Travancore Devaswom Board represented by its Executive Engineer, Thiruvananthapuram Division, Nanthencode v. Deputy Director, Kerala State Audit Department; State of Kerala represented by the Secretary to Government, Revenue (Devaswom Department); Assistant Devaswom Commissioner, Travancore Devaswom Board; Temple Advisory Committee, Thiruvatta Sree Mahadevar Temple, Padinjarekallada, Kollam

## **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 8[TH] DAY OF AUGUST 2022 / 17TH SRAVANA, 1944** **D.B.P.NO. 30 OF 2022** **IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - TDB PROCEEDINGS** **INITIATED - REG.** **------------** ## **PETITIONER:** **THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS EXECUTIVE ENGINEER, THIRUVANANTHAPURAM DIVISION, NANTHENCODE, PIN-695003.** **BY ADV SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD** ## **RESPONDENTS:** - **1 THE DEPUTY DIRECTOR KERALA STATE AUDIT DEPARTMENT, TRAVANCORE DEVASWOM BOARD, NANTHENCODE, THIRUVANANTHAPURAM-695003.** - **2* STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM DEPARTMENT), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **3* THE ASSISTANT DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, KOLLAM.** - **4* THE TEMPLE ADVISORY COMMITTEE, THIRUVATTA SREE MAHADEVAR TEMPLE, PADINJAREKALLADA, KOLLAM - 691 500.** 2 D.B.P.No.30 of 2022 ***IS SUO MOTU IMPLEADED AS THE ADDITIONAL RESPONDENTS 2 TO 4 VIDE ORDER DATED 14.07.2022 IN DBP 30 OF 2022.** **BY ADVS.** **R2 SRI S.RAJMOHAN- SR.GOVERNMENT PLEADER** **R4 BY ARAVINDA KUMAR BABU T.K.** **R4 BY SANDRA SUNNY** **R4 BY ARUN KRMAR M.A** ## **OTHER PRESENT:** ## **SRI P.RAMACHANDRAN - AMICUS CURIAE** **THIS DEVASWOM BOARD PETITION HAVING COME UP FOR FINAL HEARING ON 08.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 D.B.P.No.30 of 2022 ## **O R D E R** ## Ajithkumar, J. The Thiruvatta Devaswom in Kollam Group is one of the prominent Temples under the Travancore Devaswom Board. At present, the Temple has no Nalambalam. The Temple Advisory Committee, the additional 4[th] respondent made fervent demands to construct Nalambalam. The petitioner therefore took steps for the construction. An estimate was prepared by the Chief Engineer of the Board for construction of Nalambalam at a cost of Rs.23,60,000/-. The Board has accorded administrative sanction as per Annexure-II. 2. The petitioner has initially submitted Maramath Petition No.20 of 2019 before the learned Ombudsman. After detailed deliberation, the learned Ombudsman found that a revised petition in the matter was required, and therefore, Report No.9 of 2021 was filed before this Court. That report was accepted and the matter was closed. 3. Subsequently, Petition No.5 of 2022 was submitted before the learned Ombudsman seeking sanction for the 4 D.B.P.No.30 of 2022 construction of Nalambalam of Thiruvatta Devaswom. It is seen that although the work was tendered and awarded to a contractor, the same could not be fulfilled for want of sufficient funds with the Devaswom Board. Therefore, there were negotiations and the additional 4[th] respondent consented to execute the work by 50% of the estimate contributed by them, the Temple Advisory Committee, by collecting the fund from the devotees through sealed coupons. The Board has accorded sanction for the same as per Annexure-XI. The 1[st] respondent, the State Audit Department, did not raise any objection to the said process. Accordingly, the learned Ombudsman submitted Report No.14 of 2022 with the following suggestions: “6. Normally Temple Advisory Committees are not made parties to the Maramath Petitions, since maramath is undertaken by the Devaswom directly. However in cases where there is an undertaking by the Temple Advisory Committee to take up the work, necessarily in order to complete the maramath work in time, they can be impleaded and arrayed as party. In this case Temple Advisory Committee being not a party, it might be necessary to implead them as an additional party in 5 D.B.P.No.30 of 2022 order to ensure due compliance of their undertaking. In the light of the work order and the undertaking by the Temple Advisory Committee to take up the work and subject to supervision of the work by the TDB Engineering wing and subject to audit after completion of the above work, Hon'ble High Court may give the appropriate sanction.” 4. The 1[st] respondent submitted its remarks. The additional 4[th] respondent, through its Secretary, filed an affidavit. The learned Standing Counsel for the Travancore Devaswom Board filed a memo on 04.08.2022 producing therewith format of the agreement used to be entered into between the Travancore Devaswom Board, through its Executive Engineer, and contractors with respect to the maramath works being undertaken by the Travancore Devaswom Board. 5. Heard the learned Standing Counsel for the petitioner, the learned Senior Government Pleader and also the learned counsel appearing for the additional 4[th] respondent. 6. The proposal for the construction of Nalambalam on the three sides connecting the existing Valiyambalam of 6 D.B.P.No.30 of 2022 the Thiruvatta Devaswom was mooted by the Temple Advisory Committee. All concerned now agree that the construction of Nalambalam is a necessity. The estimate prepared by the Chief Engineer was for an amount of Rs.23,60,000/-. As per Annexure-III dated 06.07.2017, technical sanction was accorded by the Travancore Devaswom Board. When the work was tendered, initially, nobody has come forward. However, later, after calling for quotations and negotiations the work could be awarded to a contractor, Sri.V.P.Gopakumar at the estimated cost. The Board has accorded sanction also for the same. However, the Board could not proceed with it due to financial stringency. It was in the said circumstances deliberations took place and the additional 4[th] respondent agreed to undertake the work at 50% below the sanctioned estimated rate. The said suggestion was acceptable to the Board and therefore the contract in favour of Sri.V.P.Gopakaumar was cancelled and entrusted the work with the additional 4[th] respondent. Annexure-XIV is the order issued by the Board in that regard. 7 D.B.P.No.30 of 2022 7. The specific remarks offered by the 1[st] respondent in this regard are available in paragraph Nos.7 and 8 of the statement submitted, which read,- “7) The Board vide Annexure XI ordered to allow the Temple Advisory Committee, Thiruvatta Devaswom to collect 50% of the estimate amount, which comes to Rs.11,80,000/- through sealed coupons. The Board in this respect initially orders for the issue of sealed coupons worth Rs.4,72,000/- (40% of Rs.11,80,000/-) and the issue of coupons for the rest of the amount which shall be subjected to audit only after the progress of the work is analyzed. 8) It is submitted that the work is estimated based on DSR 2014 and as the Temple Advisory Committee is willing to execute the work at 50% below the sanctioned estimate rate subject to the fact that the balance 50% to be procured via sealed coupons, necessary orders may kindly be issued in this regard.” (underline supplied) 8. The additional 4[th] respondent has now undertaken to do the work below 50% of the estimated cost of Rs.23,60,000/-. Their proposal is that the remaining 50% of the estimated cost will be raised by collecting funds from the devotees on the basis of the sealed coupons issued by the 8 D.B.P.No.30 of 2022 Board. They also specifically undertake to complete the work in a time-bound manner, at any rate, within a period of one year. Their relevant averments are the following: “8. The said suggestion was placed before the committee on 09.11.2021 and the committee accepted the same and unanimously nominated this deponent as a nominee to enter into an agreement with the Board as suggested by the Board. This was communicated to the Executive Engineer, Travancore Devaswom Board on 10.11.2021. 9. It is submitted that the committee still stand by the decision taken on 09.11.2021 and ready to complete the work within a maximum period of one year, provided the Board ensure a timely supervision of the work by the engineering wing of the board and issuance of coupon in time. 12. It is submitted that the 4[th] respondent committee is ready and willing to take up the work on getting orders from this Honourable Court. This committee has no objection in incorporating any condition by this Honourable Court to ensure the timely completion of the proposed work. 13. It is submitted that this affidavit can be taken as an undertaking from the part of the committee in connection with the timely completion of the proposed Nalambalam construction.” (underline supplied) 9 D.B.P.No.30 of 2022 9. In the event of tendering the work again, inevitably the rates have to be revised on the basis of the DSR 2019. If so, the liability of the Board will be more. Now, the 4[th] respondent undertakes to complete the work at the original rate of Rs.23,60,000/- by raising 50% from the devotees, through distribution of sealed coupons issued by the Board. Considering the said circumstances in the light of the suggestions made by the learned Ombudsman, and also the absolute necessity for the construction of Nalambalam, we are of the view that it is just and appropriate to accord sanction for the construction of Nalambalam as proposed by the petitioner-Board in Annexure-XIV. 10. 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 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 10 D.B.P.No.30 of 2022 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 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 11 D.B.P.No.30 of 2022 fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid 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 12 D.B.P.No.30 of 2022 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) 11. In view of the law laid down by the Apex Court in the decision, it would be the absolute responsibility of the petitioner to see that the work is done safeguarding the interest of the deity and the devotees. The petitioner-Board should act as a trustee with utmost faith and care. 12. With the aforesaid observations, the D.B.P. disposed of according sanction to the petitioner to get the work of Nalambalam in Thiruvatta Devaswom executed through the additional 4[th] respondent at an estimated cost of Rs.23,60,000/-. The petitioner-Board shall incur 50% of the cost and the additional 4[th] respondent shall incur the remaining 50% of the cost by collecting funds from the devotees on the basis of the sealed coupons issued by the Board. The additional 4[th] respondent will be treated as the contractor for the work. His nominee, Sri.S.Subramanian, who 13 D.B.P.No.30 of 2022 is the present Secretary of the Committee, will have to execute the agreement for and on behalf of the Committee in the standard form that has been produced in the Court by the petitioner-Board, along with the memo filed by the learned Standing Counsel. It would be the responsibility of the 4[th] respondent to execute the work just like any other contractor and in terms of the agreement entered into by it within the stipulated time. In the light of Annexure-XIV order and the undertaking by the 4[th] respondent-Committee, the work shall be executed under the supervision of the Maramath Wing of the petitioner-Board and subject to audit. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr