Raveendranathan K.C vs The Malabar Devaswom Board on 3 March, 2022

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Kerala High Court

Raveendranathan K.C vs The Malabar Devaswom Board on 3 March, 2022

The issue raised in these writ petitions relates to certain constructions made in Sree Thirumandamkunnu Bhagavathi Devaswom. Since common issues are raised, the writ petitions are heard together and are being disposed of by this common judgment.

2. W.P.(C) No.38651 of 2018 is one filed by the members of "Valluvanadu Swaroopam" seeking a writ of mandamus forbearing the 3rd respondent Executive Officer, Sree Thirumandhamkunnu Bhagavathi Temple from spending funds of Sree Thirumandhamkunnu Devaswom for making new constructions in Sree Thirumandhamkunnu Bhagavathi Temple, without informing the hereditary trustee and without obtaining prior permission from this Court and following the procedure, particularly because of the dwindling finances of the Devaswom. The further relief sought for is a declaration that during the pendency of the writ petition questing the very appointment of the Executive Officer, any extravagant expenditure unauthorisedly made by him is altogether illegal, void and is unsupportable by 5 W.P.(C) No.38651 of 2018 & 19280 of 2020 law.

2.1. A counter affidavit has been filed by the 3 rd respondent opposing the relief sought for in this petition. The petitioner has filed a reply affidavit.

2.2. On 17.12.2018, when this writ petition came up for consideration, the learned counsel for the 3rd respondent as well as the learned Standing Counsel for the Malabar Devaswom Board submitted that the factual position narrated by the petitioner in this writ petition is not correct. It was stated that the 3 rd respondent had already filed a counter affidavit explaining the facts and figures and also producing copies of the relevant documents.

3. W.P.(C) No.19280 of 2021 is one filed by the petitioner, who is an A Class PWD contractor, who had entered into an agreement with the 4th respondent Executive Officer for extension work of Prasada Oottupura and Nivedya Counter in Sree Thirumandhamkunnu Bhagavathi Temple, as per Ext.P1 tender notification dated 14.10.2018. The petitioner is seeking a writ of mandamus commanding respondents 3 and 4 to release a sum of Rs.60,41,760/- covered by Ext.P5 and P6, as requested in Ext.P7, 6 W.P.(C) No.38651 of 2018 & 19280 of 2020 within a time frame to be fixed by this Court. The petitioner has also sought for a writ of mandamus commanding respondents 3 and 4 to pay him 18% interest for delayed payment, from the date of submission of bills to the petitioner.

3.1. On 10.11.2020, a learned Single Judge passed an interim order in this writ petition, which reads thus:

"The learned Standing Counsel for R1 and R2 submits that the Board has in its meeting held on 06.10.2020 decided to sanction payment of part bills based on the request made by the 4th respondent.

Therefore, there shall be a direction to the 4 th respondent to make payment in tune with the sanction accorded by the 1 st respondent within a period of one month".

3.2. On 25.11.2020, when this writ petition came up for consideration, the learned counsel on both side pointed out the pendency of the connected matters. Accordingly, the matter was listed before Devaswom Bench. On 17.09.2020, the learned Standing Counsel took notice for respondents 1 and 2 and respondents 3 and 4 entered appearance through counsel.

3.3. On 04.01.2022, when this writ petition came up for consideration, this Court passed the following order:

"The learned counsel for the additional 5 th respondent to 7 W.P.(C) No.38651 of 2018 & 19280 of 2020 furnish additional copy of the counter affidavit to the learned counsel for the petitioner, the learned Standing Counsel for Malabar Devaswom Board and also the learned counsel for respondents 3 and 4, today itself.

2. The learned counsel for respondents 3 and 4 seeks time to file an additional counter affidavit, in reply to the counter affidavit filed by the additional 5th respondent.

3. The submission made by the learned Standing Counsel for Travancore Devaswom Board and also the learned counsel for respondents 3 and 4 that action in terms of the order of this Court dated 10.11.2020 is kept in abeyance in view of the pendency of I.A.No.3 of 2020 filed by the additional 5th respondent seeking an order to vacate that order. The said submission is recorded".

3.4. A counter affidavit has been filed by respondents 3 and 4, which is followed by an additional counter affidavit filed by the said respondents. Today, when this matter is taken up for consideration, the learned counsel for the 5 th respondent has filed a counter affidavit.

4. Heard the learned Senior Counsel for the petitioner in W.P.(C) No.38651 of 2018, the learned counsel for the petitioner in W.P.(C) No.19280 of 2020, the learned counsel for the Malabar Devaswom Board and also the learned counsel for the party respondents in both the writ petitions. 8 W.P.(C) No.38651 of 2018 & 19280 of 2020

5. The issue involved in these writ petitions relates to construction of a Prasada Oottupura and Nivedya counter in Sree Thirumandhamkunnu Bhagavathi Temple. Petitioner in W.P.(C) No.38651 of 2018 would contend that such constructions are unnecessary and huge amounts have been spent by the Executive Officer without proper and sufficient cause. On the other hand, W.P.(C) No.19280 of 2020 is one filed by the contractor, who has undertaken certain constructions with respect of which sanction has already been accorded by Ext.R3(a). Due to lack of sufficient funds, a request was made to disburse the said amount from the fixed deposit available with the Devaswom. Along with the additional counter affidavit filed by respondents 3 and 4, various documents have been placed on record, in order to contend that the constructions, which are subject matter of W.P.(C) No.19280 of 2020 are essential constructions made in the interest of the Devaswom.

6. In W.P.(C)No.38651 of 2018, which is one filed on 28.11.2018 against new constructions in Thirumandamkunnu Bhagavathi Temple, the petitioner could not secure any interim order. Now, the extension work of Prasada Oottupura and Nivedya 9 W.P.(C) No.38651 of 2018 & 19280 of 2020 counter undertaken pursuant to Ext.P1 tender notification dated 14.10.2018 in W.P.(C)No.19280 of 2020 is all most completed and the contractor, who had undertaken those constructions has filed W.P.(C)No.19280 of 2020 for release of sum of Rs.60,41,760/- covered by Exts.P5 and P6 bills.

Having considered the submissions made by the learned Senior Counsel for the petitioner in W.P.(C)No.38651 of 2018, the learned counsel for the petitioner in W.P.(C)No.19280 of 2020, the learned Standing Counsel for Malabar Devaswom Board, the learned counsel for Sree Thirumandamkunnu Bhagavathi Devaswom and its Executive Officer and also the learned Senior Counsel for the party respondents in W.P.(C)No.19280 of 2020, we deem it appropriate to dispose of these writ petitions, leaving open the legal and factual contentions raised by both sides, by relegating the petitioners in both the writ petitions to raise their grievance before the 2nd respondent Commissioner, Malabar Devaswom Board, who shall consider the request made by the petitioner in W.P.(C)No.19280 of 2020 for release of the amount covered by Exts.P5 and P6 bills, for the constructions undertaken pursuant to Ext.P1 tender notification dated 14.10.2018, 10 W.P.(C) No.38651 of 2018 & 19280 of 2020 regarding extension work of Prasada Oottupura and Nivedya Temple in Sree Thirumandamkunnu Bhagavathi Temple, after considering the grievance voiced by the petitioner in W.P. (C)No.38651 of 2018 and that by additional respondents 5 and 6 in W.P.(C)No.19280 of 2020 against such constructions made utilising Devaswom funds. A decision in this regard shall be taken by the 2nd respondent Commissioner, Malabar Devaswom Board, with notice to both sides, as expeditiously as possible, at any rate, within a period of two months from the date of production of a certified copy of this judgment.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE PV 11 W.P.(C) No.38651 of 2018 & 19280 of 2020 APPENDIX OF WP(C) 38651/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE SCHEME DATED 4TH MAY, 1966.

EXHIBIT P2 TRUE COPY OF THE AGREEMENT IN FAVOUR OF THE DEVAWOM ON 22/11/2018.

EXHIBIT P3 TRUE COPY OF AGREEMENT DATED 28/09/2019 IN FAVOUR OF DEVASWOM.

EXHIBIT P4 TRUE COPY OF THE AGREEMENT DATED 12/05/2020 IN FAVOUR OF DEVASWOM.

EXHIBIT P5 TRUE COPY OF THE PART ONE FIRST BILL SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED NIL.

EXHIBIT P6 TRUE COPY OF THE PART SECOND BILL SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED NIL.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ON 10/05/2020.

EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ON 15/06/2020.

RESPONDENT EXHIBITS EXHIBIT R3 A TRUE COPY OF THE ORDER NO-116/5866/17 MDB (K.DIS)DATED 30.01.2018 ISSUED BY THE 2ND RESPONDENT COMMISSIONER.

EXHIBIT R3 B TRUE COPY OF THE LETTER DATED 1.7.2020 ISSUED BY THIS RESPONDENT TO THE 2ND RESPONDENT EXHIBIT R3 C TRUE COPY OF THE ORDER NO H6/2405/2020/ MDB KD IS DATED 3.11.2020 ISSUED BY THE 2ND RESPONDENT

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