Travancore Devaswom Board v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942** **WP(C).No.26715 OF 2020(L)** ## **PETITIONER/S:** **TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, DEVASWOM HEAD QUARTERS, NANTHENCODE, THIRUVANANTHAPURAM-695011.** **BY ADV. SRI.G.BIJU** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ADDITIONAL CHIEF SECRETARY,**| ||**REVENUE (DISASTER MANAGEMENT) DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.**| |**2**|**THE CHAIRMAN**| ||**DISTRICT DISASTER MANAGEMENT AUTHORITY,**| ||**DISTRICT MAGISTRATE AND DISTRICT COLLECTOR,**| ||**PATHANAMTHITTA-689645.**| |**3**|**ADDITIONAL DISTRICT MAGISTRATE**| ||**SABARIMALA,**| ||**OFFICE OF THE ADDITIONAL DISTRICT MAGISTRATE,**| ||**NILAKKAL P O,**| ||**PATHANAMTHITTA-689662.**| ## **SR.GP SRI. T.K.ANANDAKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.26715 OF 2020(L) 2 ## **C.R.** ## **JUDGMENT** Haripal, J. The Travancore Devaswom Board, hereinafter referred to as the Board, owns an Administrative Office Complex cum Guest House near to the Nilakkal Devaswom and its Administrative office is functioning in the building. According to the petitioner, there are three rooms in the building, during the pilgrimage season that office complex is required for co-ordinating its various activities; during the season, urgent Board meetings are also held in the building and the guest house is very much necessary for the Board for its essential activities. While so on 17.09.2020, the second respondent, the District Collector and Chairman of the District Disaster Management Authority addressed the Commissioner of the Board requesting to handover the Administrative Office Complex for the functioning of the office the Additional District Magistrate, Sabarimala. The matter was duly reported to the Board. The Board considered the request WP(C).No.26715 OF 2020(L) 3 and found that the Administrative Office Complex is required for its activities during the festival season, that urgent Board meetings are also being convened in the office complex, so that it has difficulties in handing over the office complex during the season. However, the Board decided to give three rooms with all arrangements in its hotel complex, adjacent to the guest house, for functioning of the office of the Additional District Magistrate. That matter was duly conveyed to the second respondent through the Ext.P4 letter dated 29.09.2020. But disregarding the same, by invoking Section 34(j) of the Disaster Management Act, 2005, by Ext.P5 letter, the second respondent took over possession of the building and that prompted the petitioner to approach this Court under Article 226 of the Constitution seeking the following reliefs:- - “i) issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading to Ext.P5 and quash the same; - ii) issue any other appropriate writ, order or direction, declaring that Ext.P5 is issued misusing and in violation of the provisions of the Disaster Management Act, 2005 without there being any threatening disaster situation; WP(C).No.26715 OF 2020(L) 4 iii) issue any other appropriate writ, order or direction, directing the second respondent to surrender the Administrative Office cum Guest House building, taken possession as per Ext.P5, back to the Travancore Devaswom Board and to accommodate the office of the Additional District Magistrate, Sabarimala in the hotel complex of Devaswom Board situated adjacent to the Devaswom Office Complex.” 2. We heard Sri. G. Biju, the learned Standing Counsel for the petitioner and also Sri. T.K. Anandakrishnan, the learned Senior Government Pleader for the respondents. 3. The learned Standing Counsel has submitted that the Board has offered three rooms in the adjacent hotel complex in the ownership of the Board, which can conveniently be used for the purpose of functioning the office of the Additional District Magistrate; still the insistence of occupying the Administrative Office cum guest house itself is not understandable. According to the learned Senior Government Pleader, out of the three rooms in the guest house, the main room has already been given to the Devaswom Board for its activities. 4. The administrative office cum guest house was taken over by the 2[nd] respondent invoking the powers under Section WP(C).No.26715 OF 2020(L) 5 34(j) of the Disaster Management Act. The object of enacting the Disaster Management Act, 2005 is for prevention and mitigation effects of disasters and for undertaking a holistic, co-ordinated and prompt response to any disaster situation. It is an institutional mechanism for drawing up and monitoring the implementation of the disaster management plans, ensuring measures by various wings of Government, for prevention and mitigating effects of disasters and for undertaking co-ordinated action. Thus authorities have been set up at various levels, National, State and District, besides local authorities. Section 34(j) reads thus:- **“34. Powers and functions of District Authority in the event of any threatening disaster situation or disaster** .- For the purpose of assisting, protecting or providing relief to the community, in response to any threatening disaster - situation or disaster, the District Authority may xxx (j) procure exclusive or preferential use of amenities from any authority or person; xxx ” (emphasis supplied) In other words, this provision enables the District Authority in the event of any threatening disaster situation or disaster for the WP(C).No.26715 OF 2020(L) 6 purpose of assisting, protecting or providing relief to the community, to procure exclusive or preferential use or amenities from any authority or person. As noted earlier, the District Collector had sent the Ext.P1 letter for the purpose of setting up the office of the Additional District Magistrate at the Nilakkal base camp. It may be true that the Additional District Magistrate also may have role in disaster management activities. But while Ext.P1 was sent, the District Collector was in his mind arranging an office for the Additional District Magistrate. When the Board expressed its inability to give the office complex cum guest house for the purpose and alternatively suggested three rooms in the adjacent hotel complex, the respondents 2 and 3 did not relish it and certainly that was the reason why the second respondent chose to invoke Section 34(j) of the Disaster Management Act. 5. After hearing counsel on both sides, we are at a loss to understand as to what is the disaster or threatening disaster situation prevailing in Sabarimala, for the present. It is known to every one that this year pilgrimage is being done in a very restricted manner permitting entry of pilgrims limiting their WP(C).No.26715 OF 2020(L) 7 number to 2000 on weekdays and 3000 in weekends, that too following the Covid protocol. We are not underestimating the role of the District Administration or the Disaster Management Authority in co-ordinating and supervising the affairs. Also, any kind of disaster has to be anticipated at any time for which the District Authority should keep themselves equipped. But that will not provide unfettered power to the Chairman of the Authority to act according to his whims and fancies. 6. Existence of power and exercise of power are totally different concepts. Exercise of power requires only when situation warrants. No doubt, the statute confers power on the authority to procure or use amenities from any authority or person, exercising its discretion. The word 'may' has to be read and understood in the context it is used. Normally the word 'may' is used to grant a discretion and not to indicate a mandatory direction [Smt.Sahodara Devi and others v. Government of India and another (AIR 1971 SC 1599)]. 7. It is an accepted maxim that _discretio est discernere per legem quid sit justum_ which means that discretion is to know WP(C).No.26715 OF 2020(L) 8 through law what is just. The word discretion connotes necessarily an act of judicial character as used with reference to discretion exercised judicially, which implies the absence of a hard and fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination and a knowledge of the facts upon which the discretion may properly operate. [See the decision in _Aero Traders (P) Ltd. v. Ravinder Kumar Suri (2004) 8 SCC 307_ ] _._ It is held in the decision that 'when it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice and not according to private opinion; according to law and not humour. It only gives certain latitude or liberty accorded by statute or rules to a Judge, as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him.' In the decision in **National** ## **Insurance Company v. Keshav Bahadur and others [AIR 2004** **SC 1581]** it is held that the word 'discretion' standing single and unsupported by circumstances signifies exercise of judgment, WP(C).No.26715 OF 2020(L) 9 skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore, a discretion cannot be arbitrary but must be the result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion, it also imposes a heavy responsibility. 8. Judged in the above backdrop, invocation of Section 34(j) of the Act was untime and a mere show-off. Responsible officers should not use the power vested in them by law, out of its proper place. If it is used out of place, it is likely to be a misuse of the power. Even in a case of exercise of power by a statutory authority, reasonable use or exercise of power might be a defence, but it should not be arbitrary or excessive. As rightly suggested by the learned Standing Counsel, the second respondent cannot be heard to say that for setting up of the office of the Additional District Magistrate prime locations in the building held by the petitioner alone is sufficient. The Travancore Devaswom Board being at the helm of affairs of the management of the temple and allied functions, their primacy cannot be overlooked. It was informed in advance that during the festival season, the meetings WP(C).No.26715 OF 2020(L) 10 of the Board are held in the guest house. They have also offered three rooms in the adjacent hotel complex which are convenient enough for setting up the office of the Additional District Magistrate. There is no reason why that offer should not have been considered by the second respondent. 9. We have no doubt in our mind that the Ext.P5 has been issued, in the present context, over stepping the powers of the District Disaster Management Authority, which is a colourable exercise of power; it has the seeds of misuse of powers. In **Dr. Ram Manohar Lohia v. State of Bihar and Another [AIR 1966** **SC 740]** , it was laid down that the courts have always acted to restrain a misuse of statutory power and more readily when improper motives underlie it. Exercise of power for collateral purpose has similarly been held to be a sufficient reason to strike down the action. After considering the entire circumstances, we hold that the act of the second respondent cannot stand judicial scrutiny. 10. Therefore, the respondents are directed to vacate the premises and shift the office of the Additional District Magistrate WP(C).No.26715 OF 2020(L) 11 to the three rooms in the adjacent hotel complex forthwith. The learned Standing Counsel has submitted that all facilities will be arranged by the Board for accommodating the office in the hotel complex, that if necessary one more room shall be provided. Recording the above submission, the writ petition is disposed of. Sd/- **C.T.RAVIKUMAR** **JUDGE** Sd/- **K.HARIPAL JUDGE** **DCS/17.12.2020** **//True copy//** **P.A. to Judge** WP(C).No.26715 OF 2020(L) 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER DATED 17.09.2020 ISSUED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA TO THE DEVASWOM COMMISSIONER.** **EXHIBIT P2 TRUE COPY OF THE LETTER DATED 22.09.2020 SENT BY THE DEVASWOM COMMISSIONER TO THE BOARD.** **EXHIBIT P3 TRUE COPY OF ROC NO.8617/20/SABA DATED 23.09.2020 ISSUED TO THE DEVASWOM COMMISSIONER.** **EXHIBIT P4 TRUE COPY OF LETTER , ROC NO.23013/2017/SAB DATED 29.09.2020 ISSUED BY THE DEVASWOM COMMISSIONER TO THE DISTRICT COLLECTOR, PATHANAMTHITTA.** **EXHIBIT P5 TRUE COPY OF ORDER DATED 13.11.2020 ISSUED BY THE 2ND RESPONDENT.**