Vishal Vishwan v. Travancore Devaswom Board and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` THURSDAY, THE 22[ND] DAY OF DECEMBER 2022 / 1ST POUSHA, 1944 ``` # **`W.P.(C)NO.41140 OF 2022`** ``` PETITIONER: ``` ``` VISHAL VISHWAN, AGED 28 YEARS, S/O. VISHWANADAN, VISHAL BHAVAN, PARIMANAM, MUTTOM P.O., ALAPPUZHA DISTRICT, PIN - 690511. ``` ``` BY ADVS. B.RENJITHKUMAR CLARA SHERIN FRANCIS T.PRADEEP KUMAR ``` ## **`RESPONDENTS:`** - **`1 TRAVANCORE DEVASWOM BOARD, REP. BY ITS SECRETARY, DEVASWOM BOARD HEAD QUARTERS, NANDANCAUD, THIRUVANANTHAPURAM, PIN - 695003.`** - **`2 THE ASSISTANT COMMISSIONER, HARIPPAD GROUP OF THIRUVITHAMCORE DEVASWOM BOARD, HARIPPAD P.O., PIN - 690514.`** - **`3 THE SUB GROUP OFFICER, EVOOR SUB GROUP OF THIRUVITHAMCORE DEVASWOM BOARD, EVOOR P.O., PIN-690503. BY ADV SRI.G. BIJU,SC,TRAVANCORE DEVASWOM BOARD`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 W.P.(C)No.41140 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is a devotee of Kanichanalloor Sree Krishnaswami Temple, which is under the management of the 1[st] respondent Travancore Devaswom Board, has filed this writ petition seeking a writ of mandamus commanding the respondents to accept the offering of the petitioner in the form of ‘Anpoli Para’ to Sree Krishnaswami of Kanichanalloor Temple during ‘Para Ezhunnellippu’ in Parimanam area. 2. Going by the averments in the writ petition, on 14.12.2022, the petitioner submitted Ext.P1 application before the 3[rd] respondent Sub Group Officer, with a copy to respondents 1 and 2, seeking permission for accepting ‘Anpoli Para’. Despite the submission of such an application by the petitioner, who is a member of the Temple Advisory Committee of Kanichanalloor Sree Krishnaswami Temple, the respondents have not taken any action. In such circumstances, the petitioner filed this writ petition, invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking the aforesaid relief. 3 W.P.(C)No.41140 of 2022 3. On 20.12.2022, when this writ petition came up for admission, the learned Standing Counsel for Travancore Devaswom Board, on instructions submitted that neither the 3[rd] respondent Sub Group Officer nor respondents 1 and 2 are in receipt of Ext.P1 application dated 14.12.2022 of the petitioner. The learned Standing Counsel pointed out nonjoinder of necessary party, i.e., the Temple Advisory Committee of Kanichanalloor Sree Krishnaswami Temple. 4. A counter affidavit dated 22.12.2022 has been filed by the 1[st] respondent Board. Paragraphs 4 to 7 of that counter affidavit read thus; “4. The petitioners have approached this Hon'ble Court with unclean hands, suppressing material facts and alleging falsehood. Hence, the petitioners are not entitled to get any discretionary relief from this Hon'ble Court. 5. It is submitted that the 'Para Ezhunnellippu' in Kanichanelloor Temple in Evoor Sub Group consists of the 'parayeduppu' of one day each in North, South and West areas and 'Ooruvalathu' in one day. After the Para Ezhunnellippu as stated above, on the fourth day the ezhunnellippu of the deity will be done inside the temple. Out of the above four days, one day the parayeduppu will be made in Parimanam area, which comes within the North area, where the petitioner is residing and he can also offer the vazhipadu, if he is interested. The parayeduppu is being conducted by the Temple Advisory 4 W.P.(C)No.41140 of 2022 Committee under the supervision of Devaswom officers. 6. It is submitted that 'Nira para’ is one of the important Vazhipadu's of the temples in Onattukara. The deity accompanied by melam will reach each kara to take the Para offered by the devotees in their premises. The procession of the deity will be accompanied by vadya melam. Some devotees offer any five 'dravyams' (Aval, Malar, Nellu, Sugar, jaggery, fruits etc.) in five paras, which is called Anpara. Some devotees may offer Annadhanam also. The expenses for Vadya melam and Annadhanam are borne by the devotees themselves. The dravyams offered by the devotees in para will be taken by the Devaswom and will be auctioned and credited to the Devaswom account. No separate charges are collected for parayeduppu or Anpara. 7. It is submitted that the petitioner is a member of the Temple Advisory Committee of the temple. This writ petition is filed owing to the dispute between different karakkars of the temple. Ext.P3 produced in this writ petition is not received in the office of the respondents. The writ petition is filed without having any cause of action against the respondents herein.” 5. Heard the learned counsel for the petitioner and also the learned Standing Counsel for Travancore Devaswom Board. 6. 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 5 W.P.(C)No.41140 of 2022 Endowments and Funds. As per Section 3, the administration of incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds as well as the fund constituted under the Devaswom Proclamation, 1097 M.E. and the surplus fund constituted under the Devaswom (Amendment) Proclamation, 1122 M.E. which were under the management of the Ruler of Travancore prior to the first day of July, 1949, except the Sree Padmanabhaswamy Temple, Sree Pandaravaka properties and all other properties and funds of the said temple, and the management of all institutions which were under the Devaswom Department shall vest in the Travancore Devaswom Board. As per sub-section (2) of Section 4, the Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board. 7. As per Section 15A of the Act, 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 6 W.P.(C)No.41140 of 2022 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. 8. Section 27 of the Act deals with Devaswom properties. 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. 9. Section 31A of the Travancore-Cochin Hindu Religious Institutions Act deals with the formation of the Temple Advisory Committees. In **Chandu K. and others v.** **Travancore Devaswom Board and others [2021 (3) KHC** **379]** a Division Bench of this Court held that, with the insertion of Section 31A to the Travancore-Cochin Hindu Religious 7 W.P.(C)No.41140 of 2022 Institutions Act, the formation of Temple Advisory Committees in temples has become statutory. 10. In view of the provisions under Section 15A and Section 31 of the Travancore-Cochin Hindu Religious Institutions Act, the Travancore Devaswom Board has statutory duty to see that the regular traditional rites and ceremonies according to the practice prevalent in Kanichanalloor Sree Krishnaswami Temple are performed promptly. The Board has to arrange for the conduct of the daily worship and ceremonies and of the festivals in the said temple, according to its usage. In view of the provisions under Section 31A of the Act and the rules made thereunder, the Temple Advisory Committee of the said temple has to render necessary assistance and support to the Board to see that the regular traditional rites and ceremonies in the temple are performed promptly as per the statutory mandate of Section 15A of the Act and that the conduct of daily worship and ceremonies and also the festivals in the said temple are according to its usage. 11. The specific stand taken in the counter affidavit filed by the 1[st] respondent Board is that ‘Para Ezhunnellippu’ in Kanichanalloor Sree Krishnaswami Temple is being conducted 8 W.P.(C)No.41140 of 2022 by the Temple Advisory Committee constituted under Section 31A of the Travancore-Cochin Hindu Religious Institutions Act, under the supervision of the Devaswom Officers and the petitioner, who is a member of that Temple Advisory Committee has filed this writ petition owing to the dispute between different karakkars of the Temple. 12. The Apex Court in **Dattatreya and others v Mahaveer [(2004) 10 SCC 665]** , has held that non impleadment of affected parties in a writ petition filed under Article 226 of the Constitution of India would amount to ## deliberate suppression of material facts. 13. In the facts and circumstances of the case on hand, non-impleadment of the Temple Advisory Committee of Kanichanalloor Sree Krishnaswami Temple, which is conducting ‘Para Ezhunnellippu’ under the supervision of the Devaswom Officers, amounts to deliberate suppression of material facts by the petitioner, who is a member of the Temple Advisory Committee. The specific allegation made in the counter affidavit is that the petitioner has filed this writ petition owing to the dispute between different karakkars of the temple. We deprecate in the strongest words, the conduct 9 W.P.(C)No.41140 of 2022 of the petitioner in filing this writ petition without the Temple Advisory Committee in the party array. ## 14. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC** **145]** a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. 15. In **Oriental Bank of Commerce v. Sunder Lal** **Jain [(2008) 2 SCC 280]** the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed the principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus 10 W.P.(C)No.41140 of 2022 is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. 16. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. 17. In the instant case, the petitioner has filed this writ petition seeking a writ of mandamus on the ground that despite submission of Ext.P1 application before the 3[rd] respondent Sub Group Officer, with copy to respondents 1 and 2 seeking 11 W.P.(C)No.41140 of 2022 permission for accepting ‘Anpoli Para’ to Sree Krishnaswami of Kanichanallor Temple during ‘Para Ezhunellippu’ in Parimanam area, the respondents have not taken any action. The specific stand taken in the counter affidavit filed by the 1[st] respondent is that, neither the 3[rd] respondent Sub Group Officer nor respondents 1 and 2 are in receipt of Ext.P1 application made by the petitioner. In the counter affidavit, it is also pointed out, out of four days of ‘Para Ezhunellippu’ one day will be in Parimanam area, where the petitioner is residing. He can also offer Vazhipadu, if interested. 18. As already noticed hereinbefore, the conduct of the petitioner in filing this writ petition without the Temple Advisory Committee of Kanichanalloor Sree Krishnaswami Temple in the party array would amounts to deliberate suppression of material facts. Moreover, the petitioner has chosen to file this writ petition, even without submitting an application or representation before the competent authority seeking permission for accepting ‘Anpoli Para’. In the absence of any such application or representation, the petitioner cannot seek a writ of mandamus alleging that the competent authority refused or neglected to perform the duty vested upon it. 12 W.P.(C)No.41140 of 2022 In the result, the petitioner is not entitled to the relief sought for in this writ petition and the writ petition is accordingly dismissed. No order as to costs. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** MIN 13 W.P.(C)No.41140 of 2022 ## **`APPENDIX OF WP(C) 41140/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE APPLICATION DATED 14.12.2022 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. ```