Travancore Devaswom Board v. Deputy Examiner for Local Fund Audit and Others

``` DBA NO.7 OF 2023 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024/9TH PHALGUNA, ``` ``` 1945 ``` ``` IN THE MATTER OF TRAVANCORE DEVASWOM BOARD – SEEKING PERMISSION FOR PURCHASE OF NEW VEHICLE BY THE BOARD ``` ## **`PETITIONER:`** ``` TRAVANCORE DEVASWOM BOARD DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, PIN 695 003 ``` ``` BY ADV G. BIJU ``` ## **`RESPONDENTS:`** ``` 1DEPUTY EXAMINER FOR LOCAL FUND AUDIT KERALA STATE AUDIT DEPARTMENT, TRAVANCORE DEVASWOM BOARD AUDIT, TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM, PIN – 695 003 ``` ``` *ADDL R2THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, #[PIN – 695 001.] ``` ``` *ADDL R3THE PRINCIPAL SECRETARY TO GOVERNMENT #[REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001.] *ADDL R4THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, #[PIN – 695 001.] ``` ``` *ADDL R5THE SECRETARY ``` 2 DBA No.7 of 2023 ``` #[TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001.] ``` ``` *(SUO MOTU IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 5 VIDE ORDER DATED 25.08.2023 IN DBA.NO.7 of 2023) ``` ``` #(SUO MOTU CORRECTED AS PER ORDER DATED 28.02.2024 IN DBA NO.7 OF 2023) ``` ``` BY ADV ``` ``` SRI. G. BIJU, SC, TDB; ``` ``` SRI. S. RAJ MOHAN, SR. GP ``` ``` THIS DEVASWOM BOARD APPLICATION HAVING COME UP FOR ADMISSION ON 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 DBA No.7 of 2023 ## **ORDER** ## **Anil K. Narendran, J.** The Travancore Devaswom Board has filed this DBA seeking permission for the Board to purchase one Innova Crysta vehicle for the use of the President of the Board. 2. In the affidavit filed in support of this application, it is stated that the vehicle now used by the Board Member bearing registration No.KL-01/BS-1320 is an Innova purchased in the year 2014, which has already covered 3,82,000 kms. Due to frequent complaints and breakdowns, the Board Member finds it difficult to travel in the said vehicle for his official duties. The vehicle presently used by the President of the Board is an Innova Crysta bearing registration No.KL01/CH-61, purchased during 07.2018, has already covered 1,70,000 kms. Hence, the Board decided to hand over the vehicle now used by the President to the Member and to purchase a new Innova Crysta vehicle for the use of the President. The Board, vide Annexure A1 order ROC 2333/23/Veh-1 dated 23.03.2023, decided to purchase a new Innova Crysta for the use of the President and directed the Chief Engineer to obtain sanction from this Court. 4 DBA No.7 of 2023 3. Pursuant to Annexure A1 order, the Chief Engineer submitted Annexure A2 report No.CE/EO/Veh/2023/37 dated 09.05.2023 before the Secretary of the Board showing the price details and specifications of the vehicle to be purchased, based on the report of the Executive Engineer, Estate Division, who is in charge of the matters connected to vehicles. In the said report, the proposal made by the Chief Engineer is to purchase the vehicle through the Government e-Market place (GeM), which is a portal facilitating online procurement of common-use goods and services required by various Government Departments/Organisations/Public Sector Undertakings. The proposal is for the purchase of an Innova Crysta G1-MT 7-seater white colour vehicle. As per the product description given in the report of the Chief Engineer, the total expected cost is Rs.22,02,539/- including Insurance, Road Tax, Registration charges, etc. The Chief Engineer, in Annexure A2 report recommended for disposal of two old and unused vehicles bearing registration Nos.KL-01/Z-5130 (Jeep) and KL01/AF-9799 (Lancer) in an auction and purchase of two more vehicles. 4. The Board considered the proposal in Annexure A2 report of the Chief Engineer and issued Annexure A3 5 DBA No.7 of 2023 proceedings No.ROC 2333/23/Veh dated 11.05.2023 for purchasing a new Innova Crysta for the use of the President, for an amount of Rs.18,03,024/-, through GeM and to make payment of RS.3,99,515/- towards registration fee, insurance, etc. to the concerned departments. The Board further decided to auction two vehicles, i.e., Jeep bearing registration No.KL01/Z-5130 and Lancer car bearing registration No.KL-01/AF9799 by fixing the base value of Rs.30,000/- and Rs.25,000/respectively and authorized the Chief Engineer to submit a proposal for the purchase of new vehicles to replace the vehicles ordered to be auctioned. 5. In the affidavit, it is stated that the two old vehicles were sold in the auction conducted on 07.07.2023. In this DBA, the Board is seeking permission to purchase one Innova Crysta vehicle for the use of its President. 6. On 25.08.2023, when this DBA came up for consideration, State of Kerala, Rep. by the Chief Secretary to Government; Principal Secretary to Government, Revenue (Devaswom) Department; Additional Chief Secretary to Government, Finance Department; and Secretary, Transport Department were _suo motu_ impleaded as additional respondents 2 to 5. After arguing for some time, the learned 6 DBA No.7 of 2023 Standing Counsel for Travancore Devaswom Board sought time to place on record the relevant Rules/Government Orders which govern the allotment and use of vehicles by the President and Members of Travancore Devaswom Board and also the officers of the Board. 7. On 30.11.2023, along with a memo dated 30.11.2023 of the learned Senior Government Pleader, an affidavit dated 17.11.2023 sworn to by the 1[st] respondent Deputy Examiner of Local Fund Audit, Travancore Devaswom Audit is placed on record, wherein it is stated that the Audit had verified the Government orders in connection with the purchase of vehicles to Government Departments/offices/Public Sector Undertakings/Autonomous Bodies/Local bodies. Vide G.O.(Rt.) No.67/2017/SPD dated 25.11.2017, the Government of Kerala approved the purchase of vehicles through GeM. Subsequently, vide G.O.(P)No.2/2018/SPD dated 28.04.2018, the Store Purchase Manual-2013 was amended and Chapter19 regarding GeM was inserted. Later, vide G.O.(P)No.12/2019/SPD dated 18.09.2019, an amendment was made in Clause 19.4 of Chapter-19 of the Store Purchase Manual as follows; "In case of purchase of vehicles on proprietary basis 7 DBA No.7 of 2023 through GeM, a valid Administrative Sanction (Concurrence of Finance Department should be obtained before issuing Administrative Sanction) at appropriate level, specifying the mode of purchase and the model/brand to be purchased, is to be issued. As purchase on proprietary basis should be resorted to only in unavoidable situations, the purchasing entity will ensure that the vehicles to be purchased are of proprietary character and competition is not expected to be advantageous [as per para 7.20 (i) of Stores Purchase Manual]. A certificate from the competent authority [not below the rank of Assistant Executive Engineer (Mechanical)] at Government level, warranting the need for proprietary vehicle purchase, should be obtained and verified before issuing Administrative Sanction, For the purchase. Purchase of any vehicle shall be undertaken only after approval from the Government in consultation with the Finance Department as regulated vide G.O(P)No.442/2012/Fin dated 08.08.2012.” 8. In the affidavit sworn to by the 1[st] respondent, it is stated that as per Clause 7.20 of the Store Purchase Manual, the term 'Proprietary’ is defined as an item which is manufactured by one and only one manufacture and/or which is a patent or specifically to which tender system cannot be applied with advantage. Here the Board goes for the purchase of ‘Innova Crysta' which is solely manufactured by the Motor company Toyota. Hence, it can be considered as a ‘proprietary 8 DBA No.7 of 2023 purchase'. Clause 19.3 of the Store Purchase Manual clearly stipulates that procurement through GeM is being allowed as an option/additional mode of procurement, at the discretion of the procuring agency. It is the discretion of the procuring authority whether the purchase is to be undertaken through GeM or not. Hence, the decision of the Board for purchasing Innova Crysta through GeM can be justified. Further, concurrence from the Finance Department, Govt. of Kerala, is not mandatory as mentioned in Clause 19.4 of the Store Purchase Manual. All other conditions of Clause 19.4, viz., a certificate from the Engineering Department (Chief Engineer, Travancore Devaswom Board), Administrative Sanction, etc. were obtained and submitted as Annexures A2 and A3 along with the DBA. In the affidavit, it is stated that considering the Government orders referred therein, the Audit has no specific remarks regarding the purchase of a new vehicle for the President, Travancore Devaswom Board. However, it is desirable to seek an update regarding vehicle No.KL-01/BS1320, which is currently used by the Member of the Travancore Devaswom Board. In the application, the Board has only stated that it has decided to transfer the vehicle now used by the President to the Member. Therefore, it would be 9 DBA No.7 of 2023 appropriate for the Board to provide an update on whether vehicle number No.KL-01/BS-1320 is being auctioned or decided to be kept in the fleet of the Travancore Devaswom Board. 9. The applicant Board has filed a reply affidavit dated 29.01.2024, producing therewith Annexure A4 Travancore Devaswom Board (Grant of Travelling and Halting Allowances to the President and Members of the Board) Rules, 1993 and Annexure A5 Payment of Salaries and Allowances Act, 1951. In paragraph 3 of the reply affidavit, the Board has stated that Innova vehicle bearing registration No. KL-01/BS-1320 used by the Board Member, which was purchased in the year 2014, has already covered 3,82,000 Kms. The said vehicle cannot be used for long-distance journeys. The President and Members of the Board have to travel extensively, in connection with the management and affairs of the temples, 1250 in number, situated at different places of the State from Parassala to Thrissur. The Board has decided to retain the above vehicle for short distance journeys, for official purposes of the Board. 10. Heard the learned Standing Counsel for Travancore Devaswom Board and also the learned Senior Government Pleader for the respondents. 10 DBA No.7 of 2023 11. 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. 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. 12. Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. As per Section 24, 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 11 DBA No.7 of 2023 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 uplift, social and cultural advancement and economic betterment of the Hindu community. 13. Section 31 of the Act deals with management of 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. ## 14. In **Jayakumar J. v. State of Kerala and others** **[2024 (1) KHC 195]** , a Division Bench of this Court in which both of us were parties, held that the provisions under the Travancore-Cochin Hindu Religious Institutions Act make it explicitly clear that the role assigned to the Travancore Devaswom Board in the administration, supervision and control of incorporated and unincorporated Devaswoms is that of a trustee in management of the properties vested in the Deity, which is bound to administer, supervise and control 12 DBA No.7 of 2023 incorporated and unincorporated Devaswoms in accordance with the provisions under the said Act. The Board and its officials are duty bound to function within the framework of the statute, by scrupulously following the stipulations contained therein, and acting strictly in accordance with the settled legal principles relating to the administration of Hindu religious trust. The Board, being a trustee in the management of Devaswom properties, is legally bound to perform its duties with utmost care and caution. 15. In **Rajani P. Kuttan v. State of Kerala [2021 (6) KHC 513]** a Division Bench of this Court noticed that among the 1250 Temples managed by the Travancore Devaswom - Board, only 60 major Temples are self sufficient and the rest are being managed utilising the surplus income from Sabarimala Devaswom. The total number of sanctioned posts in various categories in the Travancore Devaswom Board is 5692 and the total number of pensioners is 5749. The major source of revenue of the Travancore Devaswom Board is the income received by way of offerings by the devotees, the amount received from Vazhipadu and the revenue generated through the auction of temple premises for various activities in connection with rituals and festivals in the temples. 13 DBA No.7 of 2023 16. In this DBA, the Travancore Devaswom Board is seeking permission for purchasing one Innova Crysta G1-MT, 7S vehicle for the use of the President of the Board, spending a sum of Rs.22,02,539/- towards its cost, road tax, insurance, registration fee, etc. 17. During the course of arguments, the learned Standing Counsel would point out the order of this Court dated 25.06.2018 in DBA No.7 of 2018, whereby permission was granted to the Board to purchase two Innova Crysta vehicles for the use of the President and the member of the Board, subject to audit by the State Audit and the relevant procedures in accordance with law. The learned Standing Counsel would also point out the order of this Court dated 28.02.2020 in DBA No.2 of 2020 approving the resolution passed on 21.01.2020 regarding the applicability of the amendments brought to the Schedule in the Payment of Salaries and Allowances Act, 1951, brought as per the Payment of Salaries and Allowances (Amendment) Act, 2018. 18. Based on the order of this Court dated 28.02.2020 in DBA No.2 of 2020, the Board issued a Proceedings No.8173/13/Est.I dated 18.03.2020 on the travelling and halting allowance payable to its President and members. The 14 DBA No.7 of 2023 said proceedings was followed by an Erratum Proceedings No.8173/11/Est.I dated 31.07.2020. 19. In the affidavit filed by the 1[st] respondent Deputy Examiner of Local Fund Audit, Travancore Devaswom Board Audit, it is stated that, considering the Government Orders referred to hereinbefore at paragraph 7, the audit has no specific remarks regarding the purchase of a new vehicle for the use of President, Travancore Devaswom Board. 20. In the affidavit filed by the 1[st] respondent, it is pointed out that an update regarding Innova vehicle No.KL01/BS-1320, which is currently used by the Member of the Board is necessary, since the Board has decided to transfer Innova Crysta bearing registration No.KL-01/CH-61 presently used by its President, for the use of the Member. In the reply affidavit filed by the Board, it is stated that the Innova vehicle used by the Member, which was purchased in the year 2014, has already covered 3,82,000 Kms., which cannot be used for long distance journeys. Therefore, the Board has decided to retain the above vehicle for long distance journeys, for official purposes of the Board. 21. In the affidavit filed in support of this DBA, it is stated that the Board auctioned two vehicles, i.e., a jeep 15 DBA No.7 of 2023 bearing registration No.KL-01/Z-5130 and Lancer car bearing registration No.KL-01/AF-9799 and the Chief Engineer has been authorised to submit a proposal for purchase of a new vehicle to replace the auctioned vehicles. 22. The purchase of vehicles by the Travancore Devaswom Board, its use by the President and the Members and also the use of vehicles by the officers of the Board are governed by the provisions contained in the Government Orders issued from time to time. The Finance (Inspection) Department of the State has issued various orders for curbing misuse of Government vehicles and also vehicles owned by Public Sector Undertakings, local bodies, autonomous institutions, etc. Those Government Orders are issued to ensure that such vehicles are used only for bona fide official purposes. The list of officers permitted to use official vehicles for limited purposes, such as journeys between office and residents or from railway station/bus station to office and vice versa are contained in the Annexure to G.O.(Ms.)No. 113/2003/Fin. dated 24.02.2003, which was followed by subsequent orders governing the field. The conditions stipulated in those Government Orders for curbing misuse of 16 DBA No.7 of 2023 officials vehicles shall be strictly followed by the Travancore Devaswom Board. 23. As already noticed hereinbefore, by Annexure A3 proceedings, the Board has authorised the Chief Engineer to submit a proposal for the purchase of new vehicles to replace the jeep and Lancer car auctioned on 07.07.2023. The stand taken in the reply affidavit filed by the Board is that Innova vehicle currently used by its Member is decided to be retained for short distance journeys, official purposes. 24. Having considered the materials on record and also the submissions made at the Bar, we deem it appropriate to direct the 1[st] respondent Deputy Examiner for Local Fund Audit, State Audit Department to submit a report before this Court on the use of the official vehicles owned by the Travancore Devaswom Board, after obtaining the particulars of such vehicles and its use, from the Secretary of the Board. The report of the 1[st] respondent shall be numbered as DBAR and listed before the Devaswom Bench. Having considered the stand taken in the affidavit filed by the 1[st] respondent Deputy Examiner for Local Fund Audit, State Audit Department, Travancore Devaswom Board Audit, we deem it appropriate to grant permission to the Travancore 17 DBA No.7 of 2023 Devaswom Board to purchase an Innova Crysta G1-MT, 7S vehicle for the use of its President, as sought for in this application. The expenditure in this regard shall be strictly in accordance with the relevant procedures, which will be subject to audit by the State Audit Department. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** ded