Pampavalley Service Co-Operative Bank Ltd. v. Travancore Devaswom Board

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022/24TH KARTHIKA, 1944 WP(C) NO.36202 OF 2022 ``` ## **`PETITIONER:`** ``` THE PAMPAVALLEY SERVICE CO-OPERATIVE BANK LTD. NO Q. 446, THULAPPALLY P.O. (VIA), MUKKUTTUTHALA, PATHANAMTHITTA DISTRICT 686 510, REPRESENTED BY ITS SECRETARY, ANNAMMA MATHEW, AGED 53 YEARS, W/O. MATHEW, EDAPPADIYIL (H) THULAPPALLY P.O., THULAPPALLY, PATHANAMTHITTA DISTRICT 686 510. ``` ``` BY ADVS.V.H.JASMINE THASNIMOL T.S. JESWIN P.VARGHESE SHIJI P.S. ``` ## **`RESPONDENTS:`** - **`1 THE TRAVANCORE DEVASWOM BOARD DEVASWOM BOARD HEAD QUARTERS, NANTHANCODE, KAWADIYAR POST, THIRUVANANTHAPURAM, 695 003, REPRESENTED BY ITS SECRETARY.`** - **`2 THE SECRETARY, TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD HEAD QUARTERS, NANTHANCODE, KAWADIYAR POST, THIRUVANANTHAPURAM, 695 003,`** - **`3 THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD HEAD QUARTERS, NANTHANCODE, KAWADIYAR POST, THIRUVANANTHAPURAM-695 003.`** ``` BY SRI G.BIJU, STANDING COUNSEL, TRAVANCORE DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `W.P.(C)No.36202 OF 2022` 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is a co-operative society registered under the provisions of the Kerala Co-operative Societies Act, 1969 and the Rules made thereunder, with Registration No.446, having Registered office at Thulappally, Perunad Panchayat, Ranni Taluk, within the area of operation at Ward No.4, 10 and 11 of Perunad Village. The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents to provide adequate space to the petitioner at Sl.Nos.1198-36, 1197-35A-S.16A by temporarily removing the space from the schedule of Ext.P4 e-tender notification or provide adequate space at a distance of 50 meters from C toilet block as well as D toilet block at Pamba Manappuram, or any other suitable place, for providing Tea/Coffee stalls in subsidised rate to the pilgrims, who visit Sabarimala Sannidhanam. 2. On 11.11.2022, when this writ petition came up for admission, the learned Standing Counsel for Travancore Devaswom Board took notice for the respondents. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel for Travancore Devaswom Board `W.P.(C)No.36202 OF 2022` 3 for the respondents. 4. During the course of arguments, the learned counsel for the petitioner would place reliance on Clause VI(7) of Ext.P3 general conditions of the e-tender notification in Sabarimala Devaswom for the year 1198 M.E. (2022-23). The said clause ## reads thus; " ശബരിമലയില ും, പ്ᩘയില ും, നിലയ്കല ും ക ്ᩈകകളിൽ ഏർ്ᩔാടാതെ കിടക ്ന ്ഽല്ᨲൾ ആവശയതമ്ന ക്ᩂാൽ ഭ്ᩌണശാല, ലഘ ഭ്ᩌണശാല, കകാഫി്ഹാൾ, മിൽമ ്ഹാൾ, ്ഹാൾ െ ട്ᨲി അ്ᩞ്ᩔ്മാർക പ്പകയാജനത്ᩔട ്ന വിവിധ കാരയ്ᨲൾക തകാട ക ്നെിന് ഡി്ᩔാർട്തമന്റിന് അധികാരമ ്ᩂായിരിക ്നെ ും അെിതന ക ്ᩈകകാർക്/തടൻഡർകാർക് ക ാദ്യും ത ്ᩞാൻ പാടി്ᩤാ്ᩈെ മാക ്ന ..” 5. The learned counsel for the petitioner would also place reliance on Ext.P5 order dated 24.09.1997 of this Court in C.M.P.No.29355 of 1997 in O.P.No.15657 of 1992. Paragraph ## 2(4) of that order reads thus; “4) Tata Tea Ltd. had been operating a stall in Sannidhanam for some service rendered to the Board. We see no reason to continue the arrangement. It may bid and take a stall in auction, if so advised. Public sector, quasipublic sector undertakings and Co-operative Societies duly registered and non-commercial organisations including the Press may be given stalls as in the previous year, on such terms as the Board could stipulate in its interest.” 6. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and `W.P.(C)No.36202 OF 2022` 4 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. 7. Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with vesting of 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. 8. Section 4 of the Act deals with constitution of the Travancore Devaswom Board. As per sub-section (2) of Section `W.P.(C)No.36202 OF 2022` 5 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. 9. 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. 10. 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; `W.P.(C)No.36202 OF 2022` 6 (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. 11. 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. ## 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 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 `W.P.(C)No.36202 OF 2022` 7 ## 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 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 `W.P.(C)No.36202 OF 2022` 8 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 **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 `W.P.(C)No.36202 OF 2022` 9 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 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 `W.P.(C)No.36202 OF 2022` 10 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) ## 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 devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and `W.P.(C)No.36202 OF 2022` 11 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 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 `W.P.(C)No.36202 OF 2022` 12 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 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. `W.P.(C)No.36202 OF 2022` 13 ## 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 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 `W.P.(C)No.36202 OF 2022` 14 permitted in future, this Court directed Registry to initiate _suo motu_ proceedings in the that matter. 18. In **Suneesh K.S. [ILR (2022) 1 Ker 1091 : 2022 SCC OnLine Ker 611]** a Division Bench of this Court 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 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 `W.P.(C)No.36202 OF 2022` 15 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 deities and temples from usurpation or encroachment in any manner. 19. In view of the law laid down in the decisions referred to supra, conclusion is irresistible that, while auctioning Kuthaka right to conduct stalls, etc., at Sabarimala in connection with Mandala-Makaravilakku festival season, the Board has to ensure that proper income is generated by conducting such auction. 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 best interest of the Devaswoms under the control of the Travancore Devaswom Board would be subserved only if proper income is generated in such auctions. As already noticed by this Court in **Rajani P. Kuttan [2021 (6) KHC 513]** among 1250 Temples under the management of the Travancore Devaswom Board, only 60 major - Temples are self sufficient and the rest are being managed `W.P.(C)No.36202 OF 2022` 16 utilising the surplus income from Sabarimala Devaswom. When the major source of revenue of Travancore Devaswom Board at Sabarimala is the income received by way of offerings by the devotees, the amount received from Vazhipadu and the revenue generated through the auction of premises at Sabarimala for various activities in connection with rituals and festivals in Sabarimala, the Travancore Devaswom Board, invoking clause VI(7) of Ext.P3 general conditions of e-tender cannot permit a co-operative society like the petitioner or any other person or organisation to occupy the sites/premises covered by Ext.P4 e- tender notification, either free of cost or at a reduced rate. Any such action of the Board and its officials will be _per se_ arbitrary and illegal, which would even amount to breach of trust, since the Board being a Trustee in management of the Devaswom property. In such circumstances, the petitioner is not entitled to the relief sought for in this writ petition. The writ petition fails and the same is accordingly dismissed. Sd/- ## **ANIL K.NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** DCS/18.11.2022 `W.P.(C)No.36202 OF 2022` 17 ## **`APPENDIX`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE REPRESENTATION DATED 17/10/2022 SUBMITTED BY THE PETI- TIONER. ``` ``` Exhibit P2TRUE COPY OF THE REMINDER SENT BY THE SECRETARY OF THE PETITIONER SOCIETY DATED 17/10/2022. ``` ``` Exhibit P3TRUE COPY OF THE E-TENDER NO. ROC- 53/22/SAB DATED 10/08/2022. ``` ``` Exhibit P4A TRUE COPY OF THE DESCRIPTIVE OF ITEMS AVAILABLE FOR THE E-TENDER IS PRODUCED. ``` ``` Exhibit P5TRUE COPY OF THE JUDGEMENT DATED 24/09/1997 IN CMP NO. 29355/97 I O.P. NO. 15667/92. ``` ## **`RESPONDENTS’ EXHIBITS: NIL`**