Kerala High Court
Prayar Gopalakrishnan vs State Of Kerala on 13 November, 2017
Bench: V.Chitambaresh, Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 25TH DAY OF JANUARY 2018 / 5TH MAGHA, 1939
WP(C).No. 36695 of 2017
PETITIONERS:
1 PRAYAR GOPALAKRISHNAN,
S/O.R KRISHNAN NAIR,
PRAYAR HOUSE, CHITHARA P O, KADAKKAL,
KOLLAM DISTRICT - 691 559.
2 AJAY THARAYIL,
AGED 59 YEARS,
S/O.KUMARAN, THARAYIL HOUSE,
MOOTHAKUNNAM P O,
ERNAKULAM DISTRICT - 683 516.
BY ADVS. SRI.K.RAMAKUMAR (SR.)
SRI.T.RAMPRASAD UNNI
SRI.S.M.PRASANTH
SMT.ASHA BABU
SRI.G.RENJITH
SMT.R.S.ASWINI SANKAR
SRI.T.H.ARAVIND
RESPONDENTS:
1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY
TO DEPARTMENT OF DEVASWOM,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
MINISTRY OF HOME AFFAIRS,
NEW DELHI - 110 001.
3. THE TRAVANCORE DEVASWOM BOARD,
NANTHANCODE, THIRUVANANTHAPURAM - 695 003,
REPRESENTED BY ITS SECRETARY.
WPC36695/2017
-2-
R1 BY SRI. C.P.SUDHAKARA PRASAD, ADVOCATE GENERAL
SRI. V.MANU, SENIOR GOVERNMENT PLEADER
R2 BY SRI. N. NAGARESH, ASST. SOLICITOR GENERAL
SRI. JAGADEESH LAKSHMAN, CGC
R3 BY SRI. V.KRISHNA MENON, SC, TRAVANCORE DEVASWOM BOARD
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.01.2018, ALONG
WITH WP(C).NO.36983/2017, THE COURT ON 25.01.2018 DELIVERED THE FOLLOWING:
WP(C).No. 36695 of 2017 (J)
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 - TRUE COPY OF G.O(RT)NO.5868/2015/RD DTD 9/11/2015.
EXHIBIT P2 - TRUE COPY OF THE NEWSPAPER REPORT APPEARED IN
THE MANGALAM DAILY DATED 13/11/2017.
EXHIBIT P3 - TRUE COPY OF ORDINANCE NO.23 OF 2017 PUBLISHED IN THE KERALA
GAZETTE EXTRA ORDINARY DATED 14.11.2017.
RESPONDENTS' EXHIBITS: NIL.
-TRUE COPY-
PS TO JUDGE
"CR"
V. CHITAMBARESH & SATHISH NINAN, JJ.
= = = = = = = = = = = = = = = = = = = = = = = = W.P.(C)Nos.36695 & 36983 of 2017 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of January, 2018 Judgment Chitambaresh, J.
1.'Deva' means God and 'Swom' means Ownership in Sanskrit and the term 'Devaswom' denotes the property of God in common parlance. Devaswom Board is a socio-religious trust constituted to manage the property of God comprising of Members nominated by the Government. The scramble for being a nominated Member of the Devaswom Board has given rise to these two writ petitions.
2.WP(C).No.36695/2017 has been filed by the President and a Member of the Travancore Devaswom Board ('the Board' for WPC36695 & 36983/2017 -: 2 :- short) who were originally appointed for a period of three years from 12.11.2015. Section 10 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 ('the Act' for short) has now been amended cutting short their period of office from three years to two years. The amendment was by virtue of the Travancore-Cochin Hindu Religious Institutions (Amendment) Ordinance, 2017 ('the Ordinance' for short) which is impugned in this writ petition. The petitioners contend that the amendment was without reference to the Covenant entered into by the Rulers of Travancore and Cochin ('the Covenant' for short). It is their case that the Covenant provides for the constitution of the Board which is 'an existing law' saved by the Constitution of India under Article 372(1) thereof. The petitioners assert that the amendment if any could only be with the concurrence of the Union of India which has not been secured and that the oblique motive is to cut short their tenure. It is submitted that the tenure appointment of the petitioners cannot be cut WPC36695 & 36983/2017 -: 3 :- short abruptly and that the Ordinance is a fraud on the power vested in the Government.
3.WP(C).No.36983/2017 is a pro bono publico by a devotee of Lord Ayyappa in Sabarimala questioning the authority of respondents 3 and 4 therein who have now been nominated as the President and Member of the Board. The petitioner points out that the very nomination of the Members to the Board is bad inasmuch as only seven Hindu members among the Council of Ministers supported it. The subsequent ratification by all the thirteen Hindu members of the Council of Ministers does not regularise the earlier illegal nomination by only seven Hindu members. Moreover only a Member nominated to the Board could be nominated as its President in terms of Section 11 of the Act whereas the notifications show otherwise. The fact that the notification appointing the President has preceded the notification appointing Members to the Board is highlighted for the issue WPC36695 & 36983/2017 -: 4 :- of a writ of quo warranto against the appointees.
4.We heard Mr K.Ramakumar, Senior Advocate on behalf of the petitioners, Mr C.P.Sudhakara Prasad, Advocate General, Mr Jagadeesh Lakshman, Central Government Standing Counsel and Mr V.Krishna Menon, Standing Counsel of the Board in both the writ petitions. We called for the original files from the Government since a discrepancy in the publication of the notifications was projected and the same were readily made available by Mr V.Manu, Senior Government Pleader.
5.The relevant part of the text of the Covenant entered into by the Rulers of Travancore and Cochin for the formation of the United State of Travancore and Cochin as regards the administration of temples is as follows:
"Article 8 (a) xxxx xxxx xxxx xxxx WPC36695 & 36983/2017 -: 5 :- (b) xxxx xxxx xxxx xxxx
(c) Administration of the incorporated and unincorporated Devaswoms and of Hindu religious institutions and endowments, and all their properties and funds as well as the fund constituted under the Devaswom Proclamation 1097 M.E. and the surplus fund constituted under Devaswom (Amendment) Proclamation, 1122 M.E. which are under the management of the Ruler of the covenanting State of Travancore and the sum of Rs.50 lakhs transferred from year to year under Clause (A) shall with effect from first day of August 1949, vest in a Board known by the name of the Travancore Devaswom Board. An annual contribution of five lakhs of rupees shall be made by the Travancore Devaswom Board from the aforesaid sum of Rs.50 lakhs towards the expenditure in the Sree Padmanabhaswamy Temple.
(d) xxxx xxxx xxxx xxxx
WPC36695 & 36983/2017
-: 6 :-
(e) The Board referred to in sub-Clause
(c) of this Article shall consist of Three Hindu members, one of whom shall be nominated by the Ruler of the covenanting State of Travancore, one by the Hindus among the Council of Ministers and one elected by the Hindu members of the Legislative Assembly of the United State.
(f) xxxx xxxx xxxx xxxx
(g) Each of the aforesaid Boards shall be a separate body corporate having perpetual succession and a common seal with powers to hold and acquire properties, and shall by its name sue and be sued.
(h) xxxx xxxx xxxx xxxx."
The above is only a Covenant entered into by the Rulers of two States prior to the Constitution of India and is not an agreement entered into by a Ruler with the Union of India relating to accession. Even an agreement by a Ruler with the WPC36695 & 36983/2017 -: 7 :- Union of India has been held not to be in force after the advent of the Constitution [See Raghunathrao Ganpatrao v. Union of India (1994 Supp (1) SCC 191)]. The Covenant was entered into by the Rulers on 1.7.1949 whereas the Constitution of India was adopted by the Constituent Assembly much later on 26.11.1949.
6.Only the 'existing law' before the commencement of the Constitution of India is saved by Article 372(1) thereof until altered or repealed or amended by a competent legislature or other competent authority. The term 'existing law' has been defined under Article 366(10) of the Constitution of India as follows:
"366. Definitions:
(10) 'Existing law' means any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this WPC36695 & 36983/2017 -: 8 :- Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation."
The Covenant entered into by the Rulers of Travancore and Cochin is an agreement stricto senso and is not any law, ordinance, order, bye-law, rule or regulation made by virtue of any statutory power. The Constitution Bench of the Supreme Court after quoting Article 366(10) of the Constitution has observed in State of Gujarat v. Vora Fiddali [AIR 1964 SC 1043] as follows:
"(57). This definition would include only laws passed by a competent authority as well as rules, bye-laws and regulations made by virtue of statutory power. It would therefore not include administrative orders which are traceable not to any law made by the Legislature but derive their force from executive authority and made either for the convenience of the administration or for WPC36695 & 36983/2017 -: 9 :- the benefit of the individuals, though the power to make laws as well as these orders was vested in the same authority - the absolute owner."
(emphasis supplied) The Covenant entered into by the Rulers of Travancore and Cochin being not an existing law within the meaning of Article 366(10) is not saved by Article 372(1) of the Constitution of India. The Covenant can at best refer to the personal rights, privileges and dignities of the Rulers and should be deemed to have been repealed after the coming into force of the Constitution. The decision in Kunjuvaru Vareed v. State of Travancore-Cochin [1956 KLT 101(SC)] as regards the right of a Ruler vis-a-vis the Code of Criminal Procedure, 1908 is apposite. The contention that the covenant is saved and that the amendment of the Act by the Ordinance without the concurrence of the Union of India is bad in law therefore falls to the ground. WPC36695 & 36983/2017 -: 10 :-
7.A contrary view was taken in State of Punjab v. Brig. Sukhjit Singh [(1993) 3 SCC 459] to the effect that the Ruler of an Indian State was in the position of a Sovereign and that his command had the potency of law. But the above decision was expressly overruled following the dictum in Vora Fiddali's case (supra) in Draupadi Devi v. Union of India [(2004) 11 SCC 425]. It was held therein that such pre- accession command of the Ruler of a State is not an 'existing law' within the meaning of Article 366(10) of the Constitution of India. It should be noted that the Covenant of accession if any by the United State of Travancore and Cochin with the Union of India has not been produced in relation to the Board. At any rate Sections 4, 10 and 11 of the Act relating to the constitution of the Board, its term and the nomination of its President do not militate against Articles 8(c), (e) and (g) of the Covenant. The Act is very much within the framework of the Covenant entered into by the Rulers of Travancore and Cochin and the Constitution of WPC36695 & 36983/2017 -: 11 :- India in other words. The question of inconsistency between the laws made by the Parliament and the laws made by the Legislature of the State under Article 254 of the Constitution does not therefore arise.
8.The tenure of the petitioners in WP(C) No.36695/2017 as Members of the Board is on the other hand governed by Section 10(1) of the Act which now stands amended by the Ordinance in question. Section 10(1) of the Act as it stood prior to the amendment is as follows:
"10. Term of the Board-(1) Every member of the Board shall be entitled to hold office for a period of three years from the date of his nomination or election as the case may be."
The words 'three years' have been substituted by the words 'two years' by the amendment of Section 10 of the Act by the promulgation of the Ordinance resulting in the term of office WPC36695 & 36983/2017 -: 12 :- of the petitioners therein being cut short. The power of the Governor to promulgate Ordinances during recess of Legislature under Article 213 of the Constitution of India is beyond dispute. A reference to the decision of the seven member Bench of the Supreme Court in Krishna Kumar Singh v. State of Bihar [(2017) 3 SCC 1] is profitable wherein it has inter alia been held as follows:
"Since the duty to arrive at the satisfaction rests in the President and the Governors (though it is exercisable on the aid and advice of the Council of Ministers), the Court must act with circumspection when the satisfaction under Article 123 or Article 213 is challenged. The Court will not enquire into the adequacy, or sufficiency of the material before the President or the Governor. The Court will not interfere if there is some material which is relevant to his satisfaction. The interference of the Court can arise in a case involving a fraud on power or an abuse of power. This essentially involves a WPC36695 & 36983/2017 -: 13 :- situation where the power has been exercised to secure an oblique purpose. In exercising the power of judicial review, the court must be mindful both of its inherent limitations as well as of the entrustment of the power to the head of the executive who acts on the aid and advice of the Council of Ministers owing collective responsibility to the elected legislature. In other words, it is only where the court finds that the exercise of power is based on extraneous grounds and amounts to no satisfaction at all that the interference of the court may be warranted in a rare case. However, absolute immunity from judicial review cannot be supported as a matter of first principle or on the basis of constitutional history." (emphasis supplied) The Government points out that the Ordinance was promulgated in view of the urgency of the situation taking note of the immediate action needed since the pilgrim season in Sabarimala was round the corner. The Government WPC36695 & 36983/2017 -: 14 :- or the Council of Ministers cannot be faulted with if they felt that the Board needs to be re-organized by cutting short the tenure of the existing Members. The natural consequence may perhaps be the coming to an end of the tenure of the petitioners in WP(C).No.36695/2017 and nominating new Members in their place to the Board. We do not think that the exercise of power in promulgating the Ordinance to amend Section 10 of the Act is with an oblique purpose or on extraneous considerations. Legislature in its wisdom thought it fit that the term of office of the Members of the Board shall be two years henceforth since infusion of new blood would revitalize the system. It is not for us to substitute our wisdom to that of the Legislature as regards the tenure of the Members in the Board [See Raman Nair v.
State of Kerala (2008 (2) KLT 416(DB))]. No reliance could be placed on a newspaper report about the alleged declaration made by the Minister for Devaswom to oust the corrupt Members from the Board. We hold that the Ordinance WPC36695 & 36983/2017 -: 15 :- promulgated to amend Section 10 of the Act is legal and has not been established to be vitiated by malafides on any of the grounds urged by the petitioners.
9.The Board shall consist of three Hindu members two of whom shall be nominated by the Hindus among the Council of Ministers and one elected by the Hindus among the members of the Legislative Assembly. The constitution of the Board is under Section 4 of the Act which reads as follows:
"4. Constitution of the Travancore Devaswom Board.- (1) The Board referred to in Section 3 shall consist of three Hindu members, two of whom shall be nominated by the Hindus among the Council of Ministers and one elected by the Hindus among the members of the Legislative Assembly of the State of Kerala.
WPC36695 & 36983/2017 -: 16 :- (2) The Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board.
(3) The Board shall by its name sue and be sued and the Secretary to the Board shall represent the Board in such suits."
The files reveal that seven Hindu members out of the thirteen Hindu members among the Council of Ministers nominated respondents 3 and 4 in WP(C).No.36983/2017 on 14.11.2017 as Members to the Board. The remaining six Hindu members who were not in station on that date along with the seven Hindu members among the Council of Ministers ratified the nomination on 15.11.2017. It should be noted that there is no rival nomination by any other WPC36695 & 36983/2017 -: 17 :- Hindu member from the Council of Ministers and the ratification is only to express solidarity. The word 'nominate' only means to propose or to suggest and the nomination of respondents 3 and 4 in WP(C).No.36983/2017 on 14.11.2017 is valid even if the ratification on 15.11.2017 is eschewed. The nomination is quite distinct from election and the omission to nominate by the minority of the Hindu members among the Council of Ministers is insignificant. An election may perhaps be warranted in terms of Section 10 of the Act if more than the requisite number of persons are nominated by the Hindus among the Council of Ministers. Such a contingency has not arisen in the instant case and the very same Members have been nominated to the Board whether it be on 14.11.2017 or on 15.11.2017.
10.The expression 'ratification' was succinctly defined by the English Court in Hartman v. Hornsby [142 Mo 368] as under:
WPC36695 & 36983/2017 -: 18 :- "Ratification is the approval by act, word or conduct, of that which was attempted (of accomplishment), but which was improperly or unauthorizedly performed in the first instance."
The expression has been derived from the Latin Maxim 'ratihabitio mandato aequiparatur' meaning thereby that a subsequent ratification of an act is equivalent to a prior authority to perform such act. The Supreme Court in State(Anti-corruption Branch) v. Dr.R.C.Anand [(2004) 4 SCC 615] had occasion to observe as follows:
"11. Ratification is the noun of the verb 'ratify'. It means the act of ratifying, confirmation and sanction. The expression 'ratify' means to approve and accept formally. It means to conform, by expressing consent, approval or formal sanction."
WPC36695 & 36983/2017 -: 19 :- The nomination by the thirteen Hindu members among the Council of Ministers on 15.11.2017 only ratifies or approves the ratification by the seven Hindu members among the Council of Ministers on 14.11.2017. The contention that ratification does not validate nomination since 'nothing comes from nothing' (ex nihilo nihil fit) has only to be stated for being rejected in the circumstances.
11.There is no dispute as regards the Member elected to the Board by the Hindus among the Members of the Legislative Assembly of the State of Kerala though there is as regards the nomination as President of the Board. The Hindus among the Council of Ministers shall nominate one of the Members of the Board as its President under Section 11 of the Act which is as follows:
"11. President of the Board.- The Hindus WPC36695 & 36983/2017 -: 20 :- among the Council of Ministers shall nominate one of the members of the Board as its President."
Therefore the nomination under Section 4 should precede the nomination under Section 11 of the Act since only a Member of the Board could be nominated as its President by the Hindus among the Council of Ministers. But there has been a goof up in the publication of the notifications appointing the Members and the President to the Board inviting much criticism. G.O.(Rt)No.4820/2017/RD notifying the appointment of the President has preceded G.O. (Rt)No.4821/2017/RD notifying the appointment of the Members to the Board. However both the notifications bear the same date and the files disclose that the nomination as Members to the Board has in fact preceded the nomination as its President. The anomaly in this regard has at any rate been rectified by the erratum notifications - G.O. WPC36695 & 36983/2017 -: 21 :- (Rt)No.5080/2017/RD and G.O.(Rt)No.5081/2017/RD - explaining the mistake in printing. Nothing much turns out on the number mentioned in the notifications which were published on the same date especially in the light of the erratum notifications carried out. The contention that the President has been nominated even before the Members were not nominated to the Board cannot be accepted for the issue of a writ of quo warranto as sought.
12.True it is that the petitioners in WP(C).No.36695/2017 were appointed for a tenure of three years from 12.11.2015 as per Section 10(1) of the Act as it stood then which has since been amended by the Ordinance. No parallel can be drawn to the decision in T.P.Senkumar v. Union of India [2017(2) KLT 453(SC)] which essentially dealt with an appointment under Section 97(2) of the Kerala Police Act, 2011. The very statutory provision was incorporated pursuant to the direction issued in Prakash Singh & others v. Union of India WPC36695 & 36983/2017 -: 22 :- & others [(2006) 8 SCC 1]. The avowed object is to avoid frequent change of designated police officers at the whims and fancies of the ruling front lest it is detrimental to the interest of the public. Section 97(2) of the Kerala Police Act, 2011 is in the nature of a prohibition against the transfer of such police officers before the completion of the normal tenure of two years except on specified grounds available. The Supreme Court has in fact observed that 'a certain degree of freedom is required to be given to the police by insulating it from possible attempts to control its independent functioning'. The post of designated police officers like State Police Chief, Inspector General of Police etc. cannot be equated to the post of the President or Member of the Board. The petitioners in WP(C).No.36695/2017 have no fundamental right to cling on to the post after their term has come to an end by an amendment of the Act by the Ordinance.
WPC36695 & 36983/2017 -: 23 :- The writ petitions are devoid of merit and hence dismissed. No costs.
Sd/-
V. CHITAMBARESH, JUDGE SATHISHSd/-
NINAN, JUDGE Sha/220118
-True copy-
PS to Judge