Kerala High Court
T.G.Mohandas vs Cochin Devaswom Board
Bench: A.M.Shaffique, Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
MONDAY, THE 27TH DAY OF NOVEMBER 2017/6TH AGRAHAYANA, 1939
WP(C).No. 35340 of 2014 (N)
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PETITIONER(S):
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T.G.MOHANDAS
8/996, SANTHI NAGAR COLONY, KOOVAPADOM, KOCHI
682 002.
BY ADVS.SRI.T.V.VINU
SRI.JAISHANKAR V.NAIR
SMT.PARVATHY S.KRISHNAN
SRI.SUVIN.R.MENON
RESPONDENT(S):
--------------
1. COCHIN DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY, THRISSUR
680 001.
2. ASSISTANT DEVASWOM COMMISSIONER
SREE POORNATHRAYEESA TEMPLE,
THRIPUNITHURA - 685 031.
Addl. 3. K.K.NAVEEN
S/O DR.K.R.KESHAVAN (LATE),
KANNAYANNUR TALUK
GENERAL SECRETARY OF HINDU AIKYA VEDI,
RESIDING AT 'NANDAKESHAVAM',
VELLANGITHOPPIL, TRIPUNITHURA.
(ADDL.R3 IMPLEADED AS PER ORDER DATED 01/04/15 IN IA NO.3522/15)
Addl. 4. SREE POORNATHRAYEESA SEVA SANGAM
TRIPUNITHURA, REPRESENTED BY ITS SECRETARY
V.INDUCHOODAN.
(ADDL.R4 IMPLEADED AS PER ORDER DATED 1.04.15 IN IA NO.3556/15)
R1 -R 2 BY ADV. SRI.KRISHNA MENON, SC, CDB
RADDL.3 BY ADV. SRI.P.VIJAYAKUMAR
RADDL3 BY ADV. SRI.ASP.KURUP
RADDL3 BY ADV. SRI.SADCHITH.P.KURUP
R1 BY ADV. M.C.MADHAVAN
R1&2 BY ADV. SRI.K.P.SUDHEER, SC, CDB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20-11-2017 ALONG WITH CS NO.1/2016 & WPC 8745/16, THE COURT ON
27/11/2017 DELIVERED THE FOLLOWING:
WP(C).No. 35340 of 2014 (N)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P-1: TRUE COPY OF NEWS PAPER REPORT DATED 23.12.2014
(MATHRUBHUMI).
EXT.P-2: TRUE EXTRACT OF THE DEVASWOM PANDAM-PATHRAM REGISTER
OBTAINED THROUGH RIGHT TO INFORMATION ACT.
EXT.P-3: TRUE COPY OF THE LETTER DATED 16.9.2008 WRITTEN BY THE
THEN DEVASWOM ASSISTANT COMMISSIONER, TRIPUNITHURA TO THE SECRETARY,
COCHIN DEVASWOM BOARD.
EXT.P-4: TRUE COPY OF REPORT WITHOUT ANNEXURE IN DBA NO.63/2008
SUBMITTED BY THE ADVOCATE COMMISSIONER.
EXT.P-5: TRUE COPY OF THE RELEVANT EXTRACT OF AUDIT REPORT DATED
31.3.2015 (OBTAINED UNDER RTI ACT)
EXT.P-6: TRUE COPY OF COMMUNICATION ISSUED BY THE DEPUTY
SUPERINTENDANT OF POLICE-II, CB-CID, ERNAKULAM DATED 13.10.2008
RESPONDENT(S)' EXHIBITS
-----------------------
ANNEXURE A1: TRUE COPY OF THE MINUTES OF MEETING HELD ON
9.1.2015 AT SREE POORNATHRAYEESA TEMPLE.
EXT.R4A: TRUE COPY OF ORDER NO.A9.9709/13 DATED 3.9.15 ISSUED BY
COCHIN DEVASWOM BOARD.
Rp
//True Copy//
PS to Judge
A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.
===========================
WP(C) Nos.35340/2014, 8745/2016
& CS No.1/2016
====================
Dated this, the 27th day of November, 2017
J U D G M E N T
Shaffique, J.
Since all the three cases relate to issues connected to the Poornathrayeesa Temple at Tripunithura, the same are heard and decided together. WP(C) No. 35340/2014 was filed on 16/12/2014 inter alia seeking the following reliefs:-
"(i) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents not to transfer the gold, stones and other valuables dedicted to the deity of Sree Poornathrayeesa Temple to anywhere outside the temple.
(ii) issue a writ of mandamus or any other writ, direction or order commanding the respondents to provide adequate security to Sree Poornathrayeesa Temple of Thripunithura and its valuables, in the event the respondents feel that the present security arrangements are WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:2:- inadequate.
(iii) to issue a writ of mandamus or any other writ, direction or order commanding the respondents to prepare an inventory of gold, ornaments, stones and other valuables of Sree Poornahtrayeesa Temple of Thripunithura."
2. An interim order was passed by this Court on 23/12/2015 staying the transfer of gold, valuable stones and other materials of the temple to the head office of Cochin Devaswom Board at Thrissur. Prior to the writ petition being filed, Sri.M.C.Madhavan, Advocate was appointed as Commissioner/Observer to supervise the verification of valuables at the temple by an order dated 16/6/2008 in DBA No.63/2008. By a further order dated 23/10/2008, this Court permitted the Cochin Devaswom Board (for short 'CDB') to make a new Swarna Kallu Kolam and Swarna Thalakettu for using the same during thrikketa purappadu of vrishchikolsavam and during the ensuing vrischikolsavam itself. Further directions were also issued and on 27/11/2008, a Division Bench of this Court in DBA No.103/2008 recorded that the work regarding making of Swarna Kallu Kolam was over.
WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:3:-
3. Though permission was granted to make a new Swarna Thalakettu, the same was not made. However, a decision was taken by the CDB on 9/1/2015 to make a new Swarna Thalakettu and Vellikkuda. The gold to be utilized for Swarna Thalakettu was 6 kgs. It was also decided to utilize the unused and damaged gold and silver articles kept in the temple for the purpose of making the Swarna Thalakettu. By a further order dated 22/7/2015, this Court in WP(C) No.35340/14, appointed Sri.M.C.Madhavan as a Commissioner for supervising the inventory of materials to be transited to the headquarters of CDB for safe custody. The inventory was to be prepared by the CDB officials under the supervision of the Advocate Commissioner. It was further directed that 6 kgs of gold required for the Swarna Thalakettu is to be released from the gold already in the custody of CDB in the form of gold bars and, if found necessary, excess quantity shall be released from the stock with the concurrence of the Advocate Commissioner. The legal meteorology department had to assess the quality and quantity of the gold and its purity. It is borne out from the proceedings of Special Devaswom Commissioner that WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:4:- gold bar is not available in the central stock for making Swarna Thalakettu and it was observed that after verification of the valuables in the temple, the unused gold can be utilized for making the Swarna Thalakettu and if it is found insufficient, additional quantity of gold can be taken from the central stock. A decision was taken to call for tenders after verification of the valuables pursuant to a decision taken by the Board. Tenders were invited as per proceedings dated 9/12/2015. Pursuant to the notice inviting tender, Sri.K.N.Rajendran was engaged as a contractor for making the Swarna Thalakettu and an agreement was executed between the Board and the contractor on 3/2/2016.
4. The contractor thereafter requested for an additional 2= kgs of gold for making the Swarna Thalakettu. The Board in a meeting convened on 25/2/2016 discussed the request of the contractor and decided to use the old Swarna Thalakettu for the said purpose after melting the same into bars. The stones in the old Swarna Thalakettu were to be used in the new Swarna Thalakettu as well. Based on the aforesaid decision, order dated 3/3/2016 was issued.
WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:5:-
5. At this stage, WP(C) No.8745/2016 came to be filed by certain devotees inter alia seeking the following directions:-
"a. call for the records of the case and to issue writ in the nature of mandamus or appropriate writ, order or direction preventing the respondents from using the gold and diamonds from or dismantling or destroying or altering the traditional heritage golden head gear of Sree Poornathrayeesa Temple, Thripoonithura for making a new golden headgear.
b. Issue writ in the nature of mandamus or appropriate writ, order directing the respondents to preserve and protect the valuable antique golden headgear as it is in a scientific manner with the help of technical experts.
c. Issue writ in the nature of mandamus or appropriate writ, order directing the respondents not to change the custom and rituals with respect to the festivals of the temple under the guise of making new golden headgear and the existing traditional golden headgear must be used for their destined uses.
d. and pass such other further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
e. issue appropriate writ of mandamus or an order or direction to the respondents to comply with S.62 (2) of the Travancore Cochin Hindu Religious Institutions Act, 1950 and mandate that all the decisions relating to the rituals and ceremonies of WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:6:- Sree Poornathrayeesa Temple shall be taken only after obtaining consent of the senior most member of the Cochin Royal family.
f. Issue appropriate writ in the nature of certiorari or an order to quash Ext.P3(b) and Ext.P3(c)."
6. When the matter came up for admission on 9/3/2016, this Court recorded the submission of the Advocate Commissioner that the work in relation to the making of new headgear is progressing and utilization of the existing old headgear is also in terms of the decision of the Board in consultation with the Advocate Commissioner.
7. In the meantime, another devotee filed a suit before the Munsiff's Court, Ernakulam as OS No.390/16. By order dated 11/3/2016, an interim injunction was granted restraining the CDB from proceeding with the making of Swarna Thalakettu.
8. Since an injunction was already granted, a memo was filed by the petitioners in WP(C) No.8745/2016 to withdraw the writ petition. This Court by order dated 16/3/2016 rejected the said request and had withdrawn OS No.390/16 to this Court and renumbered it as CS No.1/2016.
9. On 23/3/2016, Advocate Commissioner filed a report WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:7:- stating that old golden headgear was dismantled on 11/3/2016. It has 1406 pieces, weighing a total of 4 kgs 279 grams and 490 mgs. By another order dated 01/04/2016, this Court recorded the submission of the Advocate Commissioner and directed that the ornaments which had already been broken down and the materials obtained thereby, including gold, silver, stones etc., can be utilized in the making of new items including golden headgear. The materials placed on record indicates that, on 2/4/2016, except two items having gems fixed forming part of the old headgear, all other items of gold were melted.
10. Order dated 1/04/2016 was challenged by the additional respondents 5 and 6 (plaintiffs in CS No. 1/16) by filing SLP No.14764/2014 before the Apex Court and on 23/5/2016, an order of status quo was passed. The SLP was disposed on 27/10/2016 directing status quo to be maintained, however, preserving the right of this Court to pass interim orders pending disposal of the writ petition and suit. Though an attempt was made to vacate the interim order, by order dated 25/11/2016 in WP(C) No.35340/2014, this Court directed that no further interim WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:8:- orders were required until the final disposal of the writ petition and civil suit.
11. Heard the learned counsel appearing on either side and the Advocate Commissioner.
12. As far as the relief sought for in WP(C) No. 35340/14 is concerned, the inventory of the gold ornaments, stones and other valuables had already been prepared by the Advocate Commissioner. Counter affidavit has been filed on behalf of the respondents stating that the Board does not intend to shift the ornaments and other valuables used regularly and during important festivals in the temple to the head office. It is further indicated that on verification of various ornaments and other valuables stored in the temple and other temples, it was noticed that certain gold ornaments and other valuables had, owing to passage of time and other reasons, got damaged and had become unfit for use and as per the usual practice, such ornaments and valuables are shifted to the central stock of the Board at Thrissur. It is therefore contended that it is those ornaments and valuables which have become unfit for use in the WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:9:- temple that are being intended to be transferred to the stock. It is further contended that periodically a team headed by the Assistant Commissioner (Valuables) of the Board takes stock of all the valuables under all the temples under the Board and submits a report furnishing details of such unused and unfit valuables which could be shifted to the central stock. It is also stated that the entire stock has been taken and is available for verification at any point of time. A reply affidavit had been filed by the writ petitioner stating that the idea of shifting of unused and worn out ornaments is to suppress the discrepancies presently existing in the records. It is also contended that the gold and valuables offered or donated by the devotees to the deity are to be kept in the temple as it belongs to the deity. The main contention of the petitioner is that the temple being one of the most ancient temples in Kerala, the temple treasures, which consists of gold, ruby, emerald, diamond and other valuables having been dedicated to the deity, cannot be transferred to the 1st respondent's office at Thrissur. As already stated, the respondents have a contention that only unused and worn out articles are WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:10:- being shifted to Thrissur which is a policy of the Board. Apparently, it is for the Board to take necessary decision with reference to the property of the deity. The Board has absolute control over the valuable properties of the deity and it is entrusted with a duty to manage the property as well. Under such circumstances, if a decision is taken by the Board to transfer the unused or worn out properties to the central stock, no devotee can challenge the same. We do not find any malafides in the said action of the Board. However, before proceeding to transfer any such item to the central stock, an inventory has to be prepared and it has to be certified by a competent authority that those properties are not in use or are worn out.
13. Now coming to WP(C) No.8745/2016, it is contended that the action of the respondent in destroying the old traditional ornaments especially the old headgear is illegal and shall not be permitted. It is contended that the petitioners are the members of erstwhile Cochin royal family and has deep rooted connection with the Poornathrayeesa Temple (hereinafter referred to as 'temple'). The temple became the paradevatha of Cochin royal WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:11:- family and temple administration was taken over by the royal family which has made several contributions to the development of temple. It is contended that the golden headgear (Swarna Thalakettu) and various other items were given by Cochin Rajas to the temple as devadanam. Those items have antique and ritual values. Those items have specific significance and can be used only for specified ritualistic performances. Therefore, it was the duty of the 1st respondent to preserve and maintain those ornaments in its antique quality and ritualistic value. It is in the said circumstances when attempts were made for utilizing the old headgear for making the new golden headgear that this writ petition has been filed inter alia raising various contentions.
14. During the pendency of the writ petition, when it was brought to the notice of this Court that a decision was taken by the Board on 25/2/2016 and an order had been issued on 3/3/2016 to dismantle the traditional headgear (old), to melt it and to utilize the gold and precious gems to make the new head gear, an application for amendment of the writ petition was filed to challenge the decision dated 25/2/2016 and the order dated WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:12:- 3/3/2016. It was also contended that the decision was taken without getting concurrence or even consulting the members of the erstwhile Cochin royal family. Contention raised is that in view of S.62(2) of the Travancore Cochin Hindu Religious Institutions Act, 1950 (hereinafter referred to as the TCHRI Act), the regulation and control of all rituals and ceremonies in the temple is vested with the head of the erstwhile Cochin royal family. Therefore, the argument is that ornaments used in the rituals like the traditional headgear also fall in the purview of the regulations.
15. In the counter affidavit filed by the 1st respondent, while denying the capacity of the petitioners to challenge the actions of the Board, it is stated that in a meeting of the Board held on 9/1/2015, 18 persons participated, which included President and members of the Board, Special Devaswom Commissioner, officials of the Board, Thanthri of the temple, Othikkan of the temple and certain other persons who are traditional members as well as office bearers of the 3rd respondent. Among other items which were discussed, one of the WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:13:- decision taken was regarding the remaking of the golden headgear and silver umbrella. Since 6 kgs of gold was required and so much quantity of gold was not available from the reserve gold custody of the Board, a decision was taken to use the unused and damaged gold and silver articles kept in the temple for the said purpose. It was therefore decided that a joint examination of the available gold, silver and other precious articles are to be made and whatever ornaments are required for the use in the temple are to be bifurcated and unusable and damaged items are again to be bifurcated. The joint examination of the entire articles was undertaken by the officials of the Board and other persons in the presence of Assistant Commissioner (Valuations) and the Devaswom Vigilance Officer. It is also contended that the existing headgear had been repaired by various persons at various points of time and therefore the purity of the gold had got reduced considerably. It contained a large quantity of copper and silver that was mixed with gold. They also denied that the existing headgear had antique value and ought to have been retained as such. It is also stated that the present headgear that is being WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:14:- made is better than the old headgear. The old headgear had only 9 golden crescents and the present one has 11 crescents. There is total increase in the overall width and length of the headgear and that will enhance the value of the same and will not deteriorate. The new headgear will be completed with pure gold which was not present in the old one.
16. The 7th respondent contractor had filed a counter affidavit on 8/11/2016. According to him, pursuant to the award of work, he started the work of golden headgear on 5/2/2016. 5.830 kgs of gold was handed over to him. Since there was change in specification of the golden head gear, which comes to a larger size than that of the existing one, the quantity of gold that was needed exceeded the amount of gold granted by the Board. Hence, he requested that a further quantity of 2.5 kg of additional 916 hallmark gold is required to complete the work. According to him, the old headgear was already dismantled and melted and from that, pure gold of 916 hallmark has been separated. It is using the pure gold that the work of the new headgear has been done. 85% of the work was completed and the work was stalled WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:15:- on account of the injunction granted by the Munsiff's Court. According to him, the remaining work is only the fixing of the side of kalanchi and affixture of the completed new golden headgear onto the cloth and the canvass that comes below the headgear. The balance work according to him can be completed within a period of approximately 10 to 15 days. He had also mentioned about the peculiarity of the new headgear. It is contended that the earlier headgear was taken out and was being repaired several times by several persons and therefore the originality of the same no longer remained as such.
17. CS No.1/16 has been filed by two persons claiming to be members of the erstwhile Cochin Royal family and devotees inter alia stating that the ancient golden headgear was being used since time immemorial and very well suited even for the tallest elephant of Kerala. Suit is filed inter alia stating that the defendants have no right to interfere with the customs and rituals of the temple and make alterations to the same according to their whims and fancies. Though the plaintiffs had made representations to the defendants stating all the reasons, they are WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:16:- proceeding with the work of dismantling the old headgear and accordingly the suit has been filed to restrain the defendants by a permanent prohibitory injunction from breaking down and/or dismantling and/or in any manner reducing the antique value of the traditional golden headgear of the temple. Written statement is filed by the first defendant denying the aforesaid allegations. They have reiterated the contentions as has been mentioned in the counter affidavit filed in WP(C) No.8745/2016. IA No.641/17 has been filed seeking to amend the original suit to restrain the defendants from violating the rituals, ceremonies and custom of the temple and for declaring that all the decisions relating to the rituals and ceremonies of the temple shall be taken only after obtaining consent of the senior most member of the Cochin royal family as per S.62(2) of the TCHRI Act, 1950.
18. As far as WP(C) No. 35340/2014 is concerned, we are of the view that if at all the Board takes a decision to transfer the unused or worn out stock to the central office, the same cannot be challenged by a devotee. As far as the devotee or an activist like the petitioner is concerned, the rights are confined to ensure WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:17:- that the rituals are properly conducted and there is no illegality in the actions of the Board. When the Board is entrusted with the right to manage the temple, it includes the right to manage property of the temple as well. The shifting of unused or worn out stock of property belonging to the temple and sent to the central stock after proper inventory cannot be treated as an illegality in any manner. Section 62 (1) and (2) of TCHRI Act reads as under:-
"62. Vesting of administration in the Board -
(1) The administration of incorporated and unincorporated Devaswoms and Hindu Religious Institutions which were under the management of the Ruler of Cochin immediately prior to the first day of July, 1949 either under Section 50G of the Government of Cochin Act, XX of 1113, or under the provisions of the Cochin Hindu Religious Institutions Act, 1 of 1081, and all their properties and funds and of the estates and all institutions under the management of the Devaswom Department of Cochin, shall vest in the Cochin Devaswom Board.
(2) Notwithstanding the provisions contained in sub-section (1) the regulation and control of all rituals and ceremonies in the temple of Sree Poornathrayeesa at Trippunittura and in the Pazhayannur Bhagavathy temple at Pazhayannur shall continue to be exercised as hitherto by the WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:18:- Ruler of Cochin."
19. When all the properties and funds of the estate under the management of Devaswom Department of Cochin vests in Cochin Devaswom Board, it includes the right to manage and even shift the property of one temple to the central stock as well. When the decision is taken for the purpose of proper management of the Devaswom, no person interested in the temple can insist that the property shall remain in the very same temple itself. In the absence of any statutory prohibition for shifting such property to the central stock, the Board is entitled to take appropriate decision in the matter.
20. Only necessity in such situation is that the Board should prepare a proper inventory through a competent body and thereafter effect the transfer.
21. Now coming to WP(C) No.8745/16, the question is only in regard to the headgear, which according to the petitioners is having traditional and antique value. The main thrust of argument is that the decision of the Board in directing dismantling of the old headgear is bad in law on account of the following reasons:-
WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:19:-
(i) That the Thanthri was not consulted.
(ii) That the antique value was not assessed by a competent person.
(iii) There is non compliance of S.62(2) of the TCHRI Act.
(iv) The Court was not informed on 9/3/2016 about the proposed dismantling or the decision taken on 25/2/2016 and proceedings dated 3/3/2016.
(v) The decision was taken in a haste manner and was unnecessary.
22. It was also contended that the rights of the erstwhile Cochin royal family had been completely ignored while taking such a decision. Petitioners therefore while seeking for quashing Exts.P3(b) and (c), seek for an enquiry and report by the Ombudsman and for a declaration that the views of the Thanthri have to be obtained before dismantling or melting the belongings of the temple.
23. The golden headgear of course was being used by the temple for a quite long time and it is used during certain rituals namely during the four days of vrishchikolsavam and during para WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:20:- utsavam in kumbham. But it is relevant to note that this Court had recognized the right of the Board to make a new headgear which is evident from the decision dated 23/10/2008 in DBA No.103/2008. Therefore, the decision to make a new headgear was virtually accepted. This decision would apparently indicate that after the new headgear is made, the old headgear will go out of use. It is also apparent that the necessity for making a new headgear has arisen since the old headgear would have been either worn out or may not be enough for the purpose of the aforesaid rituals or it would have felt that making a new Swarna Thalakettu was more appropriate than making use of the old one for the rituals. But it seems that after the order was passed, no steps were taken for making the new golden headgear.
24. As far as the old headgear was concerned, the decision taken by the Board on 9/1/2015 gains importance. Among other decisions, it was decided to make a new headgear with 6 kgs of gold. It was further decided that an inventory could be taken of the unused and worn out ornaments and a report shall be submitted to the higher ups. A Committee was formed for the said WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:21:- purpose. It was also observed as an example that the old Swarna Kallu Kolam has been dismantled, it was kept in packets in the storage room though a new Swarna Kallu Kolam had been made. Such old ornaments are not required. Further, it is decided that when the new headgear is made, the unused and damaged articles can be utilized. However, the ornaments in daily use, other ornaments studded with diamonds, those ornaments which are antique, ancient and invaluable are to be retained in the temple and a detailed register has to be prepared in the matter. The Board's Assistant Commissioner (Valuations) and Group Assistant Commissioner have been entrusted to take appropriate action. It was decided to make a new golden headgear as early as possible. The aforesaid decision had been approved by the Thanthri as well, which is evident from his letter dated 13/7/2015. In the order dated 22/7/2015 in WP(C) No.35340/14, this Court observed as under:-
"2. Having considered the relevant materials and submissions, it is ordered that the inventory of materials to be transited to the Cochin Devaswom Board head quarters for safe custody will be prepared by the Cochin Devaswom Board officials WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:22:- under the supervision of Adv.M.C.Madhavan, who will be the Advocate Commissioner for the purpose of the case. It is only with his approval could such articles be shifted to the Cochin Devaswom Board head quarters at Thrissur. All articles so shifted, shall be retained in safe custody.
3. For the making of the golden headgear ('swarna thalekkettu'), 6 Kgs. of gold is required, going by the present assessment. Such quantity of gold shall be released from the gold already in the custody of the Board in the form of gold bars. Even if it is found necessary during the course of execution of the work that further gold is necessary, such excess quantity shall also be released from such stock of gold bars, with the concurrence of the learned Advocate Commissioner. Any requirement to assess the quality and quantity of the gold and test as to purity and other matters in relation to gold, shall be got done by the Legal Metrology Department at Central Laboratory, Ernakulam (Ph.No.0484- 2428761-Deputy Controller).
4. If any broken or waste articles involving gold are to be purified and retained separately by the Board, such proceedings need not wait for the completion of the work of the 'thalekkettu' and such purification and collection of gold shall also be done by ensuring purity assessment etc., by following the same procedure through the Legal Metrology Department as directed above."
WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:23:-
25. By the proceedings of the Special Devaswom Commissioner, orders were issued to make the headgear with the unused gold ornaments after proper verification since gold bars were not available in the central stock. It was further observed that if the gold was not enough, it could be taken from the central stock. When the matter again came up before this Court on 20/10/2015, while disposing IA No.13644/2015, this Court observed at paragraphs 2 and 3 as under:-
"2. It is the requirement in terms of the order dated 22/7/2015 that the golden headgear ('swarna thalekkettu') has to be made and for that purpose, 6 kilograms of gold is required. The direction in paragraph 3 of that order was to utilise that gold from the stock of gold in the custody of Board. But now, what has come out is that there are ornaments in Poornathrayeesa temple which require to be taken stock of, identified and classified to decide as to which are the ornaments to be preserved for that purpose to be moved to the Cochin Devaswom Board Head Quarters in Thrissur or to be retained at Poornathrayeesa temple itself. What is required to be now, considered is as to how those ornaments which are not required to be preserved had been dealt with. The Board has come out with the conclusion that WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:24:- such ornaments which have to be broken down into primaries and the gold available from those ornaments after purification have to be utilised for the making of the 'swarna thalekkettu'. The quantity of gold which may still be needed after accounting for such purified gold can be released by CDB from its stock, if available. This suggestion of CDB is nothing but a practical way of implementing the directions contained in paragraph 3 of the order dated 22.7.2015.
3. Learned counsel appearing for the writ petitioner points out that the action now proposed by the CDB is contradictory to the directions contained in paragraph 3 of the aforenoted order. We are not inclined to accept that contention because we treat this more as a process by which the 'swarna thalekkettu' has to be placed for 'Poornathrayeesa' rather than treat this as an adversary litigation. We say this more importantly because it is only a part of managerial wisdom to first utilise the gold otherwise available and then take the gold from the stock retained by the Devaswom Board. When broken ornaments are available to provide gold, to whatever quantity that they may have, that will always be the first option in the common course of human conduct and common sense of any prudent man. We therefore overrule the objections raised and hold that the relief sought for by the Seva Sangam in the I.A is only to be allowed, and the decision taken by the WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:25:- Board be implemented, accordingly."
The application IA No.13644/15 was filed seeking for a direction to implement paragraph 5 of the minutes of meeting held on 9/1/2015.
26. On 12/11/2015, another decision came to be taken deciding to make the headgear with 22 ct. gold and to utilize the gold which was separately listed and to melt the gold at Chemmannur Gold Refineries. Once the new headgear is ready, it was decided to entrust the old headgear to the head office. However, the stones of the old headgear could be utilized for the new one as well.
27. It can therefore be seen that, until such time, the Board had made arrangements for necessary gold for making the new headgear and to entrust the old headgear after removing the stones to the central store. In the notice inviting tender, the approximate quantity of gold was stated to be 6 kgs. The contract was finalised and necessary agreement was also executed. While the contractor was making the headgear, he requested for an additional quantity of 2= kgs of 916 gold. This resulted in a WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:26:- decision to be taken by the Board on 25/2/2016 which was attended by 18 persons including the Advocate Commissioner. In the said meeting, it was decided to make the head gear with 916 purity of gold for which additional 2= kgs of 916 purity gold is required. It was decided that the old headgear could be utilized for the purpose of obtaining 2= kgs of gold. It was also decided to remove the stones in the old headgear for use in the new one. It is pursuant to the aforesaid decision that the Commissioner had issued proceedings dated 3/3/2016 which is under challenge.
28. At this juncture, it will be useful to extract the interim report submitted by the Advocate Commissioner Sri.M.C.Madhavan. Following paragraphs, being relevant, are extracted hereunder:-
"17. The 5927.650 grams of gold mentioned in paragraph 15 above was available to be given to the contractor for the work, as against six kilograms tentatively arrived at for making it. He commenced his work from 5.2.2016. As was done in the past in similar cases, he wanted to get the gold bars given to him converted into sheets of the required thickness from Messrs A.K.P.Metals at Irinjalakuda in the presence of both of us and also in the presence of the concerned officials of the WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:27:- Board. After getting it done, he started the actual work of making the various items needed for the headgear to the required sizes and shapes. After thus making use of the gold given to him, he said that all the items required for the headgear could not be made with the gold already supplied to him and that additional quantity of 2500 grams of gold would be required to make the remaining items. All of us present when the contractor was doing the work were satisfied that all the items needed for the new headgear have not been made and that additional quantity of gold would have to be given to him for completing the work. When the quantity of gold given to him was thus fully exhausted, he made a written submission on 25/2/2016 to the Board praying that he may be given an additional quantity of 2500 grams of gold as well. The reasons stated by him were that the new headgear to be made is bigger in size compared to the then existing one and so the items to be made have increased. Similarly, the type of the headgear is also changed from the Vandodu type to Chooorappoli type This also necessitated increase in the number of items. Further, he said that as the items are all to be made with gold of not less than 916 purity, unless they are made with sufficient thickness, the chances of the items getting damaged easily are greater. The Board considered all these aspects at its meeting held at the Temple on 25/2/2016 WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:28:- whereat all concerned with the making of the headgear were present and all of them unanimously decided, after taking note of the work till then done and the work that remains to be done, that the request made by the contractor is reasonable and has to be agreed to and that the additional quantity of gold demanded by him be given to him. The two Commissioners who were present at the meeting were also of the opinion that the request for additional quantity of gold is to be complied with in order to complete the work. So, with the concurrence of all concerned, it was decided that the additional quantity of gold requested for by the contractor be given to him. (The order dated 22/7/2015 passed by this Honourable Court has authorized the Board to give additional quantity of gold, if needed, for the completion of the work with the concurrence of the Advocate Commissioner)."
"27. The various items so far made, that is, by 24.5.2016 evening, for making the new headgear, are given below.
Serial No. Name of the item.
1. Vattakinnam 1 2. -do- 1
3. Masthaka Kumila (Koobankinnam) 1 4. Chandrakkala 11
5. Chandrakkala Kumila 10 WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:29:- 6. Valiya Kumila 26 7. Naravu Kumila 61 8. Conch 1 9. Chakram 1 10. Kumila-1st type 358 11. Kumila-2nd type 112 12. Kumila-3rd type 400 13. Kumila-4th type 910 14. Kumila-5th type 821 15. Kumila-6th type 442
16. Choorappoli I Type 216
17. Choorappoli II Type 241
18. Choorappoli III Type 296 19 Choorappoli IV Type 177
20. Choorappoli V Type 160
21. Choorappoli VI Type 196
22. Choorappoli VII Type 225
23. Valiya Kaalanchi with 1 Alukku and Alilas Total 4668 All the items have been made with gold of not less than 916 purity as certified by the Legal Metrology Department.
In addition, the two pendents in the old headgear having diamonds fixed to them, one "indraneelam" and the other "Gomedakam", weighing 16.940 grams and 07.640 grams respectively, shall also be implanted to the new headgear as they are. The diamonds have been WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:30:- certified as genuine by approved gemologist. Actual quantity of gold used for the new headgear could be known only after all the items of work are completed and the weight of each set of those items is taken and the items are stitched to form the new head gear."
"32. The important items of work that remain to be carried out are:
(1) Take the weight of each set of items already made, if found necessary, after cleaning the same once again in view of the fact that they were kept closed in a trunk box, for more than a year now, before the water content therein had not fully dried up.
(2) Stitch the various items to the wooden frame to be arranged by the contractor. (3) Make six small Kaalanchies to be stitched to the headgear, three on each side. No additional quantity of gold would be required for the purpose; there will be few small Kumilas in excess.
They can be used for the purpose. The contractor has said so.
(4) Stitch a copper plate inscribing thereon, very briefly, details of the headgear, such as total number of items, their total weight etc. in such a manner that it shall not be seen by anyone on looking at it, but would be seen only when the headgear is dismantled for any purpose.
(5) Draw up new stock registers of the various WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:31:- items of gold and silver in the Temple based on the classification now made. One complaint often raised is that no proper stock registers of the items are available in the Temple.
All the above and other allied items of work, it is hoped, could be completed, in any case, within fifteen working days."
29. Primarily, in the light of Section 62 of the TCHRI Act, it shall be open for the Board to take any decision in the matter relating to any of the property of the temple. The golden headgear is also a property in respect of which the right can be enforced. Under normal circumstances, when a new headgear is made, the old headgear loses its significance and there is nothing wrong in dismantling the same and treating the same as a stock of valuable material. It can be either kept as it is, or can be melted and the gold can be retrieved and kept as golden bars. In the light of the power given under S.62(1), it shall be open for the Board to take any such decision in the matter. However, the question is whether, with reference to the old headgear, a different view ought to have been taken by the Board. One main contention urged is that the old headgear was an antique piece WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:32:- and therefore it should have been retained as such. From the Advocate Commissioner's report, it is evident that the old headgear has already been melted and necessary gold had been obtained which was given to the contractor for making the new golden headgear. Therefore, the only aspect that now remains to be considered is whether the decision taken by the Board suffers from any infirmity which warrants any action to be taken against the members of the Board.
30. The first question to be considered is whether the old headgear had any antique value which ought to have been considered before dismantling the same. No materials have been produced before this Court to indicate that the old headgear had any antique value. It seems that no such assessment had been made at any point of time. It is also in evidence and as reported by the Advocate Commissioner that the old headgear was worn out and the gold purity was only 16 to 17 ct. It contained a lot of copper, silver etc,.
31. The Board has taken a decision on 9/1/2015 to keep the old headgear as it is, in the central stock. When a decision is WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:33:- taken in the matter contrary to the earlier decision, the members of the Board ought to have been appraised about the same. A perusal of the resolution of the Board dated 25/2/2016 only indicates that the Board was concerned with the requirement of the additional quantity of gold for completing the work of Swarna Thalakettu. No reference had been made to the earlier Board resolution dated 9/1/2015. Therefore, there is justification on the part of the learned counsel to contend that the decision was taken in haste and non application of mind is evident from the aforesaid circumstance itself.
32. Yet another contention urged is that in view of Section 62(2), the permission from the Ruler of Cochin ought to be taken. Section 62(2) cannot have any application as far as the property of the temple is concerned. As per Section 62(2), the regulation and control of all rituals and ceremonies in the temple alone shall continue to be exercised by the Ruler of Cochin. They have absolutely no control over the property of the temple. The words "all rituals and ceremonies" cannot mean the properties in connection with the rituals and ceremonies. They can insist for WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:34:- continuance of a ritual or a ceremony in connection with the temple. They cannot insist that a particular property is to be utilised only in a particular fashion. As far as the headgear is concerned, when a new headgear is made, the old one loses its significance and therefore, the petitioners who claim to be the heirs of the Ruler of Cochin cannot have a grievance alleging violation under S.62(2) of the Act.
33. Apparently, this is a case in which a writ petition was filed before this Court as WP(C) No. 8745/16 on 8/3/2016. It is stated that the old headgear was dismantled on 11/3/2016 and was melted on 2/4/2016. The writ petition came up for hearing on 9/3/2016 on which date, this Court observed as under:- "The work in relation to the making of new headgear is progressing and utilization of the existing (old) headgear is also in terms with the decisions taken by Cochin Devaswom Board, in consultation with the Advocate Commissioner and the 4th respondent. It is also submitted that there are a couple of stones in the old headgear and that will also be utilised in the new headgear." The counsel for petitioner contends that when the aforesaid order was passed, WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:35:- no mention was made regarding the resolution passed on 25/2/2016 or the order dated 3/3/2016 and the Court in fact assumed that other than the stones, the old headgear will be retained as such. This submission also appears to be correct when we referred to the subsequent orders passed by the Court in the very same proceedings. In the order dated 23/3/2016, the following has been stated and the case was posted on 01/04/2016.
"8. Taking all the above-noted facts and circumstances and the contents of the aforereferred orders into consideration, we requested the Advocate Commissioner Sri.M.C.Madhavan to state as to what is the present stage of the one headgear which was already available in the Poornathrayeesa Temple. He submitted that the existing golden headgear ('swarna thalekkettu') [otherwise known as 'Nettipattom'] used to caparison the elephant which will carry the representative idol, at the time of the ritualistic procession, was actually dismantled on 10/3/2016; purportedly pursuant to the order dated 9.3.2016 in WP(C) No.8745 of 2016. We have perused the order dated 9.3.2016 in WP(C) No.8745/2016. The Bench had, obviously, then acted on the submission on the basis of the WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:36:- decision of the Cochin Devaswom Board to utilise the stones in the old headgear in the making of the new headgear. The learned Advocate Commissioner Sri.M.C.Madhavan has presented the list of items in the existing 'Thalakettu' [the available old golden headgear ('swarna thalekkettu')] including the number of pieces, the total weight etc. He also says that it has been reported that items selected at random from the old headgear were subjected to scrutiny to assess its quality. We take the report presented before us by Sri.M.C.Madhavan (signed by him on 23.3.2016), which will be received and incorporated in this file with appropriate endorsement by the Court Officer.
Taking into consideration all the aforesaid facts, it is directed that, for the time being, no portion of the old headgear shall be utilised for the purpose of the making of the new headgear and all dismantled items from the old headgear and enlisted in the report of the Advocate Commissioner shall be retained in as is where is in condition safely, awaiting further orders from this Court. The CDB will be at liberty to continue with the making of the new headgear utilising gold from its stock or by making gold available through other means, awaiting further orders. CDB's decision which is referred to in the order dated 9/3/2016 shall be placed before this Court without fail before the next date of hearing."
WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:37:- In fact, an interim report was filed by the Advocate Commissioner on 23/3/2016. Later, on 1/04/2016, this Court after taking note of the report of the Advocate Commissioner and his submissions, held as under:-
"6. The Advocate Commissioner Sri.M.C.Madhavan has submitted his report and we have heard his submissions to the effect that those items which had to be broken as unusable, have already been broken and while re-doing the golden headgear ('swarna thalakkettu'), the stones which exist in the old headgear will be replanted in the new headgear and will therefore become part of the new headgear as originally suggested. He said that ornaments which are required for the rituals in the temple are given to the custody of the 'Mel Shanthi' and other ornaments which were, according to him, not to be broken down, have been retained without determining its commercial value or antique value. We record the submissions and direct that the ornaments which have already been broken down and the materials obtained thereby, including in the form of gold, silver, stones etc., can be utilised in the making of the new items including the golden headgear. This direction will apply to the existing headgear as well. This will ultimately lead to the making of the new golden headgear utilising the existing golden headgear and other materials. The other ornaments which are not broken down as WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:38:- noted above, will be separately retained. The question whether those ornaments have to be assessed by any particular expert to identify and classify them, either on the basis of the commercial value or the antique value, will be dealt with later on."
34. In fact the aforesaid order came to be challenged before the Apex Court and the Apex Court after having issued a direction to maintain status quo as per order dated 23/5/2016, disposed of Special Leave Petition No.14764/2016 by order dated 17/10/2016, observing that the order of status quo dated 23/5/2016 will govern the parties until disposal of the writ petition as well as the suit.
35. From the aforesaid facts, it is rather clear that it is the case of the petitioners and the Board that though the old headgear was dismantled on 11/3/2016, it was melted only on 2/4/2016, after order dated 01/4/2016. Though there is justification on the part of the petitioners to contend that the Board's decision was taken in a haste and the decision of the Board dated 25/2/2016 was not brought to the notice of this Court on 9/3/2016, the fact remains that after dismantling of the old WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:39:- headgear, when a report was filed before this Court on 1/04/2016, this Court permitted the old headgear to be utilized. Therefore, once the old headgear has been dismantled and melted, there is no reason why any further restriction should be imposed in completing the work in the making of headgear. In fact, the order dated 1/04/2016 was challenged before the Apex Court and an interim order was passed on 23/5/2016 by which time, already the old headgear has been melted. Therefore, we do not think it necessary for us to further continue with the interim orders. It shall be open for the Board with the assistance of the Advocate Commissioner to complete the making of the headgear for the purpose of the temple. The interim order to that extent shall stand vacated.
36. As far as the relief sought for by the petitioner is concerned, we have already opined that the Board decision dated 25/2/2016 was taken in a haste and the question would be, what further action is required in the matter.
37. In so far as the old headgear had already been dismantled and melted, it may not be possible for this Court or WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:40:- any expert to consider whether it was an antique piece or was invaluable. Apparently, those are all items which have a historical importance and ought to have been retained as such despite the fact that it was either worn out or it was repaired on several occasions. If at all any decision ought to have been taken, it should have been a conscious decision after considering all relevant aspects relating to its antiquity, historical importance etc. Of course, as far as the temple and its rituals are concerned, a new headgear would suffice the requirement. But historical importance of the temple and the properties used for various rituals in the temple also have significance in the study of history and the cultural heritage of a society. By dismantling and melting the old headgear, an opportunity to study about its antiquity and historical importance have been completely lost.
38. But, at this point of time, we do not think that any direction can be issued by this Court as sought for by the petitioner. It can only be stated that the decision of the Board in that regard was inappropriate and hasty. The aforesaid action cannot be stated to have been taken to deliberately cause any WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:41:- loss to the Devaswom or the temple, whereas it was a decision taken in haste to immediately complete the work of the headgear. Taking into account all these factual aspects we do not think that there is any point in keeping the matter pending. In future, the Board should ensure that such decisions are taken after taking appropriate steps to ensure that the property vested in it has any antique, historical or ritualistic values. If such aspects are ignored by the Board, it amounts to mismanagement for which appropriate action can be taken by the persons interested in the affairs of the temple. However, we do not think that any direction as sought for can be granted in the present writ petition.
39. As far as the suit is concerned, it is only filed for an injunction to restrain the Board from proceeding with the making of Swarna Thalakettu. The making of Swarna Thalakettu is almost complete and only certain finishing work remains. As far as the suit is concerned, it is pointed out that the suit has been filed without complying with S.124 of the Act which reads as under:-
"124. Suits against Board - (1) No suit shall be instituted against the Board until the expiration of two months after a notice in writing has been WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:42:- delivered of left at the office of the Board stating the cause of action, the relief sought, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left."
Learned counsel for Board also points out that the Court is defined under Section 61(2) as the District Court within the local limits of which the temple is situated. It is argued that the suit for injunction is therefore not maintainable. We do not think that a decision on maintainability of the suit is required at this stage. In the light of the findings which we have already made in WP(C) No.8745/2016 relating to the very same subject manner, we do not think that the suit requires any further decision on merit. However, the right of the plaintiffs to take appropriate proceedings in accordance with law has to be reserved.
Accordingly, these writ petitions are disposed of by issuing the following directions:-
(i) WP(C) No.35340/14 is disposed of directing that transfer of any of the unused or worn out assets of the temple shall be made by the Board only after preparing a proper inventory through a competent body.
WP(C) Nos.35340/2014, 8745/2016 & CS No.1/2016 -:43:-
(ii) WP(C) No.8745/16 is dismissed. Board shall complete the making of the new golden head gear (swarna thalekettu) with the assistance of the Advocate Commissioner. The interim order of status quo shall stand vacated.
(iii) CS No.1/16 is dismissed with liberty to the petitioners to take appropriate steps in accordance with law.
Sd/-
A.M. SHAFFIQUE, JUDGE Sd/-
ANU SIVARAMAN, JUDGE Rp //True Copy// PS to Judge