Sreekala 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 ``` ``` THURSDAY, THE 3[RD] DAY OF AUGUST 2023 / 12TH SRAVANA, 1945 ``` ``` W.P.(C)NO.7009OF 2023 ``` ``` PETITIONER: ``` ``` SREEKALA, AGED 54 YEARS, WIFE OF C.N. GOPI, PANCHAJANYAM, POOZHIKOL.P.O, KADUTHURUTHY, DIST. KOTTAYAM, PIN - 686604 ``` ``` BY ADVS.K.REGHU KOTTAPPURAM R.MAHESH (KOTTAPPURAM) MURUKESH REGHU ``` ## **`RESPONDENTS:`** - **`*1 SHINY. G., SUB GROUP OFFICER (TEMPORARY), MANNAR DEVASWOM IN CHARGE OF ELAMAKKUDY DEVASWOM , POOZHIKOL. P.O., MANNAR, DIST. KOTTAYAM., PIN – 686604`** ``` THE SUB GROUP OFFICER (TEMPORARY), MANNAR SUB GROUP IN CHARGE OF ELAMAKKUDY DEVASWOM, POOZHIKOL P.O., MANNAR, DIST.KOTTAYAM- 686 604. ``` ``` CORRECTED IND DESCRIPTION OF R1 CARRIED OUT AS PER THE ORDER OF THIS COURT DATED 14.03.2023 IN I.A.NO.1 OF 2023 IN WPC NO.7009 OF 2023 ``` - **`2 THE ASSISTANT DEVASWOM COMMISSIONER ETTUMANOOR GROUP, TRAVANCORE DEVASWOM BOARD, ETTUMMANOOR, DIST. KOTTAYAM, PIN - 686631`** ``` 3 THE DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, DEVASWOM HEADQUARTERS, NANDANCODE, THIRUVANANTHAPURAM., PIN - 695003 ``` - **`4 THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY THE SECRETARY DEVASWOM HEADQUARTERS, NANDANCODE,`** 2 W.P.(C)No.7009 of 2023 ``` THIRUVANANTHAPURAM., PIN - 695003 5 THE SHETHRA UPPADESAKA SAMITHI, REPRESENTED BY THE PRESIDENT, ELAMAKKUDY DEVASWOM, POOZHIKOL. P.O. KADUTHURUTHY, DIST. KOTTAYAM., PIN - 686604 6 ARUNKUMAR CHANDRAN, TEMPORARY KAZHAKAM LAVANAM MANNAR DEVASWOM, POOZHIKOL. P.O. KADUTHURUTHY, DIST. KOTTAYAM., PIN - 686604 BY ADVS.JOSE JOSEPH (MANNAR) R.UMASANKAR A.KRISHNAN(K/169/1993) ``` ``` SRI G.SANTHOSH KUMAR - STANDING COUNSEL- TRAVANCORE DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.7009 of 2023 ## **JUDGMENT** Anil K. Narendran, J. The petitioner, who is a devotee of Elamakkudy Devaswom, which is under the management of the 4[th] respondent Travancore Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent Devaswom Commissioner to enquire into the mismanagement in Elamakkudy Devaswom in the hands of the 5[th] respondent Kshethra Upadesaka Samithi (Temple Advisory Committee) with the connivance and support of the 1[st] respondent temporary Sub Group Officer. The petitioner has also sought for a writ of mandamus commanding the 3[rd] respondent Devaswom Commissioner to call for the accounts in respect of oil received by the 5[th] respondent Temple Advisory Committee during the last year for ‘Nithya Nithanam’, allotted to Elamakkudy Devaswom from Ettumanoor Devaswom, as well as the daily accounts of utilising the said oil in Elamakkudy Devaswom. The further relief sought for is a writ of mandamus commanding the 3[rd] respondent Devaswom Commissioner to verify the inventory of the wealth and utensils in Elamakkudy Devaswom in the custody of the 5[th] respondent Temple Advisory Committee, by opening the room kept locked by the said 4 W.P.(C)No.7009 of 2023 respondent and report to this Court and direct the 3[rd] respondent Devaswom Commissioner to call for the registers and documents in Elamakkudy Devaswom, written by the handwriting of the 6[th] respondent temporary Kazhakam. 2. Going by the averments in the writ petition, the petitioner was nominated by a Member of the Travancore Devaswom Board as temporary Kazhakam in Elamakkudy Devaswom, in the year 2016. In the writ petition, it is alleged that, as a vengeance for complaining to the 1[st] respondent Sub Group Officer about certain irregularities in the management of the temple by the 5[th] respondent Temple Advisory Committee, the petitioner has been removed from the post of temporary Kazhakam by the Sub Group Officer, on the complaint made by the Temple Advisory Committee through the 2[nd] respondent Assistant Devaswom Commissioner. 3. On 03.03.2023, when this writ petition came up for admission, the learned Standing Counsel for Travancore Devaswom Board was directed to get instructions. 4. On 14.03.2023, the learned Standing Counsel for Travancore Devaswom Board took notice on admission for respondents 1 to 4. Urgent notice on admission by speed post was ordered to respondents 5 and 6 returnable within two 5 W.P.(C)No.7009 of 2023 weeks. On the order dated 14.03.2023, this Court noticed the averment in paragraph 2 of the writ petition that the petitioner had worked in Elamakkudy Devaswom as a temporary Kazhakam on being nominated by a member of the Travancore Devaswom Board. 5. On 23.05.2023, when this writ petition came up for consideration, this Court passed the following order; “In paragraph 2 of the writ petition, the petitioner has stated that she happened to work as temporary Kazhakam in Elamakkudy Devaswom on being nominated by a member of the Travancore Devaswom Board, since the year 2016. By the order dated 08.03.2023, the petitioner was directed to furnish the name of the Devaswom member, who nominated her as temporary Kazhakam. Today, when this matter is taken up for consideration, the learned counsel for the petitioner would submit that the name of the member of the Travancore Devaswom Board who nominated the petitioner as temporary Kazhakam in Elamakkudy is one Raghavan. The learned Standing Counsel for Travancore Devaswom Board would submit that the term of the said Raghavan as member of the Travancore Devaswom Board is already over long back.” 6. A counter affidavit dated 20.06.2023 has been filed by respondents 1 to 4. Paragraphs 3 to 7 of the said counter affidavit read thus; “3. It is submitted that a complaint was received from the 6 W.P.(C)No.7009 of 2023 Temple Advisory Committee and devotees, against the petitioner who was the temporary Kazhakam appointed in the Mannar Elamakkudy Devaswom, stating that she never came to work regularly, and had also failed to do her work properly. On the basis of the complaint, Assistant Devaswom Commissioner, Ettumannur made a visit to Elamakkudy Devaswom. During the inspection, it was revealed that Sreemath Bhagavatha Sapthaha Yajnam was being conducted in the said temple from 26.01.2023 onwards. On 27.01.2023, the date on which the Assistant Commissioner made the visit, he witnessed that as a part of Sapthaham, there was a huge crowd of devotees but only the priest was present on duty and it was clear that the worker appointed for Kazhakam duty failed to reach there. Apart from that, it was also noted that, even during Sapthaham the entrance of the temple was deposited with leftovers of pooja rituals and in an unclean manner. The same was later cleaned by a lady from the nearby locality. Later the Sub Group Officer was directed to give strict instructions to the said worker about the duty, by the Assistant Commissioner. Later the Elamakudy Devaswom Temple Advisory Committee submitted a complaint on 29.01.2023. Based on the said complaint, a report was called from the Sub Group Officer concerned and accordingly in the report it was stated that the above mentioned temporary worker, the petitioner, was not attending work regularly and that numerous complaints are been received against her stating that he had failed to perform her duty properly. It was also stated that she had never placed the offering box in the proper locations. It was also stated that even after giving continuous 7 W.P.(C)No.7009 of 2023 instructions, she failed to follow them. On the basis of these allegations, the above worker has been removed and another lady from the nearby locality has been appointed, on the basis of the instruction from the office of the Assistant Devaswom Commissioner on 31.01.2023. 4. It may be noted that the allegations made by the petitioner that, the oil allotted by the Ettumanoor Devaswom for Nithya Nithanam is collected by the Temple Advisory Committee is not true. 70 liters of oil allotted by Ettumanoor Devaswom for Makara Thiruvathira, which was conducted on 02.02.2023, was kept in the storeroom of the temple. On the day of Makara Thiruvathira, the said oil was utilized for Deeparadhana, Deepalangaram and other pooja rituals. Among the two rooms available in the temple, one is used by the priest and in the other room, lamps and utensils are stored. The key of the rooms are kept with the Sub Group Officer. But on special days such as Sapthaham and others, in order to keep the pooja materials and in order to take out the utensils for Annadhanam, an additional key was given to the office bearers of the Temple Advisory Committee. The same has been reported by the Sub Group Officer in his report. It was also reported that an exact and proper list of utensils utilized in the temple, such as lamps, uruli and other vessels are maintained properly. Apart from that, the allegations made by the petitioner against the Temple Advisory Committee are not made by any other group of people or by the devotees. The Temple Advisory Committee is carrying out the temple reconstruction works and other works. Balalaya Prathista with regard to the work was held on 02.02.2023. 8 W.P.(C)No.7009 of 2023 5. It is submitted that the petitioner has been gaining the kuthaka right to sell oil, sambrani and other pooja items of Elamakudy Devaswom through auction, for the last two years. Unlike other temples, the petitioner is selling pooja items inside the Naalambalam. Even though it was instructed by the Sub Group Officer to conduct the sale outside, in a counter, as it was creating inconvenience to the devotees, it was not followed by the petitioner, as she used the influence of the President of the Temple Advisory Committee of Mannar Devaswom which she was holding. While she was alleging mismanagement by the Sub Group Officer and Temple Advisory Committee, she was bidding auctions and was working as a temporary Kazhakam. She was treating the temple as a major source for earning profit. The allegations made by the petitioner against the temporary Kazhakam worker Mr Arun Kumar of Mannar Sree Krishna Swami Temple have been investigated. It was found that when the permanent workers of Mannar Devaswom had gone for special duty in Sabarimala, in such a situation, in order to avoid any loss in the Department by way of revenue and to prevent inconvenience to the devotees to get Vazhipadu and receipts, the said Arun Kumar were temporarily entrusted for issuing the receipts. It is also clear that the said process is done by almost all Devaswoms while permanent staff goes for special duty. It is also stated by the Sub Group Officer that in the photo produced by the petitioner, Mr. ArunKumar is seated on the opposite side of the table of the Sub Group Officer and not as alleged by the petitioner. 6. It is submitted that on the basis of above mentioned 9 W.P.(C)No.7009 of 2023 statements, and also as it is not necessary to maintain the same person after receiving various complaints, it is the responsibility of the Sub Group Officer and the Assistant Devaswom Commissioner to conduct the temple rituals without any obstructions, and it has come to light that the petitioner has failed to perform her duty even on special days and therefore, the petitioner has been removed from the temporary post. 7. It is further submitted that as regarding the allegation made by the petitioner that her appointment was made upon the recommendation of a former Board Member is not correct and the said fact is unknown to these respondents. At no point of time during the said period and even during the instant period also no such allegations are raised against any Board Members also. All other allegations are raised by the petitioner on account of her termination from service only.” 7. The 5[th] respondent Temple Advisory Committee has also filed a counter affidavit dated 17.06.2023, wherein it is stated that the allegations raised by the petitioner against them in paragraphs 1 to 9 of the writ petition are not correct. It is further stated that the said respondent has been informed by the devotees that they are not satisfied with the work of the petitioner since she does not wash the vessels used for poojas, etc. cleanly. 8. The petitioner has filed a reply affidavit dated 12.07.2023 to the counter affidavit filed by the 5[th] respondent 10 W.P.(C)No.7009 of 2023 denying the allegations made against her that the devotees were not satisfied with the work of the petitioner. The petitioner has filed another reply affidavit dated 12.07.2023 to the counter affidavit filed by respondents 1 to 4. Paragraphs 3 to 6 of the said reply affidavit read thus; “3. The allegation in paragraph 1 that complaint was received from the Temple Advisory Committee and devotees against the petitioner is made without disclosing as to who received the complaint, what was the complaint and from whom the complaint was received. No copy of the complaint is produced in the case for evidence. The petitioner had been on sanctioned leave after entrusting her duty to Smt. Suma, former Kazhakam employee, according to the usual practice, during the Sapthaham when Assistant Devaswom Commissioner visited the temple. The cleaning of the temple premises is the duty of Kazhakam on duty and it is not explained as to why the temporary Sub Group Officer failed to get done the cleaning work by the person on duty. There is no wonder in the Shethra Upadesaka Samathi complaining about the petitioner allegedly on 29.01.2023. The Samithi remained inimical to the petitioner for bringing the incidents of malpractices and misdeeds of Samithi to the notice of the temporary Sub Group Officer who had been supporting the misdeeds of the Samithi for reasons not known. The petitioner was neither served a copy of the alleged complaint nor informed about the complaint at any point of time. The allegation that the petitioner was not attending work regularly and that numerous complaints were 11 W.P.(C)No.7009 of 2023 received, etc. are raised without any basis or referring to the details of the complaint, date of incidence of misdeeds, sender of the complaint, etc. The custodian of the Kanika box in the temple is the priest and a temporary Kazhakam like petitioner was only helping the priest. The petitioner used to carry the Kanika box to the priest as and when instructed for keeping in the custody of the temple priest. The statement that on the basis of the above said allegations petitioner was removed from service and that another lady was appointed under instruction by Assistant Devaswom Commissioner on 31.01.2023, etc. very well indicates that the petitioner was removed from the temporary service of Kazhakam to accommodate another lady namely Omana (also called Sathi Devi) a relative of a committee member. The petitioner was not even served notice containing any allegation. It is not disclosed as to what was the authority to appoint Sathi Devi in the temple in the absence of any order having been passed by the competent officer to appoint Sathi Devi. The oil used to be collected from Ettumanoor Devaswom by the Uppadesaka Samithi only and it was stored in the room occupied by the Upadesaka Samithi in the temple premises. In fact, the oil which was intended to be used for Nithyanithanam was being sold by the Upadesaka Samithi to the devotees as evidenced by the photographs produced before this Honourable Court evidencing the presence of the Secretary to Upadesaka Samithi in the room. The oil containers can also be seen under the table kept in the room by the side of which the Secretary was standing. The photographs also evidence the presence of a gas stove and oil lamp in the room. The oil lamps were filled with oil and sold by 12 W.P.(C)No.7009 of 2023 ## Samithi. 4. It is submitted that the granting of Kuthaka right in the name of low-paid temporary employees working in the temples has been a practice in the temples under Manner Sub Group. The allegation that the temporary Sub Group Officer had instructed the petitioner to sell pooja articles outside the Nalambalam is denied. The temporary Sub Group Officer rarely came to the temple. She might have been misled by the Upadesaka Samithi, which was acting in collusion with the temporary Sub Group Officer. As a matter of fact, the petitioner had only very little sale of the pooja articles as the Upadesáka Samithi was doing business of selling pooja items inside the room occupied by them. 5. The grave irregularity in the temple was the instance of the temporary Kazhakam worker namely Arun Kumar made to do the entire office work ought to be done by the Sub Group Officer according to the Devaswom Manual. The said arrangement was made by the temporary Sub Group Officer without any order of the Devaswom Commissioner, the competent authority to issue orders assigning duties and appointing personnel to discharge a function. The 6[th] respondent temporary Kazhakam was entrusted with writing of receipt book, receipt of cash, writing of registers and vouchers, preparation of pay sheets of the employees, etc. under oral instruction by temporary Sub Group Officer, who was not doing office work assigned to her. It is necessary to see the explanations from the Devaswom Commissioner as to whether the said practice is legal or sanctioned. The 6[th] respondent temporary Kazhakam is not on the rolls in the attendance register being marked by the 13 W.P.(C)No.7009 of 2023 employees in the temple. The allegation that the petitioner failed to perform her duties is made for the first time in the counter affidavit to defend the case hopelessly. The petitioner had not been served with any notice about any of the complaints alleged in the counter affidavit. The petitioner was very much interested in the affairs of the temple, she being a hard worshiper of the deity. She used to pluck flowers in the nearby thodi and bring it to the temple for pooja. 6. The Temple Advisory Committee has been continuing in the office for more than 8 years without allowing anybody else to take up the committee through a secret process. The annual election of the committee is only an empty formality and it is conducted as a secret affair by affixing a bit notice somewhere within the compound of the temple secretly for namesake. No public notice as required in law is issued for affording the maximum number of devotees to participate in the general body for election of office bearers. The temporary Sub Group Officer herself is not selected through a selection process by affording an opportunity to all qualified candidates as being done by Govt. Therefore, the contentions in the counter affidavit deserve to be only rejected and the writ petition may kindly be allowed in the interest of justice.” 9. Heard the learned counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board for respondents 1 to 4, the learned counsel for the 5[th] respondent Temple Advisory Committee and the learned counsel for the 6[th] respondent. 14 W.P.(C)No.7009 of 2023 10. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per the provisions under Section 3 of the Act, the administration of incorporated and unincorporated Devaswoms shall vest in the Travancore Devaswom Board. 11. As per Section 15A of the Act, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions; (iv) to establish and maintain proper facilities in the temples for the devotees. 12. As per Section 31 of the Act, 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. 15 W.P.(C)No.7009 of 2023 13. Section 31A of the Act deals with the formation of the Temple Advisory Committees. As per subsection (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 (3) 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. In terms of sub-section (3) of Section 31A of the Act, the Travancore Devaswom Board framed the Rules for the formation of Temple Advisory Committees in the temples under the management of the Board, with has been approved by this Court vide order dated 03.11.2011. in DBA No. 153 of 2009. 14. Clause (2) of the Rules deals with objectives of the Temple Advisory Committees. As per Clause (2) of the Rules, one of the objectives of the Temple Advisory Committee is to formulate schemes for the betterment and development of the Temple, submit the same before the Board and execute it with the approval of the Board. The Advisory Committee shall collect 16 W.P.(C)No.7009 of 2023 donations from the devotees for the smooth functioning of the temple activities and festivals only with the permission of the Department. 15. Clause (3) of the Rules deals with membership. Clause (3) of the Rules makes it explicitly clear that the membership in ‘registered mandalam’ is mainly for the devotees who are residing within a distance of 5kms from the temple, who are regular worshipers and had contributed considerably for the betterment of the temple and the devotees. Sub-clauses (i) to (iv) of Clause (3) of the Rules deal with class of persons who are entitled to get membership. ## 16. In **Santharam Roy T.S. v. Travancore Devaswom** **Board and others [2022 (2) KHC 595]** this Court held that the provisions under Clause (3) of the Rules framed by Travancore Devaswom Board for the formation of Temple Advisory Committees in the temples under the management of the Board 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 worshippers and had contributed considerably for the betterment of the temple and the devotees. Sub-clauses (i) to (iv) of Clause (3) of the Rules deal with class of persons who are 17 W.P.(C)No.7009 of 2023 entitled to get membership. For constituting the Temple Advisory Committee, 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 Commissioner of the Group, as provided under Clause (5) of the Rules. ## 17. In **Chandu K. v. Travancore Devaswom Board** **[2021 (3) KHC 379]** a Division Bench of this Court held that, with the insertion of Section 31A to the 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 sub-section (2) of Section 35 of the Act, has framed rules for the formation of Temple Advisory Committees in temples under the 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. As per Clause (11), the term of office of the Temple Advisory Committee shall be two years from the date of approval of the election by the Devaswom Commissioner. The Devaswom 18 W.P.(C)No.7009 of 2023 Commissioner has the authority to extend the term of the committee by one year in case of development works or unavoidable rituals in the temple. The Board will have the power to extend the term by a further period of one year. The term shall not to be extended beyond the period of two years. Thus, the term of the committees is statutorily fixed. The term can be extended by one year or up to two years under certain unavoidable circumstances and no longer. The object of providing duration of office of Temple Advisory Committees in the approved bye-laws is to see that timely elections are held and the constitution of the Committees is not delayed. The power of the Devaswom Commissioner or the Board to extend the term of the Temple Advisory Committee, which is fixed as per the approved bye-laws, shall not be exercised as a matter of course. They shall call for a report regarding the developmental work going on in the temple concerned or the unavoidable rituals to be carried out in the temple concerned and apply their mind to the materials and form a decision as to whether the extension of the term has to be given or not. 18. Clause (12) of the Rules deals with powers and rights of the Devaswom Board. As per Clause (12), the Devaswom Commissioner shall have the power to determine the 19 W.P.(C)No.7009 of 2023 qualification of the members of the Advisory Committee, the term of the Advisory Committee and also to remove the members of the Committee on the basis of specific reasons. In the event of the activities of the Advisory Committee being contrary to the interest of the Temple, Hindu faith or the Devaswom Board, or in the event of specific financial irregularities, the Commissioner shall have the absolute power to remove the Advisory Committee. 19. Clause (9) of the Rules deals with office bearers and their duties. Clause (9.1) deals with President, Clause (9.2) deals with Vice President, Clause (9.3.) deals with Secretary and Clause (9.4) deals with Treasurer. As per Clause (9) of the Rules, one of the duties of the President, as provided in Clause (9.1), is to formulate projects for the betterment of the temple and for the convenience of the devotees and implement the same with the approval of the Board. The President has to supervise the collection of funds at the initiative of the Advisory Committee and he has to ensure that the functioning of the Committee is in accordance with the directions issued by the Board. As per Clause (9.3), the Secretary of the Committee has to get the approval of the Department for the collection of funds. He has to print coupons and keep them in safe custody after obtaining the 20 W.P.(C)No.7009 of 2023 seal of the Assistant Commissioner. He has to ensure that such coupons are used only as per the permission granted by the Board. The Secretary has to cause the accounts relating to the collection of funds, income and expenditure audited which shall be produced before the authorities in the Board before 30[th] April of every year. As per Clause (9.4) of the Rules, the Treasurer has to ensure that proper accounts are maintained for the income and expenditure and that the income and expenditure of the Advisory Committee are with the approval of the Committee and with the knowledge of the President and the Secretary. 20. As held by this Court in **Major Vellayani Devi** **Temple Advisory Committee v. State of Kerala [2023 (2)** **KHC 290]** , in view of the provisions of the Travancore-Cochin Hindu Religious Institutions Act, the Travancore Devaswom Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in the temples under its management are performed promptly; and to establish and maintain proper facilities in such temples for the devotees. Subject to the provisions of Part I of the Act and the Rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms and arrange for the conduct of the daily worship and ceremonies and of the festivals in the temples according to 21 W.P.(C)No.7009 of 2023 the usage. The Temple Advisory Committee of a temple under the management of the Travancore Devaswom Board, which consists of devotees who fall under the eligibility criteria prescribed in Clause (3) of the Rules framed under sub-section (3) of Section 31A of the Act, is duty bound to render necessary assistance to the Board and its officials for the smooth functioning of the temple activities and festivals according to the usage. 21. In **M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65]** in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court explained the nature of the fiduciary position of the trustee and his duties and obligations. It is the duty of the trustees of the property to be faithful to the Trust and execute any document with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. A trustee could not therefore occasion any loss to the Trust and it is his duty to sell the property, if at all that was necessary, to best advantage. Paragraph 4 of that decision reads thus; “4. There is some controversy on the question whether defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21,500 on April 19, 1959, or whether he intended to purchase it for 22 W.P.(C)No.7009 of 2023 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 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 23 W.P.(C)No.7009 of 2023 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) ## 22. In **A.A. Gopalakrishnan v. Cochin Devaswom** **Board [(2007) 7 SCC 482]** a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fence eating 24 W.P.(C)No.7009 of 2023 the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. 23. 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]** a Three-Judge Bench of 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. That was a case wherein the alleged encroachment of Temple property was raised in a complaint filed by a devotee. The Division Bench noticed that 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 Court is the guardian of the deity and apart from the revisional jurisdiction under Section 103 of the Kerala Land Reforms Act, 1963, the Court is having inherent jurisdiction and the doctrine of _parens patriae_ will also apply in exercising the jurisdiction. 24. In **T. Krishnakumar v. Cochin Devaswom Board** 25 W.P.(C)No.7009 of 2023 **[2022 (5) KHC SN 8 : 2022 (4) KLT 798]** , a Division Bench of this Court, in which both of us were parties, held that in view of the law laid down by this Court in **Abu K.S. v. Travancore** **Devaswom Board [2022 SCC OnLine Ker 1642]** , relying on the decision of the Apex Court in **M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65]** , while leasing out the buildings owned by the Devaswoms, the Cochin Devaswom Board and its officials have to ensure that proper income is generated from the said buildings. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. The action of the Board as a trustee cannot be equated to that of a mere landlord. The best interest of the Devaswoms under the control of the Board would be subserved only if income is generated. ## 25. In **Suneesh K.S. v. Travancore Devaswom Board** **and others [ILR (2022) 1 Ker 1091 : 2022/KER/5139]** a Division Bench of this Court, in which both of us were parties, was dealing with the Kuthaka right to sell pooja items in the premises of Valliamkavu Devi Temple, which is under the management of the Travancore Devaswom Board. In the said decision, this Court held that the properties of deities and 26 W.P.(C)No.7009 of 2023 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 ‘fence eating the crops’ should be dealt with sternly. The officers concerned and 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 Commissioner and the Administrative Officer were directed to take stern action against those who have defaulted payment of installments in respect of Kuthaka items, in violation of the tender conditions, if found necessary, after seeking police assistance. In the said decision, it was made clear that, if any such request is received, it is the duty of the concerned Station House Officer to render necessary assistance to the concerned Assistant Commissioner or the Administrative Officer, in order to protect and safeguard the properties of deities and temples from usurpation or encroachment in any manner. 27 W.P.(C)No.7009 of 2023 26. In the instant case, the petitioner who was working as temporary Kazhakom in Elamakkudy Devaswom, who was terminated from service on the ground that she failed to do her work properly, has filed this writ petition seeking a writ of mandamus commanding the 3[rd] respondent Devaswom Commissioner to enquire into the mismanagement in Elamakkudy Devaswom by the 5[th] respondent Temple Advisory Committee. The petitioner has also sought for other consequential reliefs. 27. The averments in paragraphs 3 to 5 of the counter affidavit filed by respondents 1 to 4 would show that there were serious lapses on the part of the petitioner in discharging her duties as temporary Kazhakom in Elamakkudy Devaswom. The petitioner while working as temporary Kazhakom was selling pooja items as a Kuthaka holder, for about two years. She was even selling pooja items inside the Naalambalam, despite the specific instructions given by the Sub Group Officer to conduct sale outside the Naalambalam. 28. Though the petitioner has raised various allegations against the 5[th] respondent Temple Advisory Committee and also against the 1[st] respondent Sub Group Officer, no documents are placed on record to show that she made any complaint before 28 W.P.(C)No.7009 of 2023 the 4[th] respondent Travancore Devaswom Board or its officials, pointing out her grievance. The activities of the Temple Advisory Committee constituted under Section 31A of the Travancore- Cochin Hindu Religious Institutions Act has to be regulated in terms of the rules (byelaws) framed under sub-section (3) of Section 31A for the formation of Temple Advisory Committees in temples under the management of the Travancore Devaswom Board and the law laid down in the decisions referred to supra. The Board and its officials have a statutory duty to ensure that the activities of a Temple Advisory Committee constituted under sub-section (3) of Section 31A of the Act is strictly in accordance with the statutory mandate. In view of the law laid down by this Court in **Abu K.S. [(2022) SCC OnLine Ker.1642]** and **Suneesh K.S. [ILR (2022) 1 Ker. 1091]** , while granting Kuthaka right to sell pooja articles in the temples under the management of the Travancore Devaswom Board, the Board and its officials have to ensure that proper income is generated through the auctioning of Kuthaka right. No employee in a temple including a temporary employee can be permitted to participate in the auction of Kuthaka right to sell pooja articles in the temple premises. Therefore, the grant of Kuthaka right to the petitioner, who was a temporary Kazhakom in Elamakkudy 29 W.P.(C)No.7009 of 2023 Devaswom was _per se_ arbitrary and illegal and the Sub Group Officer ought to have terminated that Kuthaka right, since the petitioner was selling pooja items inside the Naalambalam. In the above circumstances, we hold that the petitioner is not entitled to any of the reliefs sought for in this writ petition. The writ petition is accordingly dismissed; however, subject to the observations contained hereinbefore. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** AV/7/8 30 W.P.(C)No.7009 of 2023 ## **`APPENDIX OF WP(C) 7009/2023`** ``` PETITIONER EXHIBITS Exhibit P1 A PHOTOCOPY OF COMMUNICATION DATED 31-1-2023 HANDED OVER TO THE PETITIONER BY IST RESPONDENT Exhibit P2 A PHOTOGRAPH OF 6TH RESPONDENT DOING THE WORK OF SUB GROUP OFFICER Exhibit P3 THE PHOTOGRAPHS EVIDENCING THE ACTIVITIES OF 5TH RESPONDENT IN THE ROOM. ```