Sunil Kumar P.G. v. State of Kerala and Others; Sumesh Kumar. R. v. State of Kerala 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 13[TH] DAY OF OCTOBER 2022 / 21ST ASWINA, 1944 ``` ## **`W.P.(C)NO.29772 OF 2021`** ``` PETITIONER: ``` ``` SUNIL KUMAR P.G., AGED 43 YEARS S/O. GOPALAKRISHNAN, MANIKANDDAVILASAM, MANNIRAM P.O., RANNI, PATHANAMTHITTA DISTRICT 689 672. ``` ``` BY ADVS.V.H.JASMINE JESWIN P.VARGHESE RAHMATH C.A. REETHU JACOB ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, THIRUVANANTHAPURAM 695 001.`** - **`2 THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, DEVASWOM BOARD HEAD QUARTERS, NANDANCODE, THIRUVANANTHAPURAM 695 003.`** - **`3 THE COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD HEAD QUARTERS NANDANCODE, THIRUVANANTHAPURAM 695 003.`** - **`4 THE EXECUTIVE OFFICER, SABARIMALA, TRAVANCORE DEVASWOM BOARD, PAMPA TRIVENI P.O., PATHANAMTHITTA 685 662.`** - **`5 THE INCOME TAX OFFICER, TIRUVALLA, VAISHNAVAM ARCADE, T.K. ROAD, TIRUVALLA, KERALA 689 101.`** - **`6 SANTHOSH M.S, MADUKOLIL HOUSE, THULAPPALLY P.O., PATHANAMTHITTA 686 510.`** -2- W.P.(C). Nos. 29772 & 29859 of 2021 - **`7 JAYAKUMAR, JAYABHAVANAM, PANAYIL P.O., NOORANAD, ALAPPUZHA 690 504.`** - **`8 SURENDRAN NAIR, ANASOORYA HOUSE, PANAYIL P.O., NOORANAD, ALAPPUZHA 690 504.`** ``` 9 V. KRISHNAKUMAR WARIYOUR, EXECUTIVE OFFICER, SABARIMALA, TRAVANCORE DEVASWOM BOARD, PAMBA TRIVENI P.O., PATHANAMTHITTA 685 662. ``` - **`*ADDL.R10 ULLAS, RAJAMANA HOUSE, VALLIYANKAVU, PALLORKAVU, PERUVANTHANAM, IDUKKI - 686 513 [ADDL.R10 IS SUO MOTU IMPLEADED AS PER ORDER DATED 07/02/2022 IN WP(C) 29772/2021]`** - **`*ADDL.R11 THE CHIEF VIGILANCE OFFICER, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANDANCODE, THIRUVANANTHAPURAM 695 003, IS SUO MOTU IMPLEADED AS ADDITIONAL R11 AS PER ORDER DATED 13/10/2022 IN WPC 29772 OF 2021`** ``` BY ADVS.SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD JOSE JOSEPH, SC, FOR INCOME TAX K.SASIKUMAR K.MOHANAKANNAN K.S.ARUN KUMAR S.ARAVIND P.K.RAVINDRANATHA MENON (SR.) H.PRAVEEN (KOTTARAKARA) RAJEE P MATHEWS AMRUTHA K P AMRUTHA P S VIJAY SANKAR V.H. SRUTHY UNNIKRISHNAN AISWARYA E J VETTIKOMPIL ``` ## **`SRI S.RAJMOHAN- SR GOVERNMENT PLEADER`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2022, ALONG WITH WP(C).29859/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C). Nos. 29772 & 29859 of 2021 -3- ## **`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 13[TH] DAY OF OCTOBER 2022 / 21ST ASWINA, 1944 W.P.(C)NO.29859 OF 2021 ``` ``` PETITIONER: ``` ``` SUMESH KUMAR. R, AGED 46 YEARS S/O. RAVEENDRAN NAIR, SIVAN PARAMBIL HOUSE, VELLAKKINAR WARD, ALAPPUZHA 688 001. ``` ``` BY ADV V.VINAY ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, THIRUVANANTHAPURAM 695 001.`** - **`2 TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANDANCODE, THIRUVANANTHAPURAM 695 003, REPRESENTED BY ITS SECRETARY.`** - **`3 DEVASWOM COMMISSIONER, DEVASWOM HEAD QUARTERS, NANDANCODE, THIRUVANANTHAPURAM 695 003.`** - **`4 EXECUTIVE OFFICER, SABARIMALA DEVASOM, TRAVANCORE DEVASWOM BOARD, PAMPA TRIVENI P.O. PATHANAMTHITTA 685 662.`** - **`*5 VIGILANCE OFFICER, TRAVANCORE DEVASWOM BOARD, DEVASOM HEAD QUARTERS, NANDANCODE, THIRUVANANTHAPURAM 695 003 IS SUO MOTU CORRECTED AS “THE CHIEF VIGILANCE OFFICER, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANDANCODE, THIRUVANANTHAPURAM 695 003” AS PER ORDER DATED 13.10.2022 IN WPC.`** -4- W.P.(C). Nos. 29772 & 29859 of 2021 - **`6 SANTHOSH M.S., MADUKOLIL HOUSE, THULAPPALLY P.O., PATHANAMTHITTA 686 510.`** - **`7 JAYAKUMAR, JAYABHAVANAM, PANAYIL P.O. NOORANAD, ALAPPUZHA 690 504.`** - **`8 SURENDRAN NAIR, ANASOORYA HOUSE, PANAYIL P.O., NOORANAD, ALAPPUZHA 690 504.`** - **`9 V. KRISHNAKUMAR WARRIER, EXECUTIVE OFFICER, SABRIMALA DEVASWOM, TRAVANCORE DEVASWOM BOARD, PAMPA TRIVENI P.O., PATHANAMTHITTA 685 662.`** ``` BY ADVS.SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD K.SASIKUMAR ``` ## **`K.MOHANAKANNAN`** ## **`S.ARAVIND`** - **`H.PRAVEEN (KOTTARAKARA)`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2022, ALONG WITH WP(C).29772/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -5- W.P.(C). Nos. 29772 & 29859 of 2021 ## **JUDGMENT** ## Anil K.Narendran, J. Since a common issue is raised, these writ petitions are heard together and are being disposed of by this common judgment. 2. W.P.(C)No.29772 of 2021:- The petitioner, who participated in the e-tender for the Kuthaka item ‘maintenance of Pamba toilet block’ (Sl. No.119) pursuant to Ext.P1 notification dated 04.10.2021 issued by the 3[rd] respondent Devaswom Commissioner for the year 1197 ME (2021-22) at Sabarimala Devaswom, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash the award of tender for the Kuthaka item ‘maintenance of Pamba toilet block’ (Sl. No.119) in favour of the 6[th] respondent, by respondents 2 to 4, and for a declaration that the allotment of tender in favour of the said respondent is arbitrary, illegal, vitiated by malafides and violative of Articles 14 and 16 of the Constitution. The petitioner has also sought for a writ of mandamus commanding respondents 1 to 4 to conduct a fresh auction for the Kuthaka item ‘maintenance of Pamba toilet block’ (Sl. No.119) under specific directions, as -6- W.P.(C). Nos. 29772 & 29859 of 2021 this Court may deem fit and proper. The further relief sought for is a writ of mandamus commanding respondents 1 to 4 to conduct a full-fledged enquiry into the award of contracts by the 9[th] respondent, particularly the contracts related to item Nos.115, 119 and 213 in such manner as this Court may deem fit and proper. 3. W.P.(C)No.29589 of 2021:- The petitioner, who participated in the e-tender for the Kuthaka Items ‘maintenance of Pamba toilet block’ (Sl. No.119) and Nilakkal Parking (Sl. No.213) and few other items, pursuant to Ext.P1 notification dated 04.09.2021 issued by the 3[rd] respondent Devaswom Commissioner, for the year 1197 ME (2021-22) at Sabarimala Devaswom, has filed this writ petition, seeking a writ of certiorari to quash the award of tender for the Kuthaka item ‘maintenance of Pamba toilet block’ (Sl. No.119) in favour of the 6[th] respondent. The petitioner has also sought for a writ of mandamus commanding respondents 1 to 4 to conduct a fresh auction for the Kuthaka item ‘maintenance of Pamba toilet block’ (Sl. No.119) under specific directions, as this Court may deem fit and proper. The further relief sought for are a writ of mandamus commanding respondents 1 to 3 and 5 to W.P.(C). Nos. 29772 & 29859 of 2021 -7- conduct an enquiry into the allotment of contract of the Kuthaka item ‘maintenance of Pamba toilet block’ (Sl. No.119) and such other items by the 9[th] respondent, particularly contracts relating to Sl. Nos.115, 119 and 213, in such manner as this Court may deem fit and proper, invoking the _parens patriae_ jurisdiction; a writ of mandamus commanding respondents 1 to 3 and 5 to constitute a separate committee with experts from different sectors for the smooth conduct of e-tender and award of contracts of shops in Sabarimala in a corruption-free and transparent manner, by incorporating stringent conditions to protect the interests of the Deity Lord Ayyappa; and a writ of mandamus commanding respondents 1 to 3 to expeditiously implement the recommendations in the Report dated 19.12.2007 of the High Power Commission chaired by Hon’ble Mr. Justice K.S. Paripoornan. 4. On 21.12.2021, when these writ petitions came up for admission, the learned Senior Government Pleader took notice on admission for the official respondents and the learned Standing Counsel for Travancore Devaswom Board took notice on admission for the Board and its officials. The learned Standing Counsel for Income Tax Department took W.P.(C). Nos. 29772 & 29859 of 2021 -8- notice on admission for the 5[th] respondent in W.P.(C)No.29772 of 2021. This Court issued notice by special messenger to party respondents, returnable by 23.12.2021. 5. On 07.02.2022, when these writ petitions came up for consideration, we noticed that, though the petitioner in W.P.(C)No.29772 of 2021 quoted an amount of Rs.69,00,000/for the Kuthaka item ‘maintenance of Pamba toilet block’ (Sl. No.119), and another person by name Ullas quoted Rs.70,00,000/-, the said Ullas backed out. Thereafter, according to the petitioner in W.P.(C)No.29772 of 2021, he submitted an offer letter on 26.11.2021, for Rs.42,51,000/-. However, as per Ext.R2(b) letter of the Executive Officer, the quotation by the petitioner is for Rs.31,11,111/-. The said quotation, along with that by one Santhosh M.S. (the 6[th] respondent in both the writ petitions), and that by the petitioner in W.P.(C)No.29859 of 2021, were forwarded to the Devaswom Commissioner, vide Ext.R2(b) letter of the Executive Officer, Sabarimala, which is dated 27.11.2021. It is thereafter that by Ext.R2(c) proceedings dated 01.12.2021 of the Board, the Kuthaka item in question was given to Santhosh M.S., the 6[th] respondent in these writ petitions. The said -9- W.P.(C). Nos. 29772 & 29859 of 2021 decision was communicated to the Devaswom Commissioner, vide Ext.R2(d) communication dated 06.12.2021 of the Secretary of the Board. The document marked as Ext.P3 in W.P.(C)No.29772 of 2021 is an offer made by the petitioner, quoting an amount of Rs.50,00,000/-, which is dated 02.12.2021. 6. In the order dated 07.02.2022, we noticed that, while accepting the offer made by Ullas for Rs.70,00,000/-, the EMD of the petitioner in W.P.(C)No.29772 of 2021, who quoted Rs.69,00,000/- and also the EMD of others were returned. Thereafter, Ullas backed out. Immediately thereafter, on 26.11.2021, the petitioner in W.P.(C)No.29772 of 2021, made an offer letter for Rs.42,51,000/-, for the Kuthaka item ‘maintenance of Pamba toilet block’ (Sl. No.119), which is about Rs.25,00,000/- below the rate he quoted on 24.11.2021, in the open tender. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, by the order dated 07.02.2022 this Court directed the Devaswom Commissioner to make available for the perusal of this Court the entire files relating to the Kuthaka item ‘maintenance of Pamba toilet block’ (Sl. W.P.(C). Nos. 29772 & 29859 of 2021 -10- No.119), in respect of which an open tender was conducted on 24.11.2021, and also the files relating to Exts.R2(b) to R2(d) proceedings. By the said order, Sri. Ullas was impleaded _suo motu_ as additional 10[th] respondent in W.P.(C)No.29772 of 2021 and the writ petitioner was directed to take out notice by speed post, returnable within 10 days. 7. In W.P(C)No.29772 of 2021 respondents 2 to 4 have filed a counter affidavit dated 08.01.2022 opposing the reliefs sought for in that writ petition. The 6[th] respondent has filed a counter affidavit dated 02.01.2022 which was followed by counter affidavit filed by the 9[th] respondent dated 07.01.2022. The petitioner has filed reply affidavit dated 01.02.2022. The additional 10[th] respondent in W.P(C)No.29772 of 2021, who was impleaded by the order dated 07.02.2022, filed counter affidavit dated 10.03.2022. 8. In W.P(C)No.29859 of 2021, respondents 2 to 4 have filed counter affidavit opposing the reliefs sought for in that writ petition. The 9[th] respondent has filed counter affidavit dated 10.01.2022, which was followed by a counter affidavit dated 24.01.2022 of the 6[th] respondent. Pursuant to the order of this Court dated 07.02.2022, the 3[rd] respondent Devaswom W.P.(C). Nos. 29772 & 29859 of 2021 -11- Commissioner has made available for the perusal of this Court the files relating to Kuthaka item No.119 in respect of an open tender conducted on 24.11.2021 and also the files relating to Exts.R2(b) to R2(d) proceedings. The learned counsel for the petitioner in the respective writ petition were permitted to peruse those files, in the presence of the learned Standing Counsel for Travancore Devaswom Board. 9. Heard the learned counsel for the petitioner in the respective writ petitions, the learned Senior Government Pleader, the learned Standing Counsel for Travancore Devaswom Board, the learned Standing Counsel for Income Tax Department and also the respective counsel for the party respondents. 10. Though various contentions have been raised in these writ petitions in relation to the auctioning of Kuthaka item No.119 (maintenance of Pamba toilet block) during Mandala-Makaravilakku festival season of 1197 M.E. (202122), we do not propose to consider that issue in these writ petitions, since the period of tender, which was from 11.11.2021 to 31.10.2022, is already over. In the order dated 07.02.2022, we noticed various aspects relating to the tender -12- W.P.(C). Nos. 29772 & 29859 of 2021 process in respect of the Kuthaka item No.119 (maintenance of Pamba toilet block), which are referred to hereinbefore at paragraphs 5 and 6. In the orders passed by this Court in DBP No.13 of 2021 and connected matters, while dealing with the issues in relation to Virtual-Q platform and other issues in connection with Mandala-Makaravilakku festival season of 1197 M.E, we noticed cartel formation in the tender process for the year 2021-22. We also issued orders when there was an attempt by those who participated in the tender process in causing obstruction in the sewage pipe of the toilet block and also law and order issues at Pamba. 11. In terms of the interim order of this Court dated 07.02.2022, the relevant files were made available for the perusal of this Court. The respective counsel for the petitioners and also the learned counsel for the party respondents were permitted to peruse the files in open court. As noticed hereinbefore, various irregularities are alleged in the conduct of E-tender auction for the previous year. In the order of this Court in DBP No.13 of 2021, this Court noticed that cartel formation by various persons in order to cause monetary loss to the Devaswom. -13- W.P.(C). Nos. 29772 & 29859 of 2021 12. 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 subsection (3) of Section 1 of the Act, substituted by the Kerala Adaptation of Laws Order, 1956, Part I of the Act shall extend to Travancore, Part II of the Act shall extend to Cochin and Part III of the Act shall extend to the whole of the State of Kerala, excluding the Malabar District. 13. Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with vesting of administration in Board. As per Section 3, the administration of incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds as well as the fund constituted under the Devaswom Proclamation, 1097 M.E. and the surplus fund constituted under the Devaswom (Amendment) Proclamation, 1122 M.E. which were under the management of the Ruler of Travancore prior to the first day of July, 1949, except the Sree Padmanabhaswamy Temple, Sree Pandaravaka properties and -14- W.P.(C). Nos. 29772 & 29859 of 2021 all other properties and funds of the said temple, and the management of all institutions which were under the Devaswom Department shall vest in the Travancore Devaswom Board. 14. Section 4 of the Act deals with constitution of the Travancore Devaswom Board. As per sub-section (2) of Section 4, the Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board. 15. Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub-section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per sub-section (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated -15- W.P.(C). Nos. 29772 & 29859 of 2021 Devaswoms and Hindu Religious Endowments under their jurisdiction. 16. 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. Section 16 of the Act deals with supervision and control by the Board. As per Section 16, 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. 17. Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. As per Section 24, -16- W.P.(C). Nos. 29772 & 29859 of 2021 the Board shall, out of the Devaswom Fund constituted under Section 25, maintain the Devaswoms mentioned in Schedule I [i.e. incorporated Devaswoms], keep in a state of good repair the temples, buildings, and other appurtenances thereto, administer the said Devaswoms in accordance with recognised usages, make contributions to other Devaswoms in or outside the State and meet the expenditure for the customary religious ceremonies and may provide for the educational upliftment, social and cultural advancement and economic betterment of the Hindu community. 18. Section 27 of the Act deals with Devaswom properties. As per Section 27, immovable properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30[th] Meenam, 1097 corresponding to the 12[th] April, 1922, shall be dealt with as Devaswom properties. The provisions of the Land Conservancy Act of 1091 shall be applicable to Devaswom lands as in the case of Government lands. 19. Section 31 of the Act deals with management of -17- W.P.(C). Nos. 29772 & 29859 of 2021 Devaswoms. As per Section 31, 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. ## 20. 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 himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the -18- W.P.(C). Nos. 29772 & 29859 of 2021 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 -19- W.P.(C). Nos. 29772 & 29859 of 2021 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) 21. In **Rajani P. Kuttan and another v. State of Kerala and others [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 offering by -20- W.P.(C). Nos. 29772 & 29859 of 2021 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 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 -21- W.P.(C). Nos. 29772 & 29859 of 2021 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) 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 ‘fences 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. -22- W.P.(C). Nos. 29772 & 29859 of 2021 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]** 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 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 therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of parens patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of properties of the Temple itself, the truth of the same can be gone into by the High Court in these proceedings. 24. In **Abu K.S. v. Travancore Devaswom Board** **[2022 SCC OnLine Ker 1642]** [judgment dated 09.02.2022 in W.P.(C) No. 2254 of 2022] a Division Bench of this Court, in -23- W.P.(C). Nos. 29772 & 29859 of 2021 which both of us were parties, was dealing with a case in which Kuthaka right for running Aymanam Sri. Narasimha-swami Auditorium (sadyalayam) constructed by the Travancore Devaswom Board was auctioned for a period of two years from 01.08.2019 to 31.07.2021, for Rs. 2,41,000/-. The average monthly income generated from the said building constructed by the Travancore Devaswom Board by spending several lakhs of rupees was only Rs. 10,000/-. Relying on the law laid down by the Apex Court in **M.V. Ramasubbiar [(1979) 2 SCC 65]** this Court held that, while auctioning the right for running that sadyalayam, the Travancore Devaswom Board and its officials have to ensure that proper income to the Board is generated from the said building. In case of any default committed by the successful bidder in remitting the balance auction amount, electricity charges or any other statutory dues payable as per the tender conditions, the concerned Assistant Devaswom Commissioner and the Sub Group Officer have to take prompt action against such bidder and the said fact has to be promptly reported to the concerned officer in the Estate Division of the Travancore Devaswom Board. -24- W.P.(C). Nos. 29772 & 29859 of 2021 25. In **Abu K.S. [2022 SCC OnLine Ker 1642]** the writ petitioner, the successful bidder, remitted only 50% of the auction amount on 18.07.2019. Though he had defaulted payment of the balance amount of Rs. 1,20,500/-, he was permitted to continue to occupy the sadyalayam, even beyond the period of auction, i.e., 31.07.2021. The concerned Assistant Commissioner and the Sub Group Officer have not taken any action against the successful bidder till the order of this Court dated 01.02.2022, whereby they were directed to take over possession of the sadyalayam forthwith, if found necessary with police assistance. In such circumstances, in the said decision, this Court deprecated in the strongest words the conduct of the concerned Assistant Commissioner and the Sub Group Officer and also the concerned officers in the Estate Division of the Travancore Devaswom Board in taking no action against the successful bidder, who was a defaulter. In the said decision, this Court found that, the concerned officers of the Travancore Devaswom Board have not shown reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. Since, such irregularities in the conduct of auction for running auditoriums/sadyalayams in -25- W.P.(C). Nos. 29772 & 29859 of 2021 the temples under the management of the Travancore Devaswom Board cannot be permitted in future, this Court directed Registry to initiate _suo motu_ proceedings in the that matter. 26. In **Suneesh K.S. [ILR (2022) 1 Ker 1091 : 2022 SCC OnLine Ker 611]** a Division Bench of this Court was dealing with the Kuthaka right for sale of pooja items in Valliamkavu Devi Temple under the Management of the Travancore Devaswom Board. In the said decision, this Court held that, the properties of deities and 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 ‘fences eating the crops’ should be dealt with sternly. The officers concerned and also 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, -26- W.P.(C). Nos. 29772 & 29859 of 2021 wrongful claims or misappropriation. Therefore, the concerned Assistant Devaswom Commissioner and the Administrative Officer shall take stern action against those who have defaulted payment of instalments in respect of the Kuthaka items, in violation of the tender conditions, if found necessary, after seeking police assistance. If any such request is received, it is the duty of the concerned Station House Officer to render necessary assistance to the concerned Assistant Devaswom 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. In **V. Muraleedharan Nair v. Travancore** **Devaswom Board** [Judgment dated 25.11.2015 in W.P.(C) No. 32975 of 2015] the Division Bench of this Court was dealing with a case in which the writ petitioners were occupiers of different shop rooms in a shopping complex owned by the Travancore Devaswom Board. As per Exhibit P8 series of orders, they have been required to enhance the security deposit and the amounts to be paid for occupation. Before the Division Bench, the learned counsel for the petitioners relied on Ext.P7 judgment dated 07.10.2013 in W.P.(C) No. 25586 of -27- W.P.(C). Nos. 29772 & 29859 of 2021 2012. The Division Bench noticed that, the said judgment was issued essentially on consent of the Board and the concession made by the Board was only for renewal for a period upto 2012. Therefore, Exhibit P7 judgment is no answer for any demand that the Travancore Devaswom Board may make in relation to occupation charges for buildings or rooms belonging to and under its control. The Division noticed that, it cannot also ignore the pristine principle that all Devaswom lands vest in Deities and Travancore Devaswom Board are essentially trustees. Therefore, the action of trustees cannot be equated to that of mere landlords. The best interest of the Devaswoms under the control of the Devaswom Boards would be subserved only if income is generated. 28. In **T. Krishnakumar v. Cochin Devaswom Board [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, -28- W.P.(C). Nos. 29772 & 29859 of 2021 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 mere landlord. The best interest of the Devaswoms under the control of the Board would be subserved only if income is generated. 29. In **T. Krishnakumar [2022 (5) KHC SN 8]** , the Division Bench noticed that the major source of revenue of Cochin Devaswom Board is the income received by way of offering 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 and also the rental income generated from the buildings owned by the respective Devaswoms. Therefore, while dealing with the buildings owned by the Devaswoms, Cochin Devaswom Board and its officials have to ensure that proper income is generated from the said building. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man -29- W.P.(C). Nos. 29772 & 29859 of 2021 of business to conduct his own affairs, by ensuring that the lease rental or licence fee of the buildings owned by the Devaswoms is not lower than the prevailing market rent. The action of the Board in demanding lease rental or licence fee for the buildings owned by the Devaswoms taking into consideration the prevailing market rent cannot be termed as - an action of the Board demanding exhorbitant or rack rent, since, while leasing out the buildings owned by the Devaswoms, the Board and its officials have to ensure that proper income is generated from the said buildings. Any default committed by the tenant or licensee of the buildings owned by the Devaswoms in payment of the monthly rent or licence fee, electricity charges, water charges, statutory dues, etc. has to be dealt with appropriately, so also the use of the building for another purpose or making material alteration or addition to the building. In view of the provisions under Section 73A of the Act, Cochin Devaswom Board is duty bound to monitor whether its administrative staff and employees in the Maramath wing are functioning properly, by taking prompt action against any such default or violation of the terms and conditions of the lease deed or the licence deed. -30- W.P.(C). Nos. 29772 & 29859 of 2021 30. In **Suneesh K.S. v. Travancore Devaswom Board [ILR 2022 (1) Ker. 1091: 2022 SCC OnLine Ker 611]** we noticed that, as per clause (8) of the tender conditions, which forms part of the tender notifications issued by the Travancore Devaswom Board, the Board has the right to cancel the bid of successful bidders who failed to remit the entire amount within the time stipulated by the Board and to conduct re-auction. In which event, the original bidder will be responsible for the loss, if any, sustained by the Board. As per clause (10) of the tender conditions, the successful bidder will be liable to pay 18% interest for belated remittance of instalments. In case of default in remitting the said amount, i.e., defaulted instalments together with 18% interest, the Board will have the right to initiate appropriate legal proceedings against the bidder for recovering the loss caused to it. As per clause (12) of the tender conditions, in case the bidder has defaulted payment of bid amount in any manner, which has resulted in the Board sustaining loss, the Board shall have the right to proceed against the movable and immovable properties of the bidder for recovering the said loss. Proceedings under clause (23) of the tender conditions shall W.P.(C). Nos. 29772 & 29859 of 2021 -31- ## also be initiated against such defaulters, for black-listing. 31. In view of the statutory provisions referred to hereinbefore and the law laid down in the decisions referred to supra, conclusion is irresistible that, while auctioning Kuthaka rights during festival seasons in Sabarimala, the Travancore Devaswom Board and its officials have to ensure that proper income is generated from such auctions. The Board and its officials have to show reasonable diligence in such auctions, in the manner of an ordinary prudent man of business to conduct his own affairs. The best interest of the Devaswom under the control of the Board would be subserved only if proper income is generated from such auctions. 32. As already noticed hereinbefore, the auction conducted for Kuthaka items in Sabarimala Devaswom, during Mandala-Makaravilakku Festival Season of 1197 M.E. (202122) was for the period from 11.11.2021 to 31.01.2022. The said period is already over. In the order dated 07.02.2022, we noticed various aspects relating to the tender process in respect of Kuthaka item No.119 (maintenance of Pamba toilet block). In the order passed in DBP No.13 of 2021 and connected matters, while dealing with issues in relation to -32- W.P.(C). Nos. 29772 & 29859 of 2021 Virtual-Q platform and other issues in connection with Mandala-Makaravilakku Festival Season of 1197 M.E., we noticed cartel formation in the tender process for auctioning Kuthaka rights in Sabarimala Devaswom, for the year 1197 M.E. (2021-22). 33. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, we deem it appropriate to dispose of the above writ petitions by directing the Chief Vigilance Officer, Travancore Devaswom Board, who is arrayed as additional 11[th] respondent in W.P.(C)No.29772 of 2021, who is the 5[th] respondent in W.P.(C)No.29859 of 2021, to conduct a detailed enquiry, with notice to the writ petitioners and also the party respondents, on the e-tender process for Kuthaka items in Sabarimala Devaswom, for the year 1197 M.E., with specific reference to item No.119 (maintenance of Pamba toilet block), after the Mandala-Makaravilakku Season of 1198 M.E. is over. The report of the Chief Vigilance Officer shall be placed before the 2[nd] respondent Board, by the first week of March, 2023. The decision taken by the Board based on the enquiry report of the Chief Vigilance Officer shall be placed before this Court, W.P.(C). Nos. 29772 & 29859 of 2021 -33- along with the report of the Special Commissioner, Sabarimala. The entire e-tender for Kuthaka items in Sabarimala Devaswom, from the Mandala-Makaravilakku festival season of 1199 M.E. onwards shall be conducted, after publishing an auction notification specifying the highest bid for the previous three years, excluding the period during which there were restrictions on account of Covid-19 pandemic. After completion of the tender process, the details of the successful bidders along with the bid amount, the balance bid amount payable, its due date, etc., shall be exhibited on the official website of the Board. The list of those who have defaulted payment of the balance bid amount shall also be exhibited on the official website. The list of defaulters shall be forwarded to the Devaswom Commissioner for necessary action. A copy of that list shall also be forwarded to the Special Commissioner, Sabarimala. The Board has to adopt similar procedure in respect of all major temples under its management, in which the annual income is above Rs.2,00,00,000/-. In respect of such temples, the list of defaulters shall be forwarded to the Devaswom Commissioner for necessary action. The Kuthaka holders, who have defaulted payment of balance bid amount, -34- W.P.(C). Nos. 29772 & 29859 of 2021 shall be proceeded against, in accordance with the tender conditions. In appropriate cases, proceedings shall also be initiated for blacklisting. The successful bidders and their staff, if any, in respect of Kuthaka items in Sabarimala Devaswom and also in other Devaswoms under the management of the Travancore Devaswom Board shall be issued with photo identity cards. They shall be required to produce police clearance certificate. In respect of Kuthaka items above Rs.5,00,000/-, the Board shall insist the Income Tax particulars of the bidders. 34. Registry shall handover the documents in safe custody to the Chief Vigilance Officer, Travancore Devaswom Board, after obtaining proper acknowledgment. Registry to issue a copy of this judgment to the Special Commissioner, Sabarimala, through the learned Amicus Curiae. With the above directions, these writ petitions are disposed of. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/18/10 -35- W.P.(C). Nos. 29772 & 29859 of 2021 ## **`APPENDIX OF WP(C) 29772/2021`** ``` PETITIONER EXHIBITS ``` - **`Exhibit P1 THE TRUE COPY OF THE E TENDER ROC. 53/21/SAB DATED 04.10.2021 ISSUED BY THE 3RD RESPONDENT.`** - **`Exhibit P2 THE TRUE COPY OF THE NOTICE DATED 30.11.2021 ISSUED BY THE 4TH RESPONDENT.`** ``` Exhibit P3 ``` ``` THE TRUE COPY OF THE COMPLAINT DATED 02.12.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. ``` ``` Exhibit P4 ``` - **`THE TRUE COPY OF THE QUOTATION, SUBMITTED BY THE 6TH RESPONDENT ALONG WITH DD.`** - **`Exhibit P5 THE TRUE COPY OF THE PHOTOGRAPHS SHOWING THE PRESENCE OF RESPONDENTS 7 AND 8 AT LATRINE BLOCK IN PAMBA.`** - **`Exhibit P6 TRUE COPY OF RECEIPT NO.3954/2022 DATED 06.01.2022 ISSUED FROM PAMBA POLICE STATION.`** - **`Exhibit P7 TRUE COPY OF COMPLAINT DATED 13.01.2022 SUBMITTED BY PETITIONER BEFORE THE SUPERINTENDENT OF POLICE, PATHANAMTHITTA.`** - **`RESPONDENTS' EXHIBITS`** - **`Exhibit-R2(a) TRUE COPY OF THE SM REPORT NO.12/2021 SUBMITTED BY THE SPECIAL COMMISSIONER, SABARIMALA BEFORE THIS HON'BLE COURT.`** ``` Exhibit-R2(b) TRUE COPY OF THE REPORT, E.O.P.NO.196/21/SABA DATED 27.11.2021 FORWARDED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT ``` -36- W.P.(C). Nos. 29772 & 29859 of 2021 ``` Exhibit-R2(c) ``` ``` Exhibit-R2(d) ``` ``` Exhibit-R2(e) ``` ``` Exhibit-R2(f) ``` ``` TRUE COPY OF THE LETTER, ROC.21170/21/SAB DATED 01.12.2021 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. ``` ``` TRUE COPY OF THE ROC.NO.885/2021/SAB (KUTHAKA) ISSUED BY 2ND RESPONDENT TO 3RD RESPONDENT. ``` ``` TRUE COPY OF THE REPORT DATED 06.12.2021 GIVEN IN THIS REGARD BY THE EXECUTIVE ENGINEER, SABARIMALA AS PER THE DIRECTION FROM THIS HON'BLE COURT. ``` ``` TRUE COPY OF THE COMPLAINT DATED 07.01.2022 GIVEN BY THE 6TH RESPONDENT TO THE CHIEF MINISTER AND OTHER AUTHORITIES ``` -37- W.P.(C). Nos. 29772 & 29859 of 2021 ## **`APPENDIX OF WP(C) 29859/2021`** ``` PETITIONER'S EXHIBITS ``` - **`Exhibit P1`** ``` THE TRUE COPY OF THE E TENDER ROC. 53/21/SAB DATED 04.09.2021 ISSUED BY THE 3RD RESPONDENT. ``` - **`Exhibit P2 THE TRUE COPY OF THE NOTICE DATED 30.11.2021 ISSUED BY THE 4TH RESPONDENT.`** - **`Exhibit P3`** ``` THE TRUE COPY OF THE COMPLAINT DATED 02.12.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. ``` - **`Exhibit P4 THE TRUE COPY OF RELEVANT PAGES OF THE TENDER DOCUMENT ISSUED BY THE ANDHRA PRADESH, STATE CIVIL SUPPLIES CORPORATION LTD.`** - **`Exhibit P5 THE TRUE COPY OF THE RELEVANT PAGES OF THE TENDER FLOATED BY THE YANAM CO OPERATIVE STORES LTD, OF U.T. OF PUDUCHERY DATED 01.12.2021.`** - **`Exhibit P6 THE TRUE COPY OF THE ONLINE NEWS REPORT DATED 30.01.2022 APPEARED IN MATHRUBHUMI ENGLISH NEWS PORTAL.`** - **`Exhibit P7 THE TRUE COPY OF THE OFFER LETTER DATED 26.11.2021 SUBMITTED BY THE PETITIONER TO THE 9TH RESPONDENT.`** - **`RESPONDENTS' EXHIBITS`** - **`Exhibit R2(a)`** ``` TRUE COPY OF THE SM REPORT NO.12/2021 SUBMITTED BY THE SPECIAL COMMISSIONER, SABARIMALA BEFORE THIS HON'BLE COURT, DATED 23.11.2021 ``` -38- W.P.(C). Nos. 29772 & 29859 of 2021 ``` EXHIBIT R2(b) ``` ``` TRUE COPY OF THE REPORT, E.O.P.NO.196/21/SABA DATED 27.11.2021 FORWARDED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT ``` ``` EXHIBIT R2(c) TRUE COPY OF THE LETTER, ROC.21170/21/SAB DATED 01.12.2021 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT ``` ``` EXHIBIT R2(d) TRUE COPY OF THE ROC NO.885/2021/SAB (KUTHAKA) ISSUED BY 2ND RESPONDENT TO 3RD RESPONDENT DATED 06.12.2021 ``` ``` EXHIBIT R2(e) TRUE COPY OF THE REPORT DATED 06.12.2021 GIVEN BY THE EXECUTIVE ENGINEER, SABARIMALA AS PER THE DIRECTION FROM THIS HON'BLE COURT. ``` - **`Exhibit R9(A)`** ``` TRUE COPY OF THE PROCEEDINGS NO.ROC 21170/21/SAB DATED 01/12/2021 ISSUED BY THE COMMISSIONER OF DEVASWOM BOARD ``` ``` Exhibit R9(B) ``` ``` TRUE COPY OF THE PROCEEDINGS NO. ROC 885/2021/SAB(KUTHAKA) DATED 06/12/2021 ISSUED BY THE SECRETARY OF THE DEVASWOM BOARD ```