Sabarimala Ayyappa Seva Samajam v. State of Kerala & 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 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944** **WP(C) NO.31920 OF 2019** ## **PETITIONER:** **SABARIMALA AYYAPPA SEVA SAMAJAM REGISTRATION NO.226/2008, ADMINISTRATIVE OFFICE, AYYAPA VIHAR, SHIVA TEMPLE ROAD, VIYYUR, THIRSSUR-680010, REPRESENTED BY ITS GENERAL SECRETARY, ERODE N.RAJAN** **BY ADV. S.SUJIN** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF DEVASWOM, SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE, THIRUVANANTHAPURAM-695 004** - **3 THE COMMISSIONER OF DEVASWOM, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM-695 004** **BY ADVS. SRI.S.RAJMOHAN, SC, TDB SRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD** ## **SRI S.RAJMOHAN - SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P.(C) No.31920 of 2019 ## **J U D G M E N T** ## Anil K. Narendran, J. The petitioner Samajam has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents to permit the Samajam to conduct Annadanam at Sabarimala Sannidhanam, Pampa, Erumeli and Nilakkal along with other services which they have been permitted to perform. 2. On 19.12.2019, when this writ petition came up for admission, this Court directed the learned Standing Counsel for Travancore Devaswom Board to get instructions. 3. On 08.01.2020, when this writ petition came up for consideration, this Court passed the following order: “On consent of parties, we have taken up the matter for consideration today. We have carefully gone through Annexure R2(a) judgment and Annexure R2(b) order. Paragraph 16 of Annexure R2(a) would reveal that the said judgment was passed in the specifically mentioned circumstances and in modification of the earlier orders passed by this Court taking note of the proven credentials of the Akhila Bharatha Ayyappa Seva Sangham. It would also reveal that this Court took note of the specific contention of the Akhila Bharatha Ayyappa Seva 3 W.P.(C) No.31920 of 2019 Sangham that the Sangham owned premises at Sannidhanam and Pampa with sufficient infrastructure. It volunteered to perform Annadanam catering to the needs of the pilgrims throughout day and night. In this context, it is also relevant to note that the writ petitioner Samajam is also provided some space by the TDB at Sabarimala. We may hasten to add that the question whether TDB could legally grant permissive occupation or pass on the land to any such organisation will be considered later, in view of Annexure R2(b). It is also not in dispute that the said space was being utilised by the Samajam for conducting Annadanam till 2015-16. It is also the specific case of the writ petitioner that for the purpose of conducting Annadanam independently, they had never effected any collection from the public. So also, it is stated that they do not propose to collect any amount from the public for the purpose of conducting Annadanam. In short, the contention is that since the Samajam in all respects is similarly situated to the Akhila Bharatha Ayyappa Seva Sangham, there is no reason to deprive them the opportunity, they consider as a pious obligation, to conduct Annadanam throughout day and night. Having heard the learned Standing counsel and taking note of the fact that at the time of passing the judgment which we have recalled to the extent it pertains to W.P.(C).No.31920 of 2019, existence of Annexure R2(a) judgment was not at all brought to the notice of this Court, we are of the view that the question whether the writ petitioner could be permitted to conduct 4 W.P.(C) No.31920 of 2019 Annadanam in the same manner as has been permitted in the case of Akhila Bharatha Ayyappa Seva Sangham is a matter to be considered. At this juncture, the learned Standing Counsel for TDB submitted that Akhila Bharatha Ayyappa Seva Sangham is conducting Annadanam independently in the space which is allotted to them under the supervision of the officials of the TDB. Since the factum of permissive occupation by the writ petitioner Samajam of some space at Sabarimala in the vicinity of Sannidhanam and the fact that they had earlier conducted Annadanam independently since 2011 upto 2015-16 are not in dispute, we are of the view that subject to the following conditions an interim order can be passed to enable the writ petitioner to conduct Annadanam independently in the space allotted to them by the TDB and which is in their possession, after obtaining certificate after Fire Audit by the Fire and Rescue Department and subject to the following conditions: - i. The grocery and other materials brought for preparation of food and preparation of food to conduct Annadanam shall be done only under the strict supervision of the officials of the TDB. - ii. No charge, either in the form of cash or kind, shall be accepted by the petitioner Seva Sangham from any of the devotees or others for providing Annadanam at the places belonging to the petitioner Sangham in Sannidhanam and Pampa or else where. 5 W.P.(C) No.31920 of 2019 - iii. Proper account shall be maintained and a copy of the audited account shall be made available to the Special Commissioner, Sabarimala appointed by this Court, besides submitting the same before the statutory authorities. - iv. The quality and hygiene of the food supplied shall be maintained all through out by providing sufficient infrastructure and deploying sufficient number of volunteers. - v. No waste shall be spilled over in the premises or nearby or dumped even on the land, river or forest and proper steps shall be taken to have it taken out and transported to appropriate/non objectionable places for disposal/treatment in accordance with law. - vi. The petitioner Seva Sangham shall abide by all lawful orders/instructions given by the officers of the Board, the Police and Forest Department and also those issued by the Special Commissioner appointed by this Court in connection with the services rendered by them. - vii. No plastic cups/bottles/papers/plates/packets shall be used in the premises, but for using ecofriendly materials for serving food or drinking water. - viii. Performance of Annadanam at Sannidhanam and Pampa in the premises of the petitioner Seva Sangham shall be under the close surveillance of the Police to ensure that no collection of cash or kind is made and that the service rendered is fully transparent in all respects. 6 W.P.(C) No.31920 of 2019 - ix. The orders passed by this Court and all lawful conditions issued by the Board/competent authority at different points of time shall be scrupulously followed. - x. It will be open for the competent authorities under the relevant Statutes, including the Food Safety Commissioner/Officers under him to inspect the quality of food and hygiene maintained at the premises belonging to the petitioner Seva Sangham for preparation and serving of food as above [Annadanam]. This order will be operative only till the conclusion of the Makaravilakku season 2019-20.” 4. Thereafter, this writ petition along with W.P.(C) No.32049 of 2019 was disposed of by judgment dated 26.11.2019. The petitioner filed R.P.No.1280 of 2019 seeking review of the judgment dated 26.11.2019. That review petition, was disposed by the order dated 08.01.2020, and this writ petition was referred to file. The said order reads thus; “The petitioner viz., Sabarimala Ayyappa Seva Samajam seeks review of the judgment of this Court dated 26.11.2019 in W.P.(C) No.31920 of 2019. As per judgment, we disposed of the said writ petition taking note of judgment dated 10.10.2018 in W.P.(C) No.37717 of 2018 upholding the stand of the Travancore Devaswom Board that independently, no individual or entity could be 7 W.P.(C) No.31920 of 2019 permitted to conduct Annadanam at Sannidhanam, Pampa, Erumeli and Nilakkal and any such individual or entity could be permitted only to transfer their funds for conducting Annadanam to TDB besides offering men and materials to perform Annadanam. As is obvious from judgment dated 26.11.2019, we declined to grant permission to the review petitioner/writ petitioner to conduct Annadanam independently following the judgment dated 10.10.2018 in W.P.(C) No.37717 of 2018, but in terms of the same permitted the petitioner to transfer their funds to TDB to conduct Annadanam if it so desires besides granting permission to offer men and materials to conduct Annadanam. This review petition is filed raising the contention that the TDB is adopting a stand which is discriminatory, arbitrary and violative of Article 14 of the Constitution of India inasmuch as the Akhila Bharatha Ayyappa Seva Sangham is being permitted to conduct Annadanam independently ignoring the said avowed policy. It is stated that the petitioner organisation is similarly situated to Akhila Bharatha Ayyappa Seva Sangham and therefore, they should not have been discriminated arbitrarily in the matter. In the review petition, the petitioner has taken ground C as hereunder: "This Hon'ble Court rendered the above judgment on the basis of the poly decisions taken by the Devaswom Board that they were not going to allow any organisation or entity to perform Annadanam. As the said policy decision has now been discarded 8 W.P.(C) No.31920 of 2019 judgment may be reviewed and the reliefs sought for in the writ petition may be granted in the interest of justice." 2. A counter affidavit has been filed in the review petition by the TDB. It is inter alia stated therein that the Akhila Bharatha Ayyappa Seva Sangham is being permitted to conduct Annadanam independently only in the light of Annexure R2(a) judgment. Along with the counter affidavit, the TDB has also produced Annexure R2(b) order in DBP No.136/2012 and SSCR No.11/2015 dated 28.10.2015. The contention of the learned Standing Counsel for TDB relying on Annexure R2(b) is that in the light of Annexure R2(b), no individual or entity could be permitted to conduct Annadanam independently. Furthermore, it is contended that there is no basis for the contention that the review petitioner Samajam was arbitrarily discriminated for the reason that the Akhila Bharatha Ayyappa Seva Sangham is being permitted to conduct Annadanam independently only on the strength of Annexure R2(a) order. Obviously, at the time of consideration of W.P.(C).No.31920/2019, the existence of Annexure R2(a) judgment was not brought to our notice. In otherwords, the fact that Akhila Bharatha Ayyappa Seva Sangham was permitted by this Court to conduct Annadanam independently, was not brought to our notice by TDB. Its contention, as noticed in the judgment sought to be reviewed, was that as a policy a decision was taken not to permit any individual or entity to conduct Annadanam and that stand was upheld by this 9 W.P.(C) No.31920 of 2019 Court as per the judgment in W.P.(C).No.27138 of 2018. In short, in such circumstances, as rightly contended by the review petitioner, this Court had no occasion to consider the contentions and also the entitlement to the reliefs sought for, by the review petitioner viz., writ petitioner in the light of Annexure-R2(a) judgment. In such circumstances, we have no hesitation to hold that the review petitioner has made out a case. In such circumstances, the judgment dated 26.11.2019 to the extent it pertains to W.P.(C).No.31920 of 2019 is recalled. The same is restored into the file.” 5. Today, when this case is taken up for consideration along with W.P.(C) No.35062 of 2022, which is one filed by the petitioner seeking permission to conduct Annadanam at - Sabarimala, during the Mandala Makaravilaku festival season 1198 ME (2022-23), the learned counsel for the petitioner would submit that, taking note of the pendency of W.P.(C) No.35062 of 2022, this writ petition may be dismissed, leaving open the legal and factual contentions, and without prejudice to the right of the petitioner to prosecute W.P.(C) No.35062 of 2022 raising appropriate contentions. 6. Interim order on 08.01.2020, which was extended till 18.02.2020, on 11.02.2020 was revived and extended by 10 W.P.(C) No.31920 of 2019 the order dated 11.03.2020, till 01.06.2020. Thereafter the said interim order was never extended. Based on the aforesaid submission made by the learned counsel for the petitioner, this writ petition is dismissed, leaving open the legal and factual contentions raised by the petitioner, and without prejudice to the right of the petitioner to prosecute W.P.(C) No.35062 of 2022. ## **Sd/-** **ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** PV 11 W.P.(C) No.31920 of 2019 ## **APPENDIX OF WP(C) 31920/2019** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF TRUST DEED DATED 13.11.2008 OF THE PETITIONER TRUST** - **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 5.10.2010 IN DBP NO.67/2010 PASSED BY THIS HON'BLE COURT** - **EXHIBIT P3 TRUE COPY OF ORDER DATED 17.11.2011 IN DBA N.53/2020 AND CONNECTED CASES PASSED BY THIS HON'BLE COURT** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 29.10.2018 IN WPC NO.34182/20917 PASSED BY THIS HON'BLE COURT** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 29.10.2018 IN WP(C) NO.27138/2018 PASSED BY THIS HON'BLE COURT** - **EXHIBIT P6 TRUE COPY OF ORDER DATED 20.11.2018 ISSUED BY TRAVANCORE DEVASWOM BOARD** - **EXHIBIT P7 TRUE COPY OF APPLICATION DATED 24.10.2019 SUBMITTED BY THE PETITIONER BEFORE TDB** **EXHIBIT P8 TRUE COPY OF ORDER NO.ROC NO.22568/2018/SB DATED 16.11.2019 ISSUED ON BEHALF OF THE 3RD RESPONDENT**