petitioner for room No.3 was Rs.3618/- per month. However, from May 2021 onwards till 31.07.2023, the total arrear amount remaining as due comes to Rs.1,03,723/by the 9[th] petitioner for shop Room No.3.” 7. Heard the learned Senior counsel for the petitioners, the learned Standing Counsel for the Travancore Devaswom Board for respondents 1 and 2 and additional respondents 3 and 4. 8. During the course of arguments, the learned Senior counsel for the petitioners would submit that during the pendency of this writ petition, the petitioners have cleared the arrears of the 9 W.P.(C)No.34570 of 2023 licence fee in the pre-revised rate. Relying on clause (10) of the licence deed and para.16.3 of Ext.P23 Policy Guidelines for Land Management by Major Ports, 2014, the learned Senior Counsel would contend that after the expiry of the term of the licence, the 1[st] respondent Board has to conduct an auction, with an option to the licensee to match the highest amount. 9. On the other hand, to justify the demand for licence at the revised rate, the learned Standing Counsel for Travancore Devaswom Board would place reliance on the law laid down by this Court in **T. KrishnaKumar v. Cochin Devaswom Board [2022 (4) KLT 798]** and **H.N. Vijayan v. Travancore Devaswom Board [2022:KER:50584]** . 10. 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. 10 W.P.(C)No.34570 of 2023 11. Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with the vesting of administration in the 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. 12. Section 4 of the Act deals with the 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 management of the Board. 11 W.P.(C)No.34570 of 2023 13. 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 subsection (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. 14. Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with the 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. Section 16 of the Act deals with 12 W.P.(C)No.34570 of 2023 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. 15. Section 24 of the Act deals with the 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 educational upliftment, social and cultural advancement and economic betterment of the Hindu community. 16. 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 13 W.P.(C)No.34570 of 2023 ## Conservancy Act of 1091 shall be applicable to Devaswom lands as in the case of Government lands. 17. Section 31 of the Act deals with the 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. 18. 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 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 14 W.P.(C)No.34570 of 2023 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 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 15 W.P.(C)No.34570 of 2023 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) 19. 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 ‘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. 16 W.P.(C)No.34570 of 2023 20. 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 properties of the Temple itself, the truth of the same can be gone into by the High Court in these proceedings. 21. 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) 17 W.P.(C)No.34570 of 2023 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 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. 22. 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., 18 W.P.(C)No.34570 of 2023 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 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. 23. 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 19 W.P.(C)No.34570 of 2023 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 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 20 W.P.(C)No.34570 of 2023 properties of deities and temples from usurpation or encroachment in any manner. 24. In **V. Muraleedharan Nair v. Travancore Devaswom Board [2015:KER:49207]** 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 up to 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 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 21 W.P.(C)No.34570 of 2023 the control of the Devaswom Boards would be subserved only if income is generated. 25. In **T. Krishnakumar v. Cochin Devaswom Board [2022 (5) KHC SN 8 : 2022 (4) KLT 798]** , a Division Bench of this Court, in which one among us [Anil K. Narendran, J] was a party, 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 mere landlord. The best interest of the Devaswoms under the control of the Board would be subserved only if income is generated. 26. 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 22 W.P.(C)No.34570 of 2023 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 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 23 W.P.(C)No.34570 of 2023 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. ## 27. In **H.N. Vijayan v. Devaswom Commissioner and** **another [2022:KER:50584]** a Divison Bench of this Court in which one among us [Anil K. Narendran, J] was a party, 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 24 W.P.(C)No.34570 of 2023 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 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. 28. In **H.N. Vijayan [2022:KER:50584]** , it was stated in the counter affidavit dated 05.07.2021 of the Travancore Devaswom Board that, the Board after considering the plinth area 25 W.P.(C)No.34570 of 2023 report 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. 29. 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 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 26 W.P.(C)No.34570 of 2023 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 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 27 W.P.(C)No.34570 of 2023 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 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. 28 W.P.(C)No.34570 of 2023 30. In **H.N. Vijayan [2022:KER:50584]** , 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 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 29 W.P.(C)No.34570 of 2023 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 the provisions under Section 15A of the Act, Travancore Devaswom Board is duty bound to monitor whether 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 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 30 W.P.(C)No.34570 of 2023 Authority. Before executing fresh lease deed or licence agreement or even at the time of its renewal the competent 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. 31. In **H.N. Vijayan [2022:KER:50584]** , 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 the loss sustained to the Board on account of occupation of such unauthorised construction/extension by the 31 W.P.(C)No.34570 of 2023 tenant/licensee has to be recovered from him, at the rate equal to the prevailing market rent/licence fee. The Board was directed to take necessary steps in that 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]** , 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. 32. In **Rajani P. Kuttan v. State of Kerala [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 offerings by the devotees, the amount received from Vazhipadu and the revenue generated through the auction of temple premises for various 32 W.P.(C)No.34570 of 2023 ## activities in connection with rituals and festivals in the Temples. Paragraph 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) 33. As per the law laid down by this Court in **Krishnakumar [2022 (5) KHC SN 8]** and **H.N. Vijayan** 33 W.P.(C)No.34570 of 2023 **[2022:KER:50584]** , which were rendered taking note of the law laid down by the Apex Court in **M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65]** and that laid down by the Division Bench in **V. Muraleedharan Nair [2015:KER:49207]** , the Travancore Devaswom Board has to ensure that proper income is generated from the shop rooms in the shopping complexes owned by the respective Devaswoms. The land and buildings of Vaikom Devaswom vest in the Deity. The 1[st] respondent Board is a trustee in the management of the assets of Vaikom Devaswom, vested in the Deity. Therefore, the action of the 1[st] respondent Board as a trustee cannot be equated to that of a mere landlord. The best interest of the Vaikom Devaswom under its control would be subserved only if proper income is generated. Therefore, we find no merits in the contention raised by the learned Senior Counsel for the petitioners, relying on clause (10) of the licence deed and para.16.3 of Ext.P23 Policy Guidelines for Land Management by Major Ports, 2014, that after the expiry of the term of the licence, the 1[st] respondent Board has to conduct an auction, with an option to the licensee to match the highest amount. In terms of the directions issued by this Court in **H.N. Vijayan [2022:KER:50584]** , the 1[st] respondent Board and its officials are bound to take necessary steps to fix the rent/licence fee of all 34 W.P.(C)No.34570 of 2023 shops/buildings owned by Devaswoms under its management, at the prevailing market rate. 34. In such circumstances, we find no reason to interfere with Exts.P15 to P21 notices dated 20.09.2023 issued by the additional 4[th] respondent Assistant Devaswom Commissioner, whereby the petitioners are required to clear the arrears of licence fee in respect of their shop rooms, together with interest, within the time limit specified in those notices. The petitioners are also not entitled for a writ of mandamus commanding the 1[st] respondent Board to conduct an auction of the shop rooms, as per clause 10 of the licence deed, and permit them to participate in the auction and match the higher offer to renew the licence. In the result, this writ petition fails and the same is accordingly dismissed. It is for the 1[st] respondent Board and its officials to proceed against the petitioners, in terms of the directions contained in the judgment of this Court in **H.N. Vijayan [2022:KER:50584]** . ## **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** ded 35 W.P.(C)No.34570 of 2023 ## **`APPENDIX OF WP(C) 34570/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE LICENSE DEED DATED 25/04/2007 ENTERED BY THE 2ND PETITIONER WITH THE 1ST RESPONDENT Exhibit P2TRUE COPY OF THE LICENSE DEED DATED 22/08/2009 ENTERED BY THE 3RD PETITIONER WITH THE 1ST RESPONDENT Exhibit P3TRUE COPY OF THE LICENSE DEED DATED 01/03/2012 ENTERED BY THE 1ST PETITIONER WITH THE 1ST RESPONDENT Exhibit P4TRUE COPY OF THE LICENSE DEED DATED 24/06/2017 ENTERED BY THE 7TH PETITIONER WITH THE 1ST RESPONDENT ``` ``` Exhibit P5TRUE COPY OF THE LICENSE DEED DATED 01/04/2019 ENTERED BY THE 8TH PETITIONER WITH THE 1ST RESPONDENT Exhibit P6TRUE COPY OF THE LICENSE DEED DATED 09/03/2020 ENTERED BY THE 5TH PETITIONER WITH THE 1ST RESPONDENT Exhibit P7TRUE COPY OF THE NOTICE DATED 17/06/2021 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER WITH RESPECT TO ROOM NO.1 ``` - **`Exhibit P7(a) TRUE COPY OF THE NOTICE DATED 17/06/2021 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER WITH RESPECT TO ROOM NO. 7`** - **`Exhibit P8 TRUE COPY OF THE NOTICE DATED 17/06/2021 ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER`** - **`Exhibit P9 TRUE COPY OF THE NOTICE DATED 17/06/2021 ISSUED BY THE 2ND RESPONDENT TO THE 3RD PETITIONER`** - **`Exhibit P10 TRUE COPY OF THE NOTICE DATED 17/06/2021 ISSUED BY THE 2ND RESPONDENT TO THE 4TH PETITIONER`** - **`Exhibit P11 TRUE COPY OF THE NOTICE DATED 17/06/2021 ISSUED BY THE 2ND RESPONDENT TO THE 5TH PETITIONER`** - **`Exhibit P12 TRUE COPY OF THE NOTICE DATED 17/06/2021 ISSUED BY THE 2ND RESPONDENT TO THE 7TH`** 36 W.P.(C)No.34570 of 2023 ``` PETITIONER ``` ``` Exhibit P13TRUE COPY OF THE NOTICE DATED 17/06/2021 ISSUED BY THE 2ND RESPONDENT TO THE 8TH PETITIONER WITH RESPECT TO ROOM NO.9 ``` ``` Exhibit P13(a)TRUE COPY OF THE NOTICE DATED 17/06/2021 ISSUED BY THE 2ND RESPONDENT TO THE 8TH PETITIONER WITH RESPECT TO ROOM NO.10 ``` ``` Exhibit P14TRUE COPY OF THE STATEMENT IN TABULAR FORM SHOWING THE EXISTING RENT, REVISED RENT, STATUTORY DEPOSIT AND ALSO THE DIFFERENCE IN RENT ``` ``` Exhibit P15TRUE COPY OF THE NOTICE DATED 20/09/2023 ISSUED BY THE 1ST RESPONDENT TO 1ST PETITIONER ``` ``` Exhibit P16TRUE COPY OF THE NOTICE DATED 20/09/2023 ISSUED BY THE 1ST RESPONDENT TO 2ND PETITIONER ``` ``` Exhibit P17TRUE COPY OF THE NOTICE DATED 20/09/2023 ISSUED BY THE 1ST RESPONDENT TO 3RD PETITIONER ``` ``` Exhibit P18TRUE COPY OF THE NOTICE DATED 20/09/2023 ISSUED BY THE 1ST RESPONDENT TO 4TH PETITIONER ``` ``` Exhibit P19TRUE COPY OF THE NOTICE DATED 20/09/2023 ISSUED BY THE 1ST RESPONDENT TO 6TH PETITIONER ``` ``` Exhibit P20TRUE COPY OF THE NOTICE DATED 20/09/2023 ISSUED BY THE 1ST RESPONDENT TO 7TH PETITIONER ``` ``` Exhibit P21TRUE COPY OF THE NOTICE DATED 20/09/2023 ISSUED BY THE 1ST RESPONDENT TO 8TH PETITIONER ``` ``` Exhibit P22TRUE COPY OF THE REQUEST DATED 08/10/2023 SUBMITTED BY THE PETITIONERS Exhibit P23TRUE COPY OF THE LAND POLICY GUIDELINES FOR LAND MANAGEMENT BY PORT TRUST, 2014 EXHIBIT P24TRUE COPIES OF THE CHEQUES SUBMITTED BY THE PETITIONERS 1, 8 AND 9 ALONG WITH COVERING LETTERS WITH RESPECT TO THE ARREARS OF RENT IN THE OLD RATE ```