P.M. Sugunan vs The Commissioner on 30 November, 2009

[Cites 7, Cited by 0]

Kerala High Court

P.M. Sugunan vs The Commissioner on 30 November, 2009

The common grievance projected in these writ petitions is in respect of the alleged rights to appropriate the amount deposited by the devotees at the 'Sopanam' of the Parassinikkadavu Muthappan Temple, without being appropriated towards the Temple fund, so as to have it distributed among the members of the three different families [Kovval, Kannoth and Vadakkal], who are managing the affairs of the temple. A declaration is sought for to the effect that the amount placed at the 'Sopanam' is 'Dakshina' to the Chief Priest and that the same cannot be termed as 'Kanikka' to the Deity. Challenge is raised also with regard to Ext.P6 order issued by the first respondent/Commissioner of Devaswom to the 'Madayan'/Chief Priest of the temple (petitioner in W.P.(C)30457 OF 2009 and the W.P.(C)No. 26300 & 30457 OF 2009 2 4th respondent in the other case) to stop the acts and deeds in appropriating the amounts placed by the devotees at 'Sopanam' and refund the amounts already appropriated, lest further proceedings should follow.

2. W.P.(C)No.30457 of 2009 has been preferred by the Madayan/Chief Priest of the temple, who is the senior most male member of the three families, (who are at the helm of the affairs in relation to the temple) whereas the petitioner in the other writ petition (WP(C) 26300/09), who belongs to one among the three families, is the person next in line to hold the post of 'Madayan', the Chief Priest. The present Madayan [Mukundan Madayan], who is the petitioner in W.P(C)30457 of 2009, belongs to Vadakkal family, whereas the petitioner in the other case by name P.M. Sugunan (who is next in line to be the Chief Priest), belongs to Kannoth family.

3. We heard by Mr. Krishnanunni, the learned Counsel for the petitioner in W.P(C)No.30457 of 2009 and Mr. Lakshminarayanan, the learned counsel for the petitioner in W.P(C)No.26300 of 2009. The version of the Addl. 5th W.P.(C)No. 26300 & 30457 OF 2009 3 respondent/Seva Sangham was projected by Mr. Julian Xavier, the learned counsel for the Seva Sangham and we heard Mr. Mahesh, the learned Standing Counsel for the Malabar Devaswom as well.

4. Sree Parassinikkadavu Muthappan temple is one of the important temples in North Malabar, attracting thousands of devotees every day with an annual collection of more than Rs.2 crores. The temple was a private temple in the olden days and by passage of the time, an enquiry was conducted in terms of the Madras Hindu Religious and Charitable Endowments Act in 1926, which revealed that; besides Hindus, even Christians and Muslims worship in the temple and based on the findings in the enquiry and report dated 14.01.1926 , it was declared as a 'public temple'. Eventhough the declaration of the temple as a 'public temple' was opposed, the suit filed in this regard was dismissed and this Court concurred with the findings of the Court below. The declaration of the temple as a public temple under the said Act and the Temple Entry Authorisation Act stands upheld by all courts including this Court vide the decision reported in Ramunni Madayan vs. State of Madras [1957 KLJ 777] W.P.(C)No. 26300 & 30457 OF 2009 4

5. Though the above temple is a public temple, by virtue of the declaration made in this regard, which has become final, the management of the temple stands vested with three families, who claim to be the owners . The seniormost member of these families is known as Madayan/the Chief Priest. The inflow of amounts as offerings by the devotees was quite enormous and it was allegedly being appropriated by the Madayan and the members of the three families, as distributed among them, of course, after meeting the expenses, which attracted objections from different corners.

6. In the meanwhile, OP. 631/90 dealt with by a Division Bench of this Court came to be disposed of, whereby some general directions were issued directing the Commissioner of the Devaswom to ensure that the temples maintain proper accounts, conduct necessary audit and pursue transactions in a transparent manner. On receipt of a complaint against the Madayan about the mismanagement in the aforesaid temple, it was taken note of by this Court, registering DB.No.3/1994, wherein the main relief sought for was for sealing the Hundials. Simultaneously, the W.P.(C)No. 26300 & 30457 OF 2009 5 Trustee of the temple (Madayan) moved this Court to exempt him from the general directions contained in OP.631/90. After hearing, the said matter was finalised by this Court granting liberty to stand excluded for a period of 12 months from the date of the order, giving an opportunity to the Madayan/Chief Priest to correct himself in respect of the alleged mischief, which period came to an end by 15.12.1998. However, the lapses/default continued and further complaints were being received by the Commissioner as to the pilferage/misappropriation of funds and mismanagement with regard to the affairs of the temple. The crux of the complaints was more in relation to the collection and appropriation of funds from two Hundials by name 'Moolabhandarams' and the amounts left at the 'Sopanam' by the devotees. According to the Madayan/Chief Priest and the three families, the said amounts were to perform the 'Daana' and 'Dharma' [by the Madayan and the members of the family] and that the balance amount was to be appropriated by them; whereas according to the rival faction, it was to form part of the Devaswom/temple fund, which was to be used exclusively for the W.P.(C)No. 26300 & 30457 OF 2009 6 development of the temple and to meet the comfort and convenience of the pilgrims.

7. Since the directions issued by the authorities concerned were simply ignored and the opportunity given by this Court to correct the deeds and misdeeds of the Madayan/Chief Priest himself within a period of 12 months was not properly utilised, Sree Muthappan Seva Sangham representing the devotees [Addl.5th respondent in W.P(C)26300/2009] approached this Court by filing OP No.5859 of 2001. The petitioner in the said case (O.P.5859 of 2001) was a registered society, who sought for issuance of a writ of mandamus directing the respondents to comply with the directions issued by this Court in O.P.631 of 1990 in the matter of opening and counting of Hundi collection in connection with the affairs of Sree Muthappan temple, among other reliefs. The matter was considered elaborately by this Court, especially with reference to the plea set up from the part of the Madayan that the directions in O.P 631 of 1990 were not applicable to the temple as it was governed by the special custom and usage as prescribed by its founder and also with reference to W.P.(C)No. 26300 & 30457 OF 2009 7 the various provisions under the HR & CE Act, in relation to the powers vested with the Commissioner to intervene in appropriate cases. The said Original petition was disposed of as per judgment dated 09.03.2004 (Ext.R5(a) in WP(C)26300/09). Various suggestions made by the Commissioner invoking the powers under the relevant provisions in the Act were referred to in paragraph 4 of Ext.R5(a) verdict dated 09.03.2004 , which are in the following lines:

"1. Hundials may be sealed as in the case of other temples in implementation of this Honourable Court direction in OP.631/90. If Hundials need be opened as part of any custom established under law, option of placing open Hundi at the time of the ritual can be considered. The two 'moolabandarams' are the main hundies receiving huge amounts as collection. Without sealing these hundies there is no point of sealing the remaining hundies.

2. Purchase of store articles may be made from the wholesale consumer co-operative society by door delivery so that the complaints can be avoided. In many temples like Sree Kadampuzha Bhagavathi temple, Sree Mammiyoor temple etc., purchase of articles is done like this without any room for any complaints and quality of articles can be ensured.

W.P.(C)No. 26300 & 30457 OF 2009 8

3. Necessary signboards/notices for guidance of devotees in suitable places, inside and outside the temple, in appropriate matters, may be installed.

4. Additional Hundies may be placed in suitable places.

5. All amounts by way of 'Avakasam' approved as per dittom may be disbursed at the end of the month by the trustee and nobody shall collect any amount at the Sopanam or inside or outside the temple except on due authorization and through authorised counters.

6. Computerization of office and 'Vazipapdu' counters may be done so that accounting may be made easy. In fact computer is available in temple.

7. Thozuthu Varavu and Nerchappirivu, if it is not provided for in the approved dittom shall be stopped.

8. Coupon may be introduced for Tea and Meals and for sleeping materials at the temple.

9. Appointment of a full time and able administrator for assisting the trustee is most desirable for proper administration of the affairs of this most important shrine of north Malabar and for its all round development.

8. The objections raised from the part of the Madayan were adverted to in the very same paragraph and it was categorically held in paragraph 6 that by virtue of the provisions of the Act, power is vested with the Commissioner to appoint Executive W.P.(C)No. 26300 & 30457 OF 2009 9 Officer in appropriate cases. However, this Court found it appropriate to grant another opportunity to the respondent Madayan to explain the custom and usage prevailing in the temple, especially in the matter of two 'Moolabhandarams' before the Commissioner and it was accordingly, that the Original Petition was disposed of, directing the Commissioner to look into all aspects of the matter and pass appropriate orders. Eventhough Ext.R5(a) judgment was challenged by the Madayan, by approaching the Apex Court, the SLP filed in this regard was subsequently withdrawn.

9. Pursuant to Ext.R5(a) judgment as mentioned above, the matter was considered elaborately by the Commissioner who passed Ext.R5(b) order dated 24.08.2005 ( in WP(C)26300/09) dealing with the various aspects ordered to be looked into, which is revealed from the discussions therein and in particular, from paragraphs VII, XII, XVI and XIX. As per Ext.R5(b), the Commissioner, in exercise of the power under Section 20 of the Act, issued the following directions for ensuring proper administration of the temple :

W.P.(C)No. 26300 & 30457 OF 2009 10 "1. All Hundials including the so called Moolabhandaram shall be sealed immediately. Hundials shall be opened after 10 days in accordance with the directions of Hon'ble High Court in O.P.631/90. The proceeds of the so called Moolabhandaram shall be counted and accounted separately and proceeds handed over to the Trustee on proper receipt. Clear display boards such as:

etc., shall be placed on the hundials and prominent placed. The Assistant Commissioner will ensure that these directions are scrupulously complied with".

2. The Deputy Commissioner, will conduct a detailed enquiry u/s.57 of the Act with regard to the origin of the deity, legend, the customs and usages in all matters relating to the temple, with reference to 'avakasam' of tharavadu members, so that a final decision can be taken once and for all, deciding as to what is the accepted custom or usage with reference to the maintenance of the temple.

3. On examination of the file of Deputy Commissioner approving the existing dittom it is seen that the proceedings was finalised without observing the prescribed formalities and as the present Trustee is raising claims regarding custom and usage not mentioned in the Dittom, the Deputy Commissioner shall also take action to W.P.(C)No. 26300 & 30457 OF 2009 11 review and refix a proper dittom including all details exhaustively in accordance with law.

4. It is seen that the vazhipadu and the existing rates are not sufficient even to meet a fraction of the value of articles required. Therefore the Deputy Commissioner shall also consider whether the rates of vazhipadus in vogue can be revised, and in appropriate cases, after obtaining opinion from a panel of independent astrologers through a proper 'Devaprasnam', if necessary.

5. Sri M.P. Krishnan, Assistant Commissioner, Thalassery is appointed in full additional charge of the Special Officer to assit the Trustee. This order will not entitle the Special Officer to do anything against the honour and dignity of Trustee as the Chief Priest, who shall be consulted in all matters.

6. The Special Officer shall prepare and submit proposal for computerizing the temple office and vazhipapdu counter within two months.

7. The Special Officer shall also study and suggest within 1 month the various measures necessary for progress of the temple especially for ensuring convenience of devotees for worship in consultation with the Trustee "

10. As per the above order, the Commissioner appointed a 'Special Officer' to deal with the situation and to tackle the issue in an appropriate manner to ensure progress and transparency in W.P.(C)No. 26300 & 30457 OF 2009 12 the affairs of the temple. It was in the said context, that some 'guidelines' were also issued with respect to the powers and responsibilities of the Special Officer, as mentioned in paragraph 8 and 9 of Ext.R5(b) order, however making it clear that the decision of the Special Officer shall be appealable at the first instance before the Trustee and if aggrieved of the order of the Trustee, before the Dy.Commissioner; further making it clear that if any doubt arises in giving effect to the directions contained in the order, it shall be referred to the Commissioner either by the Spl. Officer or by the Trustee and that the decision on the referred matter shall be final. Ext.R5(b) order passed by the Commissioner was subjected to challenge by the Trustee/Madayan and another (who was standing next in the queue, to be the Madayan/Chief Priest), by filing W.P.(C)26237 of 2005 and W.P.(C) 15998 of 2005 respectively, which culminated in Ext.P1 judgment ( in W.P.(C)26300 of 2009) as mentioned already.

11. As observed in paragraph 5 of the said judgment(Ext.P1), the contention advanced from the part of the W.P.(C)No. 26300 & 30457 OF 2009 13 petitioners was that, they were mainly opposing the accounting of income and expenditure of the temple, stating that cash, jewellery and other collections in the two 'Moolabhandarams' and at the 'Sopanam' were immune from any check, control, screening or accounting by the HR & CE Department, by virtue of the alleged custom in the temple. This Court also took note of the proceedings of the Commissioner, which revealed that there was no custom of maintaining Hundis in the temple till as late as in 1954, [with the result that the Revenue Divisional Officer had reported that contribution and audit fee due to Government could not be recovered from the temple, as it had no Hundis or accounted collections]. It was also observed by the Court that, it was in the course of time, when the temple started attracting lakhs of devotees, that Hundis were installed in several places for collection of offerings from devotees, besides the massive funds obtained by remittances through post offices and Banks. This Court also took note of the fact that the endeavour made by the Commissioner, as per the order under challenge, was only to have the income and expenditure of the temple accounted in a W.P.(C)No. 26300 & 30457 OF 2009 14 fair manner, so that there was no pilferage and misappropriation of funds by the Madayan, who was always the seniormost member among the three families managing the temple.

12. In fact, the misappropriation and misapplication of funds was found substantiated as revealed from the observations made by the Court in paragraph 5 , which is reproduced below:

"The allegation of misappropriation and misapplication of funds is apparently clear from the fact that inspite of annual income of around Rs.2 crores, the amount in fixed deposit is only Rs.38 lakhs and that too retained by former Madayan. The present Madayan, petitioner in WPC 26237 of 2005 has even taken and spent from the fixed deposit, an amount of Rs.7,50,350/-. Inspite of massive receipt and expenditure, the temple is in default of arrears of Rs.88,40,630/- due to Govt. towards contribution and audit fee payable under the Act. Financial mis-management is self-evident from this default alone".

The contention raised by the petitioners that the temple was not a public temple , but a private family property of the petitioners was rejected , as held in paragraph 6. Similarly, the contention as to the lack of power and competence to the Commissioner to W.P.(C)No. 26300 & 30457 OF 2009 15 appoint a Special Officer under Section 20 was also negated. After extracting the said provision and holding that the Commissioner was having wide powers to ensure that temples were properly administered and their income was duly appropriated for the purpose for which they were founded or existed, the Bench also observed that the Commissioner had rightly ordered sealing of all the Hundies and accounting of the entire income and expenditure, referring to the fact that the entire source of funds in the temple was by way of public contributions in the form of offerings in the Hundies or through Post offices and Banks; adding that whenever public money was collected, public interest had to be protected. It was accordingly held as follows:

"We are of the view that Commissioner is perfectly justified in initiating steps covered by Ext.P6. We direct the Commissioner to appoint another representative, whatever be the designation he may give, since the one already appointed by him is retired from service, so that income and expenditure are accounted and arrangements are made for proper and fair management of the temple till finalisation of the scheme. If the Commissioner deems W.P.(C)No. 26300 & 30457 OF 2009 16 fit, he may constitute a committee consisting of Madayan, representatives of three families and representatives from devotees and departmental officers and other responsible persons of the locality for overseeing the management of the temple in a fair and reasonable manner and for counting of Hundi collections in the presence of representatives, We also direct the Commissioner to arrange recovery of arrears due to Govt. in reasonable instalments from the Temple. We therefore dispose of the writ petitions upholding Ext.P6 but with direction to the Commissioner to finalise the proceedings initiated by him after hearing all concerned including petitioners without any delay. "

13. Taking note of the verdict passed by this Court, upholding the appointment of the Special Officer by the Commissioner and directing to finalise the pending proceedings after hearing all the parties, Ext.R5(c) order was passed in modification of Ext.R5(b) order dated 24.08.2005 [ referred to as the first item in Ext.R5(c) Order]. The relevant portion of the modified order reads as follows:

"In view of the above directions, the following order is passed in modification of the order cited first:

Sri V.V. Ratheesan, Deputy Commissioner (Admn) is appointed in full additional charge of the special W.P.(C)No. 26300 & 30457 OF 2009 17 officer with immediate effect for ensuring due accounting of all collections and expenditure in a fair and transparent manner and to ensure proper administration of the temple till finalisation of the scheme..

All Hundials including the so called Moolabhandaram shall be sealed immediately. Hundials shall be opened at shorter intervals, if necessary, in accordance with the directions of the Hon'ble High court in OP.631/90. The proceeds of the so called Moolabhandaram and Sopanam shall be counted and accounted separately and credited to temple funds. The Special officer shall ensure that any amount received at Sopanam or any other places are properly accounted and that no person is making unauthorised collection of cash, kind or jewels at the temple. For this, the procedure prescribed in the direction in OP631/90 for counting the proceeds of open hundis shall be followed. All purchases in the temple shall be entusted with the wholesale Consumer Co-operative Soceity or such other established organisations only by door delivery.

The question of constituting a committee to oversee the management will be considered separately. Regarding the custom and usage with respect to the receipts in Moolabandaram and Sopanam. A.P.11/2007 pending in this office has been disposed of on 25.9.08. In view of the direction of the Hon'ble Court the Deputy Commissioner is directed to finalise the draft scheme most expeditiously as also the question whether the W.P.(C)No. 26300 & 30457 OF 2009 18 existing rates of vazhipadu needs revision and the reviewing and refixing a proper dittom including all details exhaustively. The Trustee is directed to give appropriate facilities for the functioning of the Special officer and the special officer shall take charge immediately and do all the needful for ensuring that all receipts in kind, cash and jewellery and every item of expenditure are properly accounted. He shall also submit proposals for streamlining the administration of the temple as directed.

It is also ordered that the arrears due to Government shall be remitted at the rate of minimum Rs.2/- lakhs per month. This is subject to revision after observing the income of the temple under the Special Officer. The Special Officer in consultation with the trustee shall submit concrete proposals for clearing the arrears of Government dues with in a reasonable period".

14. The above order was sought to be challenged by the Madayan/Chief Priest by filing W.P.(C) 30999 of 2008, wherein Ext.R5(d) interim order was passed by this Court on 27.11.2008, appointing an Adv. Commissioner to supervise and regulate all works pertaining to the removal of the seals for opening the 'Bhandarams' for collecting and counting the cash and other offerings and for depositing the amount in the Co-operative Bank W.P.(C)No. 26300 & 30457 OF 2009 19 as directed earlier. The said task was directed to be performed with notice to the parties and to have the Bhandarams re-sealed as before, granting liberty to the Commissioner to open the same, if the Bhandarams get filled up earlier, of course after giving due notice. Later, the said writ petition was disposed of as per Ext.P3 judgment dated 16.07.2009, rendering a clear finding that the action taken by the Commissioner in compliance with Ext.P1 judgment rendered by this Court on 04.09.2008 [in W.P(C) 26237 & 15998 of 2005] was not liable to be re- agitated. It was however observed by the Bench that the objection raised was against the Special Officer 'then appointed' and during the pendency of the writ petition, the above officer was replaced by a new person, who was continuing in office without giving room for any complaint from any quarters so far. It was accordingly observed that, nothing further survived for consideration and accordingly, the writ petition was closed; simultaneously observing that all Hundies thereafter shall be opened, collections be recorded and remittance be made under the supervision of the Special Officer.

W.P.(C)No. 26300 & 30457 OF 2009 20

15. Despite the above course and events, money dwindling continued, upon which the devotees/Parassinikkadavu Sree Muthappan Seva Sangham filed W.P.(C)26514 of 2009 before this Court, wherein Ext.R5(e) statement was filed by the Malabar Devaswom. As stated in paragraph 5 of the said statement, the Malabar Devaswom Board had viewed the complaints seriously and as per the decision taken in the meeting held on 22.10.2009 [in implementation of the directions contained in the judgment referred to therein] to form a Committee consisting of eleven members (Madayan, representatives of the three Madayan families namely Kovval, Kannoth and Vadakkal), four representatives from devotees, Malabar Devaswom Board represented by the Asst.Commissioner, and two distinguished personalities from the locality. It was also decided not to take further action on the proceedings initiated under Section 45 of the HR & CE Act against the Trustee, till the next meeting of the Malabar Devaswom Board. It is relevant to note that, the order passed by the Dy. Commissioner on 27.12.2006 in O.A.35 of 2005 (virtually in favour of the Trustees) was subjected to W.P.(C)No. 26300 & 30457 OF 2009 21 challenge in appeal by the Prassinikadavu Sree Muthappan Seva Sangham (registered society represented by its Secretary) by filing appeal under Section 61(1) of the HR & CE Act before the Commissioner of the Malabar Devaswom Board.

16. Pursuant to Ext.P1 judgment dated 04.09.2008 in W.P. (C)26237 & 15998 of 2005 , the appeal was considered by the Commissioner and after hearing both the sides, it was held that the issue considered in the impugned order passed by the Dy.Commissioner had already been considered by this Court, leading to Ext.P1 judgment dated 04.09.2008 as mentioned above and that this Court had in emphatic terms rejected all the contentions regarding the custom and usage with regard to receipts in two 'Moolabhadarams' and 'Sopanam' and directed that the entire receipts and expenditure shall be duly accounted and that all the Hundials and Moolabhandarams also shall be sealed and the proceeds be counted in the presence of representatives of the Committee to be constituted, if necessary, for overseeing the management of the temple. It was further observed by the Commissioner that this Court had upheld the W.P.(C)No. 26300 & 30457 OF 2009 22 appointment of the Spl.Officer for ensuring proper accounting of all income and expenditure and for ensuring transparent administration. It was specifically found that the available records were sufficient to arrive at a conclusion on the various customs and usages raised with regard to "Hundies, Kurithodal, Nischaya by founder, Sopana Dakshina, Prasada Dakshina and Avakasam" etc. The Dy. Commissioner was directed to examine whether there was any additional evidence proving any of the claims of the respondent.Unfortunately, the Deputy Commissioner appeared to have totally disregarded the said findings without any reliable evidence and hence it was held as highly irregular and improper; simultaneously observing that in view of the decision rendered by this Court, the order of the Dy. Commissioner was a non-entity, holding that the appeal had become infructuous, which in turn was dismissed as per Ext.R5(f) (in WP(C) 26300/09). However, as per the very same order, it was observed that the Madayan was raising varied and newly invented versions on custom, usage and the origin of the Deity from time to time, which had to be decided finally and hence the W.P.(C)No. 26300 & 30457 OF 2009 23 Dy. Commissioner was directed to conduct a fresh enquiry with respect to the established custom and usage, the legend and origin of the Deity, as per the available records, untrammelled by any evidence and findings in the impugned proceedings, after due publication at the temple premises and newspaper and also after affording an opportunity of hearing to the appellant,the respondent and other interested persons. The Dy. Commissioner was directed mainly to consider whether there was any additional trustworthy evidence regarding the custom or usage or origin of the Deity over and above the findings in order No.HRJ3.1806/01 dated 24.08.05. It is stated that the matter is still to be finalised by the Dy.Commissioner, pursuant to Ext.R5(f).

17. Mr. T. Krishnanunni, the learned Sr. Counsel appearing for the Madayan/petitioner in W.P.(C)30457 of 2009 submits that without any regard to the directions contained in Ext.R5(f) order passed by the Commissioner on 25.09.2008 and inspite of the pendency of the matter before the Dy.Commissioner, Ext.P4 charge memo dated 03.08.2009 came to be issued to the Madayan/petitioner, alleging financial misappropriation, W.P.(C)No. 26300 & 30457 OF 2009 24 dereliction in discharging of duties and in acting contrary to the interests of the Devaswom, causing loss . On receipt of Ext.P4, detailed explanation/objection was submitted by way of Ext.P5, which was found as not acceptable and Ext.P6 order came to be passed on 21.08.2009 by the Commissioner , whereby the petitioner/Madayan was found guilty of the misconducts. It was accordingly, that the petitioner was required to re-pay the entire amounts appropriated and distributed among the members of the three families, who are managing the affairs of the temple and should he fail to do so, further steps would be pursued against him in accordance with law. This made the petitioner/Madayan to challenge Ext.P4 charge memo and the subsequent proceedings , also by causing amendment of the writ petition by filing I.A. 14797 of 2009, besides seeking for a declaration that the offerings made at the 'Sopanam' of Sree Parassinikkadavu Muthappan Temple are liable to be appropriated by the Trustee of the temple. Similar reliefs are prayed for by the petitioner in the other case, who is the next seniormost member among the three families and standing next in line, to succeed the present W.P.(C)No. 26300 & 30457 OF 2009 25 Madayan, in case of the latter's death or disablement.

18. During the course of hearing as above, the learned counsel appearing for the petitioners asserted before this Court that the dispute with regard to the right for appropriation of the funds from the two 'Moolabhandarams' is not pressed by the petitioners and that the relief sought for would stand confined only to the amounts deposited by the devotees at the 'Sopanam', which is 'Dakshina' to the Madayan/Chief Priest (to be distributed among the members of the three families, who are managing the affairs of the temple). It is also pointed out that the entire property where the temple is situated belongs to the three families and the members of the three families are contributing much to the affairs and development of the temple, also by doing physical labour/service. As already held by this Court in the earlier rounds of litigation, the main source of income is by way of public offerings by devotees in the various Hundials including two 'Moolabhandarams' planted in the temple premises, besides the amount placed at the 'Sopanam'. In so far as the dispute now stands confined to the amounts placed at the 'Sopanam', W.P.(C)No. 26300 & 30457 OF 2009 26 which according to the petitioners is by way of 'Dakshina' to the Chief Priest; while according to the Seva Sangham/Devaswom, it is to form part of the Devaswom/Temple funds; the point to be considered by this Court is as to the relative rights and liberties in this regard.

19. It is contended by the petitioners that from the time immemorial, the amounts being placed as offerings by devotees at the 'Sopanam' were being appropriated by the Madayan and it was being distributed among the members of the three families for meeting their daily needs as the Deity belongs to their family. It is stated that there is no separate 'idol' in the temple, nor is there any Poojari/Santhikkaran as per the normal concept in comparison with other temples. It is also pointed out that the ownership rights over the property where the temple is situated stand vested with the members of the three families and their eligibility to get their due share in return, is discernible from the various proceedings and judgments rendered by this Court at different points of time. In support of the contention that the amount deposited/placed by devotees on the 'Sopanam' is W.P.(C)No. 26300 & 30457 OF 2009 27 'Dakshina' to the Madayan, reliance is sought to be placed on the verdict rendered by a learned Single Judge of this Court on 11.07.1980 in A.S.Nos. 112 and 113 of 1976. The issue considered therein was whether the offering- cash or kind- put in the vessel placed just below the 'Sopanam' by the devotees was to be treated as 'Dakshina' to the Poojari or Santhikkaran, or whether it was 'Kanikka' offered in favour of the Deity. With reference to the long custom and usage practised in the temple, it was held that the amount was to be treated as 'Dakshina' to Santhikkaran. It was accordingly that the verdict passed by the trial court to the contrary was set aside and the appeal was allowed. Obviously, the said judgment is based on the specific facts pleaded and the evidence let in, with reference to the custom and usage, which does not declare any law of uniform application, to hold that wherever amount is placed at the 'Sopanam' by devotees, it shall go to the Santhikkaran/Priest and never to the Deity .

20. It may be true that the Madayan used to appropriate the amounts placed by the devotees as offerings at the W.P.(C)No. 26300 & 30457 OF 2009 28 'Sopanam' of Parassinikkadavu Madappura temple, treating it as a Dakshina to him. As a matter of fact, 'Dakshina' is something which comes within the purview of a reverential offering to a Priest, a Teacher or an Elder, who is competent and qualified in terms of the concept of Dakshina, to accept the same. Unlike this, 'Kanikka' is an offering to the Deity by the devotees, in connection with the prayers made by them. It is the duty of the Santhikkaran/priest/elders as aforesaid to accept the Dakshina and bless the person who offers the Dakshina, which does not depend upon the quantum or value of Dakshina. Even otherwise, Dakshina cannot be demanded as a matter of right. Whatever is offered by the devotees/offerer as 'Dakshina', is to be accepted by the recipient, so far it comes within the purview of the concept of 'Dakshina' for the service rendered or the blessing given or expected to be given or sought to be given in this regard. We find support from the ruling rendered by another Bench of this Court in Parameswaran Namboothiri P.S. vs. Travancore Devaswom Board. [2012(1) KLT 246].

W.P.(C)No. 26300 & 30457 OF 2009 29

21. Another important aspect to be noted is that 'Sopanam' in Sanskrit means 'footsteps'. The steps lead to the Sanctum Sanctorum, where the idol is situated or the Deity is placed. It cannot be forgotten that a devotee who is coming from a far away place, may not be knowing the custom/usage/practice (of taking the offering placed at the 'Sopanam' by the priest as Dakshina); who may place his offering to the Deity at the 'Sopanam' leading to the Sanctum Sanctorum (where the Deity is situated) and make his prayers accordingly. In the Muthappan temple involved herein, there is no dispute that persons are coming from far away places, who include Hindus, Christians and Muslims as well. In the said circumstance, what matters more is with regard to "will of the devotee", who makes the offerings. In other words, it is for the devotee to consider and place the offering, as to whether it should go to the Deity as 'Kanikka' or to the Priest/Madayan as 'Dakshina'. Once this position is made clear, the situation will be taken care of by the devotee himself by putting the offering in favour of the Deity as 'Kanikka' or in favour of the Priest/Madayan, as 'Dakshina', at the place where it W.P.(C)No. 26300 & 30457 OF 2009 30 is to be offered/placed. This will solve the issue once and for all. The offerer/devotee cannot be left in the dark as to the fate of his offering, concealing the fact that if it is placed in the 'Sopanam', it will never go to the Deity as 'Kanikka' (despite the will and wish of the devotee/offerer) and it will go only to the Madayan/Priest as 'Dakshina'.

22. In the above circumstances, this Court finds it appropriate to cause the position to be brought to the notice of all concerned. Accordingly, there will be a direction to cause two vessels, preferably of Bronze or Copper of equal size (like Uruli or small pots) to be placed equidistantly at the 'Sopanam' with a clear, legible and readily readable inscription (in English and the Regional language) that one vessel will be for deposit of 'Dakshina' to the priest/ Madayan, while the contributions in the other vessel will form 'Kanikka' to the Deity. The amounts collected in the above two vessels shall be counted every day by the authorities concerned in presence of the representatives of both the Madayan/Devaswom/representatives of devotees. The contributions collected in the vessel marked with 'Kanikka to the W.P.(C)No. 26300 & 30457 OF 2009 31 'Deity' could be appropriated as Devaswom/temple fund; whereas the contributions collected in the vessel marked with the inscription as 'Dakshina to Madayan/Priest' could be appropriated by Madayan after proper accounting, to be distributed among members of the three families. It is ordered accordingly.

23. With regard to the amounts already kept in the separate Bank accounts and the extent already appropriated by the petitioner Madayan and distributed among the members of the three families, based on the interim orders passed by this Court at different points of time with reference to the custom/usage, it shall be subject to the further orders to be passed by the competent authority, pursuant to Ext.R5(f) order passed by the Commissioner. All further proceedings pursuant to Ext.P4 charge memo and Ext.P6 order passed by the Commissioner issued against the Madayan/petitioner in WP(C)No.30457 of 2009 shall be kept in abeyance till such time. It is also made clear that, even after passing the orders by the departmental authorities/Dy.Commissioner pursuant to Ext.R5(f), the course already ordered by us with regard to the necessity to keep two W.P.(C)No. 26300 & 30457 OF 2009 32 separate vessels and appropriation of amounts separately by the priest/Madayan as 'Dakshina' and by the temple/Devaswom fund as 'Kanikka to the Deity' will continue to govern the field as a permanent arrangement.

Both the writ petitions are disposed of accordingly.

P.R. RAMACHANDRA MENON, JUDGE SHIRCY V, JUDGE lk

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