Sri Rajeev Kumar v. Travancore Devaswom Board and others

DBP No.69 of 2023 1 # **`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 DBP NO.69OF 2023 ``` ``` IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - TDB PROCEEDINGS INITIATED - REG. ``` ``` ------------ ``` ``` TDB - REPORT NO. 29/2023 IN COMPLAINT NO. 59/2023 - IN THE MATTER OF AUCTIONING OF ULSAVAPARAMBU BELONGING TO SARKARA DEVASWOM IN VARKALA GROUP FOR THE YEAR 2022 - SUO MOTU PROCEEDINGS INITIATED ``` ## **`PETITIONER/S:`** ``` SRI.RAJEEV KUMAR VAYALIL HOUSE, CHIRAYINKEEZHU P.O., KOLLAM ``` ## **`RESPONDENT/S:`** - **`1 THE DEVASWOM COMMISSIONER`** ``` TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM – 695003 ``` - **`*2 THE JOINT DIRECTOR, KERALA STATE AUDIT DEPARTMENT, TRAVANCORE DEVASWOM AUDIT, NANTHANCODE, THIRUVANANTHAPURAM -695 003.`** - **`3 THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM 695003`** - **`4 DEPUTY DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM, 695003,`** - **`5 THE CHIEF VIGILANCE SECURITY OFFICER (SUPERINTENDENT OF POLICE- VIGILANCE), TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM 695003, *ADDL.R2 TO R5 IMPLEADED AS PER ORDER DATED 03.08.2023 IN THIS DBP`** ``` OTHER PRESENT: ``` DBP No.69 of 2023 2 ``` SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ; ``` ``` SRI P.RAMACHANDRAN- AMICUS CURIAE ; ``` ``` SRI G.BIJU - STANDING COUNSEL- TRAVANCORE DEVASWOM BOARD ``` ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 03.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` DBP No.69 of 2023 3 ## **ORDER** ## **Anil K. Narendran, J.** The Joint Director, Kerala State Audit Department, Travancore Devaswom Audit, Nanthancode, Thiruvananthapuram695 003; the Travancore Devaswom Board, represented by its Secretary, Nanthancode, Kowdiar Post, Thiruvananthapuram-695 003; the Deputy Devaswom Commissioner, Travancore Devaswom Board, Nanthancode, Kowdiar Post, Thiruvananthapuram-695 003; The Chief Vigilance Security Officer (Superintendent of Police), Travancore Devaswom Head Quarters, Nanthancode, Kowdiar Post, Thiruvananthapuram-695 003, are _suo motu_ impleaded as additional respondents 2 to 5. Registry to carry out necessary corrections in the cause title. 2. The learned Standing Counsel for Travancore Devaswom Board takes notice for the 1[st] respondent and additional respondents 3 to 5 and the learned Senior Government Pleader takes notice for the additional 2[nd] respondent. 3. This DBP is registered based on Report No.29 of 2023 of the learned Ombudsman in Complaint No.59 of 2023 (Annexure O1 dated 03.03.2023), which was one made by Sri. Rajeev Kumar, pointing out the irregularities in the auction of Ulsavathara of DBP No.69 of 2023 4 Sarkara Devaswom, for the year 2022, which is a temple under the Management of Travancore Devaswom Board, under Varkala Group. 4. Before the learned Ombudsman, the 1[st] respondent Devaswom Commissioner submitted Annexure O2 report dated 29.06.2023, enclosing therewith a report dated 24.06.2023 of the additional 4[th] respondent Deputy Devaswom Commissioner, Thiruvananthapuram. 5. After considering those materials, the learned Ombudsman has filed this report, wherein it is stated that since there was no response to the online tender for the year 2023, an open auction for Ulsavathara at Sarkara Devaswom was conducted in which one Vishnu Das quoted Rs.83,00,500/-. Before the learned Ombudsman, it was reported that the address or phone number of the complainant could not be traced out. 6. Heard the learned Standing Counsel for Travancore Devaswom Board for the 1[st] respondent and for additional respondents 3 to 5, the learned Senior Government Pleader for the additional 2[nd] respondent and also the learned Amicus Curiae for the learned Ombudsman. 7. Travancore-Cochin Hindu Religious Institutions Act, DBP No.69 of 2023 5 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. Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with duties of the Board. As per Section 15A, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (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. As per Section 16 of the Act, the Board shall, subject to the provisions of Part I of the Act, exercise supervision and control over the acts and proceedings of all officers and servants of the Board and of the Devaswom Department. 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 DBP No.69 of 2023 6 the daily worship and ceremonies and of the festivals in every temple according to its usage. 8. In **Ram Mohan Das v. Travancore Devaswom Board [1975 KLT 55]** a learned Single Judge of this Court held that, under Section 31 of the Travancore-Cochin Hindu Religious Institutions Act, the Travancore Devaswom Board shall manage the properties and affairs of the Devaswoms, both incorporated and unincorporated and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. The position of the Board in regard to the Devaswoms - incorporated and unincorporated - is analogous to that of trustees. Any improper act of the Trustees could be questioned by a worshipper. 9. 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 DBP No.69 of 2023 7 the Trust and it is his duty to sell the property if at all that was necessary, to the best advantage. Paragraph 4 of that decision reads thus; “4. There is some controversy on the question whether defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs.21,500, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed Ext.B13 dated July 14, 1960. The fact, however, remains that Defendant 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the trust and it was his duty to sell the property, if at all that was necessary, to best advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal DBP No.69 of 2023 8 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 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) ## 10. 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, require to be protected and safeguarded by their trustees/ archakas/shebaits/employees. Instances are many where persons DBP No.69 of 2023 9 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 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. 11. 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. The Division Bench further 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 High Court is the guardian of the deity and apart from the DBP No.69 of 2023 10 revisional jurisdiction under Section 103 of the Kerala Land Reforms Act, 1963, the High Court is having inherent jurisdiction and the doctrine of _parens patriae_ will also apply in exercising the jurisdiction. 12. In **Rajani P. Kuttan v. State of Kerala [2021 (6) KHC 513]** a Division Bench of this Court noticed that among the 1250 Temples managed by the Travancore Devaswom Board, only - 60 major Temples are self sufficient and the rest are being managed utilising the surplus income from Sabarimala Devaswom. The total number of sanctioned posts in various categories in the Travancore Devaswom Board is 5692 and the total number of pensioners is 5749. The major source of revenue of the Travancore Devaswom Board is the income received by way of offerings by the devotees, the amount received from Vazhipadu and the revenue generated through the auction of temple premises for various activities in connection with rituals and festivals in the Temples. Paragraph 59 of the said decision reads thus; “59. The financial position of the Devaswom Board:- The competent officer of the Devaswom Board filed an affidavit dated 14.06.2021 stating its financial position. It is submitted that there are 1250 temples under the Administrative Control of the Devaswom Board. The total DBP No.69 of 2023 11 number of sanctioned posts in various categories in the Devaswom Board is 5692, and the total number of pensioners is 5749. It is further submitted that the major sources of revenue of the Devaswom Board are the income received by way of offerings from devotees, the amount received from Vazhipadu, and the revenue generated through the auction of the temple premises for various activities in connection with rituals and festivals in the temples. Besides this, the Devaswom Board gets an approximate sum of 14 crores per annum by way of the rent of the buildings owned by it. The annual contribution from the State Government under Article 290A of the Constitution of India is Rs. 80 lakhs. It is further submitted that among the 1250 temples managed by the Devaswom - Board, only 60 major temples are self sufficient, and the rest are being managed utilising the surplus income from Sabarimala Devaswom. Now, due to the spread of the Covid-19 pandemic, the temples remain closed, and the major source of income has come down. The Devaswom Board is finding it difficult even to pay the salary of the existing employees. The pleadings regarding the financial position of the Devaswom Board in the affidavit dated 14.06.2021 have not been controverted by the petitioners.” (underline supplied) 13. As evident from Annexure O2 report dated 29.06.2023 of the 1[st] respondent Devaswom Commissioner, the basic price for the auction for Ulsavathara at Sarkara Devaswom for the year 2022, for a period of 65 days, was fixed at 10% above the auctioned amount for the previous year, i.e., 10% above DBP No.69 of 2023 12 Rs.1,11,55,551/-. In the e-tender auction conducted on 26.02.2022, 07.03.2022 and 09.03.2022 there was no response. Therefore, the 3[rd] respondent Deputy Commissioner accepted the offer letter from one Vishnudas, Vayalilthitta and finalised the auction in his name for an amount of Rs.40 lakhs, who has remitted the said amount plus GST. For the year 2023-2024, the basic price was fixed as Rs.1,17,11,329/-. Though e-auction was conducted on 20.02.2023, 24.02.2023 and 27.02.2023 there was no response. Thereafter, an open auction was conducted on 10.03.2023 and 13.03.2023 at Sarkara Devaswom by the 4[th] respondent Deputy Devaswom Commissioner. On 13.03.2023, the auction was started by quoting Rs.83,00,000/-and the auction was confirmed in the name of Vishnudas, Vayalilthitta, who quoted Rs.83,00,500/-. The report dated 24.06.2023 of the 4[th] respondent Deputy Devaswom Commissioner is enclosed along with Annexure O2 report dated 29.06.2023 of the 1[st] respondent Devaswom Commissioner. 14. Before Covid-19 pandemic, the Ulsavathara at Sarkara Devaswom was being auctioned for a period of 65 days, in connection with Meenabharani Maholsavam, for an amount of Rs.1,00,00,000/-. In the year 2022, the Ulsavathara was DBP No.69 of 2023 13 auctioned for Rs.40,00,000/- and for the year 2023, for Rs.83,00,500/- by one Vishnudas. In Annexure O2 report of the 1[st] respondent Devaswom Commissioner, it is stated that there were no takers in the e-auction conducted for the years 2022 and 2023. Therefore, an open auction was conducted at Sarkara Devaswom by the 4[th] respondent Deputy Devaswom Commissioner. 15. In the complaint dated 03.03.2023, it is alleged that instead of conducting the auction in December, 2022, the conduct of the auction was purposely delayed, as a result of which the Travancore Devaswom Board sustained loss. The complaint dated 03.03.2023, contains allegations of corruption against the 4[th] respondent Deputy Commissioner. As evident from Annexure O2 report of the 1[st] respondent Devaswom Commissioner, for Meenabharani Maholsavam-2022 (for 65 days from 26.03.2022) e-auction was conducted on 26.02.2022, 07.03.2022 and 09.03.2022 and the offer letter of Vishnudas was accepted on 28.03.2022. For Meenabharani Maholsavam-2023, e-auction was conducted on 20.02.20223, 24.02.2023 and 27.02.2023 and open auction was conducted on 10.03.2023 and 13.03.2023. Meenabharani Maholsavam in Sree Sarkara Devi Temple is a DBP No.69 of 2023 14 major festival, attracting a large number of devotees. In connection with that festival, Ulsavathara is being auctioned for a period of 65 days. Having considered the materials on record and the submissions made at the Bar, we deem it appropriate to dispose of this DBP by directing the 3[rd] respondent Travancore Devaswom Board to conduct a detailed enquiry through the additional 5[th] respondent Chief Vigilance Security Officer (Superintendent of Police) regarding the auction of Ulsavathara at Sarkara Devaswom in connection with Meenabharani Maholsavam for the years 2022 and 2023, since the auction amount was only Rs.40,00,000/- and Rs.83,00,500/- respectively. Since it is alleged that the very same person is regularly bidding Ulsavathara in connection with Meenabharani Maholsavams, it is for the additional 5[th] respondent Chief Vigilance Security Officer to find out whether there was ‘cartel formation’ in the auctions conducted for the years 2022 and 2023. The enquiry by the additional 5[th] respondent Chief Vigilance Security Officer shall be with notice to the complainant, the successful bidder and the additional 4[th] respondent Deputy Devaswom Commissioner. The enquiry report of the additional 5[th] respondent shall be placed before the Board and the decision DBP No.69 of 2023 15 taken by the Board shall be brought to the notice of the learned Ombudsman, by the end of October, 2023. The learned Ombudsman shall file a fresh report, in case interference of this Court is warranted. Registry to send a copy of this order to the complainant by registered post with acknowledgement due. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** Dxy