Kerala High Court
R.Asok Kumar vs The State Of Kerala on 3 February, 1999
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
&
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
TUESDAY,THE 1ST DAY OF OCTOBER 2013/9TH ASWINA, 1935
WP(C).No. 7762 of 2009 (M)
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PETITIONER(S):
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R.ASOK KUMAR, THEKKEDATH HOUSE,
THYCAUD P.O., GURUVAYOOR.
BY ADVS.SRI.S.RADHAKRISHNAN
SRI.S.RAJ MOHAN
SMT.ARCHANA.S
RESPONDENT(S):
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1. THE STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVT.OF
KERALA, REVENUE (DEVASWOM)DEPT., GOVT.SECRETARIAT,
TRIVANDRUM.
2. THE COMMISSIONER,
GURUVAYOOR DEVASWOM,
OFFICE OF THE GURUVAYOOR DAVESWOM COMMISSIONER,
2ND FLOOR, TRIDA BUILDINGS, CHALAKKUZHY ROAD,
MEDICAL COLLEGE P.O., TRIVANDRUM.
3. THE GURUVAYOOR DEVASWOM, REPRESENTED BY
THE ADMINISTRATOR GURUVAYOOR DEVASWOM,
GURUVAYOOR DEVASWOM OFFICE, GURUVAYOOR,
THRISSUR DISTRICT.
4. THE CHAIRMAN, GURUVAYOOR DEVASWOM,
MANAGING COMMITTEE, P.O.GURUVAYOOR, THRISSUR DISTRICT.
5. THE GURUVAYOOR DEVASWOM EDUCATIONAL
SOCIETY, REPRESENTED BY ITS SECRETARY,
GURUVAYOOR DEVASWOM EDUCATION SOCIETY, GURUVAYOOR.
R1 & 2 BY GOVERNMENT PLEADER SRI.R.PADMARAJ
R3-R5 BY ADV. SRI.K.JAJU BABU,SC,GURUVAYUR DEVASWOM
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/09/2013
THE COURT ON 01-10-2013, DELIVERED THE FOLLOWING:
PJ
WP(C).No. 7762 of 2009 (M)
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APPENDIX
PETITIONERS' EXHIBITS
P1: COPY OF THE MEMORANDUM OF ASSOCIATION OF THE GURUVAYOOR
DEVASWOM EDUCATIONAL SOCIETY.
P2: COPY OF THE BYELAWS OF THE GURUVAYOOR DEVASWOM EDUCATIONAL
SOCIETY.
P3: COPY OF THE LETTER NO.GDEMS/ESTT/98/6509(SCHOOL NO.CB SE 9410)
DATED11/9/98 SUBMITTED BYT THE PRINCIPAL.
P4: COPY OF THE RELEVANT EXTRACT OF THE DECISION NO.25 OF THE
MANAGING COMMITTEE OF THE GURUVAYOOR DEVASWOM DATED 3/2/1999.
P5: COPY OF THE GOVT.ORDER G.O.(ORDINARY)nO.2069/99/RD 13/5/1999
GRANTING PERMISSION TO ACQUIRE 2.40 ACRES OF LAND FOR THE
SCHOOL.
P6: COPY OF THE GURUVAYOOR DEVASWOM ACT,1978.
P7: COPY OF THE LETTER NO.272/2008/GDC DATED 20/12/2008 ISSUED BY THE
STATE PUBLIC INFORMATION OFFICER FROM THE OFFICE OF THE
GURUVAYOOR DEVASWOM COMMISSIONER.
P8: COPY OF THE PROCEEDINGS NO.61/2000/GDC DATED 27/3/2000 OF THE
GURUVAYOOR DEVASWOM COMMISSIONER.
P9: COPY OF THE LETTER NO.209/2001/GDC 13218 DATED 17/9/2001 ISSUED BY
THE DEVASWOM COMMISSIONER TO THE ADMINISTRATOR.
P10: COPY OF THE STATEMENT DATED 28/9/2002 SUBMITTED BY THE DEVASWOM
COMMISSIONER TO THE INQUIRY COMMISSIONER AND SPECIAL JUDGE.
P11: COPY OF THE COUNTER AFFIDAVIT FILED BY THE ADMINISTRATOR,
GURUVAYOOR DEVASWOM IN WPC.NO.17244 OF 2003 DATED 30/11/2005.
P12: COPY OF THE NOTIFICATION NO.LR(C)3-31886/2000 DATED 5/10/2000, ISSUED
UNDER SECTION 6 OF THE LAND ACQUISITION ACT.
P13: COPY OF THE LETTER NO.LF(GD) A3-791/2008 DATED 7/8/2008 ISSUED BY
THE DEPUTY DIRECTOR, (HG)LOCAL FUND UNIT.
P14: COPY OF THE REPRESENTATION DATED 20/10/2008 SUBMITTED BY THE
PETITIONER.
P15: COPY OF THE NOTICE PUBLISHED BY THE JOINT COUNCIL OF 25
ASSOCAITIONS IN GURUVAYOOR DURING FEBRUARY.
P16: COPY OF THE LETTER NO.B 208/09 DATED 8/4/2009.
PJ
....2/-
..2..
WP(C).No. 7762 of 2009 (M)
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P17: COPY OF THE CLARIFICATION ISSUED BY THE PUBLIC INFORMATION
OFFICER, GURUVAYOOR DEVASOM
RESPONDENTS' EXHIBITS
R3(A): COPY OF AMENDED O.P.NO.34264/2000 OF THE HIGH COURT OF KERALA.
R3(B): COPY OF COUNTER AFFIDAVIT IN O.P.NO.34264/2000 OF THE HIGH COURT OF
KERALA
R3(C): COPY OF THE ADDITIONAL COUNTER AFFIDAVIT IN O.P.NO.34264/2000 OF
HIGH COURT OF KERALA.
R3(D): COPY OF THE JUDGMENT IN OP.NO.34264/2000 DT.16/7/2000 OF THE HIGH
COURT OF KERALA.
R3(E): COPY OF THE REVIEW PETITION NO.1384/2008(D) IN OP.NO.34264/2000 OF
THE HIGH COURT OF KERALA.
R3(F): COPY OF THE JUDGMENT IN RP.NO.1384/2008 IN O.P.NO.36264/2000 OF THE
HIGH COURT OF KERALA.
R3(G): COPY OF THE SLP(CIVIL)NO.9481/09 OF THE SUPREME COURT OF INDIA
R3(H): COPY OF THE ORDER IN SLP.(CIVIL)NO.9481/2009 OF THE SUPREME COURT
OF INDIA DATED 14/5/2009.
EXIBITS PRODUCED ALONG WITH IA.NO.10956/2012
R3(A): COPY OF THE LETER NO.GDEMS/BOARD-I/1997-98/452 DATED 29/8/1997 SENT
BY THE 3RD RESPONDENT TO THE SECRETARY, C.B .S.E., DELHI.
R3(B): COPY OF THE RELEVANT EXTRACT OF GURUVAYOOR DEVASWOM BEDUGET
ESTIMATE FOR THE YEAR 2012-13.
R3(C): COPY OF THE RELEVANT EXTRACT OF SBSE AFFILIATION BYE-LAW
(CHAPTER-II, BYE-LAW)
R3(D): COPY OF THE DECISION NO.2 DATED 29/5/2012 OF THE GURUVAYOOR
DEVASWOM COMMISSIONER.
R3(E): COPY OF THE ORDER NO.156/2012/G.D.C./5267 DATED 2/7/2012 OF THE
GURUVAYOOR DEVASWOM COMMISSIONER.
/ TRUE COPY /
P.S. TO JUDGE
PJ
T.R. RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.
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W.P.(C).No.7762/2009
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Dated this the 1st day of October, 2013
J U D G M E N T
Ramachandran Nair, J.
The petitioner is mainly seeking for a direction to the first respondent-State and the second respondent-Commissioner of Guruvayur Devaswom to dissolve the Guruvayur Educational Society which is running a C.B.S.E English Medium School. Certain other reliefs have also been sought for.
2. He is a devotee of Guruvayur Sree Krishna Temple and is residing very close to the Temple for the last 45 years. The averments in the writ petition in a nut shell are the following:
The administration of the Temple is governed by the provisions of the Guruvayur Devaswom Act, 1978 (for short, the 'Act') and is vested with the Guruvayur Devaswom Managing Committee, constituted under Section 4 of the Act, which consists of nine members out of which six members are nominated by Hindus among the Council of Ministers. The other three W.P.(C).No.7762/2009 -:2:- members are Zamorin Raja, Karanavan of Mallissery Illam and the Thantri of the Temple. Section 10 of the Act provides various duties which the Managing Committee can undertake with regard to the affairs of the Temple.
3. It is submitted that powers under Section 10 of the Act can be exercised by the Committee only in tune with the custom and usage of the Temple. According to the petitioner, the establishment of the Society is not permitted by the said provision. The details of the formation of the Society have been averred in para.7 of the writ petition from which it can be seen that the then Committee of the Guruvayur Devaswom on 22/12/1993 decided to form a Society under the name "Guruvayur Educational Society"
with the object to establish and maintain Guruvayur Devaswom English Medium School under the C.B.S.E Scheme. Ext.P1 is the copy of the Memorandum of Association and Ext.P2 is the copy of the bye-laws. The members of the Educational Society will be the nominated members of the Guruvayur Devaswom Managing Committee, apart from the Administrator W.P.(C).No.7762/2009 -:3:- and the Principal of the School. The finance for running the institution will have to be met by the Devaswom. Ext.P4 is a decision taken by the Managing Committee dated 03/02/1999 to acquire 2 acres and 40 cents of land for fulfilling the norms laid by C.B.S.E and for meeting the sports facilities of the school. The Government granted permission as per Ext.P5 order for such acquisition. According to the petitioner, a C.B.S.E school requires only 2 acres of land and already the school is having 2.5 acres in Survey Nos.135 (part) and 139 (part) of Guruvayur Village. This was acquired for constructing the staff quarters of the Guruvayur Devaswom employees but has been diverted and utilised for the construction of the school building. The proceedings for acquisition were under challenge by interested parties in O.P.No.34264/2000 which has been dismissed by this Court and the same has been upheld after the rejection of the Special Leave Petition by the Hon'ble Supreme Court.
4. The learned counsel for the petitioner contends that the running of the C.B.S.E School is not one of the activities sanctioned by the W.P.(C).No.7762/2009 -:4:- custom and usage of the Temple. Even after the amendment of Section 24 (3)(f) of the Guruvayoor Devaswom Act, 1971 (Kerala), viz. the parent provision, which was declared as unconstitutional and void by a Full Bench of this Court in Krishnan vs. Guruvayur Devaswom Managing Committee [1979 KLT 350 (FB)], the situation is not different. Therefore, it is submitted that the Society will have to be dissolved. The petitioner also pleads that Ext.P8 will show that the Devaswom Commissioner had objected to the spending of the Devaswom Funds for the school. Exts.P9 and P10 are also relied upon in that context. Ext.P11 is a counter affidavit filed by the Administrator of the Guruvayur Devaswom in W.P.(C). No.17244/2003 wherein also, according to the learned counsel for the petitioner, the said fact has been admitted. Ext.P12 is the notification under Section 6 of the Land Acquisition Act, 1894 issued by the Land Revenue Commissioner for the acquisition of certain items of land for the purpose of the school. It is submitted that the acquisition proceedings are without any real purpose and the Devaswom cannot be permitted to use W.P.(C).No.7762/2009 -:5:- the funds for the school, and the school which is run in the self-financing sector should find out its own sources. These are the main aspects which have been highlighted by the petitioner in the writ petition.
5. The respondents have filed detailed counter affidavits in the matter.
6. Heard the learned counsel for the petitioner, learned Government Pleader and the learned Standing Counsel for the Board.
7. In the counter affidavit filed by the third respondent- Administrator, it is submitted that the land owners had challenged the acquisition proceedings in O.P.No.34264/2000 which was dismissed by this Court by Ext.R3(D) Judgment and Special Leave Petition from it also stands dismissed. A review petition filed against the same was dismissed as per Ext.R3(F) Order and Ext.R3(H) is the copy of the Interim Order passed in S.L.P. (Civil).No.9481/2009 filed from it which reads as follows: W.P.(C).No.7762/2009 -:6:-
"Issue notice limited to the issue as any alternative relief can be granted to the land owners by way of allotment by the Devaswom of some other land."
It is submitted that the very same legal question raised herein has been answered in Ext.R3(D) Judgment. It is also pointed out by the learned Standing Counsel for the Devaswom that the Society has been established more than 20 years back and the challenge made by the petitioner is highly belated. It is further highlighted that the petitioner has approached this Court immediately after the dismissal of the writ petitions filed by the land owners challenging the land acquisition proceedings and he has also highlighted his grievance regarding the acquisition of the very same properties. It is submitted that it is a veiled attempt to help the land owners and others who are interested in hindering the functioning of the C.B.S.E school. It is submitted that the Society has been formed in tune with the C.B.S.E bye-laws and there is no violation of the provisions of the Act in conducting the school.
W.P.(C).No.7762/2009 -:7:-
8. In the additional counter affidavit it is pointed out that the Devaswom is running three educational institutions, namely, the Sree Krishna College, Sree Krishna Higher Secondary School and Sree Krishna English Medium School. The Act enables Guruvayur Devaswom Managing Committee to incur the expenditures for the establishment and management of any educational institutions owned by it or even owned by others in which the Managing Committee has interest. The C.B.S.E school is fully owned by the Devaswom. It also encourages education in Sanskrit and Malayalam languages and therefore, there is no violation of any custom or practice associated with the Temple. All the expenditures are subject to audit and the Devaswom Administrator is the Manager of the school. The staff of the school are the staff of the Devaswom and the income from the school is remitted to the Devaswom account. The C.B.S.E affiliation bye-laws required to have 2 acres of land and play ground and other facilities. Therefore, the land had to be acquired. Thus, it is contended that there is no violation of the provisions of the Act as well W.P.(C).No.7762/2009 -:8:- as the custom or practice of the Temple.
9. The learned counsel for the petitioner submitted that going by Section 10(g) of the Act, among the duties of the Committee, it is authorised "to do all such things as may be incidental and conducive to the efficient management of the affairs of the Devaswom and the convenience of the worshipers" and, therefore the spending of amounts on the school cannot be justified. Our attention was invited to Section 27(f) of the Act and the proviso to the Section which reads as follows:
"27. Authority of Committee to incur expenditure for certain purposes:- .......
(f) the establishment and maintenance of any educational institution which provides for encouragement of education in the Sanskrit or Malayalam language or the maintenance of any such educational institution owned or managed by the Devaswom or in which the Devaswom has interest; and
(g) the making of any contribution to any religious institution;
Provided that nothing contained in clause (e) shall prevent the continuance of any grant or contribution to any poor home or W.P.(C).No.7762/2009 -:9:- other similar institution which is maintained by or for the benefit of persons other than those belonging to the Hindu community, if such grant or contribution was being made to such poor home or institution before the commencement of this Act as the customary practice associated with the Temple; Provided further that no expenditure shall be incurred for any of the purposes mentioned in clauses (f) and (g) unless the same is sanctioned by custom or practice associated with the Temple."
The said provision is relied upon to contend that only an educational institution which provides Malayalam or Sanskrit language can be run by the Devaswom and such an expenditure should be for a purpose sanctioned by custom or practice associated with the Temple. While referring to the background of the enactment, it is submitted that the Full Bench of this Court in Krishnan v. Guruvayoor Devaswom Managing Committee [1979 KLT 350 (FB)] in para.57 considered the validity of Section 24(3)(f) of Guruvayoor Devaswom Act, 1971 (Kerala) which conferred powers with the Committee to utilise the Devaswom funds for W.P.(C).No.7762/2009 -:10:- various purposes, with the previous sanction of the Government. Therein item (ii) was for establishment and maintenance of any educational institution or the maintenance of any educational institution owned or managed by the Devaswom or in which the Devaswom has interest. After relying upon the decisions of the Apex Court in Ratilal Panachand Gandhi and others v. State of Bombay and others [AIR1954 SC 388] and Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [AIR 1962 SC 853] it was held in para.58 "that the provision contained in S.24(3)(f) of Guruvayoor Devaswom Act, 1971 (Kerala) empowering a secular authority, namely, the State Government to sanction the diversion of Devaswom funds for purposes unconnected with the Devaswom and its affairs is unconstitutional and void". It is submitted that the said binding decision has the effect of nullifying the present attempt of the Devaswom in starting the CBSE school through an educational Society.
10. At the outset we will state that the Act was amended again after the Full Bench decision in Krishnan's case [supra] and Section 27 of W.P.(C).No.7762/2009 -:11:- the Act is the provision as far as the present enactment is concerned. Therein, unlike Section 24 of the Guruvayoor Devaswom Act, 1971 (Kerala), authority is given to the Committee to incur expenditure for certain purposes. Therein Sub Section (f) and the proviso to Section 27, which we have extracted above, have been inserted. Therefore, unlike the provision which was struck down which provided powers to the secular authority, namely, the Government to sanction diversion of Devaswom funds, the Managing Committee itself has been given the power to spend amounts for various purposes.
11. These, provisions were actually considered by this Court in Ext.R3(D) and R3(F) Judgments. A reading of Ext.R3(D) Judgment will show that the petitioners therein challenged the notifications issued under the Land Acquisition Act for acquisition of land for the very same CBSE School run by the Society. The main argument was that the Devaswom has no authority to invest funds for education purposes and reliance was W.P.(C).No.7762/2009 -:12:- placed on Section 27 of the Act. After considering Section 27(f) of the Act, the Division Bench has held as follows in para.2:
".................... It is clear from the above provision that Devaswom is not only free to establish educational institutions for encouraging education in Sanskrit or Malayalam, but is also free to maintain any educational institution owned or managed by the Devaswom or in which Devaswom has interest. It is not in dispute that the Educational Society which is running the school is formed and promoted by the Guruvayur Devaswom and it has no members other than the officials and trustees of the Guruvayur Devaswom Board. In fact, petitioners are not disputing the fact that President of the Guruvayur Educational Society which owns and manages the School is the Chairman of the Guruvayur Devaswom Board and the Secretary of the Devaswom is the Secretary of the Society. Besides this, all managing committee members of the Society are officials of the Guruvayur Devaswom Board. The entire fund of the Society admittedly flows from theGuruvayur Devaswom and therefore Educational Society is nothing but a subsidiary organisation promoted by the Devaswom for establishing and running schools. Since Guruvayur Devaswom Board is mainly engaged in management of temple, it cannot take up establishment and running of school directly and W.P.(C).No.7762/2009 -:13:- therefore for this purpose they established Educational Society. We do not think setting up of a separate Educational Society which is totally under the control of the Devaswom Board affects the authority of the Devaswom to invest it's funds in setting up and running of educational institutions which it is authorised under Section 27(f) above referred. It is specifically authorised in the said Section that Devaswom can invest in the establishment and management of schools in which Devaswom has interest. Nobody can doubt that Devaswom does not have interest in the school set up by an Educational Society promoted, financed and managed by it completely without involvement of any stranger. It is rather the duty of the Devaswom to provide educational facilities to the children of their large number of employees at least. Therefore we find that Devaswom is perfectly justified in setting up and running of the school through the Society promoted by it. Since the school was set up 10 years back, it is the duty of the Educational agency under the Devaswom to provide facilities for its expansion such as providing play ground for the students, which is the main purpose for which land is acquired."
12. The finding therein will show that the Bench was of the view that the Devaswom is perfectly justified in setting up and running of the W.P.(C).No.7762/2009 -:14:- school. The argument that educational facilities were to be provided to the children of the large number of employees of the Devaswom was also accepted.
13. A review petition was filed from the said Judgment by the petitioners therein which was disposed of by Ext.R3(F) Order. A specific contention raised herein that the expenses should be for purposes sanctioned by custom or practice associated with the Temple was raised in the review petition. After considering the proviso, the Division Bench has held as follows:
"................... We do not know how custom or practice associated with the Temple is relatable to educational activities. All what is visualised in the proviso is that education to be promoted by the Devaswom should not be against religion or Hindu belief. In other words, so long as education is not in conflict with religion, custom and practice, education can be promoted by the Devaswom. In fact education promotes tolerance, and for better understanding of religion and faith, education should be promoted by the Devaswom. ........... Therefore we are of the view that promotion of general education advances the cause of religion and all faiths and it's W.P.(C).No.7762/2009 -:15:- rationalisation. We therefore do not find any ground to interfere with the judgment. Review Petition is accordingly dismissed. However, since acquisition was held up for long on account of litigation and stay was granted by this Court, certainly petitioners will be entitled to claim compensation at market price prevalent at the time of dispossession."
14. Therefore, the learned Standing Counsel for the Guruvayur Devaswom Board Shri Jaju Babu is well justified in submitting that both the points are covered by the above Judgment and Order in the review petition which have become final and the Special Leave Petition has been admitted only to the limited question of considering the plea for alternative relief to the land owner. Even though the learned counsel for the petitioner submitted that the view taken by the Division Bench in the above Judgment and Order is in conflict with the decision of the Full Bench in Krishnan's case [1979 KLT 350 (FB)], we are at a loss to understand how the view taken results in conflict with the view of the Full Bench. It is not per incuriam as contended by the learned counsel for the petitioner. The Full Bench was considering Section 24(3)(f) of the parent Act and the W.P.(C).No.7762/2009 -:16:- provisions of the amended Act are different. The view taken by the Full Bench in Krishnan's case (supra) was totally in a different statutory setting.
15. Even though it is argued that the activities of the school is in conflict with the custom and practice associated with the Temple, we find from the pleadings that the petitioner has not pleaded anything about the custom and practice of the Temple. It is submitted by the learned Standing Counsel for the Devaswom that apart from the CBSE School, certain other educational institutions are being run by the Devaswom including Vadya Vidyalayam (Vadyangal), Mural Painting Institute, Kshethra Kalanilayam (Krishnanattom only) and Veda Patashala (Veda School). These details have been provided in the additional affidavit filed on 26/07/2013. As far as CBSE school is concerned, it is explained that the school is having classes from LKG to Plus II with three divisions each. More than 1800 students are studying in the school. Malayalam is taught as language from LKG to Plus II and Sanskrit is taught as another language from LKG to Plus II. In paras.4 and 5, the following contentions have been raised: W.P.(C).No.7762/2009 -:17:-
"4. Guruvayur Devaswom Act, 1978, Section 27(f) enables Guruvayur Devaswom to incur expenditure for the establishment and maintenance of the Guruvayur Devaswom English Medium School. Section 27(f) enables Devaswom to incur expenditure for establishment and maintenance of :-
(i) An educational institution which provides for encouragement of education in Sanskrit Language; or
(ii) An educational institution which provides for encouragement of education in Malayalam language; or
(iii) Any educational institution owned or managed by Devaswom; or
(iv) An educational institution in which the Devaswom has interest.
Second proviso of Section 27 states that the expenditure can be incurred only if such an educational institution is not against the (sanctioned by) custom and practice associated with the Temple.
5. Devaswom can incur the expenditure of anyone of the above 4 type of educational institutions. Guruvayur Devaswom English Medium School is in accordance with all the above 4 types of institutions and the establishment of the school does not violate any custom or practice associated with the Temple. Nothing is taught in the school against Hindu W.P.(C).No.7762/2009 -:18:- religion, Temple worship, idol worship or custom of the Temple."
In para.7 the details of the educational institutions being run by the Devaswom have been given which are extracted below:
"Under Section 27(f) Devaswom has incurred expenses for establishing and maintaining the following institutions:
i. Sree Krishna College, Guruvayur
ii. Sree Krishna Higher Secondary School & High School
iii. Guruvayur Devaswom English Medium School
iv. Vadya Vidyalayam (Vadyangal)
v. Mural Painting Institute
vi. Kshethra Kalanilayam (Krishnanattom only)
vii. Ved Patashala (Veda School)."
16. The above provision has already been interpreted by the Division Bench in the Judgment referred to above and the Division Bench was also of the view that the provision enables the Devaswom to maintain the school as the like one held and we respectfully agree with the same. Malayalam and Sanskrit languages are also taught in the school. Apart from the same, the Devaswom has established schools for traditional arts W.P.(C).No.7762/2009 -:19:- and music, mural painting and veda patasalas. Therefore, education being one to provide knowledge in various subjects and as the said specific object is being promoted by the Devaswom and in the absence of any custom or practice pointed out by the petitioner against the said activity, this Court sitting under Article 226 of the Constitution of India will not be justified in agreeing with the contentions of the petitioner that custom or practice associated with the Temple has been violated. There has been total absence of plea with regard to the customs and practices of the Temple. We are of the view that it cannot be a matter for assumption by this Court.
17. It is the duty and burden of the petitioner to allege and prove the custom and practices and no clear averments are there in the writ petition and there are total lack of materials in that regard.
18. As rightly pointed out by the learned Standing Counsel for the Devaswom, there is gross and unexplained delay in filing the writ petition. The Guruvayur Devaswom Managing Committee through the nominated W.P.(C).No.7762/2009 -:20:- members of the Society registered the Society on 12/01/1994 and the writ petition is filed in the year 2009. The substantial relief sought for by the petitioner is to direct dissolution of the Society after declaring that the nominated members of the Guruvayur Devaswom Managing Committee have no power whatsoever to register a society to run an English Medium CBSE school. The other direction sought for is to the first and second respondents to dissolve the Society. As far as the declaration sought with regard to the powers of the nominated members of the Managing Committee, due to lapse of long period of 15 years the relief sought for has become so stale. Even the then Guruvayur Devaswom Managing Committee members or the members who have been nominated subsequently, or those in office even at the time of filing of the writ petition are not parties to this writ petition.
19. The direction sought for to dissolve the Society also cannot be a matter for grant of relief in the writ petition filed under Article 226 of the Constitution of India. Inordinate and unexplained delay are sufficient W.P.(C).No.7762/2009 -:21:- ground for this Court to reject the writ petition as the relief that can be granted under Article 226 is a discretionary one. In fact, one of the aspects pointed out by the learned Standing Counsel for the Devaswom is that the writ petition is filed highlighting certain allegations regarding the acquisition of land to the school. It is pointed out that the time of filing of the writ petition has to be noticed in that, the earlier writ petition filed by the land owners was dismissed by this Court by Ext.R3(D) Judgment dated 16/07/2008 and the review petition was dismissed by Ext.R3(F) Order dated 23/01/2009 and this writ petition is filed immediately thereafter on 11/03/2009. All these are worth to be noticed, according to us.
The writ petition fails and hence dismissed. No costs.
Sd/-
(T.R. Ramachandran Nair, Judge.) Sd/-
(A.V.Ramakrishna Pillai, Judge) ms