Ravi Poovathinkal v. Cochin 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** **THURSDAY, THE 21[ST] DAY OF DECEMBER 2023 / 30TH** **AGRAHAYANA, 1945** **W.P.(C) NO. 34334 OF 2023** ## **PETITIONER:** **RAVI POOVATHINKAL AGED 61 YEARS,** **S/O. VASUDEVAN, POOVVATHINKAL VEEDU, THONNUURKKARA DESOM, THALAPPILLI VILLAGE, PIN – 680586.** **BY ADVS.** **C.K.PAVITHRAN MEGHA SAJEEVAN NEENU PAVITHRAN** ## **RESPONDENTS:** - **1 COCHIN DEVASWOM BOARD, REPRESENTED BY SECRETARY COCHIN DEVASWOM BOARD COCHIN DEVASWOM BOARD OFFICE ROUND NORTH, THRISHUR, PIN – 680020.** - **2 DEVASWOM COMMISSIONER, COCHIN DEVASWOM BOARD COCHIN DEVASWOM BOARD OFFICE ROUND NORTH, THRISHUR, PIN – 680020.** - **3 ASSISTANT DEVASWOM COMMISSIONER, COCHIN DEVASWOM BOARD, THIRUVILWAMALA SUB GROUP, VILWADHINADHAN TEMPLE, THIRUVILWAMALA, THRISSUR, PIN – 680588.** - **4 JUNIOR DEVASWOM OFFICER, ANTHIMAHAKALANKAVU DEVASWOM, CHELAKKARA P. O, THRISSUR, PIN – 680586.** 2 W.P.(C) No.34334 of 2023 **5 PRAKASAN NAMBIATH, VELICHAPPPAD, ANTHIMAHAKALAN KAVU CHELAKKARA P.O, THRISSUR, PIN – 680586.** **SRI.K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 11.12.2023, THE COURT ON 21.12.2023 DELIVERED THE FOLLOWING:** 3 W.P.(C) No.34334 of 2023 **ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ. ----------------------------------------------------------W.P.(C) No.34334 of 2023** **----------------------------------------------------------Dated this the 21[st] day of December, 2023** ## **JUDGMENT** ## P.G. Ajithkumar, J. Anthimahakalankavu Temple is under the administration of the 1[st] respondent. The petitioner is a devotee of the Temple. The 5th respondent is the Velichappadu (Oracle) in the Temple. In connection with Annual Festival in the Temple, there is Vela Festival and there used to be Parayeduppu as part of it. There are five Desoms within the local area of the Temple and in connection with Parayeduppu, the Goddess is believed to visit houses of the devotees. The Oracle in the traditional attire, considered to be the incarnation of the Deity, leads the Parayeduppu. The belief is that the Velichappadu blesses the devotees during the Parayeduppu and the devotees used to provide dhakshina to him. The traditional attire of the Velichappadu, includes 'Chilambu' and 'Aramani'. 4 W.P.(C) No.34334 of 2023 2. The 5th respondent, however, refused to adorn Aramani. There arose objections from the devotees against the Oracle and that resulted in presenting a complaint before the 4th respondent on 02.12.2019, which is Ext.P1. In that regard, Thantri of the Temple gave an opinion, Ext.P2, wherein it was stated that wearing of Aramani by the Oracle is mandatory. A complaint was lodged before the Ombudsman for the Cochin Devaswom Board. As per Ext.P3 order dated 07.02.2020, the learned Ombudsman observed that wearing of Aramani was mandatory. However, the Special Devaswom Commissioner, after an enquiry, issued Ext.P4 order, wherein it was observed that there was no practice of wearing of Aramani by the Oracle. Although previous Oracle Sri.Sankaravariyar gave an affidavit that the practice of wearing Aramani was in vogue and the Temple Advisory Committee submitted a letter to continue the practice of Oracle wearing Aramani, respondent Nos.1 to 4 are not taking steps to ensure following of that mandatory customary practice. While so, the 1st respondent issued Ext.P7 order, 5 W.P.(C) No.34334 of 2023 wherein the 4th respondent was directed to conduct a Devaprashnam in order to resolve the issue. In the said circumstances, the petitioner was constrained to approach this Court seeking the following reliefs,- - “i) Issue a writ of certiorari or appropriate writ, direction or order quashing Ext.P4 order No.M5.14623/2019 dated 13.05.2020 issued by the Special Devaswom Commissioner; - ii) Issue a writ of mandamus or appropriate writ, direction or order directing the respondents 1 to 4 to take necessary action to ensure that the 5th respondent follows the customary practice of wearing 'aramani' and 'chilambu' during 'parayeduppu'.” 3. Heard the learned counsel for the petitioner and the learned Standing Counsel for the Cochin Devaswom Board. 4. The learned counsel for the petitioner would submit that from Ext.P5, which is an affidavit of the earlier Oracle, it is evident that the practice of wearing Aramani by the Oracle during the Parayeduppu procession had been ritualistically followed and exemption was given to him for some periods 6 W.P.(C) No.34334 of 2023 owing to his ill-health. It is stated in Ext.P5 that the Parayeduppu procession started in the year 1975 and ever since the Oracle had been wearing Aramani during the procession. In Ext.P5, the previous Oracle averred that wearing of Aramani is a customary practice and should be continued. The petitioner also places reliance on Ext.P2, which is purported to be an opinion given by the Thantri of the Temple. The Thantri is seen opined that wearing of Aramani by the Oracle during the Parayeduppu is mandatory. Placing reliance on the said documents, the petitioner would contend that wearing of Aramani by the Oracle being an integral part of customary practices connecting to the Temple rites, respondent Nos.1 to 4 do not have any right or authority to exempt the 5th respondent from wearing it. The 5th respondent being an employee of the Board, it is the obligation of the 1 st respondent to ensure that he followed the traditional practice of wearing the attire and any violation thereof is dereliction of duty. It is submitted that the 1st respondent has the obligation to ensure that the traditional rites and ceremonies in the 7 W.P.(C) No.34334 of 2023 Temple are performed in accordance with the customary practice in terms of Section 73A of the Travancore Cochin Hindu Religious Institutions Act, 1950 and any violation thereof requires interference by this Court. It is further submitted that Article 25 of the Constitution of India makes it obligatory that the Devaswom Board ensures the freedom of religion of every devotee, which includes observance of the religious rites and practices in the Temple as per the customary practice. When the 1st respondent fails to ensure that the 5th respondent is not adorning Aramani, which is an essential part of his customary attire, it is the right of the petitioner to get the reliefs as claimed. 5. In the above respect, the learned counsel for the petitioner placed reliance on **Sinha Ramanuja Jeer v. Ranga Ramanuja Jeer [AIR 1961 SC 1720]** . In that decision, the Apex Court held that although a dispute in relation to religious honours and privileges simplicities cannot be agitated before a civil court, a suit to establish one's right to an office in a Temple, and to honours and privileges attached to his office is 8 W.P.(C) No.34334 of 2023 maintainable. It was also held that if a holder of an office in a Temple is under a legal obligation to discharge the duties attached to the said office, for non-observance of which he may be visited with penalties. The learned counsel accordingly would submit that what shall be the appropriate dress of the Oracle is a matter concerning his legal obligation by virtue of holding of his office and that is a matter liable to be adjudicated by this Court as also a civil court. 6. As against the said contentions, the learned Standing Counsel for the Cochin Devaswom Board would submit that the question raised by the petitioner is regarding a customary practice concerning religious matters in the Temple and there cannot be any interference by this Court by virtue of the provisions of Articles 25 and 26 of the Constitution of India. The learned Standing Counsel in that regard places reliance on the decision of the Apex Court in **Srivari Daadaa v. Tirumala Tirupati Devasthanams [MANU/SCOR/44237/2021]** and also a decision of this Court in **Suo motu v. State of Kerala [2022 (3) KLT 53]** . 9 W.P.(C) No.34334 of 2023 7. The contention of the learned counsel for the petitioner is that although the dispute is with respect to the religious rites and ceremonies in the Temple, inasmuch as the 5th respondent being an employee of the 1st respondent, his reluctance to wear the Aramani, which is part of the traditional attire of the Oracle, that becomes a dispute liable to be decided by the court. Referring to the Explanation to Section 9 of the Code of Civil Procedure, 1908, the learned counsel submitted that the dispute concerning such a religious ceremony having related to the office of the 5th respondent, there cannot be a bar under Section 9 of the Code and, for that matter, this Court is obliged to go into the question involved in this Writ Petition. 8. It is true that the 5th respondent is an employee under the 1st respondent. But no question concerning his right to office is in contest for the dispute to be brought under Section 9 of the Code. The question involved in this Writ Petition cannot, however, be decided with reference to Section 9 of the Code. Hence, the question is whether the dispute 10 W.P.(C) No.34334 of 2023 evoked by the petitioner is one coming within the exclusion clause of Articles 25 and 26 of the Constitution of India. 9. Ext.P5 is one of the documents relied on by the petitioner to contend that such a ceremony has been religiously followed by the Oracle during the Parayeduppu procession. What is asserted in Ext.P5 is that Parayeduppu itself commenced in the year 1975 and ever since the Oracle used to wear Aramani. If origin of such a practice is traced to a period commencing in 1975, the petitioner cannot contend that this has become a custom having its origin lost in antiquity. Be that as it may, the question is whether the petitioner has right to claim a writ of mandamus commanding the 1st respondent to ensure that the 5th respondent wears Aramani. 10. Ext.P4 is the order issued by the Special Devaswom Commissioner after enquiry into the matter. It is seen that in the enquiry, the Special Devaswom Commissioner gathered views of different sects of persons and such views were not consistent. Therefore, he concluded 11 W.P.(C) No.34334 of 2023 that there was no such practice and consequently he opined that no direction to the 5th respondent to wear Aramani could be issued. 11. From the observations in Ext.P4, it can be seen that there has been divergence of opinion among the devotees and others on the issue. The opinions expressed by Thantri at various times are also not consistent. What emerges therefrom is that whether wearing of Aramani by the Oracle during Parayeduppu procession in the Vela in Anthimahakalankavu Temple is a religious practice or rite remains to be a disputed question. Yet another question arises in that connection is whether it is a religious right and ceremony in the Temple or only a custom unrelated to the Temple rites and ceremonies. The 1st respondent, however, issued Ext.P7 directing the 4th respondent to find out a resolution to the issue by obtaining opinion in a Devaprasnam. Thus the 1st respondent treated the issue as a religious practice concerning the Temple and issued Ext.P7 for finding out a resolution. 12 W.P.(C) No.34334 of 2023 ## 12. In **Srivari Daadaa [MANU/SCOR/44237/2021]** the Apex Court held that, whether any ritual or sewa is being performed in a prescribed way or whether there is any deviation from established practice would raise disputed questions of fact which cannot be decided in a writ petition. The procedure of conducting rituals is in the exclusive domain of the Devasthanam and cannot be a matter of adjudication by any court unless it affects secular or civil rights of others. These issues have to be looked into by the pandits or the scholars or the advisors in accordance with the temple customs or the established practice and procedure. These are not the issues for which the Court possesses expertise. So, if the Sevas, Utsavams and Darshanams in the temple are not being done according to the set principles, the petitioner will be at liberty to approach the civil court or the competent authority and prove his claims with evidence, and it is for the respondent Devasthanam to defend the same in accordance with law. The said principle was followed and explained by this Court in **Suo motu [2022 (3) KLT 53]** . 13 W.P.(C) No.34334 of 2023 13. Here also, the question is concerning a customary practice in connection with the Festival in the Temple. Such a question, the views of Thantries and elders on which is not consistent, cannot be a matter for adjudication by this Court in a Writ Petition. Therefore, the petitioner is not entitled to get the reliefs claimed in this Writ Petition. As pointed out above, the 1st respondent already had issued Ext.P7 directing the 4th respondent to find out a resolution. Hence, we are of the view that this Writ Petition is liable to be dismissed. The Writ Petition is dismissed. However, there shall be a direction to respondents No.1 to 4 to take necessary steps in terms of Ext.P7 and arrive at a decision on the matter as expeditiously as possible, at any rate within a period of four months. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr 14 W.P.(C) No.34334 of 2023 ## **APPENDIX OF WP(C) 34334/2023** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 02.12.2019 PREFERRED BY THE DEVOTEES BEFORE THE 4TH RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE LETTER DATED 02.12.2019 GIVEN BY THE THANTRI TO THE DEVASWOM OFFICER** **EXHIBIT P3** - **TRUE COPY OF THE ORDER DATED 07.02.2020 ISSUED BY THE OMBUDSMAN FOR TRAVANCORE AND COCHIN DEVASWOM BOARDS** - **EXHIBIT P4** - **TRUE COPY OF ORDER NO. M5. 14623/ 2019 DATED 13.05.2020 ISSUED BY THE SPECIAL DEVASWOM COMMISSIONER** - **EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT GIVEN BY SRI. SHANKARAVARYAR DATED 11- 03-2020 WITH TYPED COPY** - **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 15.03.2020 ISSUED BY THE KSHETRA UPADESHAKASAMITI** - **EXHIBIT P7** - **TRUE COPY OF ORDER M4. 1728/22 DATED 14.01.23 ISSUED BY 1ST RESPONDENT**