Travancore Devaswom Board v. Deputy Director, Local Fund Audit

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022/4TH KARTHIKA,1944** **D.B.P.NO. 61 OF 2022** **IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - TDB PROCEEDINGS INITIATED - REG.** **------------** **PETITIONER:** **TRAVANCORE DEVASWOM BOARD, REPRESENTED BY EXECUTIVE ENGINEER, NANTHENCODE, THIRUVANANTHAPURAM – 695 003. BY ADVS.** **SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD** ## **RESPONDENT:** **THE DEPUTY DIRECTOR, LOCAL FUND AUDIT, THIRUVANANTHAPURAM – 695 003.** **SRI S.RAJMOHAN- SR GOVERNMENT PLEADER** **OTHER PRESENT:** ## **P.RAMACHANDRAN, AMICUS CURIAE** **THIS DEVASWOM BOARD PETITION HAVING COME UP FOR FINAL HEARING ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 D.B.P.No.61 of 2022 ## **O R D E R** ## Ajithkumar, J. The petitioner-Travancore Devaswom Board submitted Petition No.7 of 2020 before the learned Ombudsman for the Travancore and Cochin Devaswom Boards seeking permission for the construction of Valiyambalam together with Balikkalpura, Mulayara and Thidappilly at Kodumthurithal Devaswom in Kollam Group. The estimated amount was Rs.21,73,000/-. Initially, the Board has accorded sanction to carry out the work at 50% below the estimated rate through the Temple Advisory Committee. The learned Ombudsman, after considering the materials placed in this regard and also the remarks of the State Audit, submitted report No. 26 of 2022 stating that the remarks of the audit were properly answered by the Board, except obtaining opinion of the Thantri. This D.B.P. was initiated on the said report. 2. Heard the learned Standing Counsel for the Travancore Devaswom Board, the learned Senior Government 3 ## D.B.P.No.61 of 2022 Pleader and also the learned Amicus Curiae for the learned Ombudsman. 3. A plan for the construction of Valiyambalam, Balikkalpura, Mulayara and Thidappilly was prepared by Sri.R.Vijayan, who is a retired Board Architect and empanelled Stapathi of the Board. The plan is Annexure V. An estimate for Rs.21,73,000/- was prepared by the Executive Engineer based on DSR-2016, which is Annexure VI. Initially the Temple Advisory Committee expressed their willingness to execute the work at 25% below the estimated rate and Sri.Rajendran was nominated by the Temple Advisory Committee to undErtake the work. The Board has accorded administrative sanction also. Accordingly, the matter was placed before the learned Ombudsman. However, the Board submitted before the learned Ombudsman that due to financial stringency, the work could not be taken up immediately. 4. Later, on 18.05.2022, the learned Ombudsman was informed that the Board has accorded sanction to the Temple 4 D.B.P.No.61 of 2022 Advisory Committee to carry out the work at 50% below the approved estimate amount. Sri.Omanakuttan Pillai was nominated for the execution of the work by the Temple Advisory Committee. The matter was accordingly considered by the learned Ombudsman. The State Audit submitted its remarks in the matter. A few shortcomings were pointed out. A reply in that regard was submitted by the Executive Engineer in the Travancore Devaswom Board. After considering the matter in detail, the learned Ombudsman observed that the objections raised by the audit were properly answered by the Board, except for getting the permission of the Thantri. 5. The learned Ombudsman opined that there is no need for reconstruction of the Nadapandal of Temple structures. What is required is the construction of Valiyambalam with Balikkalpura, Mulayara and Thidappilly. The only objection now remaining is that the Board did not obtain the opinion of the Thantri. The State audit also insisted 5 D.B.P.No.61 of 2022 that there shall be strict vigilance in the matter of collection of contributions from the devotees and also the expenses incurred by the Temple Advisory Committee for the execution of the proposed work. 6. The Secretary of the Travancore Devaswom Board submitted an affidavit explaining the need for the construction of Valiyambalam with Balikkalpura, Mulayara and Thidappilly at Kodumthurithal Devaswom. Along with a memo dated 13.10.2022 the learned Standing Counsel produced the opinion obtained from the Thantri of the Temple as Annexure A1. Thantri opined that construction of Nalambalam at Kodumthurithal Temple is required to be done. 7. Having heard the submissions of both sides and the materials, including Annexure A1 opinion, we are of the view that the construction of Nalambalam is essential for the due maintenance of the Temple and convenience of the devotees. Therefore, permission for construction of Valiyambalam with Balikkalpura, Mulayara and Thidappilly is liable to be granted. 6 D.B.P.No.61 of 2022 8. The Board has accorded sanction for construction at 50% below the estimated rate. Temple Advisory Committee undertook to execute the work through its nominee Sri.Omanakuttan Pillai. The estimate was prepared based on DSR 2016. The Temple Advisory Committee by raising funds from the devotees through sealed coupons issued by the Board will raise the fund for the construction. Certainly, such a construction is in the interest and to the advantage of the devotees. Considering all such aspects, we are of the view that permission can be accorded for the construction of Valiyambalam with Balikkalpura, Mulayara and Thidappilly at Kodumthurithal Devaswom through the nominee of the Temple Advisory Committee Sri.Omanakuttan Pillai at 50% below the sanctioned estimate amount. 9. In **M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65** ], in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court explained the nature of the fiduciary position of the trustee and his duties and 7 D.B.P.No.61 of 2022 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 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 8 D.B.P.No.61 of 2022 could not therefore occasion any loss to the trust and it was his duty to sell the property, if at all that was necessary, to best advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid 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 9 D.B.P.No.61 of 2022 reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner. The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law although it had a direct bearing on the controversy before it.” (underline supplied) 10. In 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. 11. This D.B.P. is disposed of reminding the petitioner of its duties and obligations as laid down by the Apex Court in the aforesaid decision. Sanction for the construction of Valiyambalam with Balikkalpura, Mulayara and Thidappilly in Kodumthurithal Temple is accordingly granted. The nominee of the Temple Advisory Committee Sri.Omanakuttan Pillai has to execute the agreement for the construction of 10 ## D.B.P.No.61 of 2022 Valiyambalam with Balikkalpura, Mulayara and Thidappilly for and behalf of the Temple Advisory Committee in the standard form, which is being used in the Travancore Devaswom Board relating to execution of maramath works. It would be the responsibility of the Temple Advisory Committee and its nominee to execute the work as a contractor strictly in terms of the agreement entered into between the Board and the nominee of the Temple Advisory Committee within the time stipulated in the contract. Collection of funds as well as expenditure incurred in connection with the execution of the work will be subjected to audit. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr