Travancore Devaswom Board – Kottarakkara P.D. Manikandeswaram Temple – Suo Motu DBP 64/2022

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 3[RD] DAY OF APRIL 2023/13TH CHAITHRA, 1945 DBP NO. 64 OF 2022 ``` ``` IN THE MATTER OF TRAVANCORE DEVASWOM BOARD – KOTTARAKKARA P.D.MANIKANDESWARAM TEMPLE – MATTER PERTAINING TO THE DEFAULT IN REMITTING BALANCE BID AMOUNT AND INACTION ON THE PART OF TDB IN INITIATING COERCIVE STEPS AGAINST THE DEFAULTER – SUO MOTU PROCEEDINGS INITIATED BASED ON AN ORDER DATED 18.10.2022 IN W.P.(C)NO.25350 OF 2022 - REG. ``` ``` ------------ ``` ## **`PETITIONER:`** ## **`SUO MOTU`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 695001`** - **`2 DEPUTY EXAMINER FOR LOCAL FUND AUDIT KERALA STATE AUDIT DEPARTMENT , TRAVANCORE DEVASWOM BOARD AUDIT, NANTHANCODE P.O., THIRUVANANTHAPURAM 695033`** - **`3 TRAVANCORE DEVASWOM BOARD - TDB REPRESENTED BY ITS SECRETARY, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM 695003`** - **`4 THE ASSISTANT DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, KOTTARAKKARA GROUP,`** -2- DBP No.64 of 2022 ## **`KOLLAM 691506`** - **`5 THE SUB GROUP OFFICER, KOTTARAKKARA, MANIKANTESWARAM SUB GROUP, KOLLAM DISTRICT 691506`** - **`6 ANIL KUMAR R, S/O RAMACHANDRAN, KOCHUPARACKAL, TEMPLE NAGAR, KOTTARAKKARA P.O, KOLLAM 691506`** - **`*ADDL.R7 THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001`** - **`*ADDL.R8 THE COCHIN DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, ROUND NORTH, THRISSUR-680 001 *ARE SUO MOTU IMPLEADED AS ADDITIONAL 7TH & 8TH RESPONDENT ARE SUO MOTU IMPLEADED VIDE ORDER DATED 05/12/2022 IN DBP.NO.64/2022`** - **`*ADDL.R9 GURUVAYUR DEVASWOM MANAGING COMMITTEE GURUVAYUR DEVASWOM, GURUVAYUR - 680101, REPRESENTED BY ITS ADMINISTRATOR *IS SUO MOTU IMPLEADED AS ADDITIONAL 9TH RESPONDENT VIDE ORDER DATED 13/12/2022 IN DBP 64/2022`** - **`*ADDL.R10 THE DIRECTOR, VIGILANCE AND ANTI-CORRUPTION BUREAU, VIKAS BHAVAN, LAW COLLEGE ROAD, OPPOSITE KSRTC DEPOT, P.O. PALAYAM, THIRUVANANTHAPURAM695 033`** - **`*ADDL.R11 THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM-695 003 *IS SUO MOTU IMPLEADED AS ADDITIONAL RESPONDENTS 10 & 11 VIDE ORDER DATED 08/03/2023 IN DBP.NO.64/2022`** ``` BY ADVS.SHABU SREEDHARAN ``` ``` K.P. SUDHEER, SC, CDB T.K.VIPINDAS, GURUVAYUR DEVASWOM SIDHARTHAN V.K.(K/281/1987) ABDUL HAMEED (NALAKATH)(K/153/1993) THANIMA S.(K/003271/2022) ``` -3- DBP No.64 of 2022 ``` THAYYIB SHA P.S.(K/001712/2019) S.DHEERENDRAKUMAR(K/989/2005) SRI. S. RAJMOHAN - SR. GOVT.PLEADER SRI.G. SANTHOSHKUMAR, SC, TDB ``` ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 03.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -4- DBP No.64 of 2022 ## **ORDER** ## Anil K. Narendran, J. This DBP is registered _suo motu_ based on the directions contained in the judgment of this Court dated 18.10.2022 in W.P.(C)No.25350 of 2022, which was one filed by the 6[th] respondent herein - Anil Kumar R. along with Sunil Kumar G., who are devotees of Lord Ganapathy of Kottarakkara P.D.Manikandeswaram Temple, seeking a writ of mandamus commanding the Travancore Devaswom Board and its Commissioner to dissolve the Temple Advisory Committee of the said Temple and to constitute a new Temple Advisory Committee, in accordance with law, as early as possible. 2. During the pendency of W.P.(C)No.25350 of 2022, it has come out that the said Anil Kumar R., the 1[st] petitioner therein, has defaulted payment of an amount of - Rs.67,00,000/ in respect of Kuthaka right for conducting pooja stall in Kottarakkara P.D. Manikandeswaram Temple, for - the year 2020 21. On 12.08.2022, the learned Standing Counsel made available for the perusal of this Court a copy of the judgment dated 06.07.2021 in W.P.(C)No.13039 of 2020, -5- DBP No.64 of 2022 in which the said Anil Kumar R. was the 2[nd] petitioner. The learned Standing Counsel was directed to get instructions on the action, if any, taken against Anil Kumar R., after the judgment of this Court dated 06.07.2021 in W.P.(C)No.13039 of 2020, for recovering the defaulted payment, and whether he is holding Kuthaka right in any temple under the management of the Travancore Devaswom Board. On 18.10.2022, when W.P.(C)No.25350 of 2022 was taken up for consideration, the learned Standing Counsel submitted that Anil Kumar R. is yet to make payment towards the balance bid amount, which comes to Rs.67,50,100/-. 3. In the judgement dated 18.10.2022 in W.P.(C)No.25350 of 2022 this Court noticed that, despite the fact that Anil Kumar R. is yet to make payment towards the balance bid amount, which comes to Rs.67,50,100/-, the Administrative Officer of Kottarakkara P.D. Manikandeswaram Temple and also the Assistant Commissioner, Kottarakkara Group have not taken any steps against him for recovering the balance bid amount. The inaction on the part of the Travancore Devaswom Board and its officials in initiating coercive steps -6- DBP No.64 of 2022 against him, openly flouting the law laid down by this Court in **Abu K.S. v. Travancore Devaswom Board [2022 SCC OnLine Ker. 1642]** and **Suneesh K.S. v. Travancore Devaswom Board [ILR 2022 (1) Ker. 1091]** has to be dealt with appropriately. 4. While dismissing W.P.(C)No.25350 of 2022, by the judgment dated 18.10.2022, Registry was directed to initiate a _suo motu_ proceedings on the default committed by the said Anil Kumar R. in remitting the balance bid amount in respect of the Kuthaka right, for the year 2020-21, for conducting pooja stall in Kottarakkara P.D. Manikandeswaram Temple, and the inaction on the part of the Travancore Devaswom Board and its officials in initiating coercive steps against him for recovering the said amount together with 18% penal interest - and also their inaction in initiating proceedings for black listing. By the judgment dated 18.10.2022, the learned Standing Counsel was directed to get instructions as to whether Anil Kumar R. is the holder of Kuthaka right in any temple under the management of the Travancore Devaswom Board. -7- DBP No.64 of 2022 5. On 27.10.2022 when this DBP came up for admission, the learned Senior Government Pleader took notice for respondents 1 and 2 and the learned Standing Counsel for Travancore Devaswom Board took notice for respondents 3 to 5. This Court issued notice to the 6[th] respondent by speed post returnable within three weeks. The learned Standing Counsel for Travancore Devaswom Board was directed to place on record the request made before the State Government for issuing notification under the provisions of the Kerala Revenue Recovery Act, 1968. 6. On 21.11.2022, the learned Standing Counsel for Travancore Devaswom Board has placed on record, Annexure R1(a) request dated 08.11.2022 of the Board before the 1[st] respondent State of Kerala to issue a notification under Section 71 of the Kerala Revenue Recovery Act, 1968, to make applicable the provisions of the said Act to the recovery of the amounts due to the Board from any person. 7. Section 71 of the Act deals with power of Government to declare the Act applicable to any institution. As per Section 71, the Government may, by notification in the -8- DBP No.64 of 2022 Gazette declare, if they are satisfied that it is necessary to do so in public interest, that the provisions of this Act shall be applicable to the recovery of amounts due from any person or class of persons to any specified institution or any class or classes of institutions, and thereupon all the provisions of this Act shall be applicable to such recovery. As per the proviso to Section 71 of the Act, such specified institution or class or classes of institutions or autonomous bodies, as the case may be, shall be liable to pay collection charges for the recovery of the amounts, at such rate and in such manner, as may be prescribed by the Government. 8. In exercise of the powers conferred under Section 71 of the said Act, the Government vide G.O(Ms)No.222/2006/RD dated 31.07.2006, published in Kerala Gazette Extraordinary No.1263 dated 02.08.2006, declared that the provisions of the Revenue Recovery Act shall be applicable to the recovery of amounts due from any person to the Guruvayur Devaswom. As per the explanatory note, such a notification has been issued for ensuring realisation of amounts due to Guruvayur Devaswom from any person, since -9- DBP No.64 of 2022 the Government found it necessary in public interest to make applicable the provisions of the Revenue Recovery Act to the said Devaswom. 9. 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 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. ## 10. 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 -10- DBP No.64 of 2022 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 mere landlord. The best interest of the Devaswoms under the control of the Board would be subserved only if income is generated. 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 connection with rituals and festivals in the temples and also the rental income generated from the buildings owned by the respective Devaswoms. Any default committed by the tenant -11- DBP No.64 of 2022 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. 11. In the order dated 05.12.2022, this Court noticed that, when the provisions under the Kerala Revenue Recovery Act have already been made applicable to the recovery of amounts due from any person to Guruvayur Devaswom in respect of the amounts due to Guruvayur Devaswom, vide the notification published in Kerala Gazette Extraordinary No.1263 dated 02.08.2006, since the Government found it necessary in public interest to make applicable the provisions of the Revenue Recovery Act to Guruvayur Devaswom, there is no justification whatsoever in not issuing similar notifications in respect of Travancore Devaswom Board and the Cochin Devaswom Board, for ensuring realisation of the amounts due to the said Devaswoms from any person. 12. By the order dated 05.12.2022, the learned Senior -12- DBP No.64 of 2022 Government Pleader was directed to get instructions on the action, if any, taken on Annexure R1(a) request dated 08.11.2022 made by the Travancore Devaswom Board before the 1[st] respondent State of Kerala, to issue a notification under Section 71 of the Kerala Revenue Recovery Act, 1968, to make applicable the provisions of the said Act to the recovery of the amounts due to the Board from any person. The learned Standing Counsel for Travancore Devaswom Board and also the learned Standing Counsel for Cochin Devaswom Board were directed to place on record the details of the Kuthaka holders, who have defaulted payment of the balance bid amount, for the year 1198 ME and also for the last three years; the proceedings, if any, initiated against such defaulters - for recovering the defaulted amounts and for black listing; and whether any such defaulters are holding Kuthaka rights in the temples under the management of Travancore Devaswom Board or Cochin Devaswom Board for the current year, i.e., 1198 M.E. 13. In the order dated 13.12.2022, this Court noticed that the role assigned to the 3[rd] respondent Travancore -13- DBP No.64 of 2022 Devaswom Board, the additional 8[th] respondent Cochin Devaswom Board and also the additional 9[th] respondent Guruvayur Devaswom Managing Committee is that of a trustee in management of the properties vested in the deity. Therefore, the Board/Managing Committee is duty bound to scrupulously follow the stipulations contained in the - Travancore Cochin Hindu Religious Institutions Act, 1950/Guruvayur Devaswom Act, 1978, and to administer and manage the Devaswoms and its properties in accordance with the settled legal principles relating to administration of Hindu religious trusts. The Board/Managing Committee, being the trustee in management of Devaswom properties, is legally bound to perform its duty with utmost care and caution. Therefore, the Board/Managing Committee has to initiate proceedings against the Kuthaka holders, who have defaulted payment of the balance bid amounts, by initiating appropriate proceedings for recovery of the said amount together with penal interest. Any default committed by the Board/Managing Committee in initiating recovery proceedings at the appropriate time would certainly amount to breach of trust. -14- DBP No.64 of 2022 14. **In the matter of Audit Report of the Travancore Devaswom Board for the year 1967-68 (Sabarimala Improvement Fund)** reported in **[1990 (1) KLT 347)** , in the context of Section 32 of the Act, a Division Bench of this Court reminded the President and members of the Travancore Devaswom Board about their public accountability. In the said decision it was made clear that it is for all persons concerned to see that greater vigil is exercised by the President and members of the Board in the overall administration of the Board and in the collection and disbursement of funds. 15. On 13.12.2022, the learned Senior Government Pleader submitted that Ext.R1(a) request made by the Travancore Devaswom Board to issue a similar notification under Section 71 of the Kerala Revenue Recovery Act, 1968, to make applicable the provisions of the said Act to recover the amounts due to the Board from any person or class of persons is pending consideration before the additional 7[th] respondent. On that request, certain clarifications were sought from the Board. Once those clarifications are received, the additional 7[th] DBP No.64 of 2022 -15- respondent shall proceed with that request made in Ext.R1(a) and issue a notification similar to that issued in respect of the Guruvayur Devaswom and the Cochin Devaswom Board, as expeditiously as possible, at any rate, within a period of one month. The learned Standing Counsel for the Travancore Devaswom Board submitted that, if not already furnished, the clarifications sought by the additional 7[th] respondent shall be furnished within one week from this date. 16. In the above circumstances, by the order dated 13.12.2022, this Court directed the additional 7[th] respondent to proceed with the request made by the 3[rd] respondent Travancore Devaswom Board in Ext.R1(a) to issue a similar notification under Section 71 of the Kerala Revenue Recovery Act, 1968, to make applicable the provisions of the said Act to recover the amounts due to the Board from any person or class of persons, as expeditiously as possible, at any rate, within a period of one month the date of that order. By the said order, the learned Standing Counsel for Travancore Devaswom Board, the learned Standing Counsel for Cochin Devaswom Board and the learned Standing Counsel for -16- DBP No.64 of 2022 Guruvayur Devaswom Managing Committee were directed to place on record the details of the Kuthaka holders, who have defaulted payment of the balance bid amount, for the year 1198 ME (2022) and also for the last three years; the proceedings, if any, initiated against such defaulters for - recovering the defaulted amount and for black listing; and whether any such defaulters are holding Kuthaka rights in the temples under its management for the current year, i.e., 1198 M.E. (2022). 17. On 24.01.2023, when this matter was taken up for consideration, the learned Senior Government Pleader submitted that based on Annexure R1(a) request dated 08.11.2022 made by the Travancore Devaswom Board for issuing a notification under Section 71 of the Kerala Revenue Recovery Act, 1968 to make applicable the provisions of the said Act, to recover amounts due to the Board from any person, files have already been forwarded by Revenue (Devaswom) Department to Revenue Department, on 24.12.2022 with favourable recommendations. The said request is under consideration of Revenue Department. The -17- DBP No.64 of 2022 entire exercise under Section 71 of the Kerala Revenue Recovery Act shall be finalised within a short period, after complying with the procedural formalities. 18. In terms of the directions contained in the order dated 13.12.2022, the Secretary of the Cochin Devaswom Board has already filed an affidavit dated 03.01.2023, furnishing the details. The learned Standing Counsel for Travancore Devaswom Board and also the learned Standing Counsel for Guruvayur Devaswom Managing Committee sought further time to file affidavits and accordingly three weeks’ time was granted. By the order dated 24.01.2023, this Court directed the 6[th] respondent to file an affidavit, furnishing his income tax details, the annual return submitted for the years 2018-19, 2019-20, 2020-21, 2021-22 and 2022-23 and also the details of the payment made towards 50% of the bid amount, amounting to Rs.64,00,000/-. The learned Standing Counsel for Travancore Devaswom Board was directed to make available for the perusal of this Court the files relating to the kuthaka right granted to the 6[th] respondent for conducting pooja stall at Kottarakkara P.D. Manikandeswaram Temple, for -18- DBP No.64 of 2022 the year 2020-21. 19. On 08.03.2023, when this matter came up for consideration, in terms of the order of this Court dated 24.01.2023, the affidavit of the 6[th] respondent was placed on record, producing therewith his Income Tax Returns for the years 2018-19, 2019-20, 2020-21, 2021-22 and 2022-23 as Annexures R6(1) to R6(5) as per which his gross total income is Rs.11,31,922/-, Rs.9,52,027/-, Rs.5,10,810/-, Rs.4,69,290/- and Rs.5,36,870/- respectively. He has also produced as Annexure R6(6) the details of the payments made towards 50% of the bid amount, i.e., payment of a total sum of Rs.67,50,100/-. On a specific query made by this Court as to whether the 6[th] respondent has furnished Bank guarantee in terms of the tender conditions, towards the balance amount of Rs.67,50,100/-, the learned counsel for the 6[th] respondent submitted that the said respondent has not furnished any such Bank guarantee. Having considered the materials on record and also the submissions made at Bar, by the order dated 08.03.2023, this Court _suo motu_ impleaded the Director, Vigilance and Anti-corruption Bureau, Thiruvananthapuram -19- DBP No.64 of 2022 and the Devaswom Commissioner, Travancore Devaswom Board, as additional respondents 10 and 11. The learned Senior Government Pleader took notice for the additional 10[th] respondent and the learned Standing Counsel for Travancore Devaswom Board took notice for the additional 11[th] respondent. The learned Standing Counsel was directed to produce before Registrar (Judicial), by 09.03.2023, the entire tender files relating to Kuthaka right for conducting pooja stall in Kottarakkara P.D. Manikandeswaram Temple, for the year 2020-21, which was directed to be kept in safe custody by Registrar (Judicial). 20. On 15.03.2023, when this matter came up for consideration, the learned Standing Counsel for Travancore Devaswom Board submitted that in terms of the directions contained in the order dated 08.03.2023, the entire files relating to Kuthaka right for conducting pooja stall in Kottarakara P.D. Manikanteswara Temple, for the year 2020-21 has already been handed over to Registrar (Judicial). The 9[th] respondent Guruvayur Devaswom Managing Committee has filed an affidavit dated 08.03.2023, in terms of the directions -20- DBP No.64 of 2022 contained in the order dated 24.01.2023. The learned Standing Counsel for Travancore Devaswom Board sought further time to file affidavit on behalf of the 3[rd] respondent. The learned Standing Counsel submitted that the 6[th] respondent has already been blacklisted on account of his default in remitting the balance bid amount. The learned Senior Government Pleader submitted that the issuance of notification under Section 71 of the Kerala Revenue Recovery Act, 1968 to make applicable the provisions of the said Act to the recovery of amounts due to the Travancore Devaswom Board from any person is in the final stage. 21. Heard the learned Senior Government Pleader for the State and official respondents, the learned Standing Counsel for Travancore Devaswom Board, the learned Standing Counsel for Guruvayur Devaswom Managing Committee, the learned Standing Counsel for Cochin Devaswom Board and also the learned counsel for the 6[th] respondent. 22. During the pendency of this matter, in terms of the directions contained in the order dated 13.12.2022, the State of Kerala in exercise of the powers conferred by Section 71 of DBP No.64 of 2022 -21- the Kerala Revenue Recovery Act, 1968, on being satisfied that it is necessary to do so in public interest, declared that the provisions of the Kerala Revenue Recovery Act shall be applicable to the recovery of amounts due from any persons or class of persons to the Travancore Devaswom Board. The said notification, i.e., G.O.(P)No.83/2023/RD dated 17.03.2023, has been published in Kerala Gazette Extraordinary No.1001 dated 18.03.2023. 23. The 6[th] respondent, who was the Kuthaka holder for conducting pooja stall in P.D. Manikandeswaram Temple for the year 2020-21 has defaulted payment of the balance bid amount, amounting to Rs.67,00,000/-. Even after the dismissal of W.P.(C)No.13039 of 2020 by the judgment dated 06.07.2021, no action was taken for recovering the balance bid amount from the said respondent. In terms of the order of this Court dated 24.01.2023, the affidavit of the 6[th] respondent was placed on record, producing therewith Annexures R6(1) to R6(5) Income Tax Returns for the years 2018-19, 2019-20, 2020-21, 2021-22 and 2022-23 as per which his gross total income is Rs.11,31,922/-, Rs.9,52,027/-, -22- DBP No.64 of 2022 Rs.5,10,810/-, Rs.4,69,290/- and Rs.5,36,870/- respectively. He has also produced as Annexure R6(6) the details of the payments made towards 50% of the bid amount, i.e., payment of a total sum of Rs.67,50,100/-. 24. In the order dated 08.03.2023, this Court recorded the submission made by the learned counsel for the 6[th] respondent that the said respondent has not furnished Bank guarantee for the year balance bid amount of Rs.67,15,100/-, in terms of the tender conditions. On 15.03.2023, this Court recorded the submission made by the learned Standing Counsel for the Board that the 6[th] respondent has already been blacklisted on account of his default in remitting the balance bid amount. 25. During the course of arguments, the learned Standing Counsel for the Board could not offer any explanation for accepting the bid of the 6[th] respondent, without insisting bank guarantee for the balance bid amount, in terms of the tender conditions. As evidenced by Annexures R6(1) to R6(5) the gross annual income of the 6[th] respondent during the financial years 2018-19 to 2022-23 is in the range of 4.69 -23- DBP No.64 of 2022 lakhs to 11.31 lakhs. 26. In **Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]** a Division Bench of this Court noticed that in **A.A. Gopalakrishnan v. Cochin Devaswom Board [(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- DBP No.64 of 2022 ## 27. In **Abu K.S. v. Travancore Devaswom Board** ## **[2022/KER/6409 : 2022 SCC OnLine Ker 1642]** a Division Bench of this Court, in 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. The writ petitioner, who was 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., beyond 31.07.2021. The concerned Assistant Commissioner and the Sub Group Officer have not taken any action against him 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 the said decision, relying on the decision of the Apex Court in **M.V. Ramasubbiar [(1979) 2 SCC 65]** , this Court found that, the concerned officers of the Travancore Devaswom Board, who have permitted the -25- DBP No.64 of 2022 successful bidder (who has remitted only 50% of the auction amount) to continue to occupy the sadyalayam, even beyond the period of the auction, have not shown reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. 28. 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 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 -26- DBP No.64 of 2022 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. 29. In **Sunil Kumar P.G. v. State of Kerala and others [2022/KER/71822]** a Division Bench of this Court, in which both of us were parties, was dealing with the auction conducted for the Kuthaka item No.119 (maintenance of Pamba toilet block) in Sabarimala Devaswom for the year -27- DBP No.64 of 2022 1197 ME (2021-22). By the judgment dated 13.10.2022, W.P.(C) Nos.29772 of 2021 and 29859 of 2021 were disposed of by directing the Chief Vigilance Officer, Travancore Devaswom Board 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 ME, with specific reference to item No.119 (maintenance of Pamba toilet block), after the MandalaMakaravilakku Season of 1198 ME is over. The report of the Chief Vigilance Officer was directed to be placed before the Travancore Devaswom Board, by the first week of March, 2023. The decision taken by the Board, based on the enquiry report of the Chief Vigilance Officer, was directed to be placed before this Court, along with the report of the Special Commissioner, Sabarimala. ## 30. In **Sunil Kumar P.G. [2022/KER/71822]** this Court ordered that the entire e-tender for Kuthaka items in Sabarimala Devaswom, from Mandala-Makaravilakku festival season of 1199 ME (2023-24) onwards shall be conducted, after publishing an auction notification specifying the highest -28- DBP No.64 of 2022 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. ## 31. In **Sunil Kumar P.G. [2022/KER/71822]** this Court directed the Travancore Devaswom Board to adopt a similar procedure in respect of all major temples under its management, in which the annual income is above Rs.2 Crore. 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 the balance bid amount, shall be proceeded against, in accordance with the tender conditions. In appropriate cases, -29- DBP No.64 of 2022 proceedings shall also be initiated for blacklisting. In the said decision, this Court ordered that the successful bidders and their staff, if any, in respect of Kuthaka items in Sabarimala Devaswom and 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 Travancore Devaswom Board shall insist on the Income Tax particulars of the bidders. 32. The pleadings and materials on record and also the submissions made at the Bar make it explicitly clear that the Travancore Devaswom Board and its officials have not shown reasonable diligence in the manner of an ordinary prudent man of business who conduct his own affairs, in matters relating to the auctioning of Kuthaka right for conducting pooja stall in Kottarakkara P.D.Manikandeswaram Temple, for the year 2020-21. Even after the dismissal of W.P.(C)No.13039 of 2020 by the judgment dated 06.07.2021, the Travancore Devaswom Board has not taken steps to recover the balance bid amount of Rs.67,50,100/- payable by the 6[th] respondent. -30- DBP No.64 of 2022 33. In **Suo motu v. State of Kerala [2023/KER/ 21878 : 2023 SCC OnLine Ker 2166 : 2023 ICO 491]** (Order/Judgment dated 23.03.2023 in SSCR No.29 of 2022 and W.P.(C)No.42987 of 2022, in the matter relating to the default committed by the Kuthaka holder in Sabarimala Devaswom for collecting parking fee from the parking grounds at Nilakkal Base Camp, this Court ordered enquiry by the Vigilance and Anti-Corruption Bureau on the conduct of each and every person connected with the auction conducted by the Travancore Devaswom Board in terms of the tender notification dated 10.08.2022 of Kuthaka rights in Sabarimala Devaswom for the year 1198 ME (2022-23). Paragraphs 33 to 45 of that order/judgment read thus; “33. In the instant case, as already noticed hereinbefore, as per the Income Tax Returns for the assessment years 2019-20, 2020-21 and 2021-22 submitted by the parking contractor [petitioner in W.P.(C)No.42987 of 2022, who is the 9[th] respondent in SSCR No.29 of 2022] his gross total income for the - - assessment year 2019 20 is only Rs.1,14,802/ and - - that for the years 2020 21 and 2021 22 are only Rs.1,07,115/and Rs.1,11,250/respectively. On 11.01.2023, on a query made by this Court, the -31- DBP No.64 of 2022 submission of the learned counsel for the parking contractor was that the parking contractor owns approximately 5 cents of property at Sooranadu along with a residential building. Though the learned counsel sought time to get instructions as to whether the contractor owns any other landed property, the affidavit filed sworn to the contractor on 13.01.2023 is silent on the above aspect. Such a person has also participated in another tender process in Sabarimala Devaswom for the supply of 15,000kg of cardamom for the year 1198 ME (2022-23). 34. In the matter of **Audit Report of the Travancore Devaswom Board for the year 1967-68 (Sabarimala Improvement Fund)** reported in **[1990 (1) KLT 347]** , in the context of Section 32 of the Travancore-Cochin Hindu Religious and Charitable Institutions Act, a Division Bench of this Court reminded the President and Members of the Travancore Devaswom Board about their public accountability. In the said decision, it was made clear that it is for all persons concerned to see that greater vigil is exercised by the President and Members of the Board in the overall administration of the Board and in the collection and disbursement of funds. 35. Despite the directions contained in the decisions of this Court in **Abu K.S. [2022/KER/6409]** , **Suneesh K.S. [ILR (2022) 1 Ker 1091]** and **Sunil Kumar P.G. [2022/KER/71822]** the Travancore Devaswom -32- DBP No.64 of 2022 Board and its officials have not shown reasonable diligence in the manner of an ordinary prudent man of business who conduct his own affairs, in matters relating to the auctioning of Kuthaka rights at Sabarimala Devaswom for the year 1198 ME (2022-23). 36. The Board and its officials, namely, the 2[nd] respondent-Commissioner and the 3[rd] respondentExecutive Officer were aware of the financial condition of the parking contractor from the tender documents submitted by him. In the affidavit filed by the 2[nd] respondent-Commissioner or the 3[rd] respondentExecutive officer, they could not offer any explanation for awarding a contract for more than Rs.2 Crore to such a person, even without insisting bank guarantee for the balance bid amount. Contrary to the general conditions, which forms part of the tender notification dated 10.08.2022, in respect of Kuthaka items in Sabarimala Devaswom for the year 1198 ME (2022-23), the parking contractor was permitted to pay 50% bid amount in installments. 37. Though the parking contractor has defaulted payment of the balance bid amount of Rs.64,69,421/payable on 30.11.2022 and Rs.64,69,420/- payable on 15.12.2022 and also payment of 1% TDS amounting to Rs.2,58,778/- to the Income Tax Department, the Board and its officials, namely, the 2[nd] respondentCommissioner and the 3[rd] respondent-Executive Officer have permitted him to collect parking fee from the -33- DBP No.64 of 2022 parking grounds at Nilakkal Base Camp. The default committed by the parking contractor was brought to the notice of this Court only on 23.12.2022, by handing over a copy of Ext.R2(c) communication dated 20.12.2022 of the 3[rd] respondent-Executive Officer, addressed to the Special Officer, Nilakkal. If, as a matter of fact, the 3[rd] respondent-Executive Officer has issued Ext.R2(a) reminder dated 28.11.2022 and Ext.R2(b) notice dated 10.12.2022 to the parking contractor, requiring him to remit the defaulted installment payable on 30.11.2022, it could have been brought to the notice of this Court on 19.12.2022, 20.12.2022 or 22.12.2022, when this Court passed various orders in SSCR No.29 of 2022. The fact that the parking contractor has not furnished a bank guarantee in terms of clause 10 of the general conditions, which forms part of the tender notification dated 10.08.2022, and clause 3 of Ext.P1 agreement was also not brought to the notice of this Court. 38. The averments in the affidavit dated 13.01.2023 of the parking contractor would make it explicitly clear that his intention was to remit the balance bid amount payable on 30.11.2022 and 15.12.2022 in installments, by the end of the pilgrim season, utilising the daily collection from the parking grounds at Nilakkal Base Camp. When the defaults committed by the parking contractor in payment of the balance bid amount of Rs.64,69,421/payable on 30.11.2022 and -34- DBP No.64 of 2022 Rs.64,69,420/payable on 15.12.2022 and also payment of 1% TDS amounting to Rs.2,58,778/- to the Income Tax Department are not in dispute and the inability of the parking contractor to pay the said amounts together with penal interest stands admitted in the affidavit dated 13.01.2023, he cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of Inda, seeking a writ of mandamus commanding the Travancore Devaswom Board and its officials not to terminate Ext.P1 contract dated 10.11.2022 entered into with the 3[rd] respondentExecutive Officer, Sabarimala Devaswom, only on the ground of delay in payment of the balance bid amount. For the aforesaid reason, the parking contractor cannot raise a valid challenge against the termination of Ext.P1 contract dated 10.11.2022. Once it is found that the parking contractor has approached this Court in W.P.(C)No.42987 of 2022, invoking the extraordinary jurisdiction under Article 226 of the Constitution of India, by suppressing material facts from the notice of this Court, such an attempt made by the petitioner to abuse the process of this Court has to be dealt with appropriately, by dismissing the said writ petition. Hence, W.P.(C)No.42987 of 2022 filed by the petitionerparking contractor is liable to be dismissed on the above ground. 39. It is for the Travancore Devaswom Board to initiate appropriate proceedings against the petitioner-parking -35- DBP No.64 of 2022 contractor, in accordance with law, for the recovery of the defaulted payments and other amounts due to the Board, in respect of Ext.P1 contract dated 10.11.2022, taking note of the notification, i.e., G.O.(P)No.83/2023/RD dated 17.03.2023 (Published in Kerala Gazette Extraordinary No.1001 dated 18.03.2023), whereby the provisions of the Kerala Revenue Recovery Act are made applicable to the recovery of amounts due from any persons or class of persons to the Travancore Devaswom Board. The action taken against the petitioner-parking contractor shall be brought to the notice of the Special Commissioner, Sabarimala, who shall bring it to the notice of this Court by filing a fresh report. A copy of this order/judgment shall be enclosed along with the said report of the Special Commissioner, Sabarimala. 40. 'Deva' means God and 'Swom' means Ownership in Sanskrit and the term 'Devaswom' denotes the property of God in common parlance. See: **Prayar Gopalakrishnan v. State of Kerala reported in [2018 (1) KLT 478]** . As already noticed hereinbefore, among the 1250 Temples managed by the Travancore Devaswom Board, only 60 major Temples are selfsufficient and the rest are being managed utilising the surplus income from Sabarimala Devaswom. The Board and its officials have a duty to protect and safeguard the interest and properties of the Devaswoms. The Board and its officials should always be vigilant in -36- DBP No.64 of 2022 protecting the interest and properties of the Devaswoms and they have to protect the same from any wrongful claims or misappropriation. Any wrongful claim or misappropriation with the passive or active collusion of the Board and its officials are cases of ‘fence eating the crops’, which should be dealt with sternly. 41. As already noticed hereinbefore, despite the directions contained in the decisions of this Court in **Abu K.S. [2022/KER/6409]** , **Suneesh K.S. [ILR (2022) 1 Ker 1091]** and **Sunil Kumar P.G.** **[2022/KER/71822]** the Travancore Devaswom Board and its officials, namely, the 2[nd] respondentCommissioner and the 3[rd] respondent-Executive Officer, have not shown reasonable diligence in the manner of an ordinary prudent man of business who conduct his own affairs, in matters relating to the auctioning of Kuthaka rights at Sabarimala Devaswom for the year 1198 ME (2022-23). Though the Board and its officials were aware of the financial condition of the parking contractor from the tender documents submitted by him, he was awarded with a contract for more than Rs.2 Crore in Sabarimala Devaswom, even without insisting bank guarantee for the balance bid amount. In the affidavit filed by the 2[nd] respondent-Commissioner or the 3[rd] respondent-Executive officer, they could not offer any explanation for awarding a contract for more than Rs.2 Crore to such a person, even without -37- DBP No.64 of 2022 insisting bank guarantee for the balance bid amount. The parking contractor, who has defaulted payment of the balance bid amount of Rs.64,69,421/- payable on 30.11.2022 and Rs.64,69,420/- payable on 15.12.2022 and also payment of 1% TDS amounting to Rs.2,58,778/- to the Income Tax Department was permitted to collect parking fee from the parking grounds at Nilakkal Base Camp. Such a person has also participated in another tender process in Sabarimala Devaswom for the supply of 15,000kg of cardamom for the year 1198 ME (2022-23). 42. During the course of arguments, on a specific query made by this Court, the learned Standing Counsel for the Travancore Devaswom Board, on instructions, would submit that no bank guarantee was insisted for the balance bid amount, in terms of clause 3 of the respective agreements and clause 10 of the general conditions, which forms part of the tender notification dated 10.08.2022, in respect of any Kuthaka holder in Sabarimala Devaswom for the year 1198 ME (2022-23). However, the said fact is suppressed in the counter affidavit dated 10.01.2023 of the 2[nd] respondentCommissioner and that dated 23.01.2023 of the 3[rd] respondent- Executive Officer, which would amount to suppression of material facts from the notice of this Court. It is not discernible from the pleadings and materials on record, whether the Board has taken any decision not to insist on bank guarantee for the balance -38- DBP No.64 of 2022 bid amount in respect of Kuthaka holders in Sabarimala Devaswom for the year 1198 ME (2022-23). 43. As emphasised by the Apex Court in the decision in **A.A. Gopalakrishnan [(2007) 7 SCC 482]** it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. Relying on the above principles laid down by the Apex Court, a Division Bench of this Court in **Mohanan Nair [2013 (3) KLT 132]** held that the High Court, therefore, is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 the High Court is having inherent jurisdiction and the doctrine of _parens patriae_ will also apply in exercising the jurisdiction. 44. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, we are of the considered opinion that a thorough enquiry by a team constituted by the Director of Vigilance and Anti-Corruption Bureau is absolutely essential on the conduct of each and every person connected with the auction conducted by the Travancore Devaswom Board, in terms the tender notification dated 10.08.2022, of the Kuthaka rights in Sabarimala Devaswom for the year 1198 ME (2022-23). Therefore, the Director of Vigilance and Anti-Corruption Bureau, who is the additional 12[th] respondent in SSCR No.29 of 2022 (the additional 8[th] respondent in W.P.(C)No.42987 of 2022) is directed to constitute a -39- DBP No.64 of 2022 team headed by the Superintendent of Police to conduct a preliminary enquiry into the whole matter relating to the auction conducted by the Travancore Devaswom Board, in terms the tender notification dated 10.08.2022, of the Kuthaka rights in Sabarimala Devaswom for the year 1198 ME (2022-23), to ascertain whether a cognizable offence is disclosed or not. If at any stage, during the enquiry, there are reasonable grounds to believe that a public servant has committed an offence under the Prevention of Corruption Act, 1988, further proceedings shall be taken in accordance with law. 45. The Travancore Devaswom Board and its officials are directed to ensure strict compliance of the directions contained in the decisions of this Court in **Abu K.S. [2022/KER/6409]** , **Suneesh K.S. [ILR (2022) 1 Ker 1091]** and **Sunil Kumar P.G.** **[2022/KER/71822]** while conducting the auction of Kuthaka rights in Sabarimala Devaswom. Recovery proceedings shall be initiated against the defaulters, in terms of the notification, i.e., G.O.(P)No.83/2023/RD dated 17.03.2023 (Published in Kerala Gazette Extraordinary No.1001 dated 18.03.2023), whereby the provisions of the Kerala Revenue Recovery Act are made applicable to the recovery of amounts due from any persons or class of persons to the Travancore Devaswom Board.” -40- DBP No.64 of 2022 34. Having considered the pleadings and materials on record and also the submissions made at the Bar, we are of the considered opinion that a thorough enquiry by a team constituted by the additional 10[th] respondent Director, Vigilance and Anti-Corruption Bureau is absolutely essential on the conduct of each and every person connected with the auction conducted by the Travancore Devaswom Board in respect of Kuthaka right for conducting pooja stall in Kottarakkara P.D. Manikandeswaram Temple, for the year 2020-21. Therefore, the additional 10[th] respondent is directed to constitute a team to conduct preliminary enquiry into the whole matter relating to the auction conducted by the Travancore Devaswom Board in respect of the Kuthaka right in question, to ascertain whether a cognizable offence is disclosed or not. If at any stage, during the enquiry, there are reasonable grounds to believe that a public servant has committed an offence under the Prevention of Corruption Act, 1988, further proceedings shall be taken in accordance with law. The files relating to the Kuthaka right in question, handed over by the learned Standing Counsel for Travancore -41- DBP No.64 of 2022 Devaswom Board, in terms of the directions contained in the order dated 08.03.2023, which is kept in safe custody with Registrar (Judicial), shall be returned to the learned Standing Counsel, after obtaining a proper acknowledgment, which the Board shall handover to an officer authorised by the additional 10[th] respondent Director, Vigilance and Anti-Corruption Bureau. 35. In view of the notification, i.e., G.O.(P)No.83/2023/RD dated 17.03.2023 (Published in Kerala Gazette Extraordinary No.1001 dated 18.03.2023), whereby the provisions of the Kerala Revenue Recovery Act are made applicable to the recovery of amounts due from any persons or class of persons to the Travancore Devaswom Board, the Board shall initiate revenue recovery proceedings against the 6[th] respondent for recovering the balance bid amount defaulted by the said respondent, together with penal interest. Necessary steps in this regard shall be taken, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this order. 36. This DBP is disposed of with the above directions. -42- DBP No.64 of 2022 37. Considering the facts and circumstances disclosed from the pleadings and materials on record, we deem it appropriate to direct Registry to register _suo motu_ proceedings in the matter of recovery of defaulted amounts from Kuthaka holders in the temples under the management of Travancore Devaswom Board, Cochin Devaswom Board and also the temple under the management of Guruvayur Devaswom Managing Committee. In the newly registered DBPs in respect of Travancore Devaswom Board and Cochin Devaswom Board, the State of Kerala, represented by the Principal Secretary to Government, Revenue (Devaswom) Department, the concerned officer of the Local Fund Audit and also the concerned Devaswom Board represented by its Secretary shall be arrayed as the respondents. In the DBP registered in respect of Guruvayur Devaswom Managing Committee, the State of Kerala, represented by the Principal Secretary to Government, Revenue (Devaswom) Department and Guruvayur Devaswom Managing Committee, represented by its Administrator shall be arrayed as the respondents. A copy of this order shall form part of the DBPs. Copy of the affidavit DBP No.64 of 2022 -43- dated 03.01.2023 filed on behalf of the Cochin Devaswom Board and that filed on behalf of Guruvayur Devaswom Managing Committee shall form part of the respective DBPs registered in respect of the said Devaswoms. Registry to serve a copy of the respective DBPs to the learned Senior Government Pleader and also the learned Standing Counsel for the respective Devaswoms and list before the Devaswom Bench on 25.05.2023. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/4/4 -44- DBP No.64 of 2022 ## **`APPENDIX OF DBP 64/2022`** ``` RESPONDENT ANNEXURES ``` ``` ANNEXURE-R1(A) TRUE COPY OF THE LETTER ISSUED BY THE SECRETARY, TRAVANCORE DEVASWOM BOARD TO THE PRINCIPAL SECRETARY, REVENUE (DEVASWOM) DEPARTMENT, THIRUVANANTHAPURAM DATED 08/11/2022. ANNEXURE-R6(1) THE TRUE COPY OF THE INCOME TAX RETURNS FOR THE YEAR 2018 - 2019 ANNEXURE-R6(2) THE TRUE COPY OF THE INCOME TAX RETURNS FOR THE YEAR 2019- 2020 ANNEXURE-R6(3) THE TRUE COPY OF THE INCOME TAX RETURNS FOR THE YEAR 2020- 2021 ANNEXURE-R6(4) THE TRUE COPY OF THE INCOME TAX RETURNS FOR THE YEAR 2021- 2022 ANNEXURE-R6(5) THE TRUE COPY OF THE INCOME TAX RETURNS FOR THE YEAR 2022- 2023 ANNEXURE-R6(6) THE TRUE COPY OF THE STATEMENT SHOWING THE DETAILS/SOURCE FOR THE PAYMENT MADE TOWARDS 50 PERCENTAGE OF THE BID AMOUNT IE, RS. 67,50,100/- ```