Suo Motu vs State Of Kerala on 8 April, 2022

[Cites 15, Cited by 0]

Kerala High Court

Suo Motu vs State Of Kerala on 8 April, 2022

By the proceedings dated 17.02.2022, Registry was directed to register this DBP suo motu, based on a news item that appeared in Kerala Kaumudi daily dated 17.02.2022 that there were protests from priests in the auction of 'balitharas' at Aluva Shivratri Manappuram in connection with Mahashivratri Festival, 2022, and list the matter before the Devaswom Bench on 18.02.2022.

2. On 18.02.2022, when this DBP came up for consideration at 10.15 a.m., the learned Senior Government Pleader and also the learned Standing Counsel for Travancore Devaswom Board submitted that, on 15.02.2022 and thereafter on 16.02.2022, auction proceedings were obstructed at the leadership of Sri.Radhakrishna Wadhyar, who is the Aluva Mandalam Secretary of Archak Purohit Sabha. The learned Standing Counsel for Travancore Devaswom Board was directed to file a memo furnishing the address of Sri.Radhakrishna Wadhyar and the matter was ordered to be listed at 1.00 p.m. When the matter was taken up again at 1.00 p.m., the learned Standing Counsel furnished the address and mobile number of DBP No.6 of 2022 4 Sri.Radhakrishna Wadhyar, along with a memo.

3. By the order dated 18.02.2022, Sri.Radhakrishna Wadhyar was suo motu impleaded as the additional 8th respondent. The learned Senior Government Pleader took notice for respondents 1 and 5 to 7 and the learned Standing Counsel for Travancore Devaswom Board took notice for respondents 2 to 4. Urgent notice was ordered to the additional 8 th respondent, through the 7th respondent Station House Officer, Aluva East Police Station. Registry was directed to e-mail a scanned copy of the DBP and the order dated 18.02.2022 to the e-mail ID of the 7th respondent and the said respondent was directed to ensure service of notice on the additional 8 th respondent, on 18.02.2022 itself, along with a copy of the DBP and also the order dated 18.02.2022. The 6th respondent Superintendent of Police (Rural) and the 7th respondent Station House Officer were directed to take necessary steps, well in advance, to ensure that there is no obstruction whatsoever in the auction of balitharas scheduled to be held on 22.02.2022, and the DBP was ordered to be listed on 21.02.2022.

4. On 21.02.2022, when this DBP came up for consideration, the additional 8th respondent entered appearance DBP No.6 of 2022 5 through counsel and filed a counter affidavit, wherein it is stated that, when the 4th respondent Administrative Officer, Aluva Sree Mahadevar Temple insisted to start the auction of balitharas with a base price of Rs.1,50,000/-, most of the purohits/shantis objected to the same. They informed the 4 th respondent that normally around 300 to 400 people can perform 'balitharpanam' in a balithara on Shivratri day. Due to Covid-19 restrictions only a few devotees will come to Aluva Manappuram for balitharpanam. There was no obstruction from the side of the 8 th respondent or others, except the representation filed before the 4th respondent, who may be directed to fix the base price starting from Rs.10,000/-. In the counter affidavit, it is alleged that, the 4th respondent allotted certain balitharas to 3 purohiths/shanthis at the rate Rs.10,000/-. At the same time, the 4th respondent is insisting others to pay Rs.1,50,000/-.

5. The learned Standing Counsel for Travancore Devaswom Board, on instructions, submitted that during the year 2020, balitharas at Shivratri Manappuram were auctioned for amounts ranging between Rs.11,000/- to Rs.1,67,000/-, depending upon the proximity of river bank and other considerations. When the 4th respondent Administrative Officer DBP No.6 of 2022 6 attempted to conduct auction on 15.02.2022 and thereafter on 16.02.2022, the same was obstructed at the leadership of the additional 8th respondent.

6. The learned counsel for the additional 8 th respondent submitted that the said respondent has not caused any obstruction whatsoever to the auction proceedings conducted by the 4th respondent. He has only voiced his grievance against the rate fixed for balitharas. The additional 8 th respondent has no intention to cause any obstruction to the auction to be conducted on 22.02.2022. The learned Senior Government Pleader, on instructions, submitted that respondents 6 and 7 shall take necessary steps to ensure that there is no obstruction whatsoever to the auction to be held on 22.02.2022 at Shivratri Manappuram.

7. On 21.02.2022, this Court granted an interim order directing respondents 6 and 7 to take necessary steps to ensure that there is no obstruction whatsoever to the conduct of the auction of balitharas at Shivratri Manappuram, by the 4th respondent Administrative Officer on 22.02.2022, from any person including the 8th respondent or his supporters. Respondents 6 and 7 were directed to ensure that there is no DBP No.6 of 2022 7 obstruction from any person including the 8th respondent or his supporters to balitharpanam performed in the balitharas of successful bidders at Shivratri Manappuram, during Mahashivratri Festival, 2022, from 28.02.2022 to 03.03.2022.

8. On 24.02.2022, the learned Standing Counsel for Travancore Devaswom Board, on instructions, submitted that out of 148 balitharas in Shivratri Manappuram, 3 balitharas were auctioned on 16.02.2022 and 6 balitharas were auctioned on 22.02.2022. For the remaining balitharas, the auction is scheduled on 25.02.2022 at 11.00 am. The auction of stalls in the Manappuram has already been completed. The learned Senior Government Pleader submitted that the 6th respondent Superintendent of Police (Rural) and the 7th respondent Station House Officer took necessary steps to ensure that there is no obstruction in the auction of balitharas held on 22.02.2022. They shall take similar steps in the auction scheduled to be held on 25.02.2022. By the order dated 24.02.2022, this Court directed the learned Standing Counsel for Travancore Devaswom Board to make available for the perusal of this Court, the layout plan of 148 balitharas at Shivratri Manappuram and listed the DBP to 25.02.2022 at 2.00 pm for DBP No.6 of 2022 8 further consideration.

9. On 25.02.2022, the learned Standing Counsel for Travancore Devaswom Board has placed on record the layout plan of balitharas in Aluva Shivratri Manappuram, along with a statement showing the auction amount/base price for balitharas in 'A' and 'B' sectors during the year 2020 (1195 ME). The learned Standing Counsel for Travancore Devaswom Board, on instructions, submitted that in the auction conducted on 25.02.2022 at 10.00 a.m., 34 balitharas were auctioned. Therefore, out of 148 balitharas, 43 balitharas have already been auctioned. Allotment of the remaining balitharas to purohits, at the rate fixed by the Board, is being made by the 4th respondent Administrative Officer. It is expected that, by 27.02.2022 the remaining balitharas can be allotted to purohits. The learned Senior Government Pleader submitted that the 6 th respondent Superintendent of Police and 7th respondent Station House Officer shall take necessary steps to ensure that there is no obstruction whatsoever from any corner in the auction of balitharas. The learned counsel for the additional 8 th respondent submitted that the said respondent has not caused any obstruction in the auction held on 25.02.2022 at 10.00 am. DBP No.6 of 2022 9 After taking note of the above submissions, this Court posted the DBP to 28.02.2022 for further consideration.

10. On 28.02.2022, the learned Standing Counsel for Travancore Devaswom Board submitted that out of 148 balitharas, 53 balitharas have already been auctioned. Allotment of the remaining balitharas to purohits, at the rate fixed by the Board, is being made by the 4 th respondent Administrative Officer, which shall continue till 01.03.2022 at 3.00 p.m. Out of 31 shops, 26 shops have already been auctioned. By the order dated 28.02.2022, this Court directed the 4 th respondent Administrative Officer to issue photo identity cards to all purohits, who have been allotted balitharas, and also to those who have been allotted shops at Aluva Shivratri Manappuram. It was ordered that, balitharpanam shall be permitted only in balitharas allotted to such purohits, who have been issued with photo identity cards. Layout plan of balitharas shall also be exhibited in prominent places at Aluva Shivratri Manappuram. The 6th respondent Superintendent of Police (Rural) and the 7 th respondent Station House Officer were directed to take necessary steps to ensure that balitharpanam is conducted only by purohits, who have been issued with photo identity cards by DBP No.6 of 2022 10 the 4th respondent Administrative Officer and that, there is no obstruction whatsoever from any corner to the devotees performing balitharpanam at Aluva Shivratri Manappuram.

11. On 02.03.2022, when this DBP came up for consideration, the learned Senior Government Pleader, on instructions from the 7th respondent Station House Officer submitted that, on 02.03.2022 there was an attempt by certain purohits, who have not been allotted balitharas, to illegally occupy balitharas, which was prevented by the timely intervention of the police. The learned Senior Government Pleader and also the learned Standing Counsel for the Travancore Devaswom Board sought time to file statement.

12. On 04.03.2022, the learned Standing Counsel for Travancore Devaswom Board has filed a statement on behalf of respondents 2 to 4. The learned Senior Government Pleader has filed a statement on behalf of the 7 th respondent Station House Officer. The learned counsel for the additional 8th respondent sought time to file reply affidavit. The learned Standing Counsel for Travancore Devaswom Board submitted that, since the shops at Aluva Shivratri Manappuram were auctioned for the period from 28.02.2022 to 03.03.2022, the 4 th respondent DBP No.6 of 2022 11 Administrative Officer has already issued notice to the concerned traders to vacate the premises. Based on the above submission, in the order dated 04.03.2022, it was made clear that, in case any such traders are yet to vacate Aluva Shivratri Manappuram, the 4th respondent shall bring it to the notice of the 7th respondent Station House Officer, in which event, the 7 th respondent shall render necessary assistance to the 4th respondent to evict such traders from Shivratri Manappuram.

13. In the statement filed on behalf of respondents 2 to 4, it is stated that, 148 balitharas are earmarked in Aluva Shivratri Manappuram, as per the layout plan produced along with the memo dated 25.02.2022, which are classified as 'A' and 'B' sectors. 'A' sector is facing the river and 'B' sector is facing the temple. There are 72 balitharas in each sector. In addition to this, 4 balitharas are available in the plot earlier used by the Devaswom for directly conducting the ritual. Out of 148 balitharas, only 56 balitharas were auctioned up to 3.00 pm on the Shivratri day. The Board gave wide publicity for the auction and purohits from all over Kerala reached Aluva Shivratri Manappuram to take part in the auction scheduled on 15.02.2022. The additional 8th respondent, who is the leader of DBP No.6 of 2022 12 Archak Purohit Sabha and his associates threatened and persuaded purohits not to take part in the auction. Therefore only few balitharas could be auctioned. Since there were no alternative arrangements for providing facilities to the devotees who reach Aluva Mahadevar Temple on Shivratri day for performing balitharpanam, the Board was forced to reduce the base price of balitharas upto 40% of the corresponding rates for the year 2020 (1195 ME). The additional 8th respondent and his associates prevented purohits from offering competitive rates in the auctions conducted on 22.02.2022 and 25.02.2022. They gave publicity among purohits that there will be very few devotees for balitharpanam due to Covid-19 pandemic, which had resulted in great difficulties to the devotees and heavy financial loss to the Board. In the auction for the year 2022 (1197 ME), the Board received a total sum of Rs.15,15,620/- for 56 balitharas, as against Rs.34,69,080/- received in the auction conducted for the year 2020 (1195 ME), for 86 balitharas. Since no trade fair was conducted by the Aluva Municipality due to Covid-19 pandemic, the Board auctioned shops in the Manappuram, for the period from 28.02.2022 to 03.03.2022, for an amount of Rs.5,74,848/-. In the statement, it is alleged that, DBP No.6 of 2022 13 the additional 8th respondent and his associates prevented purohits, who came from various places all over Kerala, from taking part in the auction held on 15.02.2022, 16.02.2022, 22.02.2022 and 25.02.2022 demanding a uniform base price of Rs.5,000/- for all balitharas. Due to the timely intervention of this Court, the practice of unauthorised associations and individuals forcefully entering Shivratri Manappuram and conducting balitharpanam without auctioning balitharas or remitting any amount to the Board could be prevented to a certain extent. On the Shivratri day some purohits occupied prominent places of Shivratri Manappuram and conducted rituals without auctioning balitharas or remitting any amount to the Board. Hundreds of devotees were waiting before them to perform balitharpanam. Even though photo identity cards were issued to the allottees and layout plan of the allotted balitharas were published on the notice boards, certain purohits unauthorisedly occupied the Manappuram and conducted balitharpanam, which could not be prevented by the police.

14. In the statement filed on behalf of respondents 2 to 4, it is stated that, at present 20 to 25 balitharas are given at Shivratri Manappuram, at the rate of Rs.100/- per day, for DBP No.6 of 2022 14 conducting balitharpanam, round the year, except Karkidaka Vavu, Thula Vavu and Shivrathri festival days. Persons who are availing this facility on nominal rent, under the leadership of the additional 8th respondent, have objected to the auction and prevented other purohits from taking part in the auction offering reasonable amount for balitharas, which had resulted in the non-auctioning of large number of balitharas, causing difficulties to the devotees and and financial loss to the Board. Usually, 80 to 90 balitharas are being auctioned every year during Shivratri festival. Hence the present layout plan has to be modified by giving more space to balitharas in 'A' sector facing the river, so that the base price of such slots can be increased. Balitharas in 'B' sector can be retained as such, which can be offered at a lesser price. Hereafter, the Board proposes to conduct auction of 20 to 25 balitharas on yearly basis, except Karkidaka Vavu, Thula Vavu and Shivratri festival days after obtaining sealed quotations. Separate sketch and layout plan of the above balitharas will be prepared and published. Those who offer the highest amount will be allotted balitharas on yearly basis.

15. The learned Senior Government Pleader has filed a statement dated 03.02.2022 on behalf of the 7th respondent DBP No.6 of 2022 15 Station House Officer, wherein it is stated that, on receipt of the interim order dated 28.02.2022, respondents 6 and 7 made all necessary arrangements to see that the said order is complied with by all concerned. A meeting was covened on 28.02.2022 with the officials of the Travancore Devaswom Board and sufficient police personnel were deployed to see that Shivratri festival is conducted without any complaint. A control room and 5 watchtowers were put up at Shivratri Manappuram to see that no untoward incidents happen in and around the Manappuram. The Deputy Inspector General of Police, Ernakulam Range was physically present in the control room. The Superintendent of Police was overseeing the entire exercise. About 400 police officers were deputed at Shivratri Manappuram and its surrounding areas. In addition to 16 permanent CCTV cameras 16 temporary CCTV cameras were installed at Shivratri Manappuram to oversee the activities. No case of trespass or unauthorised balitharpanam was reported to the police by the officials of the Travancore Devaswom Board.

16. The learned Standing Counsel for Travancore Devaswom Board has filed a statement dated 06.04.2022 on behalf of respondents 2 to 4, producing therewith Annexure DBP No.6 of 2022 16 R2(a) layout plan together with enlarged view of 20 balitharas proposed to be auctioned on yearly basis at Aluva Shivratri Manappuram, except Karkidaka Vavu, Thula Vavu and Shivratri festival days, for which separate auction will be conducted. In the said layout plan there is provision for additional 4 balitharas near the high mast lamp, if there is additional requirement. The auction will be conducted by way of sealed quotations and balitharas will be allotted to purohits who offer the highest amount.

17. The additional 8th respondent has filed an affidavit dated 05.04.2022, wherein it is stated that, balitharpanam by the devotees of Lord Shiva at Aluva Shivratri Manappuram is part of traditional and customary rites prevalent in the temple. The devotees perform balitharpanam on Shivratri day and Karkidaka Vavu day. Respondents 2 to 4 conduct auction of balitharas at Shivratri Manappuram. In the auction notice for the year 2022, EMD was fixed as Rs.5,000/-, however no base price was fixed. Balitharas, as per the layout plan prepared by the 4 th respondent, were put for auction with a base price of Rs.1,50,000/-, though in the layout plan the base price ranges from Rs.11,000/- to Rs.1,67,000/-, depending upon proximity DBP No.6 of 2022 17 to the river bank. There are around 150 purohits who are conducting balitharpanam. However, only 78 balitharas were put for auction. Around 19 purohits/shantis are regularly conducting balitharpanam at the banks of Periyar river. When the 4 th respondent insisted for a base price of Rs.1,50,000/- in the auction, most of the purohits/shantis objected the same, since normally around 300 to 400 people can only perform balitharpanam in the balitharas on the night of Shivratri day. Therefore, according to the additional 8th respondent, the auctioning of balitharas has to be stopped and lot system has to be introduced. Purohits/shantis who are conducting balitharpanam everyday other than on Karkidaka Vavu, Thula Vavu and Shivratri festival days, by paying Rs.100/- per day to the 4th respondent, may be allowed to continue at the same rate, which may be excluded from the auction on yearly basis. The 4th respondent has to provide permanent balitharas and basic facilities to purohits/shantis, instead of temporary arrangements. The number of balitharas during festival days may be limited to 75 to 80. The 4 th respondent has to convene a meeting of interested/affected parties and organisations before starting auction on yearly basis. The 4 th respondent has to enter DBP No.6 of 2022 18 into an agreement with the permanent purohits to protect their rights.

18. Heard the learned Senior Government Pleader for respondents 1, 5, 6 and 7, the learned Standing Counsel for Travancore Devaswom Board for respondents 2 to 4 and also the learned counsel for the additional 8th respondent.

19. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per sub-section (3) of Section 1 of the Act, substituted by the Kerala Adaptation of Laws Order, 1956, Part I of the Act shall extend to Travancore, Part II of the Act shall extend to Cochin and Part III of the Act shall extend to the whole of the State of Kerala, excluding the Malabar District. Aluva Devaswom is an incorporated Devaswom mentioned in Schedule I of the Act, under Thrikkariyoor Group, Kunnathunadu Taluk.

20. Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with vesting of administration in Board. Section 4 of the Act deals with DBP No.6 of 2022 19 constitution of the Travancore Devaswom Board. As per sub- section (2) of Section 4, 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.

21. Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub-section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per sub-section (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their jurisdiction.

22. Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with duties of the Board. As per Section 15A, it shall be the duty of the Board to perform the DBP No.6 of 2022 20 following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly;

(ii) to monitor whether the administrative officials and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions;

(iv) to establish and maintain proper facilities in the temples for the devotees. Section 16 of the Act deals with supervision and control by the Board. As per Section 16, the Board shall, subject to the provisions of Part I 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.

23. Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. Section 27 of the Act deals with Devaswom properties. Section 31 of the Act deals with management of Devaswoms. As per Section 31, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated and unincorporated as heretofore, and arrange for the conduct of the daily worship and DBP No.6 of 2022 21 ceremonies and of the festivals in every temple according to its usage.

24. In view of the provisions under the Travancore- Cochin Hindu Religious Institutions Act, referred to hereinbefore, the administration of Aluva Devaswom, which is an incorporated Devaswom mentioned in Schedule I of the Act, and all its properties and funds shall vest in the Travancore Devaswom Board. The Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in Aluva Mahadevar Temple are performed promptly; monitor whether the administrative officials and the employees, and also the employees connected with religious rites are functioning properly; and to establish and maintain proper facilities in Aluva Mahadevar Temple for the devotees. Subject to the provisions of Part I of the Act and the Rules made thereunder, the Board shall manage the properties and affairs of Aluva Devaswom and arrange for the conduct of the daily worship and ceremonies and of the festivals in Aluva Mahadevar Temple according to the usage.

25. For conducting auction of 148 balitharas in Aluva Shivratri Manappuram during Mahashivratri Festival, 2022, the DBP No.6 of 2022 22 4th respondent Administrative Officer conducted auction on 15.02.2022 and thereafter on 16.02.2022. On 17.02.2022, a news item appeared in Kerala Kaumudi daily that there were protest from purohits in the auction of balitharas at Aluva Shivratri Manappuram in connection with Mahashivratri Festival, 2022. On 18.02.2022, when this DBP came up for consideration, the learned Senior Government Pleader and also the learned Standing Counsel for Travancore Devaswom Board submitted that, on 15.02.2022 and thereafter on 16.02.2022 auction proceedings were obstructed at the leadership of Aluva Mandalam Secretary of Archak Purohit Sabha, who was later impleaded suo motu as the additional 8th respondent. By the order dated 18.02.2022, the 6th respondent Superintendent of Police (Rural) and the 7th respondent Station House Officer were directed to take necessary steps to ensure that there is no obstruction whatsoever in the auction of balitharas scheduled to be held 22.02.2022.

26. The learned counsel for the additional 8 th respondent would submit that there was no obstruction from the side of the said respondent and others, except the representation filed before the 4th respondent Administrative Officer regarding the DBP No.6 of 2022 23 base price fixed for balitharas. The 4th respondent insisted to start the auction of balitharas with a base price of Rs.1,50,000/-, instead of base price starting from Rs.11,000/-, which was objected to by most of the purohits/shantis.

27. The learned Standing Counsel for Travancore Devaswom Board would submit that, as evident from the statement produced along with the memo filed on 25.02.2022, the auction amount/base price for balitharas in 'A' and 'B' sectors during the year 2020 (1195 ME) ranges between Rs.11,000/- to Rs.1,67,000/-, depending upon the proximity to river bank and other considerations, which was taken as the base price in the auction for the year 2022 (1197 ME). The learned Standing Counsel for Travancore Devaswom Board has placed on record the layout plan of balitharas in Aluva Shivratri Manappuram, along with a statement showing the auction amount/base price for balitharas in 'A' and 'B' sectors, during the year 2020 (1195 ME). When the 4 th respondent Administrative Officer attempted to conduct the auction, the same was obstructed at the leadership of the additional 8 th respondent.

28. On 21.02.2022, this Court granted an interim order DBP No.6 of 2022 24 directing the 6th and 7th respondents to take necessary steps to ensure that there is no obstruction whatsoever to the conduct of the auction of balitharas on 22.02.2022 at Shivratri Manappuram by the 4th respondent, from any person including the 8th respondent or his supporters. The 6th and 7th respondents were also directed to ensure that there is no obstruction whatsoever to balitharpanam performed in the balitharas of the successful bidders, during Mahashivratri Festival, 2022 from 28.02.2022 to 03.03.2022, from any person including the 8th respondent or his supporters.

29. Based on various orders passed by this Court in this DBP, 53 out of 148 balitharas as per the layout plan prepared by the 4th respondent were auctioned by 28.02.2022. 31 out of 35 shops were also auctioned by 28.02.2022. By the order dated 28.02.2022, this Court directed the 4th respondent to issue photo identity cards to all purohits, who have been allotted balitharas, and also to those who have been allotted shops at Aluva Shivratri Manappuram. Respondents 6 and 7 were directed to take necessary steps to ensure that balitharpanam is permitted only by purohits who have been issued with photo identity cards and there is no obstruction whatsoever from any DBP No.6 of 2022 25 corner to the devotees performing balitharpanam at Aluva Shivratri Manappuram.

30. As evident from the layout plan produced along with the memo filed by the learned Standing Counsel for Travancore Devaswom Board, 72 out of 148 balitharas in 'A' sector are facing the river and the remaining 72 balitharas in 'B' sector are facing the temple. As per the statement produced along with that memo, the auction amount of balitharas in 'A' sector during the year 2020 (1195 ME) ranges between Rs.33,200/- to Rs.1,52,320/-. The basic price shown in the said statement, in respect of balitharas in 'A' sector, which were not auctioned in the year 2022 (1197 ME), ranges between Rs.33,110/- to Rs.75,460/-. Similarly, the auction amount of balitharas in 'B' sector during the year 2020 (1195 ME) ranges between Rs.11,000/- to Rs.51,470/-. The basic price shown in the said statement, in respect of balitharas in 'B' sector, which were not auctioned in the year 2022 (1197 ME), ranges between Rs.11,000/- to Rs.54,670/-. The specific stand taken in the statement filed on behalf of respondents 2 to 4 is that even after the Travancore Devaswom Board reducing the base price upto 40% of the corresponding rates for the year 2020 (1195 DBP No.6 of 2022 26 ME), the additional 8th respondent and his associates prevented purohits from offering competitive rates in the auctions conducted on 22.02.2022 and 25.02.2022, demanding uniform base price of Rs.5,000/- for all balitharas. Therefore, the contention of the additional 8th respondent that purohits/shantis at the leadership of the said respondent objected the auction proceedings of the 4th respondent, since he insisted an amount of Rs.1,50,000/- for each balitharas, can only be rejected as untenable.

31. A reading of the counter affidavit filed by the additional 8th respondent would show that around 150 purohits/shantis used to participate in the auction conducted by the 4th respondent during Mahashivratri festival. The specific stand taken in the statement filed on behalf of respondents 2 to 4 is that, though the Travancore Devaswom Board gave wide publicity for the auction of balitharas and purohits from all over Kerala reached Aluva Shivratri Manappuram to take part in the auction scheduled on 15.02.2022, the additional 8th respondent, who is the leader of Archak Purohit Sabha and his associates threatened and persuaded them not to take part in the auction. Since there was no alternative arrangements for providing DBP No.6 of 2022 27 facilities to the devotees for performing balitharpanam on Shivratri day, the Board was forced to reduce the base price upto 40% of the corresponding rates for the year 2020 (1195 ME). Even thereafter, the additional 8th respondent and his associates prevented purohits from offering competitive rates in the auctions conducted on 22.02.2022 and 25.02.2022, demanding a uniform base price of Rs.5,000/- for all balitharas, which had resulted in great difficulties to the devotees and heavy financial loss to the Board.

32. In Rajani P. Kuttan and another v. State of Kerala and others [2021 (6) KHC 513] a Division Bench of this Court noticed that among the 1250 temples managed by the Travancore Devaswom Board, only 60 major temples are self-sufficient and the rest are being managed utilising the surplus income from Sabarimala Devaswom. The total number of sanctioned posts in various categories in the Travancore Devaswom Board is 5692 and the total number of pensioners is 5749. The major source of revenue of the Travancore Devaswom 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 DBP No.6 of 2022 28 various activities in connection with rituals and festivals in the temples. Paragraph 59 of the said decision reads thus:

"59. The Financial position of the Devaswom Board:- The competent officer of the Devaswom Board filed an affidavit dated 14.06.2021 stating its financial position. It is submitted that there are 1250 temples under the Administrative Control of the Devaswom Board. The total number of sanctioned posts in various categories in the Devaswom Board is 5692, and the total number of pensioners is 5749. It is further submitted that the major sources of revenue of the Devaswom Board are the income received by way of offerings from devotees, the amount received from vazhipadu, and the revenue generated through the auction of the temple premises for various activities in connection with rituals and festivals in the temples. Besides this, the Devaswom Board gets an approximate sum of 14 crores per annum by way of the rent of the buildings owned by it. The annual contribution from the State Government under Article 290A of the Constitution of India is Rs.80 lakhs. It is further submitted that among the 1250 temples managed by the Devaswom Board, only 60 major temples are self-sufficient, and the rest are being managed utilising the surplus income from Sabarimala Devaswom. Now, due to the spread of the Covid-19 pandemic, the temples remain closed, and the major source of income has come down. The Devaswom Board is finding it difficult even to pay the salary of the existing employees. The pleadings regarding the financial position of the Devaswom Board in the affidavit dated DBP No.6 of 2022 29 14.06.2021 have not been controverted by the petitioners."

(underline supplied)

33. In the statement filed on behalf of respondents 2 to 4, it is stated that, in the auction for the year 2022 (1197 ME), the Board received a total sum of Rs.15,15,620/- for 56 balitharas, as against Rs.34,69,080/- received in the auction conducted for the year 2020 (1195 ME), for 86 balitharas. Due to the timely intervention of this Court, the practice of unauthorised associations and individuals forcefully entering Shivratri Manappuram and conducting balitharpanam without auctioning balitharas or remitting any amount to the Board could be prevented to certain extent. On Shivratri day, some purohits occupied prominent places of the Manappuram and conducted balitharpanam without auctioning balitharas or remitting any amount to the Board. Hundreds of devotees were waiting before them to perform balitharpanam.

34. When the major source of revenue to the Travancore Devaswom Board is the income received by way of offerings 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 and festivals in temples, the attempt made by purohits/shantis to obstruct the DBP No.6 of 2022 30 auctioning of balitharas by the 4th respondent Administrative Officer, in connection with Mahashivratri Festival, 2022, cannot be viewed lightly. The obstructions caused by purohits/shantis, allegedly under the leadership of the additional 8 th respondent, has caused serious inconvenience to the devotees and heavy financial loss to the Board. The Travancore Devaswom Board, being the trustee, have to take necessary steps to ensure that balitharpanam at Aluva Shivratri Manappuram is conducted only by purohits/ shantis who have auctioned balitharas in the auction conducted by the 4th respondent Administrative Officer.

35. The learned Standing Counsel for Travancore Devaswom Board would submit that the Board proposes to conduct auction of 20 to 25 balitharas on yearly basis, except Karkidaka Vavu, Thula Vavu and Shivratri festival days, after obtaining sealed quotations and those who offer highest amount will be allotted balitharas. Along with the statement dated 06.04.2022 filed on behalf of respondents 2 to 4, Annexure R2(a) layout plan together with enlarged view of 20 balitharas is placed on record. In the said layout plan, there is provision for additional 4 balitharas near the high mast lamp, if there is additional requirement.

DBP No.6 of 2022 31

36. The learned counsel for the additional 8 th respondent would submit that auctioning of balitharas has to be stopped and lot system has to be introduced. Purohits/shantis who are conducting balitharpanam everyday other than on Karkidaka Vavu, Thula Vavu and Shivratri festival days, by paying Rs.100/- per day to the 4th respondent Administrative Officer, may be allowed to continue at the same rate.

37. 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 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 DBP No.6 of 2022 32 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 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 DBP No.6 of 2022 33 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 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)

38. It is the duty of the Travancore Devaswom Board to deal with the property of Aluva Devaswom with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. The Board, being the trustee, could not therefore occasion any loss to the Devaswom and it is the duty of the Board to deal with the properties to the best advantage of the Devaswom. As already noticed hereinbefore, the major source of revenue to the Board is the income received DBP No.6 of 2022 34 by way of offerings 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 and festivals in temples. Therefore, balitharpanam at Aluva Shivratri Manappuram other than on Karkidaka Vavu, Thula Vavu and Shivratri festival days cannot be allowed to be conducted by purohits/shantis paying Rs.100/- per day to the 4th respondent Administrative Officer. As proposed by the Board, the said right has to be auctioned with 20 or 24 balitharas as per Annexure R2(a) layout plan, on yearly basis. For the very same reason, lot system cannot be introduced for allotting balitharas at Aluva Shivratri Manappuram during Karkidaka Vavu, Thula Vavu and Shivratri festival days. The Board has to conduct auction of balitharas on those days after preparing a layout plan with 60 to 80 balitharas, classifying balitharas facing the river in 'A' sector and those facing the temple in 'B' sector and fixing base price (upset price) of each balithara in 'A' and 'B' sectors appropriately.

39. In the above circumstances, this DBP is disposed of with the following directions;

(i) the Travancore Devaswom Board shall auction the DBP No.6 of 2022 35 right to conduct balitharpanam by purohits/shantis in 20 to 24 balitharas at Aluva Shivratri Manappuram, as per the layout plan in Annexure R2(a), on all days other than Karkidaka Vavu, Thula Vavu and Shivratri festival days, by inviting sealed quotations, on yearly basis, after issuing a proper notification with layout plan of balitharas and also base price (upset price) of each balitharas.

(ii) the Travancore Devaswom Board shall auction the right to conduct balitharpanam by purohits/shantis, during Karkidaka Vavu, Thula Vavu and Shivratri festival days, in 60 to 80 balitharas at Aluva Shivratri Manappuram, after issuing a proper notification with layout plan of balitharas, classifying balitharas facing the river in 'A' sector and those facing the temple in 'B' sector, and also base price (upset price) of each balitharas.

(iii) purohits/shantis who have auctioned balitharas in Aluva Shivratri Manappuram shall be issued with photo identity cards and the 4th respondent Administrative Officer shall ensure that only those purohits/shantis who have been issued with such identity cards alone are conducting balitharpanam in the balitharas in Aluva Shivratri Manappuram.

(iv) the 6th respondent Superintendent of Police and the 7th respondent Station House Officer shall take necessary steps to ensure that there is no law and order issues in connection with balitharpanam in Aluva Shivratri Manappuram during Karkidaka Vavu, Thula Vavu and Shivratri festival days. In addition to the permanent CCTV cameras, sufficient number of temporary CCTV cameras shall be installed at Aluva Shivaratri Manappuram to DBP No.6 of 2022 36 oversee the activities and sufficient number of police personnel shall be deployed to ensure that no untoward incidents happen in an around Shivratri Manappuram.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE MIN DBP No.6 of 2022 37 APPENDIX OF DBP NO.6 OF 2022 RESPONDENTS' EXHIBITS:

ANNEXURE-R2(A) TRUE COPY OF THE OF LAY OUT PLAN TOGETHER WITH ITS ENLARGED VIEW

Unlock Advanced Research with PRISMAI

Kerala High Court