W.P.(C)Nos.29371 and 29762 of 2023

1 W.P.(C)Nos.29371 and 29762 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` TUESDAY, THE 12[TH] DAY OF SEPTEMBER 2023 / 21ST BHADRA, 1945 ``` ## **`W.P.(C)NO.29762 OF 2023`** ## **`PETITIONERS:`** - **`1 K. RAJENDRAN NAIR, AGED 59 YEARSS, S/O.P.K. KUTTAPPAN NAIR, RESIDING AT KAUSTHUBHAM, ATHIKKAYAM, NARANAMOOZHY, PATHANAMTHITTA, PIN - 689711`** - **`2 ASHOK KUMAR D., AGED 53 YEAR, S/O.DHARMAJAN V., ASHOKA SADANAM, KOTTOPPADAM-II, PALAKKAD, PIN - 678583`** - **`3 VENUGOPAL, AGED 58 YEARS, S/O GANGADHARAN NAIR, PARAYIDIL HOUSE, PERUNAD P.O., PATHANAMTHITTA, PIN - 689711`** - **`4 BIJU. P., AGED 46 YEARS, C/O.PURUSHOTHAMAN, PANACHIKAL, KOONAMKARA.P.O., PERUNAD, RANNY PERINAD, PATHANAMTHITTA, PIN - 689711`** - **`5 MATHUKUTTY P.V., AGED 47 YEARS, S/O VIJAYAN, PUTHENVEETTIL, KANAMALA P.O., ARATTUKAYAM, ERUMELI SOUTH, KOTTAYAM, PIN - 686510`** ``` BY ADVS. GOVIND G. NAIR BALU TOM BONNY BENNY BEJOY JOSEPH P.J. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY SECRETARY TO REVENUE (DEVASWOM) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** 2 W.P.(C)Nos.29371 and 29762 of 2023 - **`2 TRAVANCORE DEVASWOM BOARD, REP. BY ITS SECRETARY, DEVASWOM HEADQUARTERS, NANTHANCODE, KAWDIAR P.O., THIRUVANANTHAPURAM, PIN - 695003`** - **`3 DEVASWOM COMMISSIONER, DEVASWOM HEADQUARTERS, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR P.O., THIRUVANANTHAPURAM, PIN - 695003`** - **`4 EXECUTIVE OFFICER, TRAVANCORE DEVASWOM BOARD SABARIMALA, SANNIDHANAM P.O., PATHANAMTHITTA, PIN - 689662`** - **`5 DEPUTY DIRECTOR, LOCAL FUND AUDIT, NANTHANCODE, THIRUVANANTHAPURAM, PIN - 695003`** ``` BY ADV BIJU ``` ``` OTHER PRESENT: ``` ``` SRI. S. RAJMOHAN, SR. GP, SRI. G. BIJU, SC,TDB ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.09.2023, ALONG WITH WP(C).29371/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)Nos.29371 and 29762 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` TUESDAY, THE 12[TH] DAY OF SEPTEMBER 2023 / 21ST BHADRA, 1945 ``` # **`W.P.(C)NO.29371 OF 2023`** ## **`PETITIONERS:`** - **`1 JIJU P. VIJAYAN, AGED 41 YEARS, S/O VIJAYAN PILLAI, RESIDING AT PANNIKYA MANNIL, RANNIPERUNADU, PATHANAMTHITTA, PIN - 68971`** - **`2 P OMANAKUTTAN, AGED 68 YEARS, S/O PRABHAKARAN, RESIDING AT VALLIYATHU VEEDU, SOORANADU NORTH P.O., KOLLAM, PIN - 690561`** - **`3 RAJESH P. R., AGED 39 YEARS, S/O RAJAN, RESIDING AT PLACKATTU HOUSE, KUMBAZHA P. O., PATHANAMTHITTA, PIN - 689653`** ``` BY ADVS. MANU GOVIND AISWARYA V. ``` ## **`RESPONDENTS:`** - **`1 THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT REVENUE (DEVASWOM) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE DISTRICT COLLECTOR, PATHANAMTHITTA, COLLECTORATE, PIN - 689645`** - **`3 THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM, PIN - 695003`** - **`4 THE EXECUTIVE OFFICER, SABARIMALA, TRAVANCORE DEVASWOM BOARD, SABARIMALA, PATHANAMTHITTA, PIN -`** 4 W.P.(C)Nos.29371 and 29762 of 2023 ``` 689662 ``` - **`5 THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KOWDIAR P. O., THIRUVANANTHAPURAM, PIN - 695003`** - **`6 *[THE SABARIMALA SPECIAL COMMISSIONER, SABARIMALA, PATHANAMTHITTA, PIN - 689662]`** ``` *[THE 6TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 11.09.2023 IN I.A.NO.1/2023 IN WP(C)NO.29371/2023] ``` - **`7 *THE DEUPTY DIRECTOR, LOCAL FUND AUDIT, TRAVANCORE DEVASWOM BOARD, NANDANCODE, THIRUVANANTHAPURAM [*ADDITIONAL R7 IS SUO MOTTO IMPLEADED AS PER ORDER DATED 08.09.2023 IN WP(C)NO.29371/2023]`** ## **`BY ADV BIJU`** ## **`OTHER PRESENT:`** ``` SRI. S.RAJMOHAN, SR. GP, SRI. G. BIJU ,SC, TDB ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.09.2023, ALONG WITH WP(C).29762/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 5 W.P.(C)Nos.29371 and 29762 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** W.P.(C)Nos.29371 of 2023 and 29762 of 2023:- The issue raised in these writ petitions relates to Kuthaka items 84A and 84B in the e-tender notification dated 23.08.2023 issued by the 4[th] respondent Executive Officer, Sabarimala. The petitioners in these writ petitions, some of whom were successful bidders who conducted hotels in Sabarimala Sannidhanam and Pamba during previous Mandala Makaravilakku festival seasons, have filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that Kuthaka items 84A and 84B in the e-tender notification dated 23.08.2023 issued by the Executive Officer, Sabarimala is void and inoperative; a writ of mandamus commanding the Travancore Devaswom Board not to enter into any agreements in respect of Kuthaka items 84A and 84B in the e- tender notification dated 23.08.2023; a declaration that the Travancore Devaswom Board cannot compel the traders like the petitioners to buy fruits and soft drinks from the Kuthaka holders under Kuthaka items 84A and 84B; a writ of mandamus commanding the Travancore Devaswom Board to cancel the tender 6 ## W.P.(C)Nos.29371 and 29762 of 2023 for Kuthaka items 84A and 84B in the e-tender notification dated 23.08.2023. 2. In W.P.(C)No.29371 of 2022, the Special Commissioner, Sabarimala was arrayed as the 6[th] respondent. By the order dated 11.09.2023 in I.A.No.1 of 2023, the said respondent was deleted from the party array. 3. On 11.09.2023, when the above writ petitions came up for consideration, the learned Government Pleader and the learned Standing Counsel for Travancore Devaswom Board were directed to get instructions. The learned Standing Counsel submitted that counter affidavits on behalf of the Board shall be placed on record on 12.09.2023. 4. Today, when these writ petitions are taken up for consideration, counter affidavits on behalf of the Travancore Devaswom Board are placed on record, producing therewith Ext.R3(a) report dated 15.01.2023 of the Chief Vigilance and Security Officer (Superintendent of Police). 5. Heard the learned counsel for the petitioners in the respective writ petitions, the learned Senior Government Pleader and the learned Standing Counsel for Travancore Devaswom Board. 7 W.P.(C)Nos.29371 and 29762 of 2023 6. The issue that requires consideration in these writ petitions is as to whether any interference is warranted on the e- tender notification dated 23.08.2023 issued by the Executive Officer, Sabarimala, to the extent it includes Kuthaka items 84A and 84B in the list of Kuthaka items in Sabarimala, Pamba and Nilakkal Devaswoms for the year 1199 ME (2023-24), during Mandala Makaravilakku festival season for the period from 11.11.2023 till 31.10.2024. 7. The list of Kuthaka items, which forms part of the e- tender notification dated 23.08.2023, includes hotels, light refreshment stalls, a stall for selling packed food, fruit stalls and fruit and juice stalls. According to the petitioners, they cannot be forced to procure fruits, soft drinks, etc., falling under Kuthaka items 84A and 84B from the Kuthaka holders under those items. 8. The specific stand taken in the counter affidavits filed on behalf of the Travancore Devaswom Board in both the writ petitions is that Kuthaka items 84A and 84B are introduced during Mandala Makaravilakku festival season of 1199 ME onwards, since the Vigilance Wing of the Board, on inspection during Mandala Makaravilakku festival season of 1198 ME, found that certain persons have unauthorisedly transported and stocked fruits, 8 W.P.(C)Nos.29371 and 29762 of 2023 vegetables and bottle drinks in Pamba Devaswom premises and supplied those items to the Kuthaka holders, without any permission or licence from the Travancore Devaswom Board. The report of the Chief Vigilance and Security Officer is placed on record as Ext.R3(a), in which he has made a recommendation to include the supply of the above items as Kuthaka items from the year 1199 ME onwards to stop the unauthorised supply of fruits, vegetables, soft drinks, etc. In the counter affidavit, it is stated that the vehicles carrying the load of unauthorised suppliers cannot be permitted to enter into the land leased out to the Travancore Devaswom Board at Nilakkal and Pamba for providing pilgrim facilities. Clause XV of the special conditions, which forms part of the tender conditions in the e-tender notification dated 23.08.2023, provides for an earmarked space for stocking and supplying fruits, soft drinks, etc., under Kuthaka items 84A and 84B. As per the sub-clause (8) of Clause XV, a permit from the Executive Officer, Sabarimala is required for transporting fruits, soft drinks, etc., covered by Kuthaka items 84A and 84B to the earmarked space provided under Clause XV. 9 W.P.(C)Nos.29371 and 29762 of 2023 ## 9. Kuthaka items 84A and 84B in the list of Kuthaka items in Sabarimala, Pamba and Nilakkal Devaswoms for the year 1199 ## ME are extracted hereunder; ||||**പ്ാ ഐ്ം**<br>|**പ്ാ ഐ്ം**<br>|**പ്ാ ഐ്ം**<br>|| |---|---|---|---|---|---|---| ||||**എ) ഗണപതിക ാവിൽ, പ്ാമണൽ്ുറം, ഹിൽക ാ്**<br><br>|||| |84<br>എ|New||**പഴവർ്്ൾ**<br>**സംഭരി്**<br>**വിതരണം**<br>**ചെ്ു്തിനു്**<br>**അവ ാശം**<br>ശബരിമല,പ്<br>എ്ിവിട്ളിൽ<br>ഡി്ാർ്മമനറിൽ<br>നി്<br>കു്ക<br>ലലല്ിലൂമട<br>അനുവദി്<br>നൽകു്<br>ല ാ്ലുകൾ,<br>്ാളുകൾ,<br>ലഘുഭ്ണശാലകൾ<br>എ്ിവിട്ളിൽ<br>വിൽ്ന്ക<br>ആവശയമാ്<br>പഴവർ്്ൾ<br>(ഏ്്ഴം,<br>മെറുപഴ്ൾ,<br>ത്ിമ്ൻ,<br>മമാസാ്ി,<br>ഓറ്,<br>കുകു്ർ,<br>കയാര്,<br>മെറുനാര്<br>എ്ിവ<br>മാതതം)<br>ഡി്ാർ്മമനറിൽ നി്്് അനുവദി്<br>നൽകു് ്ല് സംഭരി് വിതരണം<br>മെ്ു്തിനു് അവകാശം<br>(മസകയൂരി്ി്ാ്<br>5,00,000/-<br>രൂപ<br>മക്ിമവലക്താണ.)<br>|<br>എ|50,00,000|5,00,000| |84<br>**ബി**|New||**ശീതളപാനീയ്ൾ സംഭരി് വിതരണം**<br>**ചെ്ു്തി**<br> **നു് അവ ാശം.**<br>ശബരിമല,<br>പ്<br>എ്ിവിട്ളിൽ<br>ഡി്ാർ്മമനറിൽ<br>നി്<br>കു്ക<br>ലലല്ിലൂമട<br>അനുവദി്<br>നൽകു്<br>ല ാ്ലുകൾ,<br>്ാളുകൾ,<br>ലഘുഭ്ണശാലകൾ<br>എ്ിവിട്ളിൽ<br>വിൽ്ന്ക<br>ആവശയമാ്<br>്ാ്<br>ലബാ്ിലുകളിലും,മടകതടാ പാ്കുകളിലും<br>നിറ് ശീതളപാനീ്്ൾ(്ാ്ിക മപ്<br>ലബാ്ിലിൽ നിറ് പാനീ്്ൾ വിൽ്ന<br>നട്ുവാൻ<br>പാടിലാ്തും<br>കൂടാമത<br>സംഭരി്<br>വിതരണ്ിനാ്<br>ഉപല്ാഗികു് പാനീ്്ൾ<br>ഫുഡ<br>ലസഫി<br>വിഭാഗ്ിനമറ<br>അംഗീകാരമു്താ്രികണം.)<br>ഡി്ാർ്മമനറിൽ നി്്് അനുവദി്<br>നൽകു് ്ല് സംഭരി് വിതരണം<br>മെ്ു്തിനു്<br>അവകാശം<br>(മസകയൂരി്ി്ാ്<br>5,00,000/-<br>രൂപ<br>മക്ിമവ്ലക്താണ.)|എ|30,00,000|3,00,000| 10 W.P.(C)Nos.29371 and 29762 of 2023 ## 10. Clause XV of special conditions, which forms part of the tender conditions in the e-tender notification dated 23.08.202, is ## extracted hereunder; “ **XV പഴവർ്്ൾ, ശീതളപാനീയ്ൾ എ്ിവ ഡി്ാർ്ചമനᨾ് റ അനുവദി്ു് ്ല്ᩈ് സംഭരി്, വിതരണം ചെ്ു്തിനു് അവ ാശം.** ശബരിമല, പ്മ എ്രിവിട്ങളിൽ ഡി്പാർ്ᨾ്മമന്റിൽ നി്ര് കു്ᩈക ലലല്ᩈിലൂമട അനുവദി്ച് നൽകു്ര ല ാ്ᨾലുകൾ, ്ഹാളുകൾ, ലഘുഭ്ᩌണശാലകൾ എ്രിവിട്ങളിൽ വിൽ്പന്ി്ക് ആവശയമാ്ി പഴവർ്ᨮ്ങളും (ഏ്ᩈ്പഴം, മെറുപഴ്ങൾ, ത്ᩆിമ്ᩈൻ, മമാസാ്മി, ഓറ്ᨸ്, കുകു്മർ, കയാര്റ്, മെറുനാര്ങ എ്രിവ മാത്തം) വിൽപന്ി്ക് ആവശയമാ്ി ്ᩉാ്ᩰ് ലബാ്ᨾിലുകളിലും, മടക്ത്ടാ പാ്ി്ക്റുകളിലും നിറ്ച ശീതള പാനീ്ി്ങൾ (്ഺാ്ഹിക് മപ്റ് ലബാ്ᨾിലിൽ നിറ്ച പാനീ്ി്ങൾ വിൽ്പന നട്ᩈുവാൻ പാടിലാ്ᩈതും കൂടാമത സംഭരി്ച് വിതരണ്ᩈിനാ് ഉപല്ിാഗികു്ര പാനീ്ി്ങൾ ഫുഡ് ലസഫ ി വിഭാഗ്ᩈന്മറ അംഗീകാരമു്ᩦതാ് രികണം.) ഡി്പാർ്ᨾ്മമന്റിൽ നി്രും നി്ᩐ് ്ച് അനുവദി്ച് നൽകു്ര ്ഽല്ᩈ് സംഭരി്ച് വിതരണം മെ്യാവു്രതാണ്. 1. ശബരിമല മല ാ്഼വ്ങൾ സംബ്യി്ച് ജി്ᩤ ഭരണകൂടം നി്ᩐ് ്ച് അനുവദികു്ര തുകല്ികാൾ ഉ്ിർ്ര തുക്ി്ക് ്ിാമതാരു കാരണവാശാലും വിതരണം നട്ᩈുവാൻ . പാടി്ᩤാ്ᩈതാണ് 2. ലദവസവം ഉലദയാഗ്ഽരുമട്ിും ഭ്ᩌയസുര്ᩌാ വിഭാഗം ഉലദയാഗ്ഽരുമട്ിും ലഫാറ്ഹ് വിഭാഗം ഉലദയാഗ്ഽരുമട്ിും മ്റ് ഇതര ഡി്പാർ്ᨾ്മമന്റ് ഉലദയാഗ്ഽരുമട്ിും നിർലേശ്ങൾ . കർ്ശനമാ് പാലിലക്ᩂതാണ് 3. കു്ᩈക മെഡയൂളിൽ ഉൾമ്പടു്ᩈി് ്ᨾു്ᩦ പഴവർ്ᨮ്ങൾ അ്ᩤാമത വനയജീവികമള ആകർെിക്ᩈകവിധ്ᩈിലു്ᩦ മ്റ് പഴ വർ്ᨮ്ങൾ ്ിാമതാ്രും സംഭരികുവാൻ പാടി്ᩤ. 4. സവാമി അ്യ്പൻ ലറാഡ് ഉപല്ിാഗികു്രതിന് ലബാർഡ് . ഉലദയാഗ്ഽർ നിർലേശികു്ര സമ്ിത്കമം പാലിലക്ᩂതാണ് 5.തൃപ്തികരമാ്ി രീതി് ൽ കു്ᩈക അവസാനി്ച ലശെം നിരതത്ദവയവും, മസകയൂരി്റി്ിും തിരിമക നൽകു്രതാണ്. 6. പരിസരം . സംഭരണശാല്ിുമട വൃ്ᩈി്ിാ് സൂ്ᩌിലക്ᩂതാണ് അവശി്ി്ങൾ ലഫാറ്ഹുകാർ നിർലേശികു്ര ്ഽലല്ᩈക് നീകം . സംഭരണശാല് മല അല്പാഴല്പാൾ മെല്യ്ᩂതാണ് മാലിനയ്ങളും അവശി്ി്ങളും കു്ᩈകകാരന്മറ സവ്ᩌം 11 W.P.(C)Nos.29371 and 29762 of 2023 മെലവിൽ ലശഖരിലക്ᩂതും സമ്ിാസമ്ി്ങളിൽ ഡി്പാർ്ᨾ്മമന്റ് ഉലദയാഗ്ഽരുമട്ിും ലഫാറ്ഹ് വിഭാഗം ഉലദയാഗ്ഽരുമട്ിും നിർലേശ്ങളുമട്ിും ഉ്ᩈരവുകളുമട്ിും അടി്ഽാന്ᩈിൽ സവ്ᩌം മെലവിൽ ഭ്വർലകാ മ്റ് മൃഗാദികൾലകാ അപകടം ഉ്ᩂാകാമത വനയജീവികമള ആകർെികാ്ᩈ വിധ്ᩈിൽ . കൃതയമാ്ിും നിർ്മാർ്ᨸനം മെല്യ്ᩂതാണ് 7. സംഭരി്ച് വിതരണം മെ്യു്ര ലമൽ വിവരി്ച പഴവർ്ᨮ്ങളും ശീതളപാനീ്ി്ങളും വിതരണം മെ്യു്രത് സംബ്യി്ച് ഭ്ᩌയസുര്ᩌാ വിഭാഗം ഉലദയാഗ്ഽരുമട നിർലേശ്ങൾ . കർ്ശനമാ്ിും പാലിലക്ᩂതാണ് 8. സംഭരണ ശാല് ലല്ി്ക് അനുവദനാ് മാ്ി പഴവർ്ᨮ്ങൾ ശീതളപാനീ്ി്ങൾ എ്രിവ മകാ്ᩂുവരാൻ ഉപല്ിാഗികു്ര വാ ന്ങൾക് മപർമി്റ് മുൻകൂ്ᨾി ശബരിമല ഓഫീസിൽ നി്ര് .” വാല്ങ്ᩂതാണ് 11. The stand taken in the counter affidavits filed on behalf of the Travancore Devaswom Board is that, though the e-tender notification dated 23.08.2023 does not insist Kuthaka holders of hotels, light refreshment stalls, the stall for selling packed food, fruit stalls and fruit and juice stalls to purchase fruits, soft drinks, etc., from the holders of Kuthaka items 84A and 84B, permitting unauthorised vendors to supply such items beyond Nilakkal and at Pamba and Sannidhanam, which are notified as High-Security Zones, will lead to unfair trade practices and the ultimate sufferer will be the pilgrims. The Kuthaka holders cannot be permitted to source their supply for such items from unauthorised suppliers at Nilakkal or Pamba. The Board would contend that the inclusion of Kuthaka items 84A and 84B in the list of Kuthaka items in the e- 12 W.P.(C)Nos.29371 and 29762 of 2023 tender notification dated 23.08.2023 will not affect any legal rights of the petitioners. 12. 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. 13. Sabarimala Sree Dharma Sastha Temple is situated inside Periyar Tiger Reserve, which is a prominent pilgrim centre in Kerala, where lakhs of pilgrims trek the rugged terrains of Western Ghats to have darshan of Lord Ayyappa. Sabarimala Sree Dharma Sastha Temple and Malikappuram Temple come under the Travancore Devaswom Board. Pamba Ganapathy Temple also comes under the Travancore Devaswom Board, which is a holy spot on the way from Pamba to Sannidanam, dedicated to Lord Ganesha, where the pilgrims offer prayer for safe trekking to Sannidanam. 14. Section 83 of the Kerala Police Act, 2011 deals with Special Security Zones. As per sub-section (1) of Section 83, the Government may, on the recommendation of the State Police Chief - or otherwise by reason of high security threats faced by any 13 W.P.(C)Nos.29371 and 29762 of 2023 distinguished or protected person present in an area or any important institution or premises situated therein, notify such area as a Special Security Zone. As per sub-section (2) of Section 83, the Government may direct in areas so notified under sub-section (1) reasonable restrictions with respect to the use of building premises and vehicles and in respect of the movement of persons, vehicles and objects and police officers may issue, to all concerned, such directions as are necessary for the compliance of such restrictions. 15. Sabarimala is declared a Special Security Zone. The Government, vide G.O.(P)No.72/2022/Home dated 19.10.2022, declared Sabarimala and its vicinity as a 'Special Security Zone' under sub-section (1) of Section 83 of the Kerala Police Act, 2011, in order to exercise the powers under sub-section (2) of Section 83 of the said Act, to ensure a safe, secure and hassle-free pilgrimage during Mandala Makaravilakku festival season of 1198 ME (2022- 23). Similar notifications are being issued during Mandala Makaravilakku festival seasons. The management of the Virtual-Q system for Sabarimala darshan is governed by the directions contained in the order of this Court in **Suo Motu v. Travancore Devaswom Board [2022 (7) KHC SN 5 : 2022:KER;20733]** . 14 W.P.(C)Nos.29371 and 29762 of 2023 16. 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. 17. Under the provisions of the Travancore-Cochin Hindu Religious Institutions Act, the Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in Sabarimala are performed promptly; to monitor whether the administrative officials and the employees, and also the employees connected with religious rites are functioning properly; and to establish and maintain proper facilities in Sabarimala for the devotees. The Board shall, out of the Devaswom Fund, maintain and administer Sabarimala Devaswom in accordance with recognised usages and meet the expenditure for 15 W.P.(C)Nos.29371 and 29762 of 2023 the customary religious ceremonies. The Board shall manage the properties and affairs of Sabarimala Devaswom and arrange for the conduct of the daily worship and ceremonies and of the festivals in Sabarimala according to the usage. 18. In **Sunil Kumar P.G. v. State of Kerala [2022:KER: 71822]** a Division Bench of this Court, in which one among us [Anil K. Narendran, J] was a party, was dealing with the auction conducted for the Kuthaka item No.119 (maintenance of Pamba toilet block) in Sabarimala Devaswom for the year 1197 ME (2021- 2022). By the judgment dated 13.10.2022, W.P.(C) Nos.29772 of 2021 and 29859 of 2021 were disposed of by directing the Chief Vigilance Officer, Travancore Devaswom Board to conduct a detailed enquiry, with notice to the writ petitioners and also the party - respondents, on the e tender process for Kuthaka items in Sabarimala Devaswom, for the year 1197 ME, with specific reference to item No.119 (maintenance of Pamba toilet block), after the Mandala-Makaravilakku Season of 1198 ME is over. The report of the Chief Vigilance Officer was directed to be placed before the Travancore Devaswom Board, by the first week of March, 2023. The decision taken by the Board, based on the enquiry report of the 16 W.P.(C)Nos.29371 and 29762 of 2023 Chief Vigilance Officer, was directed to be placed before this Court, along with the report of the Special Commissioner, Sabarimala. 19. In **Sunil Kumar P.G. [2022:KER:71822]** this Court ordered that the entire e-tender for Kuthaka items in Sabarimala Devaswom, from Mandala-Makaravilakku festival season of 1199 ME (2023-24) onwards shall be conducted, after publishing an auction notification specifying the highest bid for the previous three years, excluding the period during which there were restrictions on - account of Covid 19 pandemic. After completion of the tender process, the details of the successful bidders along with the bid amount, the balance bid amount payable, its due date, etc., shall be exhibited on the official website of the Board. The list of those who have defaulted payment of the balance bid amount shall also be exhibited on the official website. The list of defaulters shall be forwarded to the Devaswom Commissioner for necessary action. A copy of that list shall also be forwarded to the Special Commissioner, Sabarimala. 20. In **Sunil Kumar P.G. [2022:KER:71822]** this Court directed the Travancore Devaswom Board to adopt a similar procedure in respect of all major temples under its management, in which the annual income is above Rs.2 Crore. In respect of such 17 W.P.(C)Nos.29371 and 29762 of 2023 temples, the list of defaulters shall be forwarded to the Devaswom Commissioner for necessary action. The Kuthaka holders, who have defaulted payment of the balance bid amount, shall be proceeded against, in accordance with the tender conditions. In appropriate cases, proceedings shall also be initiated for blacklisting. In the said decision, this Court ordered that the successful bidders and their staff, if any, in respect of Kuthaka items in Sabarimala Devaswom and other Devaswoms under the management of the Travancore Devaswom Board shall be issued with photo identity cards. They shall be required to produce police clearance certificate. In respect of Kuthaka items above Rs.5,00,000/-, the Travancore Devaswom Board shall insist on the Income Tax particulars of the bidders. 21. In the matter of **Audit Report of the Travancore Devaswom Board for the year 1967-1968 (Sabarimala Improvement Fund)** reported in **[(1990) 1 KLT 347]** , in the context of Section 32 of the Travancore-Cochin Hindu Religious and Charitable Institutions Act, a Division Bench of this Court reminded the President and Members of the Travancore Devaswom Board about their public accountability. In the said decision, it was made clear that it is for all persons concerned to see that greater vigil is exercised by the President and Members of the Board in the overall 18 W.P.(C)Nos.29371 and 29762 of 2023 administration of the Board and in the collection and disbursement of funds. 22. In **Suo Motu v. State of Kerala and others [2023 (3) KHC SN 12 : 2023:KER: 21878]** relating to collection of parking fees in the parking grounds at Nilakkal Base Camp for the year 1198 ME (2022-23), a Division Bench of this Court, in which one among us [Anil K. Narendran, J] was a party, noticed that despite the directions contained in the decisions of this Court in **Abu K.S. v. Travancore Devaswom Board [2022:KER: 6409]** , **Suneesh K.S. v. Travancore Devaswom Board [ILR (2022) 1 Ker 1091]** and **Sunil Kumar P.G. [2022:KER:71822]** the Travancore Devaswom Board and its officials have not shown reasonable diligence in the manner of an ordinary prudent man of business who conduct his own affairs, in matters relating to the auctioning of Kuthaka rights at Sabarimala Devaswom for the year 1198 ME (2022-23). 23. Food Safety and Standards Act, 2006 is enacted by Parliament to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down - science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure 19 W.P.(C)Nos.29371 and 29762 of 2023 availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto. ## 24. In **Centre for Public Interest Litigation v. Union of** **India and others [(2013) 16 SCC 279]** , the Apex Court held that any food article which is hazardous or injurious to public health is a potential danger to the fundamental right to life guaranteed under Article 21 of the Constitution of India. A paramount duty is cast on the States and its authorities to achieve an appropriate level of protection to human life and health which is a fundamental right guaranteed to the citizens under Article 21 read with Article 47 of the Constitution of India. ## 25. In **Swami Achyutanand Tirth v. Union of India** **[(2016) 9 SCC 699]** the Apex Court noticed that some of the objectives of the Food Safety and Standards Act are as follows; (i) to consolidate the laws relating to food, (ii) to establish Food Safety and Standards Authority of India for laying down science-based standards for articles of food, (iii) to regulate their manufacture, storage, distribution, sale and import, (iv) to ensure availability of safe and wholesome food for human consumption. The Act, apart from making more stringent provisions (e.g. prescribing higher penalties, etc.) to curb food adulteration, also ushers in new 20 ## W.P.(C)Nos.29371 and 29762 of 2023 concepts such as putting in place food safety management systems and food safety audits to realise its ultimate goal of ensuring the availability of safe and wholesome food for human consumption. In order to ensure food safety, effective food safety systems implementation and to ensure that food producers and suppliers operate responsibly and supply safe food to consumers, the Act further stipulates (i) licensing for the manufacture of food products, which is presently granted by the Central agencies under various Acts and orders, would stand decentralised to the Commissioner of Food Safety and his office, (ii) single reference point for all matters relating to food safety and standards, regulations and enforcement, - (iii) shift from mere regulatory regime to self compliance through food safety management systems, (iv) responsibility on food business operators to ensure that food processed, manufactured, imported or distributed is in compliance with the domestic food laws. 26. In **High Range Marketing Society Ltd. v. Travancore Devaswom Board and others [2023:KER: 49419]** , a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party, was dealing with a case in which the blacklisting of the petitioner society and the recovery of a sum of 21 ## W.P.(C)Nos.29371 and 29762 of 2023 Rs.14,19,650/- from the earnest money deposit and the bank guarantee provided by the society vide the order dated 28.05.2015 of the Travancore Devaswom Board was on account of supply of substandard sugar candy and black raisins for making Aravana prasadam in Sabarimala during Mandala-Makaravilakku festival season of 1190 ME. As evident from the report dated 25.11.2014 of the Food Safety Commissioner, sugar candy supplied by the petitioner society during the previous season of 1189 ME for making Aravana prasadam failed in the quality test conducted at the Quality Testing Laboratory at Pamba and later at CFRD Laboratory, Konni. Accordingly, the petitioner society was imposed with a fine of Rs.50,000/-, under Section 69 of the Food Safety and Standards Act, 2006, by the order dated 25.11.2013 of the Food Safety Commissioner. It is thereafter that the petitioner society supplied substandard items for making Aravana prasadam in Sabarimala during the festival season of 1190 ME. Therefore, in the report dated 25.11.2014, the Food Safety Commissioner found it essential to initiate proceedings against the petitioner society for the offence punishable under Section 51 of the said Act. ## 27. In **High Range Marketing Society Ltd. [2023:KER:** **49419]** , after referring to the objects of Food Safety and Standards 22 W.P.(C)Nos.29371 and 29762 of 2023 Act, 2006 and the law laid down by the Apex Court in **Centre for Public Interest Litigation [(2013) 16 SCC 279]** and **Swamy Achyutanand Tirth [(2016) 9 SCC 699]** this Court found no merits in the arguments advanced by the learned counsel for the petitioner society that the petitioner may be permitted to challenge the order dated 11.04.2023 of the Travancore Devaswom Board by filing a fresh writ petition. The Division Bench held that having failed to challenge the order dated 28.05.2015 of the Devaswom Commissioner, by filing a suit before the competent civil court, in terms of the judgment of this Court dated 19.01.2017 in W.P.(C)No.1196 of 2017, the petitioner society cannot raise a challenge against the decision taken by the Travancore Devaswom Board to blacklist the society and to recover the monetary loss caused to the Board to the tune of Rs.14,19,650/-from the earnest money deposit and the bank guarantee provided by the society. 28. Having considered the pleadings and materials on record and also the submissions made at the Bar, we find that the intention of the Travancore Devaswom Board in introducing Kuthaka items 84A and 84B in the list of Kuthaka items in Sabarimala, Pamba and Nilakkal Devaswoms for the year 1199 ME onwards, during Mandala Makaravilakku festival season, is only to ensure that Kuthaka 23 ## W.P.(C)Nos.29371 and 29762 of 2023 holders of hotels, light refreshment stalls, the stall for selling packed food, fruit stalls and fruit and juice stalls are not procuring fruits, soft drinks, etc., from unauthorised distributors or sellers who transport and stock such items at Nilakkal or Pamba, in the forest land within the High-Security Zone leased out to the Board for providing pilgrim facilities, for distribution or sale to the Kuthaka holders. Though the e-tender notification dated 23.08.2023 does not insist Kuthaka holders of hotels, light refreshment stalls, the stall for selling packed food, fruit stalls and fruit and juice stalls to purchase fruits, soft drinks, etc. from the holders of Kuthaka items 84A and 84B, unauthorised distributors or sellers cannot be permitted to transport and stock such items at Nilakkal or Pamba or Sannidhanam. No Kuthaka holder at Pamba and Sannidhanam can be permitted to source their supply for such items from any unauthorised distributor or seller. 29. The average footfall in Sabarimala Sannidhanam during Mandala-Makaravilakku festival season is around 1,00,000 per day. During Mandala-Makaravilakku festival season of 1198 ME (2022- 23), on various occasions the movement of vehicles from Nilakkal to Pamba was regulated by ‘hold and release’ mechanism, based on the orders of this Court in SSCR No.23 of 2022. On 10.12.2022 24 W.P.(C)Nos.29371 and 29762 of 2023 when the footfall at Sannidhanam was nearly 1 Lakh pilgrims, the movement of vehicles was blocked from Laha to Nilakkal and also from Kanamala to Elavunkal, resulting in blockage of vehicles for a considerably long period, causing difficulties to the pilgrims including children. By the order dated 11.12.2022 in SSCR No.23 of 2022, this Court directed the Travancore Devaswom Board to make necessary arrangements for providing ‘Chukkuvellam’ and biscuits to the pilgrims in such vehicles. 30. The movement of tractors carrying goods through the trekking path from Pamba to Sannidhanam is regulated in terms of the orders of this Court, to ensure that the movement of such vehicles through the trekking path causes only the least inconvenience to the pilgrims, which includes children of tender age, senior citizens, etc. The inclusion of Kuthaka items 84A and 84B in the list of Kuthaka items in the e-tender notification dated 23.08.2023 will certainly reduce the operation of goods vehicles at Nilakkal and Pamba. 31. In view of the inclusion of Kuthaka items 84A and 84B in the list of Kuthaka items in the e-tender notification dated 23.08.2023 issued by the Executive Officer, Sabarimala, no Kuthaka holder in Pamba and Sannidhanam can be permitted to 25 ## W.P.(C)Nos.29371 and 29762 of 2023 source their supply for fruits, soft drinks, etc., from any unauthorised distributor or seller at Pamba or Sannidhanam. Fruits, soft drinks, etc., covered by Kuthaka items 84A and 84B, intended for supply to Kuthaka holders of hotels, light refreshment stalls, etc., at Pamba and Sannidhanam have to be stocked for supply in an earmarked space provided in Clause XV of the special conditions, which forms part of the tender conditions in the e-tender notification dated 23.08.2023. A permit from the Executive Officer, Sabarimala is required for transporting such items to the earmarked space, in view of the provisions under sub-clause (8) of Clause XV. 32. From the stand taken in the counter affidavit filed by the Travancore Devaswom Board, we notice that during MandalaMakaravilakku festival season of 1198 ME, certain persons have unauthorisedly transported and stocked fruits, vegetables and bottle drinks in the premises of Pamba Devaswom and they supplied those items to the Kuthaka holders in Pamba and Sannidhanam, without the permission of the Board. It is for the Special Commissioner, Sabarimala to file a report before this Court on the above aspect, after getting necessary inputs from the Chief Vigilance and Security Officer, Travancore Devaswom Board, which 26 W.P.(C)Nos.29371 and 29762 of 2023 shall be placed before the Devaswom Bench for appropriate orders. 33. SSCR No.23 of 2022 filed by the Special Commissioner, Sabarimala regarding crowd management and other issues at Nilakkal, Pamba and Sannidhanam, during Mandala-Makaravilakku festival season of 1198 ME, has already been disposed of by the order dated 20.01.2023 and the Special Commissioner has been directed to file a fresh report on the above aspects seeking appropriate directions, during Mandala-Makaravilakku festival season of 1199 ME. In the said report the Special Commissioner shall also deal with the regulatory measures that have to be taken during the festival season of 1199 ME in respect of hotels, light refreshment stalls, fruit and juice stalls, etc., in order to ensure strict compliance of the food safety standards and other statutory requirements by the Kuthaka holders. The Food Safety Commissioner and also the concerned officials shall be made parties to the report to be filed by the Special Commissioner. 34. The Executive Magistrates at Pamba and Sannidhanam and also the officers in the Vigilance Wing of the Travancore Devaswom Board under the Chief Vigilance and Security Officer shall conduct periodical inspections during Mandala-Makaravilakku festival seasons in the hotels, light refreshment stalls, fruit and 27 W.P.(C)Nos.29371 and 29762 of 2023 juice stalls, etc., at Pamba and Sannidhanam and also at Nilakkal. The Travancore Devaswom Board and also the Devaswom Commissioner shall ensure strict compliance of the directions contained in the judgment of this Court in **Sunil Kumar P.G [2022: KER:71822]** during the tender process for Kuthaka items in Sabarimala Devaswom during Mandala-Makaravilakku festival season of 1199 ME (2023-24). In the result, the challenge made in these writ petitions against inclusion of Kuthaka items 84A and 84B in the list of Kuthaka items in the e-tender notification dated 23.08.2023 issued by the Executive Officer, Sabarimala Devaswom fails for the aforesaid reasons. The petitioners are not entitled to the consequential reliefs sought for. Though the e-tender notification dated 23.08.2023 does not insist Kuthaka holders of hotels, light refreshment stalls, etc., to purchase fruits, soft drinks, etc., from the holders of Kuthaka items 84A and 84B, which is the stand taken by the Travancore Devaswom Board in the counter affidavits placed on record, no Kuthaka holder at Pamba and Sannidhanam can be permitted to procure fruits, soft drinks, etc., covered by Kuthaka items 84A and 84B, from any unauthorised distributor or seller at Nilakkal or Pamba. Similarly, no unauthorised distributor or seller 28 W.P.(C)Nos.29371 and 29762 of 2023 can be permitted to transport or stock fruits, soft drinks, etc., covered by Kuthaka items 84A and 84B to Pamba and Sannidhanam. With the directions contained hereinbefore, these writ petitions are disposed of. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **VIJU ABRAHAM, JUDGE** MIN 29 W.P.(C)Nos.29371 and 29762 of 2023 ## **`APPENDIX OF WP(C) 29371/2023`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1 ``` ``` TRUE COPY OF NEWSPAPER ADVERTISEMENT AND E-TENDER DB ROC. 04/23/SABA (LEASE) FLOATED BY THE THIRD RESPONDENT, THROUGH THE FOURTH RESPONDENT FOR 1199 ME (11.11.23 TO 31.10.24) FOR SABARIMALA, PAMBA, NILAKYAL DEVASWOM, FOR VARIOUS ITEMS AND DATED 07.08.2023 ``` ``` EXHIBIT P2 TRUE COPY OF THE REPRESENTATION (DATED NIL) SUBMITTED ON 27.08.23 FROM THE PETITIONERS TO THE RESPONDENTS THREE AND FOUR ``` ## **`RESPONDENT EXHIBITS`** ``` EXHIBIT-R3(A) TRUE COPY OF THE REPORT, CT NO.15/23/TDB/VIG DATED 15.01.2023 OF THE SUPERINTENDENT OF POLICE, CHIEF VIGILANCE AND SECURITY OFFICER TRAVANCORE DEVASWOM BOARD ``` 30 W.P.(C)Nos.29371 and 29762 of 2023 ## **`APPENDIX OF WP(C) 29762/2023`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1 PPHOTOSTAT COPY OF THE E-TENDER ADVERTISEMENT BEARING NO.EOP196/23/SAB DATED 23.08.2023 WHICH APPEARED ON A MATHIRBOOMY DAILY EXHIBIT P2 PHOTOSTAT COPY OF THE TENDER CONDITIONS BEARING NO.DBROCO4/2023/SAB(KUTHAKA) DATED 07.08.2023 ISSUED BY THE 4TH RESPONDENT EXHIBIT P2 (A) PHOTOSTAT COPY OF THE TENDER SCHEDULE BEARING NO.DBROCO4/2023/SAB(KUTHAKA) DATED 07.08.2023 ISSUED BY THE 4TH RESPONDENT EXHIBIT P3 THE PHOTOSTAT COPY OF THE REPRESENTATION FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED 03.09.2023 RESPONDENT EXHIBITS EXHIBIT-R2(A) TRUE COPY OF THE REPORT, CT NO.15/23/TDB/VIG DATED 15.01.2023 OF THE SUPERINTENDENT OF POLICE, CHIEF VIGILANCE AND SECURITY OFFICER TRAVANCORE DEVASWOM BOARD ```