Parama Sivan T vs Guruvayur Devaswom Board on 13 April, 2023

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Kerala High Court

Parama Sivan T vs Guruvayur Devaswom Board on 13 April, 2023

Guruvayur Devaswom Managing Committee, the 1 st respondent herein, tendered the right to conduct "pay and use comfort station" on the east-nada of Sree Guruvayoorappan Temple during the period from 01.08.2013 to 31.07.2014. The petitioner offered an amount of Rs.11,11,111/-. He deposited Rs.50,000/- as earnest money deposit. He was the highest bidder. He, however, retracted stating that he fell ill immediately after submission of the quotation. The 1 st respondent therefore forfeited his earnest money deposit and the right was re-tendered. The highest bidder quoted only Rs.5,33,334/-. Therefore, the 1 st respondent sustained a loss of Rs.4,83,334/-. On the request of the 1 st respondent, revenue recovery proceedings was initiated for realisation of Rs.5,47,446/-, which includes that amount of loss and the additional charges. Ext.P6 is the recovery notice issued under Section 7 of the Revenue Recovery Act, 1968. The petitioner, alleging that Ext.P6 notice is illegal and issued beyond the 4 W.P.(C) No.26112 of 2019 period of limitation, has filed this Writ Petition seeking the following reliefs,-

"I. Declare that the 1st respondent by initiating revenue recovery proceedings for the amount from the petitioner, which is unliquidated damages and its recovery is closed once by it earlier by Ext.P5 proceedings, and the present attempt to recover the said time barred debt through the Ext.P6 notice and the steps pursuant to that, has acted illegally and violative of the law declared by this Hon'ble court and therefore, the proposed recovery is liable to be quashed and the petitioner is deserving to be met with act of consolation by releasing the EMD amount of Rs.50,000/- forfeited by the 1st respondent back to him;

II. Issue a writ of certiorari or such other writ or order quashing the Exhibit P6 notice or other steps taken under the Revenue Recovery Act for realising any amount from him for the default of running the comfort station of the 1st respondent during the year 2003-04;

III. Issue a writ of mandamus or such other writ or order, or direction to the 1st respondent for releasing the forfeited EMD money of Rs.50,000/- to the petitioner, as an act of consolation towards an ailing human being who served it during the healthy days."

5 W.P.(C) No.26112 of 2019

2. The 1st respondent has filed a counter affidavit. It is contended that the petitioner disputes his liability and that question requires adjudication based on evidence and therefore, the Writ Petition filed under Article 226 of Constitution of India is not maintainable. The address of the petitioner as well as the person came second in the first tender were the same. That indicated that there was obvious collusion between the petitioner and the other tenderer. Therefore, when the petitioner withdrew, the other bidder could not be accepted. The reason stated by the petitioner for retracting from the tender is incorrect. In such circumstances, the earnest money deposited by the petitioner was forfeited and he was blacklisted. In the re-tender, the amount quoted by the highest bidder was very low and the loss sustained thereby should be compensated by the petitioner. The Guruvayur Devaswom Managing Committee as per resolution No.80 dated 07.12.2017 decided to initiate recovery proceedings for realisation of the loss sustained to the 1 st respondent. Ext.R1(e) is a copy of the resolution. Since the 1 st 6 W.P.(C) No.26112 of 2019 respondent quantified the loss and decided to initiate action on 07.12.2017, there is no bar of limitation to the claim of the 1st respondent. Accordingly, the 1st respondent sought to dismiss the Writ Petition. No separate counter affidavit was filed by respondents 2 and 3.

3. Heard the learned counsel appearing for the petitioner, the learned Standing Counsel for the 1st respondent and the learned Senior Government Pleader for respondents 2 and 3.

4. Ext.P5 is a copy of the resolution of the Guruvayur Devaswom Managing Committee No.57 dated 28.02.2014. The learned counsel appearing for the petitioner would submit that the 1st respondent as per Ext.P5 had decided to confine the action against the petitioner in forfeiting the E.M.D. and blacklisting him alone and therefore no amount can be recovered from the petitioner. He does not explain how he obtained Ext.P5. The 1st respondent does not admit or deny its genuineness. Since it is not able to fix its genuineness from the available records, we do not propose to act upon Ext.P5. 7 W.P.(C) No.26112 of 2019

5. The further contention of the petitioner is that the claim in Ext.P6 revenue recovery notice is barred by the law of limitation. It is contended that the dues is with respect to the period from 01.08.2013 to 01.07.2014 and as Ext.P6 was issued only on 23.07.2019, the claim is barred and the respondents cannot pursue the revenue recovery proceedings.

6. In State of Kerala v. V.R.Kalliyanikutty [(1999) 3 SCC 657], the question whether proceedings under the Revenue Recovery Act is possible if the claim is barred by law of limitation was considered. The Apex Court held that the Kerala Revenue Recovery Act does not create any new right. It merely provides a process for speedy recovery of moneys due. Since this Act does not create any new right, the person claiming recovery cannot claim recovery of amounts which are not legally recoverable nor can a defence of limitation available to a debtor in a suit or other legal proceeding be taken away under the provisions of the Kerala Revenue Recovery Act. The provisions in the Act are 8 W.P.(C) No.26112 of 2019 intended for coercive recovery of the amount due. Therefore, all claims which are legally recoverable and are not time- barred on that date alone can be recovered. Under Section 71 of the Kerala Revenue Recovery Act claims which are time- barred on the date when a requisition is issued under Section 69(2) of the said Act are not treated as amounts due and cannot be recovered under the said Act.

7. The learned counsel appearing for the 1st respondent would submit that the amount is due to the Deity and the Deity being a perpetual minor, there cannot be a bar of limitation to the claim in view of the provisions of Section 6 of the Limitation Act, 1963. In order to fortify the contention that the Deity is a minor, the learned counsel has placed reliance on the decision in Hindu Seva Kendram v. State of Kerala and others [2022 (3) KHC SN 8 : 2022 KHC Online 274]. This Court held that Deity, Guruvayurappan is a perpetual minor. There cannot be any dispute with respect to that proposition. Every Deity/Idol of a Temple is a perpetual minor.

W.P.(C) No.26112 of 2019

8. The question is, can a Deity claim the benefit of Section 6 of the Limitation Act. This question was considered by the Apex Court in M. Siddiq (D) Thr. LRs v. Mahant Suresh Siddique Das and others [(2020) 1 SCC 1]. The Apex Court after an elaborate discussion held that the legal fiction of a deity as a minor had been evolved to obviate the inability of the Deity to institute legal proceedings on its own. A human agent must institute legal proceedings on behalf of the deity to overcome the disability. However, the fiction has not been extended to exempt the deity from the applicability of the law of limitation. The Deity, although fictionally is a perpetual minor, cannot claim the benefit of Section 6 of the Limitation Act. Therefore, the 1st respondent cannot resort to Section 6 of the Limitation Act to support its contention that there cannot be any bar of limitation to its claim for money due to the Deity under a contract or otherwise.

9. The learned Standing Counsel for the 1 st respondent would contend that only when Ext.R1(e) resolution was adopted on 07.12.2017, the action against the petitioner has begun and 10 W.P.(C) No.26112 of 2019 in view of that matter there cannot be any bar of limitation to the claim in Ext.P6, which was issued on 23.07.2019. The said contention is unsustainable in law. Notice demanding payment of the amount of compensation in relation to the contract in question was issued to the petitioner on 27.09.2013. Ext. P3 is that notice. The period of limitation would start from the said date, i.e., 27.09.2013. Ext.P6 was issued only on 23.07.2019. Even Ext.R1(e) resolution, by which it was decided to initiate revenue recovery proceedings, was adopted only on 07.12.2017. In any view of the matter, the period of limitation of three years for suing for realisation of the amount claimed in Ext.P6 elapsed much before. Therefore, the claim in Ext.P6 is barred by the law of limitation and the action initiated against the petitioner is unsustainable in law. Hence, the Writ Petition is liable to be allowed and Ext.P6 quashed.

10. In Bijesh Kumar M. and others v. State of Kerala and others [2021 (1) KHC 51] a Full Bench of this Court held that the role assigned to Guruvayur Devaswom Managing Committee constituted under Section 3 of the 11 W.P.(C) No.26112 of 2019 Guruvayur Devaswom Act, 1978, is that of a trustee in management of the properties vested in the deity. Guruvayur Devaswom Managing Committee, which functions as a trustee, is bound to administer, control and manage the properties belonging to Guruvayur Devaswom in accordance with public interest and in the interest of the worshippers. As provided in Section 17, the Administrator shall function as the Secretary to Guruvayur Devaswom Managing Committee and he shall be the Chief Executive Officer functioning subject to the control of the Committee. He is bound to carry out the decisions taken by Guruvayur Devaswom Managing Committee in accordance with the provisions of the Act.

11. In Bijesh Kumar M. the Full Bench further held that, all the properties, including movable and immovable properties and money, dedicated to or endowed in the name of Lord Guruvayurappan or any property acquired in any manner by Guruvayur Devaswom shall vest in the idol of Lord Guruvayurappan, consecrated in Sree Krishna Temple, Guruvayur. Guruvayur Devaswom Managing Committee 12 W.P.(C) No.26112 of 2019 constituted under Section 3 of the Guruvayur Devaswom Act is legally bound to administer, control and manage all the properties belonging to Guruvayur Devaswom in accordance with the provisions of the said Act. The Administrator and the Commissioner shall also function within the frame work of the statute. The legal status of Guruvayur Devaswom Managing Committee constituted under Section 3 of the Act is that of a trustee in management of the Devaswom properties and the Committee is duty bound to scrupulously follow the stipulations contained in the Act of 1978. Unless a contrary intention, either expressly or by necessary implication, arises from the provisions of the statute in any particular subject or context, Guruvayur Devaswom Managing Committee is legally bound to administer and manage the Devaswom and its properties in accordance with the settled legal principles relating to the administration of Hindu Religious Trusts. Guruvayur Devaswom Managing Committee, being the trustee in management of Devaswom properties, is legally bound to perform its duties with utmost care and caution.

W.P.(C) No.26112 of 2019

12. In M.V.Ramasubbiar v. Manicka Narasimachara [1979 KHC 518 : (1979) 2 SCC 65 : AIR 1979 SC 671], 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 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 14 W.P.(C) No.26112 of 2019 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 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 15 W.P.(C) No.26112 of 2019 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 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)

13. It is the duty of the Guruvayur Devaswom Managing Committee being the trustee in management of the Devaswom properties is obliged to deal with the property and affairs of the Devaswom with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. The Managing Committee, being the trustee, 16 W.P.(C) No.26112 of 2019 could not, therefore, have occasioned such a loss to the Devaswom on account of the lapse in taking timely action for recovery of the amount due from the petitioner. Hence we direct the Guruvayur Devaswom Managing Committee to take appropriate action in the matter. We emphasize that it is the absolute obligation of the Guruvayur Devaswom Managing Committee to ensure that such incidents do not recur in future.

With the aforesaid observations, this Writ Petition is allowed. Ext.P6 demand notice dated 23.07.2019 issued by the 2nd respondent-Deputy Tahsildar, Chalakudy Taluk under Section 7 of the Revenue Recovery Act, 1968 is quashed.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE dkr 17 W.P.(C) No.26112 of 2019 APPENDIX OF WP(C) 26112/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE REQUEST DATED 15-05- 2013 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT FOR EXEMPTING FROM TENDER OBLIGATIONS DUE TO HIS ILL-HEALTH EXHIBIT P2 TRUE COPY OF MEDICAL CERTIFICATE ISSUED BY DR. A.K. MATHEW EXHIBIT P3 TRUE COPY OF COMMUNICATION DATED 29- 09-2013 FROM THE FIRST RESPONDENT CONVEYING FORFEITURE OF EMD MONEY OF RS. 50,000/-

EXHIBIT P4 TRUE COPY OF COMMUNICATION DATED 27- 09-2013 FROM THE FIRST RESPONDENT DEMANDING RS.4,83,334/- FROM THE PETITIONER EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 28-02-2014 FROM FIRST RESPONDENT CONVEYING FORFEITURE OF EMD AND BLACK LISTING OF PETITIONER AND CLOSING THE FILE EXHIBIT P6 TRUE COPY OF THE DEMAND NOTICE DATED 23-07-2019 FROM THE SECOND RESPONDENT FOR ATTACHING AND SALE OF MOVABLES OF THE PETITIONER FOR THE LIABILITY TOWARDS THE FIRST RESPONDENT 18 W.P.(C) No.26112 of 2019 RESPONDENT EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE RESOLUTION NO.37 DATED 09.05.2013.

EXHIBIT R1(B) TRUE COPY OF THE RESOLUTION NO.6 DATED 11.07.2013.

EXHIBIT R1(C) TRUE COPY OF THE RESOLUTION NO.6 DATED 10.08.2013.

EXHIBIT R1(D) TRUE COPLY OF THE LETTER BEARING NO.P4/661/12 DATED 11.11.2013 ISSUED TO THE PETITIONER.

EXHIBIT R1(E) TRUE COPY OF THE RESOLUTION NO.80 DATED 07.12.2017.

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