Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN & THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON FRIDAY, THE 5TH DAY OF JULY 2024 / 14TH ASHADHA, 1946 WP(C) NO. 31704 OF 2022 PETITIONERS:
1 MURALEEDHARAN. P., AGED 64 YEARS, SON OF LATE K. PARAMESWARAN NAIR, "SREE NILKHILAM", MAVINCHODE, URAKAM, P.O. URAKAM, THRISSUR DISTRICT, PIN-680 562.
2 NANDAKUMAR C.V., AGED 51 YEARS, SON OF LATE ESWARA WARRIER, CHIRAKKAL WARRIAM, URAKAM, P.O. URAKAM, THRISSUR DIS- TRICT, PIN-680 562.
3 T. HARIDAS, AGED 59 YEARS, SON OF APPUKUTTAN NAIR, ANUGRAHA, PALACE ROAD, URAKAM, URAKAM P.O., THRISSUR DISTRICT, PIN-680 562.
4 BALAKRISHNAN V.P., AGED 46 YEARS, SON OF PRABHAKARAN, VILANGOTTIL HOUSE, KISSAN CORNER, URAKAM, URAKAM P.O., THRISSUR DISTRICT, PIN-680 562.
BY ADVS.
C.MURALIKRISHNAN (PAYYANUR) ABRAHAM GEORGE JACOB AKSHAY R.
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, THE DEPARTMENT OF REVENUE (DEVASWOM), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 COCHIN DEVASWOM BOARD, REPRESENTED ITS SECRETARY, COCHIN DEVASWOM BOARD OFFICE, ROUND NORTH, THRISSUR, THRISSUR DISTRICT- 680001.
3 SPECIAL DEVASWOM COMMISSIONER, COCHIN DEVASWOM BOARD, COCHIN DEVASWOM BOARD OFFICE, ROUND NORTH, THRISSUR, THRISSUR DISTRICT- 680001.
4 ASSISTANT COMMISSIONER, COCHIN DEVASWOM BOARD, THIRUVANCHIKULAM GROUP, KODUNGALOOR, KODUNGALOOR P.O., THRISSUR DISTRICT -680664.
5 DEVASWOM OFFICER, URAKAM DEVASWOM, URAKAM, URAKAM P.O., THRISSUR DISTRICT -680 562.
2 WP(C) No.31704/2022 & DBP No.54/2024
6 URAKATHAMMATHIRUVADI TEMPLE, URAKAM REPRESENTED BY DEVASWOM OFFICER, URAKAM DEVASWOM, URAKAM P.O., THRISSUR DISTRICT -680 562.
7 VADAKKEDATH PERUMBADAP KESAVAN NAMBOODIRI, VADAKKE PERUMPADAPPU MANA, P.O. VALLICHIRA, URAKAM (VIA), THRISSUR DISTRICT-680 562.
8 THEKKEDDATH PERUMBADAP KESHAVAN NAMBOODIRI *(CORRECTED) THEKKE PERUMPADAPPU MANA, P.O. VALLICHIRA, URAKAM (VIA), THRISSUR DISTRICT-680 562.
9 URAKATHAMMATHIRUVADI KSHETHRA UPADESAKA SAMITHI, URAKAM P.O., REPRESENTED BY ITS SECRETARY, URAKAM, URAKAM P.O., THRISSUR DISTRICT-680 562.
* THE NAME OF THE 8TH RESPONDENT CORRECTED AS "THEKKEDATH PERUMBADAP DAMODARAN NAMBOODIRI" AS PER ORDER DATED 23-01-2023 IN IA 1/2023 IN WP(C) 31704/2022).
BY ADV K.P. SUDHEER
OTHER PRESENT:
SR. GP- SRI. S. RAJMOHAN, SC. CDB- SRI. K. P. SUDHEER
THIS DEVASWOM BOARD PETITION HAVING COME UP FOR FINAL HEARING ON 05.07.2024, ALONG WITH DBP NO.54/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3 WP(C) No.31704/2022 & DBP No.54/2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN & THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON FRIDAY, THE 5TH DAY OF JULY 2024 / 14TH ASHADHA, 1946 DBP NO. 54 OF 2024 PETITIONER:
COCHIN DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, COCHIN DEVASWOM BOARD OFFICE, ROUND NORTH, THRISSUR – 680001.
BY ADV SC, COCHIN DEVASWOM BOARD - CDB
RESPONDENTS:
1 THE DEPUTY DIRECTOR LOCAL FUND AUDIT, COCHIN DEVASWOM AUDIT, THRISSUR – 680001.
2 URAKATHAMMATHIRUVDI KSHETHRA UPADESAKA SAMITHI, REPRESENTED BY ITS SECRETARY, URA- KAM P.O., THRISSUR DISTRICT – 680562.
BY ADVS.
SHRI.S.RAJMOHAN, SENIOR G.P.
ADVOCATE GENERAL OFFICE KERALA
THIS DEVASWOM BOARD PETITION HAVING COME UP FOR FINAL HEARING ON 05.07.2024, ALONG WITH WP(C)NO.31704/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
4 WP(C) No.31704/2022 & DBP No.54/2024
JUDGMENT/ORDER Anil K. Narendran, J.
W.P.(C)No.31704 of 2022:- The petitioners, who are the devotees of the Oorakathamma Thiruvadi Temple in Thrissur District, which is a temple under the management of the 2nd respondent Cochin Devaswom Board, have filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding respondents 2 and 3 to take steps to renovate the "Sreemoolasthanam" and the temple immediately; a writ of mandamus commanding respondents 2 to 5 to take immediate steps to restore the missing and stolen gold and silver ornaments of the title and to recover the amount; a writ of mandamus commanding the 2nd respondent to conduct a detailed enquiry of the activities and funds collected by the Temple Advisory Committee of the temple, during the year 2018 to 2021, and to take appropriate action to recover the loss; a writ of mandamus commanding the 2nd respondent to conduct an enquiry and detailed audit of the income and expenditure of the temple and the amount collected for various festivals during the period 2021 to 2022 by the 5th respondent Devaswom Officer; and a writ of mandamus commanding the 1st respondent Cochin Devaswom Board to formulate a scheme for providing elephants for the
5 WP(C) No.31704/2022 & DBP No.54/2024
festivals in the temple from the pool of elephants of Cochin Devaswom or from Guruvayur Devaswom.
1.1. On 16.11.2022, when this writ petition came for admission, this Court noticed that the question of maintainability of the reliefs sought for in the writ petition will be decided with notice to the party respondents. The learned Senior Government Pleader took notice on admission for the 1st respondent, the learned Standing Counsel for the Cochin Devaswom Board took notice for respondents 2 to 6. Notice on admission by speed post was ordered to respondents 7 to 9, returnable within four weeks.
A copy of I.A.No.1 of 2022 filed by the petitioner seeking an order to accept Exts.P23 to P27 as additional documents was directed to be enclosed along with the notice sent to respondents 7 to 9.
1.2. The 2nd respondent has filed a counter affidavit dated 30.01.2024, opposing the reliefs sought for in this writ petition, producing therewith Exts.R2(a) to R2(h) documents. Despite service of notice, none appears for the party respondents.
2.
DBP No.54 of 2024:- This DBP is registered based on Report No.17 of 2024 of the learned Ombudsman in Petition No.2 of 2024, which is one filed by the Cochin Devaswom Board, seeking permission for the reconstruction of Sreemoolasthanam
6 WP(C) No.31704/2022 & DBP No.54/2024
of Oorakathamma Thiruvadi Temple. Paragraphs 2 and 3 of that report read thus:
“2. Pursuant to the notice issued, Audit filed their remarks dated 02.03.2024 which is marked as Annexure O1. It is pointed out that an amount of Rs.4,16,034.95 towards GST calculated at 18% and in addition to this 10% C.P and 5% overhead charges it will not be allowed to works executed by the Samithi, but in the order dated 04.10.2023 of the Executive Engineer sanctioning the work to Samithi, the above condition is not included. Hence, they sought clarification as to who would bear the liabilities of the items such as GST, contractor's profit and overhead charges. It is recommended by the Audit that in view of cases filed before the Honourable High Court alleging irregularities against the works executed by the Kshethra Updesakha Samithi, Devaswom officials and the Samithi should ensure that the income and expenditure account and other related documents pertaining to the work should be kept separately so that the accounts can be verified later after completion.
3. Replication was filed by the Board through the Executive Engineer which is marked as Annexure O2. It is stated that as observed by the first respondent, Deputy Director, Local Fund Audit, agreement would be executed between the Board and the second respondent, Temple Advisory Committee, at the time of issuing the final work order after the Honourable High Court passes final orders in the above petition. It is further submitted that the work is to be done on contribution basis and that the Board executes agreements with the Upadeshaka Samithi in respect of similar works. As regards the non-inclusion of GST,
7 WP(C) No.31704/2022 & DBP No.54/2024
contractor’s profit, etc., it is stated that as the final work order would be issued only after obtaining permission from the Honourable High Court and in the final work order this aspect will be specifically included. No further remarks were filed by the Audit.” 2.1. On 24.06.2024, when this DBP report came up for consideration, the learned Senior Government Pleader entered appearance for the 1st respondent. Urgent notice by speed post was ordered to the 2nd respondent.
2.2. Registry has reported that service of notice is complete on the 2nd respondent.
2.3. An affidavit dated 04.06.2024 of the 1st respondent Deputy Director, Kerala State Audit Department, Cochin Devaswom Board Audit, is placed on record. Paragraph 2 of that affidavit contains the remarks of the Audit, which read thus:
“2. On verification of the file and Petition, the following remarks are submitted on behalf of Audit.
2.1 On verification of the Petition submitted by the Secretary, Cochin Devaswom Board, it is seen that sanction was accorded to the Kshethra Upadesaka Samithi to execute the work on contribution basis. Contribution of the Board will be 60% of the valuation amount. Then there is necessity of an agreement between two parties. The Petition submitted by the Secretary remains silent on this matter.
2.2 In the Detailed estimate prepared by the Maramath Wing of Cochin Devaswom Board, it is clearly stated that
8 WP(C) No.31704/2022 & DBP No.54/2024
an amount of 4,16,034.95 towards GST calculated @ 18% in addition to 10% C.P and 5% Overhead Charges will not be allowed for works executed by the Samithi. But in the Order No.H1/1361/17 dated 04.10.2023 of Executive Engineer Sanctioning the work to Samithi, the above condition has not included. This condition may be included in the Final Work Order and agreement. An additional condition may also be incorporated that the GST liability will be vested with "the Samithi instead of Cochin Devaswom Board.
2.3 There is a situation where cases are filed before Honourable High Court alleging irregularities against such works executed by the Kshethra Upadesaka Samithi.
Therefore, concerned Devaswom Officials and Samithi should ensure that income and expenditure accounts and other related documents pertaining to this work is kept separately to avoid such circumstances.” 3.
Heard the learned counsel for the petitioner, the learned Senior Government Pleader, the learned Standing Counsel for the Cochin Devaswom Board and the learned Amicus Curiae.
4.
One of the grievances of the petitioners in W.P.(C) No.31704 of 2022 is in relation to renovation of the Sreemoolasthanam of Oorakathamma Thiruvadi Temple. Seeking permission for the reconstruction of the Sreemoolasthanam of the temple, the Cochin Devaswom Board has filed petition No.2 of 2024, in which the learned Ombudsman has filed Report No.17 of 2024, based on which DBP No.54 of 2024 has been registered.
9 WP(C) No.31704/2022 & DBP No.54/2024
Alleging maladministration in Oorakathamma Thiruvadi Temple, the 2nd petitioner submitted Ext.P22 representation dated 07.09.2022 before the President of the 2nd respondent Cochin Devaswom Board, with a copy to the Devaswom Commissioner. As rightly pointed out by the learned Standing Counsel for Cochin Devaswom Board, though one of the reliefs sought for in this writ petition is a writ of mandamus for the formulation of a scheme for providing elephants for the festivals in temples under the management of the Cochin Devaswom Board and Guruvayur Devaswom, the petitioners have not chosen to implead Guruvayur Devaswom Managing Committee as a respondent in this writ petition.
5.
During the course of arguments, the learned Standing Counsel for Cochin Devaswom Board would point out the stand taken by the Board in Annexure O2 reply dated 22.04.2024 filed before the learned Ombudsman in petition No.2 of 2024, which reads thus;
“2. It is submitted that the 1st respondent filed affidavit dated 02.03.2024 in reply to the petition filed by the applicant. As observed by the first respondent, agreement will be executed between the applicant and the 2nd respondent at the time of issuing final work order. The final work order will be issued after obtaining permission from this Honourable High Court. The work will be
10 WP(C) No.31704/2022 & DBP No.54/2024
executed through the 2nd respondent on a contribution basis. The applicant usually executes agreements with the Upadeshaka Samithy in respect of similar works.
3. The second remark made by first respondent is that the applicant in Annexure A2 order dated 04.10.2023, has not specifically stated that the GST amount, 10% contractor's profit and 5% overhead charges will not be allowed for the works executed by the samithy. The final work order will be issued only after obtaining permission from this Honourable High Court and in the final work order, the said aspect will be specifically included. Further, in the final work order, it will be further specified that the 2nd respondent should submit the audited income and expenditure statement of the work before effecting the final payment or whenever the applicant demands.” Having considered the pleadings and materials on record and also the submissions made at the Bar, we deem it appropriate to dispose of DBP No.54 of 2024 by granting permission to the Cochin Devaswom Board for undertaking the reconstruction work of Sreemoolasthanam of Oorakathamma Thiruvadi Temple, subject to the remarks in paragraph 2 (2.1 to 2.3) of the affidavit dated 04.06.2024 filed by the 1st respondent Deputy Director, Kerala State Audit Department, Cochin Devaswom Board Audit. The entire income and expenditure in this regard will be subject to statutory audit. The income and expenditure accounts and other documents pertaining to the work shall be kept separately, which
11 WP(C) No.31704/2022 & DBP No.54/2024
shall be audited before effecting final payment. The 2nd respondent Board shall obtain a report of the Devaswom Commissioner on Ext.P22 representation made by the 2nd petitioner alleging maladministration in Oorakathamma Thiruvadi Temple and thereafter they can take an appropriate decision on that representation, after affording the 2nd petitioner an opportunity of being heard, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment.
Sd/- ANIL K. NARENDRAN, JUDGE
Sd/- HARISANKAR V. MENON, JUDGE Skk//05.06.2024
12 WP(C) No.31704/2022 & DBP No.54/2024
APPENDIX OF WP(C) NO.31704/2022 PETITIONER’S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BYE-LAW APPROVED BY COCHIN DEVASWOM BOARD FOR TEMPLE ADVISORY COMMITTEE.
EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT BEARING ORDER NO.A5.10552/2018 DATED 16.12.2021.
EXHIBIT P3 TRUE COPY OF THE REQUEST DATED 25.11.2021 SUBMITTED BY THE 2ND PETITIONER TO THE PUBLIC INFORMATION OFFICER, COCHIN DEVASWOM BOARD, THRISSUR.
EXHIBIT P4 TRUE COPY OF THE REPLY.NO.C.97/21 DATED 25.11.2021 GIVEN BY 5TH RESPONDENT TO 2ND PETITIONER ALONG WITH IT'S ENCLOSURES.
EXHIBIT P5 TRUE COPY OF THE REPLY NO.C.97/21 DATED 25.12.2021 GIVEN BY THE 5TH RESPONDENT, DEVASWOM OFFICER TO 2ND PETITIONER ALONG WITH ITS ENCLOSURE.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 24.08.2022 SUBMITTED BY THE 1ST PETITIONER TO THE 3RD RESPONDENT ALONG WITH POSTAL RECEIPT AND ACKNOWLEDGEMENT CARD.
EXHIBIT P7 TRUE COPY OF REPRESENTATION DATED 24.08.2022 SUBMITTED BY 1ST AND 3RD PETITIONERS JOINTLY TO THE PRESIDENT OF DEVASWOM BOARD ALONG WITH POSTAL RECEIPT AND ACKNOWLEDGEMENT CARD.
EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT BEARING ORDER NO.A5.6593/2022 DATED 16.6.2022 KUS.533/22.
EXHIBIT P9 TRUE COPY OF THE ORDER NO.A6.7799/22 DATED 15.07.2022 ISSUED BY THE DEPUTY COMMISSIONER OF COCHIN DEVASWOM BOARD.
EXHIBIT P10 TRUE COPY OF THE SHOW CAUSE NOTICE NO.A5.6593/2022 DATED 18.07.2022 ISSUED BY THE DEVASWOM COMMISSIONER TO THE PRESIDENT AND SECRETARY OF THE TEMPLE ADVISORY COMMITTEE.
EXHIBIT P11 TRUE COPY OF THE RECEIPT DATED 28.06.2022 ISSUED BY THE 9TH RESPONDENT TEMPLE ADVISORY COMMITTEE TO MR.PRADEEP THOPPIL.
EXHIBIT P12 TRUE COPY OF THE DONATION TICKET NO.245704 DATED 18.08.2022 ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE DONATION TICKET NO.265214 DATED 15.09.2022 ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT BEARING ORDER NO.A9.961/13 DATED 04/05/2013.
EXHIBIT P15 TRUE COPY OF THE REQUEST DATED 17.08.2022 SUBMITTED BY THE 2ND PETITIONER TO THE PUBLIC INFORMATION OFFICER OF THE OFFICE OF THE 2ND RESPONDENT.
EXHIBIT P16 TRUE COPY THE REPLY DATED 17.09.2022 GIVEN BY THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF 2ND RESPONDENT TO THE 2ND PETITIONER.
13 WP(C) No.31704/2022 & DBP No.54/2024
EXHIBIT P17 TRUE COPY OF THE REPLY DATED 12.09.2022 ISSUED BY THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF 2ND RESPONDENT TO THE 2ND PETITIONER.
EXHIBIT P18 TRUE COPY OF THE REQUEST DATED 14.07.2022 SUBMITTED BY THE 4TH PETITIONER TO THE PUBLIC INFORMATION OFFICER OF THE 2ND RESPONDENT.
EXHIBIT P19 TRUE COPY OF THE REPLY NO.C108/2022 DATED 19.08.2022 ALONG WITH IT'S ENCLOSURES GIVEN BY 5TH RESPONDENT TO THE 4TH PETITIONER EXHIBIT P20 TRUE COPY OF THE REQUEST DATED 19.07.2022 SUBMITTED BY MR.ANOOP K.
UNDER RIGHT TO INFORMATION ACT TO THE OFFICE OF 5TH RESPONDENT.
EXHIBIT P21 TRUE COPY OF THE REPLY DATED 23.08.2022 BY THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 5TH RESPONDENT TO MR.ANOOP K.
EXHIBIT P22 TRUE COPY OF THE REPRESENTATION DATED 7.9.2022 SUBMITTED BY THE 2ND PETITIONER TO THE PRESIDENT OF THE COCHIN DEVASWOM BOARD.
EXHIBIT P23 TRUE COPY OF THE ORDER NO.A5 6593/2022 DATED 18.10.2022 ISSUED BY THE 2ND RESPONDENT EXHIBIT P24 TRUE COPY OF THE PROCEEDINGS OF THE COCHIN DEVASWOM BOARD BEARING ORDER NO.H1.2010/18 DATED 09.01.2019 ISSUED BY THE EXECUTIVE ENGINEER EXHIBIT P25 TRUE COPY OF THE NO OBJECTION LETTER DATED 13.06.2019 ISSUED BY THE THANTHRI EXHIBIT P26 TRUE COPY OF THE ORDER NO.A9.6998/2022 DATED 21.06.2022 ISSUED BY THE DEPUTY COMMISSIONER OF COCHIN DEVASWOM BOARD EXHIBIT P27 PHOTOGRAPHS OF THE OUTER WALL OF THE SREEMOOLA STHANAM RESPONDENTS’ EXHIBITS:
EXHIBIT R2(A) TRUE COPY OF ORDER NO.A9.961/13 DATED 20.4.2018 ISSUED BY THE DEVASWOM COMMISSIONER, COCHIN DEVASWOM BOARD.
EXHIBIT R2(B) TRUE COPY OF ORDER NO.A5.10552/2018 DATED 03.12.2021 ISSUED BY THE DEVASWOM COMMISSIONER EXHIBIT R2(C) TRUE COPY OF ORDER NO.A5.10552/2018 DATED 24.3.2022 ISSUED BY THE 3RD RESPONDENT EXHIBIT R2(D) TRUE COPY OF ORDER NO.A5.10552/2018 DATED 18.4.2022 ISSUED BY THE 3RD RESPONDENT EXHIBIT R2(E) TRUE COPY OF ORDER NO.A5.6593/2022 DATED 16.6.2022 KUS 533/22 ISSUED BY THE 2ND RESPONDENT EXHIBIT R2(F) TRUE COPY OF ORDER NO.A5.6593/2022 DATED 12.8.2022 ISSUED BY THE 2ND RESPONDENT EXHIBIT R2(G) TRUE COPY OF ORDER NO.6593/2022 DATED 18.10.2022 ISSUED BY THE 2ND RESPONDENT EXHIBIT R2(H) TRUE COPY OF ORDER NO. A5. 6593/2022 DATED 30.5.2023 ISSUED BY THE 2ND RESPONDENT
14 WP(C) No.31704/2022 & DBP No.54/2024
APPENDIX OF DBP NO.54 OF 2024 PETITIONER’S ANNEXURES:
ANNEXURE A1 TRUE COPY OF ESTIMATE PREPARED BY THE MARAMATH WING OF THE APPLICANT BOARD IN RESPECT OF THE RENOVATION WORK OF SREEMOOLASTHANAM OF THE TEMPLE ANNEXURE A2 TRUE COPY OF ORDER NO.H1.1361/17 DATED 04.10.2023 OF THE EXECUTIVE ENGINEER ANNEXURE A3 TRUE COPY OF THE LETTER DATED 01.11.2023 ISSUED BY THANTHRI OF THE TEMPLE ANNEXURE O1 REMARKS DATED 02.03.2024 FILED BY AUDIT ANNEXURE O2 REPLICATION DATED 22.04.2024 FILED BY THE BOARD THROUGH THE EXECUTIVE ENGINEER