SANTHARAM ROY T.S. v Travancore Devaswom Board and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 W.P.(C)NO.25622 OF 2021** **PETITIONER: SANTHARAM ROY T.S., AGED 51 YEARS, S/O T.R.SIVAN, THOLOOR HOUSE, MUTTAMBALAM P.O, KOTTAYAM DISTRICT, PIN-686004. BY ADV M.P.MADHAVANKUTTY** ## **RESPONDENTS:** |**1**|**TRAVANCORE DEVASWOM BOARD**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**DEVASWOM HEAD QUARTERS, NANTHANCODE,**| ||**KAWDIAR P.O, THIRUVANANTHAPURAM, PIN-695003.**| |**2**|**THE DEVASWOM COMMISSIONER**| ||**TRAVANCORE DEVASWOM BOARD,**| ||**DEVASWOM HEAD QUARTERS, NANTHACODE,**| ||**KAWDIAR P.O, THIRUVANANTHAPURAM, PIN-695003.**| |**3**|**THE ADMINISTRATIVE OFFICER**| ||**THIRUNAKKARA DEVASWOM, TRAVANCORE DEVASWOM**| ||**BOARD, THIRUNAKKARA P.O, KOTTAYAM, PIN-686001.**| |**4**|**ASSISTANT DEVASWOM COMMISSIONER**| ||**TRAVANCORE DEVASWOM BOARD, THIRUNAKKARA,**| ||**KOTTAYAM, PIN-686001.**| |**5**|**Thirunakkara SREE MAHADEVA TEMPLE ADVISORY**| ||**COMMITTEE,**| ||**REPRESENTED BY ITS SECRETARY, THIRUNAKKARA P.O,**| ||**KOTTAYAM, PIN-686001.**| 2 W.P.(C) No.25622 of 2021 - **6 T C GANESH** - **AGED 47 YEARS, S/O CHANDRASENAN NAIR, THADATHUMKUZHIYIL HOUSE, THIRUNAKKARA P.O, KOTTAYAM, PIN-686001.** - **7 AJAY T. AGED 41 YEARS, S/O THULASIDHARAN NAIR, THAIKKADAVIL HOUSE, CHALUKUNNU, KOTTAYAM, PIN-686001.** - **8 VENUGOPAL G., AGED 62 YEARS, S/O GOPALAKRISHNA PANICKER, THZHATHUPURACKAL HOUSE, THEKKUMGOPURAM, KOTTAUYAM, PIN-686001.** - **9 N. G.SOMAN, AGED 61 YEARS, S/O KITTAN, SREESHYLAM HOUSE, UNION CLUB BHAGOM, KOTTAUYAM, PIN-686001.** - **10 V A RADHAKRISHNAN, AGED 60 YEARS, S/O KUNJU KOCHU,** - **KIZHAKKEMANKOMBIL HOUSE, UNION CLUB BHAGOM, KARAPPUZHA, KOTTAYAM, PIN-686001.** - **11 NAVAL SOMAN,** **AGED 41 YEARS, S/O SOMAN,** - **PUTHENPURAMBIL HOUSE, KARAPPUZHA, KOTTAYAM, PIN-686003.** - **12 VENUGOPAL,** - **AGED 64 YEARS, S/O PARAMESWARAN, KAILAS, THIRUNAKKARA, KOTTAYAM, PIN-686001.** - **13 ANJU SATHEESH AGED 42 YEARS, S/O SATHEESH, PAPPALAYIL HOUSE, KARAPPUZHA, KOTTAYAM, PIN-686003.** 3 W.P.(C) No.25622 of 2021 - **14 VINOD KUMAR P.N., AGED 25 YEARS, S/O NAGARAJAN, PAYYAMBALLICHIRA HOUSE, KARAPPUZHA P.O, KOTTAYAM, PIN-686003.** - **15 PRADEEP KRISHNAN,** **AGED 46 YEARS, S/O KRISHNAN, URUMBIL HOUSE, NEAR C.M.S.COLLEGE, KOTTAYAM, PIN-686001.** - **16 PRADEEP P.** - **AGED 59 YEARS, S/O PARAMESWARAN NAIR, MANNAKUNNATHU HOUSE, THIRUNAKKARA P.O, KOTTAYAM , PIN-686001.** - **17 VIJI GOPAL** **AGED 62 YEARS, S/O GOPALAN, NEDUMPARAMBIL HOUSE, MULAMKUZHA, CEMENT KAVALA BHAGOM, KOTTAYAM, PIN-686013.** - **18 G N MADHU,** **AGED 58 YEARS, S/O GOVINDAN NAMBOOTHIRI, HORAKKADU HOUSE, KARAPPUZHA P.O, KOTTAYAM, PIN-686003.** **BY ADVS.** **R1 TO R5 BY P.GOPAL, SC FOR TRAVANCORE DEVASWOM BOARD** **R6 TO R18 BY G.SANTHOSH KUMAR (P).** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL** **HEARING ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 W.P.(C) No.25622 of 2021 ## **“CR”** ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is a member of Thirunakkara Kshetra Bhaktha Mandali, which is an association of the devotees of Thirunakkara Sree Mahadeva Temple. His name is included as Sl.No.465 in the voters' list of Thirunakkara Kshetra Bhaktha Mandali. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that the election to the Temple Advisory Committee of Thirunakkara Sree Mahadeva Temple held on 07.11.2021 is illegal and arbitrary. He has also sought for a writ of mandamus commanding respondents 1 to 4 not to approve the election/selection of respondents 6 to 18 as the members of the Temple Advisory Committee of Thirunakkara Sree Mahadeva Temple; a writ of mandamus commanding respondents 1 and 4 to conduct a proper election to the Temple Advisory Committee, in terms of Ext.P1 Rules framed by the 1[st] respondent Travancore Devaswom Board for constitution of the Temple Advisory Committees. 5 W.P.(C) No.25622 of 2021 2. Going by the averments in the writ petition, the term of the Temple Advisory Committee of Thirunakkara Mahadeva Temple expired on 20.01.2021. In the meeting of the Temple Advisory Committee held on 18.12.2020, it was resolved to request the 2[nd] respondent Devaswom Commissioner to grant extension of the term of the Committee, under Clause (11) of Ext.P1 Rules. Thereafter, Ext.P2 request dated 21.12.2020 was made by the Committee before the 2[nd] respondent. Later, Ext.P3 request dated 06.01.2021 was submitted before the 2[nd] respondent to conduct election before the expiry of the term of the existing Committee or in case of any difficulty in conducting election in time, extend the term of the existing committee till the conduct of the election. Sri.B. Gopakumar, the President of the Committee, had approached this Court in W.P.(C)No.1063 of 2021 seeking a writ of mandamus commanding respondents 1 to 4 to take immediate steps for the conduct of election to the Temple Advisory Committee of Thirunakkara Mahadeva Temple, in terms of Ext.P1 Rules, and at any rate 6 W.P.(C) No.25622 of 2021 prior to the expiry of term of the existing Committee. That writ petition was disposed of by Ext.P4 judgment dated 08.04.2021. In the said judgment, this Court observed that the election to the Temple Advisory Committee need not wait till the statutory audit process in relation to the audit report for the period from 11.12.2019 to 19.12.2020 is completed. Therefore, the competent among respondents 1 to 4 herein were directed to ensure that election to the Temple Advisory Committee is notified without any further delay, so as to elect the new Committee in terms of Ext.P1 rules, preferably within four weeks from the date of receipt of a certified copy of the judgment and in compliance with Covid-19 protocol. Sri.B.Gopakumar filed Cont.Case(C)No.1573 of 2021 before this Court, alleging willful disobedience of the directions contained in Ext.P4 judgment. Thereafter, the 4[th] respondent Assistant Devaswom Commissioner, Kottayam, published Ext.P5 notice dated 30.10.2021 in the notice board of the Travancore Devaswom Board, inside the premises of Thirunakkara Mahadeva Temple, regarding the conduct of 7 W.P.(C) No.25622 of 2021 election to the Temple Advisory Committee, wherein it was stated that in furtherance to the directions contained in Ext.P4 judgment, election to the Temple Advisory Committee is scheduled to be held on 07.11.2021 at 10.00 am at Sivasakthi Auditorium, Thirunakkara in Kottayam. Apart from Ext.P5 notice, the 3[rd] respondent Administrative Officer, Thirunakkara Devaswom, issued Ext.P6 notice dated 02.11.2021 regarding the election scheduled to be held on 07.11.2021. Some of the members of Thirunakkara Kshetra Bhaktha Mandali have acknowledged the receipt of Ext.P6 notice. The document marked as Ext.P7 is the list of 517 members of Thirunakkara Temple Bhaktha Mandali. The grievance of the petitioner is that, the election conducted by the 4[th] respondent Assistant Devaswom Commissioner on 07.11.2021 is without proper notice to the members as provided under Clause (5) of Ext.P1 Rules and in that election, respondents 6 to 18 were elected as members of the Temple Advisory Committee of Thirunakkara Mahadeva Temple. The petitioner was intending to participate in the election process to the Temple Advisory 8 W.P.(C) No.25622 of 2021 Committee. The valuable right of the petitioner is affected by the conduct of election by the 4[th] respondent Assistant Devaswom Commissioner, without complying with the conditions stipulated in Ext.P1 rules. The election/selection of respondents 6 to 18 as members of the Temple Advisory Committee is therefore highly illegal and arbitrary. 3. On 17.11.2021, when this writ petition came up for admission, the learned Standing Counsel for the Travancore Devaswom Board took notice on admission for respondents 1 to 4. Urgent notice on admission by Special Messenger was ordered to respondents 5 to 18, returnable by 23.11.2021. The learned Standing Counsel for the Travancore Devaswom was directed to get instructions and to file a statement. 4. Respondents 1 to 4 have filed a counter affidavit opposing the reliefs sought for in this writ petition. On 23.11.2021, the petitioner filed I.A.No.1 of 2021 seeking an order to accept Exts.P8 and P9 as additional documents. The document marked as Ext.P8 is the copy of the news item that appeared in Janmabhoomi daily dated 06.11.2021 and that 9 W.P.(C) No.25622 of 2021 marked as Ext.P9 is the copy of the news item that appeared in Malayala Manorama daily dated 04.11.2021, regarding election to the Temple Advisory Committee held on 07.11.2021 at 10.00 am at Sivasakthi Auditorium. Respondents 5 to 18 have filed counter affidavit, opposing the reliefs sought for in this writ petition. The petitioner has filed a reply affidavit to the counter affidavit filed by respondents 1 to 4, which was followed by another reply affidavit to the counter affidavit filed by respondents 5 to 18. On 10.12.2021, respondents 5 to 18 have filed I.A.No.2 of 2021 producing therewith a copy of Ext.R5(a) order dated 08.12.2021 of the Devaswom Commissioner, approving the constitution of the Temple Advisory Committee in Thirunakkara Sree Mahadeva Temple, along with list of members. On 14.12.2021, it was made clear that the approval granted to the Temple Advisory Committee vide Ext.R5(a) order dated 08.12.2021 of the Devaswom Commissioner will be subject to the outcome of this writ petition and that, this order will not stand in the way of the Temple Advisory Committee in discharging its functions. 10 W.P.(C) No.25622 of 2021 5. Heard the learned counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board for respondents 1 to 4 and the learned counsel for respondents 5 to 18. 6. Section 31A of the Travancore-Cochin Hindu Religious Institutions Act, 1950, deals with the formation of the Temple Advisory Committees. As per sub-section (1) of Section 31A of the Act, a Committee for each temple in the name ‘Temple Advisory Committee’ (name of the temple) may be constituted in order to ensure participation of Hindu devotees. As per sub-section (2) of Section 31A, the Temple Advisory Committee constituted under sub-section (1) may be approved by the Board. As per sub-section (2) of Section 31A, the composition of an Advisory Committee under sub-section (1) shall be in such manner as may be prescribed by the rules made by the Board, not inconsistent with any practice, prevailing, if any. Section 122 of the Act deals with the power to make rules. As per sub-section (1) of Section 122, the Board may, with the prior approval of the Government, make 11 W.P.(C) No.25622 of 2021 rules to carry out all or any of the purposes of this Act not inconsistent therewith. As per sub-section (2) of Section 122, in particular and without prejudice to the generality of the foregoing power, the Board shall have the power to make rules with reference to the matters enumerated in clauses (a) to (g). 7. In terms of sub-section (3) of Section 31A of the Act, read with the provisions under Section 122, the Travancore Devaswom Board framed Ext.P1 Rules for the formation of Temple Advisory Committees in the temples under the Board. The draft rules have been approved by this Court, by the order dated 03.11.2011 in DBA No.153 of 2019. As per Clause (11) of Ext.P1 Rules, the term of an elected Temple Advisory Committee shall be two years from the date on which the Devaswom Commissioner grants approval, under Clause (8) of Ext.P1 Rules, to the list of elected members forwarded by the Assistant Devaswom Commissioner. 8. In **Chandu K. and others v. Travancore Devaswom Board and others [2021 (3) KHC 379]** a 12 W.P.(C) No.25622 of 2021 Division Bench of this Court held that, with the insertion of Section 31A to the Travancore Cochin Hindu Religious Institutions Act the formation of Temple Advisory Committees in temples has become statutory. In the said decision, the Division Bench noticed that, the Travancore Devaswom Board, in exercise of the rule making power under clause (a) of subsection (2) of Section 35 of the Act, has framed rules for the formation of Temple Advisory Committees in temples under Travancore Devaswom Board and this Court has approved the draft bye laws by the order dated 03.11.2011 in DBA No. 153 of 2009. Clause (11) of the Rules deals with the term of office of the Temple Advisory Committee. Thus, the term of the committees is statutorily fixed. 9. Clause (5) of Ext.P1 Rules, which deals with election, reads thus; “5. ത�രഞ�ടപ�.- ഉപദ�ശക സമ�ത�യ�ഞ� സ�ര��ഗങഞ��ഴ�ഞകയളവഞര ഞതഞരഞ�ടകനത�ദ�യ� രജ�ദ"ഡ� ഭകജനങളഞ( ഞപ�തദയ�ഗ� അസ�സന� ദ�വസ-� കമ/ഷണർ വ **�** �ച കദ5ണത�ണ�. ആയത�ദ�യ� ന�ശ�ത ദയ�ഗത�ന� ഒര�ഴ മഞ=ങ�ല� അ�ഗങൾക ദന�5/സ� നൽക�യ�ര�ദBണതമ�ണ�, അപക�ര� വ **�** �ച കടന ദയ�ഗത�ൽ വച� ഞപ�തധ�രണയ�ൽ സമവ�യത�ൽ ഉപദ�ശക സമ�ത�യ�ഞ� അ�ഗങഞ� ഞതരഞ�ടദBണത�ണ�. ഏഞതങ�ല� ക�രണവശ�ൽ ന�ശ�ത 13 W.P.(C) No.25622 of 2021 അ�ഗസ�ഖIയ�ൽ അധ�ക� ദപരകൾ ന�ർദ�ശ�Bഞപ5�ൽ അസ�സന� ദ�വസ-� കമ/ഷനറഞ( സ�ന�ദIത�ന� ദMതന(യ�ൽ ഞവച� ന�ശ�ത അ�ഗങഞ� നറB�5� ഞതരഞ�ടദBണത�ണ�.” As per Clause (5) of Ext.P1 Rules, the Assistant Devaswom Commissioner shall convene a general meeting of registered devotees to elect members other than the permanent members of the Advisory Committee. For that purpose, notice shall be given to the members at least one week before the scheduled meeting. At the meeting so convened the members of the Advisory Committee shall be elected by consensus. If, for any reason, names of more than the prescribed number of members to be nominated are suggested, the names of prescribed number of members shall be drawn by lots in front of the sanctum sanctorum, in the presence of the Assistant Devaswom Commissioner. 10. Relying on Clause (5) of Ext.P1 Rules, the learned counsel for the petitioner would contend that, the petitioner and other members of Thirunakkara Kshetra Bhaktha Mandali are entitled to be issued with individual notice by the Assistant Devaswom Commissioner, at least one week before 14 W.P.(C) No.25622 of 2021 the scheduled meeting. The absence of such a notice had adversely affected the valuable right of the petitioner, who was intending to participate in the election process to the Temple Advisory Committee. The conduct of the election by the 4[th] respondent Assistant Devaswom Commissioner, without complying with the condition stipulated in Clause (5) of Ext.P1 Rules, vitiates the entire process and as such, the election/ selection of respondents 6 to 18 as members of the Temple Advisory Committee is highly arbitrary and illegal. 11. Per contra, the learned Standing Counsel for Travancore Devaswom Board and also the learned counsel for respondents 5 to 18 would contend that the procedure adopted by the 4[th] respondent Assistant Devaswom Commissioner while conducting election to the Temple Advisory Committee of Thirunakkara Sree Mahadeva Temple cannot said to be one contrary to the provisions under Ext.P1 Rules. 12. The specific stand taken in the counter affidavit filed by respondents 1 to 4 is that, after Ext.P4 judgment of 15 W.P.(C) No.25622 of 2021 this Court dated 08.04.2021 in W.P.(C)No.1063 of 2021, the 4[th] respondent issued Ext.R1(e) membership notice dated 25.06.2021, whereby the devotees who intend to obtain membership were given intimation to submit necessary application in the prescribed form, after payment of the requisite fee before 5 pm on 07.07.2021. Thereafter, the 2[nd] respondent Devaswom Commissioner, vide proceedings dated 08.07.2021, granted permission for the formation of the Temple Advisory Committee of Thirunakkara Sree Mahadeva Temple. The 4[th] respondent submitted Ext.R1(b) letter dated 28.07.2021 before the District Collector, Kottayam, who is the Chief Executive Officer of the District Disaster Management Authority, seeking permission to call for a meeting on 19.08.2021, at the auditorium in the premises of Thirunakkara Sree Mahadeva Temple, for the purpose of formation of the Temple Advisory Committee. That request was turned down, vide Ext.R1(c) letter dated 04.08.2021, in view of the general restrictions prevailing in the State on account of Covid-19 pandemic. In the meanwhile, the 16 W.P.(C) No.25622 of 2021 petitioner in W.P.(C)No.1063 of 2021 filed Cont. Case(C) No.1573 of 2021. In view of the general relaxations on Covid19 restrictions, the 4[th] respondent issued Ext.P5 notice on 30.10.2021 intimating the devotees the conduct of election to the Temple Advisory Committee of Thirunakkara Sree Mahadeva Temple, on 07.11.2021, at Sivasakthi Auditorium, Thirunakkara. Ext.P5 notice issued by the 4[th] respondent, in terms of Clause (5) of Ext.P1 Rules, was published on the notice board as well as on four ‘gopurams’ of Thirunakkara Sree Mahadeva Temple. Therefore, according to the 4[th] respondent, he had issued proper notice intimating the date of election as 07.11.2021. 13. In paragraph 8 of the reply affidavit filed by the petitioner to the counter affidavit filed by respondents 1 to 4, the petitioner has stated that, in paragraph 14 of the writ petition the petitioner has admitted that Ext.P5 notice dated 30.10.2021 issued by the 4[th] respondent was published in the notice board of the Travancore Devaswom Board inside the premises of Thirunakkara Sree Mahadeva Temple. The 17 W.P.(C) No.25622 of 2021 petitioner has not admitted that he had seen the above notice before 07.11.2021. The petitioner would contend that, the averment in the counter affidavit that the above notice was also published on four ‘gopurams’ of Thirunakkara Sree Mahadeva Temple is a cooked-up story. 14. Along with I.A.No.1 of 2021 the petitioner has placed on record Ext.P8 news item that appeared in Janmabhoomi daily dated 06.11.2021 and Ext.P9 news item that appeared in Malayala Manorama daily dated 04.11.2021, regarding election to the Temple Advisory Committee held on 07.11.2021 at 10.00 a.m. at Sivasakthi Auditorium. In the counter affidavit filed by respondents 1 to 4, it is stated that, apart from the publication of Ext.P5 notice on the notice board in the Temple premises and in four ‘gopurams’ of Thirunakkara Sree Mahadeva Temple, the 4[th] respondent had given Exts.R1(d) and R1(e) press releases in two major Malayalam dailies, i.e., Mathrubhumi daily and Malayala Manorama daily, on 04.11.2021, considering Covid-19 pandemic situation. Even though there is no stipulation for 18 W.P.(C) No.25622 of 2021 press release, the 4[th] respondent had given the above press releases, with an intend to ensure maximum participation of devotees in the meeting scheduled on 07.11.2021 to constitute the Temple Advisory Committee. The learned Standing Counsel would point out that, as stated in the counter affidavit, Ext.P6 is only a ‘bit notice’ issued by the 3[rd] respondent Administrative Officer, for those visiting the temple, and Ext.P5 notice as contemplated by Ext.P1 Rules was signed by the 4[th] respondent Assistant Devaswom Commissioner. Therefore, the meeting held on 07.11.2021 to constitute the Temple Advisory Committee was convened with due notice, as contemplated by Ext.P1 Rules. As there was no consensus in the meeting held on 07.11.2021, the new office bearers of the Temple Advisory Committee were elected by draw of lots, Ext.R1(f) list of elected office bearers of the Committee for the period 2021-23 was produced before this Court in Cont. Case(C) No.1573 of 2021, which was disposed of recording the said fact, vide Ext.R1(g) order dated 11.11.2021. 19 W.P.(C) No.25622 of 2021 ## 15. Clause (3) of Ext.P1 Rules deals with membership. Clause (3.1) of the said Rules reads thus; - “3.1. ദMത�ച�രങ��ല� വ�ഗഹ�ര�ധനയ�ല� വ�ശ-�സമള ത�ഞഴ സച�പ�കന വ�ഭ�ഗങ��ൽഞപ5 പ�യപർത�യ�യ ഏഞത�ര ഹ�നവ�ന� അ�ഗത-ത�ന� അർഹത ഉണ�യ�ര�കനത�ണ�.. - (i) ദMതപര�സരത� അഞ� ക�ദ��മ/റർ ചറ�വ�നള�ൽ ത�മസ�കന ഭകജനങൾ. - (ii) ദMതപര=രIമ�യ� ബനഞപ5 കരക��ദ�� പദ�ശങ��ദ�� ത�മസ�കന ഭകജനങൾ. - (iii) സ�രമ�യ� ദMതസനർശന� ന(തനവര� ദMതത�ഞനയ� വ�ശ-�സ�കളഞ(യ� പദര�ഗത�കദവണ� എടത പറയതB: . - സ�ഭ�വനകൾ ഞചയ�ടളവരമ�യ ഭകജനങൾ - (iv) ദMതപര�സരത� ജന�ചവ�ർനവര�, ദMതത�ഞന വ�കസനത�ല� ആദa�ഷങ��ല� പങ���ക��വനവര� എന�ൽ ജ/വ�ദത�പ�ധ�B�യ� മ�റ� ത�മസ�ദBണ�വരനവരമ�യ ഭകജനങൾ.” The provisions under Clause (3) of Ext.P1 Rules makes it explicitly clear that the membership in ‘registered mandalam’ is mainly for the devotees who are residing within a distance of 5 kms from the temple, who are regular worshipers and had contributed considerably for the betterment of the temple and the devotees. 16. Sub-clauses (i) to (iv) of Clause (3) of Ext.P1 Rules deal with class of persons who are entitled to get membership. For constituting the Temple Advisory Committee, 20 W.P.(C) No.25622 of 2021 the devotees will have to be enrolled as members of ‘registered mandalam’. The election of members to the Temple Advisory Committee is made from among the members of ‘registered mandalam’ present in the meeting convened by the Assistant Devaswom Commissioner of the Group, as provided under Clause (5) of Ext.P1 Rules. Ext.R1(a) is the membership notice dated 25.06.2021 issued by the 4[th] respondent, whereby the devotees who intends to obtain membership were given intimation to submit necessary application in the prescribed form, after payment of the requisite fee before 5 pm on 07.07.2021. In the counter affidavit filed by respondents 5 to 18 it is pointed out that, Sl. No.496 to Sl. No.517 in Exhibit P7 list of members of Thirunakkara Temple Bhaktha Mandali are the new members enrolled in 2021. After finalising the list of members of ‘registered mandalam’, the 4[th] respondent issued Exhibit P5 notice dated 30.10.2021 regarding the election scheduled to be held on 07.11.2021. The date of election, registration of the members was completed by about 10.20 am. Since the 21 W.P.(C) No.25622 of 2021 members present could not elect unanimously 13 members of the Temple Advisory Committee, names of 13 persons were selected by draw of lots. The elected members convened a meeting on the same day itself and elected President, Vice President and Secretary of the Temple Advisory Committee. 17. The learned counsel for respondents 5 to 18 would submit that, as stated in the counter affidavit filed by the said respondents, respondents 6, 13 and 16 had seen the petitioner in Siva Sakthi Auditorium during the election proceedings. After the election, the petitioner congratulated respondent No.16 for his selection in the Temple Advisory Committee. Out of 517 members, more than 100 members of Thirunakkara Temple Bhaktha Mandali have registered their name and attended the meeting held on 07.11.2021. 18. The averment in paragraph 19 of the writ petition is that, the petitioner was intending to participate in the election process to the Temple Advisory Committee of Thirunakkara Sree Mahadeva Temple. Being not served or intimated with regard to the conduct of election to the Temple 22 W.P.(C) No.25622 of 2021 Advisory Committee, the petitioner has been denied the opportunity to participate in the election. The valuable right of the petitioner has been affected by the illegal acts of respondents 3 and 4. 19. The learned counsel for the petitioner would submit that, as stated in the reply affidavit filed by the petitioner, the petitioner was unaware of the election scheduled on 07.11.2021 to the Temple Advisory Committee. At about 10.00 am the petitioner came to know about the meeting from his friend Sri Rajan Babu, who is also a member of Thirunakkara Temple Bhaktha Mandali. Thereafter, the petitioner reached Siva Sakthi Auditorium by 10.30 am. Then he was told by the members present in the auditorium that registration is over. Therefore, the petitioner was not permitted to participate in the process of election by draw of lots. 20. The averments in the reply affidavit would make it explicitly clear that, on 07.11.2021, while the election process was going on, the petitioner was personally present at Siva 23 W.P.(C) No.25622 of 2021 Sakthi Auditorium. The petitioner has not chosen to disclose the said fact in the writ petition. In the writ petition, the petitioner has no case that he had raised any objections before the 4[th] respondent Assistant Devaswom Commissioner against the election process, which was going on at Siva Sakthi Auditorium. 21. It is well settled that, a litigant who invokes the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India must come with clean hands and clean objects. The judicial proceedings are sacrosanct, and no person would be allowed to abuse the judicial process, particularly, in public law remedy. In writ proceedings, the Court places implicit faith on the parties and their pleadings, as it does not indulge in any fact finding or roving enquiry of what has been asserted. Since Article 226 of the Constitution of India espouses equity jurisprudence, a litigant who has approached the High Court with unclean hands, without disclosing full facts, is not entitled for any relief. 22. The learned counsel for the petitioner, relying on 24 W.P.(C) No.25622 of 2021 the provisions under Clause (5) of Ext.P1 Rules, would contend that the 4[th] respondent Assistant Devaswom Commissioner ought to have conducted the general meeting of the devotees to elect members other than the permanent members of the Advisory Committee of Thirunakkara Sree Mahadeva Temple after giving individual notice to the members of Thirunakkara Temple Bhaktha Mandali, at least one week before the date of such meeting. The publication of Ext.P5 notice on the notice board of the Travancore Devaswom Board inside the premises of Thirunakkara Sree Mahadeva Temple is not sufficient compliance of the requirements of Clause (5) of Ext.P1 Rules. The learned counsel for the petitioner would point out the stand taken by the petitioner in the reply affidavit that, the averment in the counter affidavit that the notice was also published on four ‘gopurams’ of Thirunakkara Sree Mahadeva Temple is a cooked-up story. 23. The learned counsel for the petitioner has referred to Chapter 5 of Shackleton on the Law and Practice of 25 ## W.P.(C) No.25622 of 2021 Meetings, 13[th] Edition, which deals with convening of meetings. Para.5-02 deals with essentials of a valid notice. As per clauses (7) to (10), to be valid a notice must be given in the prescribed manner (hand, post, advertisement, or other means); allow appropriate length of time between service and the date of meeting; be sent to every person entitled to receive it; comply in all respects with the regulations, rules or bye-laws of the body issuing it. The learned counsel for the petitioner has also referred to a passage from Para.5-11 at Page 49, which reads thus; “In an election of burgesses, it was held to be essential that notice of the meeting and of the business to be transacted should have been given to all persons resident within the limits of the borough who were entitled to vote; the notice should have been reasonable and the time should also have been reasonable. R. v. Hill [(1825) 4 Barn & Cress 426]” 24. The learned counsel for respondents 5 to 18 relied on the decision of the Apex Court in **Nilkantha** ## **Shidramappa v. Kashinath Somanna Ningashetti [AIR** **1962 SC 666]** , wherein it was held that, ‘notice’ does not 26 W.P.(C) No.25622 of 2021 necessarily mean ‘communication in writing’. ‘Notice’, according to the Oxford Concise Dictionary, means ‘intimation, intelligence, warning’ and has this meaning in expressions like ‘give notice, have notice’ and it also means ‘formal intimation of something, or instructions to do something’ and has such a meaning in expressions like ‘notice to quit, till further notice’. Para.8 of the said decision reads thus; “8. Sub-Section (1) of Section 14 of the Arbitration Act, 1940 requires the arbitrators or umpire to give notice in writing to the parties of the making and signing of the award. Sub-section (2) of that section requires the Court, after the filing of the award, to give notice to the parties of the filing of the award. The difference in the provisions of the two sub-sections with respect to the giving of notice is significant and indicates clearly that the notice which the court is to give to the parties of the filing of the award need not be a notice in writing. The notice can be given orally. No question of the service of the notice in the formal way of delivering the notice or tendering it to the party can arise in the case of a notice given orally. The communication of the information that an award has been filed is sufficient compliance with the requirements of sub-section, (2) of Section 14 with respect to the giving of the notice to the parties 27 W.P.(C) No.25622 of 2021 concerned about the filing of the award. “Notice” does not necessarily mean “communication in writing”. “Notice”, according to the Oxford Concise Dictionary, means “intimation, intelligence, warning” and has this meaning in expressions like “give notice, have notice” and it also means “formal intimation of something, or instructions to do something” and has such a meaning in expressions like “notice to quit, till further notice”. We are of opinion that the expression “give notice” in subsection (2) of Section 14, simply means giving intimation of the filing of the award, which certainly was given to the parties through their pleaders on 21.02.1948. Notice to the pleader is notice to the party, in view of Rule 5 of Order III of the Civil Procedure Code, which provides that any process served on the pleader of any party shall be presumed to be duly communicated and made known to the party whom the pleader represents and, unless the court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person.” 25. The learned counsel for the petitioner has referred to the following passage from Page No.833 of Principles of Statutory Interpretation by G.P. Singh, 15[th] Edition, which reads thus; 28 W.P.(C) No.25622 of 2021 'When a notice is required to be “served on or sent by registered post to” a person within a particular time, the notice, if it is to be served by post, must be posted at such a time that in the ordinary course of post, it will reach the person before expiration of the particular time. Stewart v. Chapman [(1951) 2 All ER. 613 P. 614] The act of 'giving' a notice is not complete on mere despatch of the notice. Narasimhiah v. Singri Gowda [AIR 1966 SC 330 P. 332] But the requirements that the District Magistrate “shall send by registered post, not less than seven clear days before the date of the meeting, a notice of such meeting” has been construed to mean that seven clear days should intervene between the date of despatch and the date of meeting and not between the date of service and the date of meeting. Jai Charan Lal Anal v. State of Uttar Pradesh [AIR 1968 SC 5]” (underline supplied) 26. The learned counsel for the petitioner has relied on the decision of the Apex Court in **Satheedevi v. Prasanna, [(2010) 5 SCC 622]** , wherein it was held that, the first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other 29 W.P.(C) No.25622 of 2021 hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise - **Kanai Lal Sur v. Paramnidhi Sadhukhan [AIR 1957 SC** **907]** . The other important rule of interpretation is that the court cannot rewrite, recast or reframe the legislation because it has no power to do so. The court cannot add words to a statute or read words which are not there in it. Even if there is a defect or an omission in the statute, the court cannot correct the defect or supply the omission - **Union of India v. Deoki Nandan Aggarwal [(1992) Supp.1 SCC 323]** and **Shyam Kishori Devi v. Patna Municipal Corporation [AIR 1966 SC 1678]** . 27. The learned counsel for the petitioner has also relied on the decision of the Apex Court in **Bharat Petroleum** 30 W.P.(C) No.25622 of 2021 **Corporation Ltd. v. Nirmala [(2020) 11 SCC 738]** , wherein it was held that, when a Statute uses strong and emphatic words, the court cannot twist or give a strained interpretation to the said words. The literal rule of interpretation is the first rule of interpretation, which means that, if the meaning of a Statute is plain and clear then it should not be given a twisted or strained meaning. Para.7 of that decision reads thus; “7. As regards sub-clause (b) of Section 2(4), we do not agree with the contention of Mr.Nariman. On a plain reading of sub-clause (b) we notice that it uses the words ‘actual physical possession’. Had the word 'possession' alone been used in clause (b), as has been done in clause (a), the legal position may have been different. However, the words 'actual physical possession' are strong and emphatic. That means that the factual state of affairs has to be seen, not the legal or deemed state of affairs. There is no doubt that the appellant had handed over possession to his licensee/agent who was in actual physical possession of the suit premises. When a Statute uses strong and emphatic words, we cannot twist or give a strained interpretation to the said words. The literal rule of interpretation is the first rule of interpretation which means that if the meaning of a 31 W.P.(C) No.25622 of 2021 Statute is plain and clear then it should not be given a twisted or strained meaning. We will be giving a strained and artificial interpretation to the words 'actual physical possession' if we say that the appellant is deemed to be in actual physical possession. We cannot give such an interpretation to sub-clause (b) of Section 2(4) of the Act particularly since clause (a) only uses the word 'possession' and not 'actual physical possession'. Hence, we reject the contention of Mr.R.F.Nariman, learned counsel appearing for the appellant and hold that the appellant was not in actual physical possession.” (underline supplied) 28. For answering the issue on the validity of Ext.P5 notice, we deem it apposite to refer few passages from Para.5-09 of Shackleton on the Law and Practice of Meetings, 13[th] Edition, at Page 47, which read thus; “The regulations of the body on whose behalf notice is being given usually prescribe the method to be followed. The rules of a club, for example, may provide that notices of meetings posted at the clubhouse and a copy sent to every member. Encyclopedia of Forms and Precedents (5[th] Edn), Vol.7, Para.3215] Where no club rule prescribes a mode, it is within the general functions of the committee of a club to say how notices should be given on each particular occasion. Labouchere v. Earl of Wharncliffe [(1879) 13 Ch.D 346 at 352] The greater the 32 W.P.(C) No.25622 of 2021 importance of the matter to be discussed, for example, where the expulsion of a club member is to be considered or rules are to be altered, the more the need to send a copy of the notice to each member rather than merely affixing it to the club notice board. On the other hand, in matters affecting clubs the courts eschew a meticulous examination of the rules reasonableness and fairness are given more weight than a rigid interpretation. In the words of Megarry V.C. “allowance must be made for some play in the joints”. GKN Sports and Social Club, Re [(1982) 1 W.L.R. 774, 776] In general, if there are no specific provisions, and subject to custom and practice - for example, the following of similar previous arrangements - notice may be given by advertisement: a notice in newspapers convening a meeting of debenture holders under a trust deed has been held good. Mercantile Investment and General Trust Co. v. International Company of Mexico [(1893) 1 Ch. 484N] Where a particular form of service is provided for in the regulations, no other form is permitted; thus, where service by post is stipulated, delivery by dropping the notice into the letter box personally, or by handing it to a clerk would not be in order. It has been held that “post” includes registered post - TO Supplies (London) Ltd v. Jerry Creighton Ltd. [(1952) 1 K.B. 42] - and, so far as documents that are required or 33 W.P.(C) No.25622 of 2021 authorised by any enactment to be sent by registered post are concerned, sending can be effected by the recorded postal delivery service. [Recorded Delivery Service Act 1962 Sec.1] Where an important notice is concerned, the use of recorded delivery can provide proof that it has been received; however, the use of this service or registered post for notice of meetings is rare. Where the regulations of the body concerned provide for notice to be sent by post, it is normally the responsibility of the member to keep up to-date the record of his address in that body's records. James v. Institute of Chartered Accountants [(1907) 98 L.T. 225]” (underline supplied) 29. The learned Standing Counsel for Travancore Devaswom Board would point out that, the practice hitherto followed in all devaswoms under the Travancore Devaswom Board for convening a general meeting of registered devotees to elect members other than the permanent members to the Advisory Committee is to convene such a meeting after publishing the notice issued by the Assistant Devaswom Commissioner on the notice board of the Travancore Devaswom Board inside the temple premises and also on the ‘gopurams’ of the temple. Accordingly, Ext.P5 notice issued by 34 W.P.(C) No.25622 of 2021 the 4[th] respondent Assistant Devaswom Commissioner was published on the notice board of the Travancore Devaswom Board inside the premises of Thirunakkara Sree Mahadeva Temple as well as on four ‘gopurams’ of the temple. Apart from the publication of Ext.P5 notice as above, the 4[th] respondent had given Exts.R1(d) and R1(e) press releases in two major Malayalam dailies, i.e., Mathrubhumi daily and Malayala Manorama daily, on 04.11.2021, considering Covid19 pandemic situation, with an intend to ensure maximum participation of devotees in the general meeting. Ext.P6 is only a ‘bit notice’ issued by the 3[rd] respondent Administrative Officer, for those visiting the temple. 30. The learned Standing Counsel for Travancore Devaswom Board and also the learned Counsel for respondents 5 to 18 would point out that, in Kottayam Group, there are 36 devaswoms under the control of the 4[th] respondent Assistant Devaswom Commissioner. As per Chapter XV of Travancore Devaswom Manual [Volume I, Office Manual] it is one among the 28 duties of Assistant Devaswom 35 W.P.(C) No.25622 of 2021 Commissioner to constitute fresh Advisory Committees on expiry of the term of existing committees in various devaswoms under his jurisdiction. 31. The provisions under Clause (3) of Ext.P1 Rules, which deals with qualification for membership, makes it explicitly clear that the membership in ‘registered mandalam’ is mainly for the devotees who are residing within a distance of 5 kms from the temple, who are regular worshipers and had contributed to a considerable extent for the betterment of the temple and the devotees. When no particular form of notice is provided in Clause (5) of Ext.P1 Rules, the publication of notice convening a general meeting of registered devotees to elect members other than the permanent members to the Advisory Committee on the notice board of the Travancore Devaswom Board inside the temple premises as well as on all ‘gopurams’ of the temple is sufficient compliance of the requirement of notice provided in Clause (5) of the said Rules. 32. In such circumstances, the petitioner is not entitled 36 W.P.(C) No.25622 of 2021 to the declaratory relief sought for in this writ petition that, the election to the Temple Advisory Committee of Thirunakkara Sree Mahadeva Temple held on 07.11.2021 is illegal and arbitrary. He is also not entitled to other consequential reliefs sought for in this writ petition. In the result, this writ petition fails and the same is accordingly dismissed. No order as to costs. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 37 W.P.(C) No.25622 of 2021 ## **APPENDIX OF WP(C) 25622/2021** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE RULES FOR THE FORMATION OF THE TEMPLE ADVISORY COMMITTEE AS APPROVED BY THIS HON'BLE COURT BEARING NO.ROC-1809/09/MS DATED 30.11.2011.** - **Exhibit P2 TRUE COPY OF THE LETTER DATED 21.12.2020 SUBMITTED BY ONE B.GOPAKUMAR AND 11 OTHER MEMBERS BEFORE THE DEVASWAM COMMISSIONER OF TRAVANCORE DEVASWOM BOARD.** **Exhibit P3 TRUE COPY OF THE LETTER DATED 06.01.2021 BEFORE THE RESPONDENTS 2 AND 4 (DEVASWAM COMMISSIONER, THIRUVANANTHAPURAM AND ASSISTANT DEVASWAM COMMISSIONER, KOTTAYAM.)** - **Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 08.04.2021 IN WP(C) NO.1063/2021 PASSED BY THIS COURT.** - **Exhibit P5 TRUE COPY OF THE NOTICE DATED 30.10.2021 IN THE NOTICE BOARD OF TRAVANCORE DEVASWAM BOARD.** - **Exhibit P6 TRUE COPY OF THE NOTICE DATED 02.11.2021 ISSUED BY THE DEVASWAM ADMINISTRATIVE OFFICER, THIRUNAKKARA DEVASWAM BOARD.** - **Exhibit P7 TRUE COPY OF THE ENTIRE LIST OF MEMBERS OF THE THIRUNAKKARA TEMPLE BHAKTHA MANDALI.** - **Exhibit P8 TRUE COPY OF THE NEW ITEM PUBLISHED IN JANMABHOOMI DAILY DATED 06-11-2021.** - **Exhibit P9 TRUE COPY OF THE NEWS ITEM PUBLISHED IN 'MALAYALA MANORAMA' DAILY DATED 04-112021.** 38 W.P.(C) No.25622 of 2021 ## **RESPONDENT EXHIBITS** **Exhibit R1(A) TRUE COPY OF THE MEMBERSHIP NOTICE DATED 25.06.2021 ISSUED BY THE 4TH RESPONDENT.** **Exhibit R1(B) TRUE COPY OF THE LETTER DATED 29.07.2021 ISSUED BY THE 4TH RESPONDENT TO THE DISTRICT COLLECTOR, KOTTAYAM.** **Exhibit R1(C) TRUE COPY OF THE LETTER DATED 04.08.2021 ISSUED BY THE CHIEF EXECUTIVE OFFICER OF DISTRICT DISASTER MANAGEMENT AUTHORITY TO THE 4TH RESPONDENT.** **Exhibit R1(D) TRUE COPY OF THE RELEVANT PRESS RELEASE PUBLISHED IN MATHRUBHUMI DAILY DATED 04.11.2021.** **Exhibit R1(E) TRUE COPY OF THE RELEVANT PRESS RELEASE PUBLISHED IN MALAYALA MANORAMA DAILY DATED 04.11.2021.** **Exhibit R1(F) TRUE COPY OF THE DETAILS OF THE OFFICE BEARERS OF TAC ELECTED ON 07.11.2021.** **Exhibit R1(G) TRUE COPY OF THE JUDGMENT DATED 11.11.2021 IN CON.CASE (C) NO.1573 OF 2021 OF THIS COURT.** **Exhibit R5(A) TRUE COPY OF THE ORDER OF THE DEVASWOM COMMISSIONER ROC NO.473/2019/NS2 DATED 08.12.2021 ALONG WITH LIST OF MEMBERS OF THE TEMPLE ADVISORY COMMITTEE.**