Kerala High Court
Cochin Devaswom Board vs The Deputy Director on 29 July, 2022
Author: Anil K. Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 29TH DAY OF JULY 2022 / 7TH SRAVANA, 1944
DBP NO. 31 OF 2022
IN THE MATTER OF COCHIN DEVASWOM BOARD - CDB REPORT NO.18 OF
2022 IN PETITION NO.3 OF 2022 - SEEKING PERMISSION FOR
CONDUCTING EXHIBITIONS AND TRADE FAIRS IN THE THRISSUR POORAM
EXHIBITION GROUND IN VADAKKUMNATHA KSHETHRA MAIDAN - REG.
------------
PETITIONER/S:
COCHIN DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY
ROUND NORTH, THRISSUR-680001
BY ADV K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD
RESPONDENT/S:
THE DEPUTY DIRECTOR
KERALA STATE AUDIT DEPARTMENT, COCHIN DEVASWOM AUDIT,
ROUND NORTH, THRISSUR - 680001
OTHER PRESENT:
SRI S.RAJMOHAN-SR GOVERNMENT PLEADER ; SRI
P.RAMACHANDRAN- AMICUS CURIAE
THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION
ON 29.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
D.B.P.No.31 of 2022
2
ORDER "CR"
Anil K. Narendran, J.
This DBP is registered based on CDB Report No.18 of 2022 in Petition No.3 of 2022 of the learned Ombudsman for Travancore and Cochin Devaswom Boards. The applicant, i.e., the Cochin Devaswom Board, represented by its Secretary, has filed Petition No.3 of 2022 before the learned Ombudsman, seeking permission to conduct exhibitions and trade fairs in Thrissur Pooram exhibition ground in Thekkinkad Maidan, during the period other than Thrissur Pooram exhibition. In that petition, it is stated that due to Covid-19 pandemic and other reasons the Cochin Devaswom Board is facing acute financial crisis and the Board sought assistance from the State Government to meet expenses. Around Rs.9 to 12 Crores is required for meeting the monthly expenses for the rituals and the wages of the employees. In view of continued fall of income, the Board has to explore the means to diversify its finances to augment the income and tide over the crisis. In such circumstances, in the 34th meeting of the Board held on 30.09.2021, it was decided to seek permission of this Court to D.B.P.No.31 of 2022 3 conduct exhibitions and trade fairs in Thrissur Pooram exhibition ground in Thekkinkad Maidan, during the period other than Thrissur Pooram exhibition. Based on the above decision, vide Annexure A5 order dated 08.10.2021, Cochin Devaswom Board authorised its law Officer to take necessary steps to approach this Court for seeking necessary permission. Based on that decision, Petition No.3 of 2022 was filed before the learned Ombudsman, producing therewith Annexures A1 to A4 orders of this Court.
2. Before the learned Ombudsman, the Deputy Director, Kerala State Audit Department, Cochin Devaswom Audit, submitted remarks, wherein it is stated that, in the current financial scenario, the Board can negotiate with Thiruvambadi Devaswom and Paramekkavu Devaswom for sharing the profit obtained through Thrissur Pooram exhibition conducted in the exhibition ground in Thekkinkad Maidan. Regarding the permission sought for in Petition No.3 of 2022, the State Audit has pointed out that financial feasibility study may be conducted by the Board about the factors, namely, monsoon period, the expected expenditure for conducting the exhibition, the sanction D.B.P.No.31 of 2022 4 to be obtained from other agencies, the expected days in a year, etc. Before the learned Ombudsman the Board filed reply, producing therewith Annexure A6 feasibility report. It was pointed out that such trade fairs are being conducted in Ernakulathappan ground by the Temple Advisory Committee, which has been given permission to make use of that ground for such purposes, on profit sharing of the income between the Temple Advisory Committee and the Cochin Devaswom Board. During Pooram Festival, exhibition is being conducted by Paramekkavu Devaswom and Thiruvambadi Devaswom in the exhibition ground in Thekkinkad Maidan. Therefore, the Board may be permitted to conduct exhibitions and trade fairs in Thrissur Pooram exhibition ground in Thekkinkad Maidan, during the period other than Thrissur Pooram exhibition, to tide over the financial crisis and to augment its income.
3. In Annexure A2 judgment dated 28.03.2003 in O.P.No.8521 of 2003 and C.M.Ps in DBA.No.143 of 2002 a Division Bench of this Court permitted the use of the exhibition ground in Thekkinkad Maidan for conducting Onam Fair by Civil Supplies Corporation, etc. Based on CDB Report No.125 of 2010 D.B.P.No.31 of 2022 5 of the learned Ombudsman, DBP.No.48 of 2010 was initiated, which was disposed of by Annexure A3 order dated 08.07.2013, making the interim order dated 08.06.2011 in that DBP absolute. The said interim order, which is extracted in paragraph 2 of Annexure A3 order dated 08.07.2013, is extracted hereunder;
"2. After elaborately considering the various aspects, this Court passed a detailed interim order dated 08.06.2011, which is extracted below;
"We have perused the materials on record including the affidavits as also statements of the District Collector, Thrissur, Paramekkavu Devaswom, Thiruvambady Devaswom and the Cochin Devaswom Board.
2. As noted by the learned Ombudsman in his report dated 06.08.2010, the land known by the name "Thekkinkadu Maidan" belongs to the Cochin Devaswom Board as a trustee in terms of the provisions of the Travancore Cochin Hindu Religious Institutions Act. There is no dispute on this fact. That being so, there cannot be any construction activity or modifications in the name of beautification, etc. by the Corporation authorities, the Government or any other agency, public or private except under the requirement of the Cochin Devaswom Board.D.B.P.No.31 of 2022 6
3. The statement of the District Collector candidly points out that in spite of different efforts, including suffering expenditure, nothing worthwhile has come out regarding the different attempts to carry out "beautification" of Thekkinkadu Maidan. He points out that the Development Plan for Thrissur city is in the cradle stage and the proposal for Thekkinkadu Maidan is yet to be worked out. Specific reference is made to G.O.(Ms.)No.240/75/LAD & SWD dated 24.09.1975, issued more than three and a half decades ago, to point out that in terms of the said sanctioned detailed Town Planning Scheme, Thekkinkadu Maidan is kept as green space except temple structure. The scheme of 1975 thus requires Thekkinkadu Maidan to be a green space. Unfortunately, the materials on record disclose that it is more brown than green and if one were to visualise the entire topography, it may look like a brown bald scape with a small patch of green which is nothing but the oasis point where a few teak trees remain, remembering for themselves the glorious past of "Thekkinkadu Teak Forest".
4. In the larger interest of the society, the DTPS is issued earmarking the space Thekkinkadu Maidan as a green space. The District Collector says that is a major breathing space. It is also the main attraction of Thrissur town. Obviously, these are reasons which point towards the immediate requirement to ensure that appropriate planning is taken immediately and on finalization of such plan, urgent afforestation activity will have to be carried out to ensure that D.B.P.No.31 of 2022 7 Thekkinkadu Maidan will stand meaningfully expressing its name.
5. We are told that large congregation of people assemble during the Thrissur Pooram which is now a money spinner as part of tourism. We are also told that exhibition is held in connection with Thrissur Pooram. Some are utilized for providing space to accommodate an outlet for essential commodities. There is some space in the possession of the Water Authority.
6. With all these, we are inclined to think that out of the total extent of Thekkinkadu Maidan which is around 61.34 acres, the land actually required for conducting the Pooram festival and also for such further purposes for which High Court has granted permission in terms of the different earlier orders in different proceedings have to be identified and the remaining portion is to be put to afforestation activity by planting teak or such other trees as may be advised by the competent forest officials.
7. In the light of the above and taking into consideration the report of the learned Ombudsman, it is directed that henceforth there shall be no construction, beautification or other activities in the Thekkinkadu Maidan by the Government or the Corporation of Thrissur or any other authority without obtaining specific orders from this Court. The Cochin Devaswom Board will protect the said Maidan appropriately since it is the property of the Cochin D.B.P.No.31 of 2022 8 Devaswom Board. We also direct that the District Collector will ensure that the directions in this order regarding preservation of the Thekkinkadu Maidan is appropriately supported by the District Administration. Insofar as the 'Jaladhara' which has become defunct and has turned out to be the hub of antisocial elements is concerned the Secretary, Cochin Devaswom Board is directed to ensure that the same is demolished and removed within a period of one month from now without fail. A report in that regard shall be placed on record within a period of forty five days from today.
8. In consonance of the above, we further direct the Secretary of the Board to file an affidavit within a period of forty five days from today identifying the location in the Thekkinkadu Maidan where afforestation activity can be taken up. The view of the forest officials having jurisdiction over the area will also be specifically obtained as regards the type of saplings and other aspects.
9. Having regard to the fact that the Thekkinkadu Maidan is vested with the Cochin Devaswom Board, we are of the view that the Government or the Corporation cannot independently decide on its beautification and therefore we direct that all proposals in that regard which have been taken up without the clearance of the Cochin Devaswom Board will stand stayed until further orders. It is further directed that there shall be no construction activity by the Cochin Devaswom Board in the Thekkinkadu D.B.P.No.31 of 2022 9 Maidan without obtaining specific orders from this Court. This inhibition will not cover such temporary structures which are necessary such as festival, Pooram and rituals in connection therewith as is held hitherto, exhibition etc.
10. We are also told that there are no hoardings and advertisement board inside Thekkindkadu Maidan, we also further direct that the Secretary, Cochin Devaswom Board will ensure that the entire Thekkinkadu Maidan is kept plastic free. The Secretary of the Thrissur Corporation is also directed to ensure that the environment safety level are maintained in connection with plastic and non-biodegradable and also biodegradable substance insofar as Thekkinkadu Maidan is concerned particularly because it is an area which attracts the public."
4. In the order dated 08.06.2011, this Court directed that no other programs except those permitted will be undertaken without specific orders of this Court. The said order was made absolute in Annexure A3, wherein it was ordered that all the directions will remain as such for future application. In Annexure A3 order in DBP No.48 of 2010, this Court noticed that Thekkinkadu Maidan is also used in connection with Thrissur Pooram Festival and therefore, restricted activity alone can be D.B.P.No.31 of 2022 10 permitted. This Court directed that any of the official agencies or other agencies involved in implementing any program in connection with Thekkinkad Maidan will have to seek separate sanction from this Court, which will not apply to erection of temporary structures connected with Pooram Festival, exhibition, etc., and other activities connected with the temple. Pursuant to the orders of this Court, 140 teak plants were planted. The learned Standing Counsel for Cochin Devaswom Board reported that, out of 140 teak plants, 113 are now existing and the remaining have perished and steps will be taken for planting fresh saplings with the cooperation of the Social Forestry Department. The learned Special Government Pleader (Forest) assured that all assistance will be rendered by the Conservator of Forest-in-charge of Social Forestry for maintaining the plants. Therefore, in Annexure A3, it was ordered that the said arrangement will continue and appropriate steps will be taken from time to time. The perished plants will be replaced as and when it is necessary. The Division Bench directed the Devaswom Officer to bring to the notice of this Court any matters noticed by him, by way of any developmental D.B.P.No.31 of 2022 11 activities by any agencies. It was ordered that all steps will be taken to protect Thekkinkad Maidan.
5. In the year 2013, the Cochin Devaswom Board filed Petition No.23 of 2013 before the learned Ombudsman seeking permission to use Thekkinkad Maidan for commercial purposes like conducting exhibitions, etc. On that petition, the learned Ombudsman submitted CDB Report No.81 of 2013, wherein it was stated that some criticisms are possible with the use of Thekkinkad Maidan for pay and park, though there was no such objection for the Pooram Exhibition Committee in collecting parking fee at the time of exhibition. The Division Bench noticed that, as it is clear from Annexure 1, apart from seeking as aforesaid, permission was also sought for allowing political parties to conduct meetings, etc., in Thekkinkad Maidan. The Division Bench noticed that the view taken in paragraph 3 of Annexure A3 order dated 08.07.2013 in DBP No.48 of 2010 that only restricted activities can be permitted in Thekkinkad Maidan apart from using it in connection with Thrissur Pooram Festival. In Annexure A4 order dated 30.09.2013 in DBP No.78 of 2013, the Division Bench took a view that, if any other unrestricted D.B.P.No.31 of 2022 12 activities are permitted, it will have an adverse impact on the property which is one of the important location as far as the entire town is concerned. Therefore, the order passed in DBP No.48 of 2010 will take care of all matters which may arise in future. In Annexure A4 order, the Division Bench clarified that, whenever fresh application or proposals are received from interested parties, the Cochin Devaswom Board will place the matter before this Court for consideration and only after sanction by this Court any such activities can be permitted.
6. In CDB Report No.18 of 2022, the learned Ombudsman noticed that, though the Cochin Devaswom Board has sought permission for beautification of Thekkinkad Maidan by filing Petition No.17 of 2018, the report made by the Ombudsman on that petition is pending consideration before this Court in DBP No.83 of 2018. The permission sought for in Petition No.3 of 2022 is to conduct exhibitions and trade fare in Thrissur Pooram exhibition ground in Thekkinkad Maidan, during the remaining period other than Thrissur Pooram exhibition. The learned Ombudsman noticed that the land, where Thrissur Pooram exhibition is being conducted, is not being used for any D.B.P.No.31 of 2022 13 other purpose. Petition No.3 of 2022 does not specifically say that there is deforestation area. The restrictions imposed in the orders of this Court are against semi-permanent constructions adversely affecting the forestation and permission is granted only in the deforestation area, for the use of such trade fairs and exhibitions. The temporary structures connected with Pooram festivals, exhibitions, etc., and other activities connected with the temple are exempted in Annexure A3 order. The learned Ombudsman found that since the purpose for which permission is sought for in Petition No.3 of 2022 does not cover the programs already permitted, the Cochin Devaswom Board has to obtain permission from this Court by a specific order. In paragraph 12 of CDB Report No.18 of 2022, the learned Ombudsman has stated that, in case this Court decides to grant the permission as sought for by the Cochin Devaswom Board, the following aspects may be considered to be imposed as conditions;
"(i) No objectionable substances shall be sold in the said trade fair which are considered to be against Hindu D.B.P.No.31 of 2022 14 religious belief, as Thekkinkadu Maidan, the Devaswom property, belongs to the Cochin Devaswom Board.
(ii) There shall not be any semi/permanent construction in the ground other than those which are temporary in nature, allowed for similar to conduct Thrissur Pooram exhibition.
(iii) In case any licence is issued to any traders, application should be obtained indicating the purpose for which the shop will be used and only after considering the same any sanction shall be granted by the Board.
(iv) No tree shall be cut or removed from the area where exhibition/trade fair is proposed to be conducted."
7. On 06.07.2022 when this DBP came up for consideration, the learned Senior Government Pleader sought time to get instructions. The learned Standing Counsel for Cochin Devaswom Board was directed to place on record the layout of Thekkinkad Maidan before the next posing date. Pursuant to that order, the learned Standing Counsel for Cochin Devaswom Board has placed on record Annexure A8 layout of exhibition stalls and pavilions proposed in the Pooram exhibition ground in Thekkinkad Maidan along with a memo dated 19.07.2022. The said layout is one prepared by the concerned Assistant Executive Engineer.
D.B.P.No.31 of 202215
8. Heard the learned Standing Counsel for Cochin Devaswom Board for the petitioner and also the learned Senior Government Pleader for the respondent Deputy Director, Kerala State Audit Department.
9. The learned Standing Counsel for Cochin Devaswom Board would submit that the Board has submitted Petition No.3 of 2022 before the learned Ombudsman, on account of acute financial crisis due to Covid-19 pandemic and other reasons. Around Rs.9 to 12 Crores is required for meeting the monthly expenses for rituals and wages of the employees. The Board in its 34th meeting held on 30.09.2021 decided to seek permission of this Court to conduct exhibitions and trade fairs in Thrissur Pooram exhibition ground during the period other than Thrissur Pooram exhibition. The learned Senior Government Pleader would submit that the respondent Deputy Director, Kerala State Audit Department, has already submitted his remarks before the learned Ombudsman, wherein it is stated that in the current financial scenario, the Board can negotiate with Thiruvambadi and Paramekkavu Devaswoms to share the profit obtained through Thrissur Pooram exhibition conducted in Thekkinkad D.B.P.No.31 of 2022 16 Maidan. Based on the remarks of the State Audit of conducting financial feasibility study, the Board submitted Annexure A6 feasibility report before the learned Ombudsman.
10. The Travancore-Cochin Hindu Religious Institutions Act, 1950, was made for making provisions for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. Chapter VIII of the Act deals with Cochin Devaswom Board. Section 62 of the Act deals with vesting of administration in the Board. As per sub-section (1) of Section 62, 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. As per sub-section (2) of Section 62, D.B.P.No.31 of 2022 17 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 Ruler of Cochin.
11. Section 62A of the Act, inserted by Act 14 of 1990, deals with Devaswom properties. As per Section 62A, all immovable properties vested in the Cochin Devaswom Board under sub-section (1) of Section 62 shall be dealt with as Devaswom Properties. The provisions of the Kerala Land Conservancy Act, 1957 shall be applicable to Devaswom lands as in the case of Government lands. As per Section 62B, all unassigned lands belonging to the Devaswom under the sole management of the Board shall be deemed to be the property of the Government for the purpose of the Kerala Land Conservancy Act, 1957 and all the provisions of that Act shall, so far as they are applicable, apply to such lands.
12. Section 68 of the Act provides for administration by the Board as a trustee. As per sub-section (1) of Section 68, subject to the provisions of the Act and of any other law for the D.B.P.No.31 of 2022 18 time being in force, the Board shall be bound to administer the affairs of incorporated and unincorporated Devaswoms and institutions under its management in accordance with the objects of the trust, the established usage and customs of the institutions and to apply their funds and property for such purposes. As per sub-section (2) of Section 68, notwithstanding anything contained in sub-section (1), the Board may, out of the funds under their control, set apart such sum as they deem fit for the educational uplift, cultural advancement and economic betterment of the Hindu community, after providing adequately for the purposes of the institutions which have to be met from the said fund.
13. Section 73A of the Act deals with duties of the Board. As per Section 73A, it shall be the duty of the Board to perform the functions enumerated in clauses (i) to (iv), namely, (i) to see that the regular traditional rites according to the practice prevalent in the religious institution are performed promptly; (ii) to monitor whether the administrative staff and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of D.B.P.No.31 of 2022 19 the Hindu Religious Institutions; (iv) to establish and maintain proper facilities in major temples for the devotees.
14. Section 74 of the Act deals with vesting of jurisdiction in the Board. As per Section 74, subject to the provisions of sub-section (2) of Section 62, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Cochin prior to the 1st day of July, 1949 in respect of incorporated and unincorporated Devaswoms and Institutions shall vest in and be exercised by the Board in accordance with the provisions of the Act. Section 74 of the Act deals with superintendence and control by the Board. As per Section 64, the Board shall, subject to the provisions of Part II of the Act, exercise supervision and control over the acts and proceedings of all officers and servants of the Board and of the Devaswom Department.
15. Section 86 of the Act provides that alienation of property without sanction of Board void. As per sub-section (1) of Section 86, any exchange, sale, mortgage, pledge, lease or other alienation of the property of an institution executed or made or any debt contracted on its behalf, shall be void unless it is executed or made or contracted with the previous sanction of D.B.P.No.31 of 2022 20 the Board or with the previous sanction of the Civil Court when in any suit, appeal or other proceedings in relation to the institution a Receiver has been appointed by the civil court for the management of the properties of the institution. As per the proviso to sub-section (1) of Section 86, the court shall before granting or refusing such sanction give notice to the Board and hear the objections, if any, of the Board. As per sub-section (2) of Section 86, the Board may prefer an appeal to the High Court from the order passed by such court within thirty days of the order and such appeal shall be heard and disposed of by a Bench of not less than two Judges. As per sub-section (3) of Section 86, any person aggrieved by an order under sub-section (1) may appeal to the High Court within thirty days from the date of publication of the order in the Gazette and such appeal shall be heard and disposed of by a Bench of not less than two Judges. As per sub-section (4) of Section 86, every order of the Board under sub-section (1) shall be published in the Gazette.
16. In M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65], in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court explained the nature of the D.B.P.No.31 of 2022 21 fiduciary position of the trustee and his duties and obligations. It is duty of the trustees of the property to be faithful to the Trust and execute any document with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. A trustee could not therefore occasion any loss to the Trust and it is his duty to sell the property, if at all that was necessary, to best advantage. Paragraph 4 of that decision reads thus;
"4. There is some controversy on the question whether Defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs 21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs 21,500, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed Ext.B13 dated July 14, 1960. The fact, however, remains that Defendant 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the D.B.P.No.31 of 2022 22 trust and it was his duty to sell the property, if at all that was necessary, to best advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee's partner or son, for that would, in fact and substance, indirectly benefit the trustee. Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether the trustee has acted reasonably and in good faith or whether he has D.B.P.No.31 of 2022 23 committed a breach of the trust by benefitting himself from the transaction in an indirect manner. The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law although it had a direct bearing on the controversy before it."
(underline supplied)
17. In A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of 'fences eating the crops' should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of D.B.P.No.31 of 2022 24 religious and charitable institutions from wrongful claims or misappropriation.
18. In Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132] a Division Bench of this Court noticed that in A.A. Gopalakrishnan [(2007) 7 SCC 482] the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of parens patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of properties of the Temple itself, the truth of the same can be gone into by the High Court in these proceedings.
19. In Abu K.S. v. Travancore Devaswom Board and D.B.P.No.31 of 2022 25 others [2022 SCC OnLine Ker 1642] [judgment dated 09.02.2022 in W.P.(C)No.2254 of 2022] a Division Bench of this Court, in which both of us were parties, was dealing with a case in which Kuthaka right for running Aymanam Sri Narasimha-swami Auditorium (sadyalayam) constructed by the Travancore Devaswom Board was auctioned for a period of two years from 01.08.2019 to 31.07.2021, for Rs.2,41,000/-. The average monthly income generated from the said building constructed by the Travancore Devaswom Board by spending several lakhs of rupees was only Rs.10,000/-. Relying on the law laid down by the Apex Court in M.V. Ramasubbiar [(1979) 2 SCC 65] this Court held that, while auctioning the right for running that sadyalayam, the Travancore Devaswom Board and its officials have to ensure that proper income to the Board is generated from the said building. In case of any default committed by the successful bidder in remitting the balance auction amount, electricity charges or any other statutory dues payable as per the tender conditions, the concerned Assistant Devaswom Commissioner and the Sub Group Officer have to take prompt action against such bidder and the said fact has to D.B.P.No.31 of 2022 26 be promptly reported to the concerned officer in the Estate Division of the Travancore Devaswom Board.
20. In Abu K.S. [2022 SCC OnLine Ker 1642] the writ petitioner, the successful bidder, remitted only 50% of the auction amount on 18.07.2019. Though he had defaulted payment of the balance amount of Rs.1,20,500/-, he was permitted to continue to occupy the sadyalayam, even beyond the period of auction, i.e., 31.07.2021. The concerned Assistant Commissioner and the Sub Group Officer have not taken any action against the successful bidder till the order of this Court dated 01.02.2022, whereby they were directed to take over possession of the sadyalayam forthwith, if found necessary with police assistance. In such circumstances, in the said decision, this Court deprecated in the strongest words the conduct of the concerned Assistant Commissioner and the Sub Group Officer and also the concerned officers in the Estate Division of the Travancore Devaswom Board in taking no action against the successful bidder, who was a defaulter. In the said decision, this Court found that, the concerned officers of the Travancore Devaswom Board have not shown reasonable diligence in the D.B.P.No.31 of 2022 27 manner of an ordinary prudent man of business to conduct his own affairs. Since, such irregularities in the conduct of auction for running auditoriums/sadyalayams in the temples under the management of the Travancore Devaswom Board cannot be permitted in future, this Court directed Registry to initiate suo motu proceedings in the that matter.
21. In Suneesh K.S. [ILR 2022 (1) Ker. 1091: 2022 SCC OnLine Ker 611] a Division Bench of this Court, in which both of us were parties, was dealing with the Kuthaka right for sale of pooja items in Valliamkavu Devi Temple under the Management of the Travancore Devaswom Board. In the said decision, this Court held that, the properties of deities and temples are required to be protected and safeguarded from usurpation or encroachment in any manner. Persons entrusted with the duty to manage such properties should be vigilant to prevent such usurpation or encroachment. When such usurpation or encroachment is possible only with the passive or active collusion of the authorities concerned, such acts of 'fences eating the crops' should be dealt with sternly. The officers concerned and also the devotees should be vigilant to D.B.P.No.31 of 2022 28 prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from usurpation or encroachment, wrongful claims or misappropriation. Therefore, the concerned Assistant Devaswom Commissioner and the Administrative Officer shall take stern action against those who have defaulted payment of instalments in respect of the Kuthaka items, in violation of the tender conditions, if found necessary, after seeking police assistance. If any such request is received, it is the duty of the concerned Station House Officer to render necessary assistance to the concerned Assistant Devaswom Commissioner or the Administrative Officer, in order to protect and safeguard the properties of deities and temples from usurpation or encroachment in any manner.
22. V. Muraleedharan Nair and others v.
Travancore Devaswom Board and others [Ext.R1(A) judgment dated 25.11.2015 in W.P.(C)No.32975 of 2015] the Division Bench of this Court was dealing with a case in which the writ petitioners were occupiers of different shop rooms in a D.B.P.No.31 of 2022 29 shopping complex owned by the Travancore Devaswom Board. As per Exhibit P8 series of orders, they have been required to enhance the security deposit and the amounts to be paid for occupation. Before the Division Bench, the learned counsel for the petitioners relied on Ext.P7 judgment dated 07.10.2013 in W.P.(C)No.25586 of 2012. The Division Bench noticed that, the said judgment was issued essentially on consent of the Board and the concession made by the Board was only for renewal for a period upto 2012. Therefore, Exhibit P7 judgment is no answer for any demand that the Travancore Devaswom Board may make in relation to occupation charges for buildings or rooms belonging to and under its control. The Division noticed that, it cannot also ignore the pristine principle that all Devaswom lands vest in Deities and Travancore Devaswom Board are essentially trustees. Therefore, the action of trustees cannot be equated to that of mere landlords. The best interest of the Devaswoms under the control of the Devaswom Boards would be subserved only if income is generated.
23. In T.Krishnakumar v. Cochin Devaswom Board and others [2022 SCC OnLine Ker. 3700], a Division Bench D.B.P.No.31 of 2022 30 of this Court, in which both of us were parties, held that in view of the law laid down by this Court in Abu K.S. v. Travancore Devaswom Board and others [2022 SCC OnLine Ker 1642], relying on the decision of the Apex Court in M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65], while leasing out the buildings owned by the Devaswoms, the Cochin Devaswom Board and its officials have to ensure that proper income is generated from the said buildings. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. The action of the Board as a trustee cannot be equated to that of mere landlord. The best interest of the Devaswoms under the control of the Board would be subserved only if income is generated.
24. In T.Krishnakumar [2022 SCC OnLine Ker.
3700], the Division Bench noticed that the major source of revenue of the 1st respondent Board is the income received by way of offering by the devotees, the amount received from Vazhipadu and the revenue generated through the auction of temple premises for various activities in connection with rituals D.B.P.No.31 of 2022 31 and festivals in the temples and also the rental income generated from the buildings owned by the respective Devaswoms. Therefore, while dealing with the buildings owned by the Devaswoms, the 1st respondent Board and its officials have to ensure that proper income is generated from the said building. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs, by ensuring that the lease rental or licence fee of the buildings owned by the Devaswoms is not lower than the prevailing market rent. The action of the Board in demanding lease rental or licence fee for the buildings owned by the Devaswoms taking into consideration the prevailing market rent cannot be termed as an action of the Board demanding exhorbitant or rack-rent, since, while leasing out the buildings owned by the Devaswoms, the Board and its officials have to ensure that proper income is generated from the said buildings. Any default committed by the tenant or licensee of the buildings owned by the Devaswoms in payment of the monthly rent or licence fee, electricity charges, water charges, statutory dues, etc. has to be dealt with appropriately, D.B.P.No.31 of 2022 32 so also the use of the building for another purpose or making material alteration or addition to the building. In view of the provisions under Section 73A of the Act, the 1st respondent Board is duty bound to monitor whether its administrative staff and employees in the Maramath wing are functioning properly, by taking prompt action against any such default or violation of the terms and conditions of the lease deed or the licence deed.
25. The fact that the Cochin Devaswom Board is facing acute financial crisis due to Covid-19 pandemic and other reasons is not in serious dispute. The specific stand taken by the Board before the learned Ombudsman was that, around Rs.9 to 12 Crores is required for meeting the monthly expenses for the rituals in the temples and wages of the employees. In view of the continued fall of income, the Board has to explore the means to diversify its finances to augment the income and tide over the crisis. Therefore, in the 34th meeting of the Board held on 30.09.2021, it was decided to seek permission of this Court to conduct exhibition and trade fairs in Thrissur Pooram exhibition ground in Thekkinkad Maidan, during the period other than Thrissur Pooram exhibition.
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26. In the interim order dated 08.06.2011 in D.B.P.No.48 of 2010, which was made absolute by Annexure A3 order dated 08.07.2013 the Division Bench found that out of the total extent of Thekkinkad Maidan, which is around 61.34 Acres, the land actually required for conducting the Pooram festival and also for such further purposes for which this Court has granted permission in terms of earlier orders in different proceedings have to be identified and the remaining portion is to be put to afforestation activity by planting teak or such other trees as may be advised by the competent Forest officials. As per Annexure A3 order in DBP.No.48 of 2010, from the date of that order there shall be no construction, beautification or other activities in the Thekkinkad Maidan by the Government or the Corporation of Thrissur or any other authority without obtaining specific orders from this Court. The Cochin Devaswom Board was directed to protect the Thekkinkad Maidan appropriately, since it is the property of the Board.
27. In Annexure A4 order dated 30.09.2013 in DBP.No.78 of 2013 the Division Bench reiterated that Annexure A3 order passed in DBP No.48 of 2010 will take care of all matters which D.B.P.No.31 of 2022 34 may arise in future in relation to Thekkinkad Maidan. DBP No.78 of 2013 was registered based on CDB Report No.81 of 2013 of the learned Ombudsman in Petition No.23 of 2013 filed by the Cochin Devaswom Board, seeking permission to use Thekkinkad Maidan for commercial purposes like conducting exhibitions, etc., and also for conducting meetings, etc., by political parties. The Division Bench in Annexure A4 order dated 30.09.2013 took a view that, if any other unrestricted activities are permitted it will have an adverse impact on the property, which is one of the important locations as far as the entire town is concerned. In the said order it was clarified that, whenever fresh applications or proposals are received from interested parties, the Cochin Devaswom Board will place the matter before this Court for consideration and only after sanction by this Court any such activities can be permitted.
28. The permission sought for in Petition No.3 of 2022 filed by the Cochin Devaswom Board, based on which the learned Ombudsman has filed CDB Report No.18 of 2022, was one filed by the Board seeking permission to conduct exhibitions and trade fairs in Thrissur Pooram exhibition ground in D.B.P.No.31 of 2022 35 Thekkinkad Maidan during the period other than Thrissur Pooram exhibition. In the said exhibition ground, which forms part of Thekkinkad Maidan, Thrissur Pooram exhibition is being conducted by Thiruvambadi Devaswom and Paramekkavu Devaswom, as permitted by the Cochin Devaswom Board.
29. Considering the fact that Cochin Devaswom Board is facing acute financial crisis due to Covid-19 pandemic and other reasons, which is not in serious dispute, we deem it appropriate to grant permission to the Board to conduct Onam exhibition/trade fair in Thrissur Pooram exhibition ground in Thekkinkad Maidan, for the current year, i.e., 2022, subject to the condition that the conduct of exhibition/trade fair shall be confined to the exhibition ground in Thekkinkad Maidan where there is no afforestation activity by planting teak or such other trees.
29.1. There shall be no semi or permanent construction in the exhibition ground in connection with the Onam exhibition/trade fair. Only temporary structures shall be erected in the exhibition ground, as per the layout in Annexure A8 of the proposed exhibition stalls and pavilions produced along with the D.B.P.No.31 of 2022 36 memo filed by the learned Standing Counsel for the Board dated 19.07.2022. The Board shall obtain necessary licence/ permission/consent from the statutory authorities for the conduct of Onam exhibition/trade fair in the exhibition ground. The traders shall obtain necessary licence/permission/consent from the statutory authorities, for the respective stalls/pavilions. The activities in connection with Onam exhibition/trade fair shall in no manner affect the afforestation activity in Thekkinkad Maidan.
29.2. The Board shall conduct auction of the right to conduct stalls/pavilions in the Onam exhibition/trade fair, strictly in accordance with law, and the layout of the stalls/pavilions shall be published in its official website, along with other particulars. The Board shall publish notice inviting tenders in leading dailies, in order to ensure wide publicity. In the said notice it shall be specified that the layout of the stalls/pavilions and other particulars are available in its official website. The Board shall also consider the feasibility of conducting e-tender, giving option to the traders to quote amount for individual stalls/pavilions.
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29.3. The Board shall ensure that proper income is generated by conducting auction of the right to conduct stalls/pavilions in the Onam exhibition/trade fair. In such transactions, the Board and its officials have to show due diligence in the manner of an ordinary prudent man of business to conduct his own affairs, since the Board is essentially a trustee of Devaswom land which vests in the deity. Since Thekkinkad Maidan is a Devaswom property no sale/trade of any objectionable substances shall be permitted in Onam exhibition/trade fair in the exhibition ground.
29.4. The terms and conditions and other matters relating to the conduct of Onam exhibition/trade fair shall be placed before the learned Ombudsman for approval. The expenditure incurred by the Board in connection with the conduct of Onam exhibition/trade fair and also the income generated therefrom, by auctioning the right to conduct stalls/pavilions, shall be subjected to audit by the State Audit Department, immediately after the exhibition/trade fair is over.
30. With the above directions this DBP is disposed of. D.B.P.No.31 of 2022 38
31. From CDB Report No.18 of 2022 in Petition No.3 of 2022 of the learned Ombudsman and also the remarks of the Kerala State Audit Department, we notice that the income generated by conducting Thrissur Pooram exhibition in the exhibition ground in Thekkinkad Maidan, the Cochin Devaswom Board, which is the trustee of that Devaswom land is getting only a meagre amount as ground rent. In CDB Report No.18 of 2022 in Petition No.3 of 2022 the learned Ombudsman noticed the submission made on behalf of the Board that trade fairs are conducted in Ernakulathappan ground by the Temple Advisory Committee, which has been granted permission to make use of that ground for such purposes. The income generated by conducting trade fairs in Ernakulathappan Ground is shared between the Cochin Devaswom Board, which is the trustee of that Devaswom land and the Temple Advisory Committee of that Temple.
32. Having considered the submissions made by the learned Standing Counsel for Cochin Devaswom Board, learned Senior Government Pleader for the State Audit Department and also the learned Amicus Curiae for the Ombudsman we deem it D.B.P.No.31 of 2022 39 appropriate to direct Registry to initiate suo motu proceedings "on the conduct of Thrissur Pooram exhibition in the Pooram exhibition ground at Thekkinkad Maidan by Paramekkavu Devaswom and Thiruvambadi Devaswom" and another DBP "on the conduct of trade fairs in Ernakulathappan ground by the Temple Advisory Committee of Ernakulam Siva Temple".
In the said DBPs, the State of Kerala represented by Revenue (Devaswom) Department and the Cochin Devaswom Board represented by its Secretary shall be arrayed as the respondents. In the DBP in respect of Thekkinkad Maidan, Paramekkavu Devaswom and Thiruvambadi Devaswom, and in the DBP in respect of Ernakulathappan Ground, the Temple Advisory Committee of Ernakulam Siva Temple shall also be arrayed as the respondents.
Sd/-
ANIL K. NARENDRAN, JUDGE.
Sd/-
P.G. AJITHKUMAR, JUDGE.
bkn/-