Judgment
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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN & THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946 WP(C) NO. 36848 OF 2023 PETITIONER:
PROWL CREDIT MANAGEMENT PRIVATE LIMITED AGED 46 YEARS, 28/701, 2ND FLOOR, PALLITHAMAM BUILDING, SREE VADAKKUMNATHAN SHOPPING COMPLEX, THRISSUR - 680 020 REPRESENTED BY ITS MANAGING DIRECTOR JYOTHISH A.R. S/O RAMAKRISHNAN, AGED 46 YEARS, AYNIKADAN HOUSE, MUDIKKOD, PATTIKKAD P.O., THRISSUR, PIN - 680652.
BY ADVS.
SRI N.N. SUGUNAPALAN (SR) FOR PETITIONER S.SUJIN NITA.N.S.
T.N.GIRIJA KEERTHI M.
B.BILWIN
RESPONDENTS:
1 COCHIN DEVASWOM BOARD, REPRESENTED BY THE SECRETARY, DEVASWOM BOARD BUILDING, SWARAJ ROUND, THRISSUR, PIN - 680001.
2 THE SECRETARY, COCHIN DEVASWOM BOARD, DEVASWOM BOARD BUILDING, SWARAJ ROUND, THRISSUR, PIN - 680001.
3 ASSISTANT COMMISSIONER (ESTATE), COCHIN DEVASWOM BOARD, SWARAJ ROUND, THRISSUR, PIN - 680001.
BY ADV K.P. SUDHEER
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OTHER PRESENT:
SRI K.P. SUDHEER - STANDING COUNSEL -COCHIN DEVASWOM BOARD
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOL- LOWING:
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JUDGMENT Anil K. Narendran, J.
The petitioner is the licensee in respect of shop room bearing No.28/701, having a plinth area of 1,650 sq. ft., in the 2nd floor of Western Pallithamom Building of the 1st respondent Cochin Devaswom Board, which was taken on the strength of Ext.P1 licence deed dated 01.03.2018, executed between the petitioner and the 1st respondent. The period of licence was for three years, on payment of a monthly licence fee of Rs.27,080/-. Towards security deposit, the petitioner remitted a sum of Rs.7,14,160/- (rent for 24 months) and a further sum of Rs.97,517/- towards donation. Clause 9 of Ext.P1 licence deed deals with renewal of licence. According to the petitioner, since there is a renewal clause in Ext.P1 licence, the petitioner spent Rs.15 lakhs to make the room attractive. When the period of licence expired in March 2023, the petitioner decided to renew the agreement. Based on that request, the 1st respondent Board demanded higher fee of Rs.50,750/- per month and issued Ext.P2 order dated 17.08.2023.
The petitioner submitted Ext.P3 representation dated 24.08.2023 before the 2nd respondent, the Secretary of the Board, wherein the petitioner has stated that it is prepared to surrender the room in question if the Board is not willing to accede to its request, in
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which event the amount deposited will have to be returned, after deducting arrears of licence fee, if any. The petitioner would contend that Ext.P2 order is hit by the principles of legitimate expectations. The petitioner was offered the shop room promising that rent would not be increased after the first term of the lease beyond 25% of the rent. It was on that promise that the petitioner gave a sum of Rs.97,517/-. In addition to the security deposit also the petitioner had spent Rs.15 lakhs on interior work. In support of the contention regarding legitimate expectation, the learned Senior Counsel for the petitioner would rely on the decision of the Apex Court in Indian Ex-Servicemen Movement v. Union of India [(2022) 7 SCC 323].
2.
In this writ petition, the petitioner is seeking a writ of certiorari to quash Ext.P2 order dated 17.08.2023, issued by the 3rd respondent Assistant Commissioner (Estate) and a writ of mandamus commanding the respondents to adhere to the terms and conditions agreed by them in Ext.P1 and renew the licence agreement. The further relief sought for is a writ of mandamus commanding the respondents to pay the petitioner the security deposit and investments made in the building and in the business.
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3.
On 17.11.2023, when this writ petition came up for admission, the learned Standing Counsel for the Cochin Devaswom Board sought time to get instructions.
4.
The 1st respondent Board has filed a counter affidavit dated 06.02.2024 opposing the reliefs sought for in this writ petition, producing therewith Exts.R1(a)to R1(c) documents.
Paragraphs 3 to 6 of that counter affidavit read thus:
“3. It is submitted that the petitioner is a licensee in respect of a shop room having a plinth area of 1650 square feet in the second floor of western Pallithamam building bearing Door No.36/7143 (Old No.28/701), owned by the first respondent.
Ext.P1 is the licence agreement dated 01.03.2018 executed between the petitioner and first respondent in respect of the aforementioned shop room for a period of 3 years from 01.03.2018. The licence fee was Rs.27,080/- plus applicable GST per month.
It is true that clause 9 of Ext.P1 agreement stipulates that if the licensee desires to continue occupation of the room after the period of licence, he can make a request in writing to the licensor to the effect that in case the licensor agrees to the same, the licensee can continue with the minimum increase of 25% in licence fee or as per terms fixed by the licensor after executing a fresh licence deed. For reasons best known to the petitioner, the petitioner has not produced the request made by him in terms of clause 9 of Ext.P1 agreement. The allegation of the petitioner that he was expecting legitimately that Ext.P1 agreement will be renewed after revising the
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licence agreement in terms of Ext.P1 is absolutely incorrect and there is no bonafides in making such a contention.
4. It is submitted that the licence fee in respect of the shop rooms owned by the first respondent was enhanced in terms of the directions contained in the judgment dated 26th October 2022 in Writ petition (civil) No.31039 of 2019 and 8715 of 2021. This Honourable Court was considering the validity of a circular dated 31.08.2019 issued by the first respondent. Even though the petitioner was not a party to the aforementioned writ petition, in obedience to the directions contained in the said judgment, notice No.R1.3648/2013 dated 06.01.2023 was issued to the petitioner. In this regard true copy of notice bearing No.R1.3648/2013 dated 06.01.2023 issued by the first respondent to the petitioner is produced herewith and marked as Exhibit R1(a). The petitioner’s authorised representative Sivakumar appeared on 12.01.2023 and affixed his signature. In this regard true copy of the relevant page of the attendance list is produced herewith and marked as Exhibit R1(b). During the course of hearing it was brought to the notice of the authorised representative of the petitioner that the shop rooms in the building which have direct view from the public road is having the licence fee at the rate of ` Considering the fact that the shop room in question does not have direct view from the public road, the licence fee was fixed at Rs.30/-. It was also brought to the notice of the petitioner as well as all the tenants, that the circular was issued in terms of the remarks of the Local Fund Audit regarding the licence fee of the shop rooms owned by the first respondent. In this regard the true copy of the judgment dated 26.10.2022 in writ petition (civil)
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No.31039 of 2019 passed by this Honourable Court is produced here with and marked as Exhibit R1(c).” 5. It is submitted that the contention of the petitioner that Ext.P2 order is hit by legitimate expectation is absolutely incorrect. In view of the personal hearing afforded to the petitioner before issuing Ext.P2, the contention of the petitioner that Ext.P2 order is hit by legitimate expectation is liable to be rejected.
6. It is submitted that the petitioner is occupying the shop room without paying the licence fee and as on 31.12.2023, an amount of Rs.3,19,322/- and the GST amount of Rs.57,477/- is due from the petitioner. Further, the petitioner has also not executed fresh licence agreement. Further, several other tenants who were parties to Exhibit R1(c) proceedings are waiting for the outcome of this writ petition and they are also not paying the renewed licence fee. Since the petitioner is a defaulter and not willing to pay the licence fee fixed by the first respondent/licensor, the writ petition filed under Article 226 of the Constitution of India is liable to be dismissed with exemplary costs.”
5.
The petitioner has filed a reply affidavit dated 18.03.2024.
6.
Today when this matter is taken up for consideration along with IA No.1 of 2024, the petitioner has placed on record Ext.P4 statement showing transfer of amounts to the account of the 1st respondent Board towards payment of licence fee, from 01.01.2022 to 01.03.2024, at the rate fixed in Ext.P1 plus GST.
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7.
Heard the learned Senior Counsel for the petitioner and the learned Standing Counsel for the Cochin Devaswom Board for the respondents.
8.
The issue that requires consideration in this writ petition is as to whether any interference is warranted on Ext.P2 order dated 17.08.2023 issued by the 3rd respondent Assistant Commissioner (Estate) and whether the petitioner is entitled to seek a writ of mandamus, on the strength of the terms and conditions contained in Ext.P1 licence deed, for renewal of that licence.
9.
The learned Senior Counsel for the petitioner would address arguments placing reliance on Clause 9 of Ext.P1 licence deed entered into between the petitioner and the 1st respondent Board. The submission of the learned Senior Counsel is that in view of the provisions in Clause 9, the petitioner is entitled to get renewal of the term of licence on an increase of 25% of the licence fee. In support of the claim regarding legitimate expectations, the learned Senior Counsel would place reliance on the judgment of the Apex Court in Indian Ex-Servicemen Movement v. Union of India [(2022) 7 SCC 323]. The learned Senior counsel would also raise a contention that the revision or refixation of licence fee in respect of a shop room covered by Ext.P1 licence cannot be
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made on the basis of the law laid down by this Court in T.Krishnakumar v. Cochin Devaswom Board [2022 (4) KLT 798] and also the direction contained in the judgment of this Court dated 26.10.2022 in W.P.(C)No.31039 of 2019 and connected matters. The learned counsel would place reliance on the judgment of this Court dated 11.01.2024 in Contempt of Court case (Civil) No.1437 of 2022. The learned Senior Counsel, while concluding the submission would point out that the petitioner does not want to continue to occupy the premises in question covered by Ext.P1 licence deed and therefore the Board may be directed to refund the security deposit, after deducting the arrears of rent, if any.
10. On the other hand, the learned Standing Counsel for the Cochin Devaswom Board would submit that the revision of licence fee at Rs.31,954/- including the GST is made, as stated in paragraph No.4 of the counter affidavit, at the rate of Rs.30 per square feet, considering the fact that the shop room does not have a direct view from the public road. Whereas the licence fee fixed for other shop rooms in the very same building is Rs.45, Rs.50, Rs.75, Rs.89, Rs.90, Rs.93 and Rs.120/- per square feet. The learned Standing Counsel would contend that there is no illegality, whatsoever in the refixation of licence fee of the shop room in
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question vide Ext.P2 order dated 17.08.2023. The petitioner is currently occupying the shop room without payment of licence fee and as on 31.12.2021, an amount of Rs.3,19,322/- towards licence fee and an amount of Rs.57,477/- towards GST are due from the petitioner. The petitioner is yet to clear that amount.
11. On a query made by this Court, the learned Senior counsel for the petitioner would submit that as evident from Ext.P4 the petitioner has cleared arrears of rent at the pre-revised rate of Rs.31,954/- (rent plus GST), till 01.03.2024.
12. In T. Krishnakumar v. Cochin Devaswom Board [2022 (5) KHC SN 8 : 2022 (4) KLT 798], a Division Bench of this Court held that in view of the law laid down by this Court in Abu K.S. v. Travancore Devaswom Board [2022 SCC OnLine Ker 1642], relying on the decision of the Apex Court in M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65], while leasing out the buildings owned by the Devaswoms, the Cochin Devaswom Board and its officials have to ensure that proper income is generated from the said buildings.
In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. The action of the Board as a trustee cannot be equated to that of a mere landlord. The
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best interest of the Devaswoms under the control of the Board would be subserved, only if income is generated.
13. In T. Krishnakumar [2022 (5) KHC SN 8], the Division Bench noticed that the major source of revenue of Cochin 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 various activities in connection with rituals and festivals in the temples and also the rental income generated from the buildings owned by the respective Devaswoms. Therefore, while dealing with the buildings owned by the Devaswoms, Cochin Devaswom Board and its officials have to ensure that proper income is generated from the said building. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs, by ensuring that the lease rental or licence fee of the buildings owned by the Devaswoms is not lower than the prevailing market rent. The action of the Board in demanding lease rental or licence fee for the buildings owned by the Devaswoms taking into consideration the prevailing market rent cannot be termed as an action of the Board demanding exhorbitant or rack-rent, since, while leasing out the buildings owned by the Devaswoms, the Board and its
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officials have to ensure that proper income is generated from the said buildings. Any default committed by the tenant or licensee of the buildings owned by the Devaswoms in payment of the monthly rent or licence fee, electricity charges, water charges, statutory dues, etc. has to be dealt with appropriately, so also the use of the building for another purpose or making material alteration or addition to the building. In view of the provisions under Section 73A of the Act, Cochin Devaswom Board is duty bound to monitor whether its administrative staff and employees in the Maramath wing are functioning properly, by taking prompt action against any such default or violation of the terms and conditions of the lease deed or the licence deed.
14. In H.N.Vijayan v. Devaswom Commissioner and another [2022:KER:50584] - order dated 19.09.2022 in DBP.No.47 of 2020 - a Divison Bench of this Court in which both of us were parties, was dealing with a case in which the petitioner/complainant, who is the occupant of shop room Nos.2 and 3 in Valiyakulam Shopping Complex owned by Mavelikkara Devaswom under the management of the Travancore Devaswom Board, is in occupation of an area measuring 18m x 4m, in the backyard of shop room bearing Nos.2, 3, 4 and 5, as the godown of his provision store. He is in occupation of the shop room Nos.2
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and 3 since June, 1999. Based on an application made by him, by the proceedings of the Devaswom Commissioner, the concerned Assistant Engineer was directed to identify the area for godown.
After completing the construction, as per the instructions of the connered Assistant Engineer, he has to execute an agreement with the Assistant Devaswom Commissioner, agreeing to pay the monthly rent fixed by the Board. He constructed the structure for godown and occupied the same from 01.09.2001 onwards, without paying any amount towards rent or executing an agreement with the Board. By Annexure A5 request dated 22.05.2017, the petitioner agreed to pay rent at the rate of Rs.650/- per month with arrears of rent from 01.09.2001 onwards.
According to the petitioner, since the monthly rent of the godown was not fixed and the agreement was not executed, he submitted Annexure A2 to A4 requests. As discernible from Annexure A6 notice dated 18.05.2018 of the Sub Group Officer, Mavelikkara, the Board fixed the monthly rent of the temporary structure for godown as Rs.650/-, with effect from 01.09.2001, with 10% increase every year. The demand made in Annexure A8 notice dated 10.02.2019 of the Sub Group Officer is at the rate of Rs.650/- per month from 01.09.2001, with 10% annual increase, with penal interest at the rate of 18%. It was followed by Annexure
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A11 notice dated 08.04.2019. As evidenced by Annexure A12 receipt dated 09.04.2019 and Annexure A13 receipt dated 13.04.2019, the petitioner had already remitted a total sum of Rs.3,73,793/-, towards the demand made in Annexure A11 notice.
15. In H.N.Vijayan [2022:KER:50584] it was stated in the counter affidavit dated 05.07.2021 of the Travancore Devaswom Board that, the Board after considering the plinth area report of the Assistant Engineer, Mavelikkara and the report dated 30.03.2021 of the Chief Engineer (General) granted permission to realise rent as per Delhi Schedule of Rates (DSR), arrear amount and penal interest at the rate of 18% in respect of shop room No.1 (K.Santhosh), shop room Nos.14, 15 and 16 (K.Sasidharan), shop room No.20, 21 and 22 (V.G.Rajesh Kumar), shop room No.28 (Krishnakumar). Considering the said report, the Board fixed DSR rent and granted permission to realise Rs.1,88,606/- from K.Santhosh, Rs.3,99,113/- from K.Sasidharan, Rs.17,406/- from V.C.Rajeshkumar and Rs.9,879/- from Krishnakumar. The said fact was communicated to the Chief Engineer (General), vide Annexure R1(a) letter dated 20.04.2021. On adopting DSR, it was found that the amount remitted by the petitioner/complainant is insufficient. Therefore, the issue regarding the fixation of rent
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payable by the petitioner is placed in the meeting of the Board scheduled on 14.07.2021.
16. In the order dated 05.07.2021, in DBP.No.47 of 2020, this Court noticed that in respect of the buildings constructed by the Board, without putting the Board with proper notice, the Devaswom authorities are granting permission to effect additional constructions. Whether any action has been taken by the Board on coming to know about such instances against officers, who on their own, without obtaining the sanction from the Board, granted permission to tenants to do similar things, whether constructions effected based on such unauthorised permissions are of the nature that would interfere with the stability of the building concerned, are matters of importance. As stated in the additional counter affidavit dated 01.11.2021, filed by the 1st respondent Travancore Devaswom Board, the Estate Officer inspected the entire shopping complexes and submitted a report on 15.09.2021, reporting that in front of 5 shop rooms in Chengannoor Devaswom Shopping Complex, some space has been extended with tin sheet. In Kamankulangara Devaswom under Karunagappalli Group, in front of 9 shop rooms an average area of 50 to 100 sq.ft. has been extended temporarily. In Padanayarkulangara Devaswom, under Karunagapalli Group, 4 shop rooms have been extended by an
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average area of 100 sq.ft. with RCC roof. In Kaduthuruthi Devaswom, 1,000 sq. ft. terrace area of the shop room has been covered with GI Sheet. In Mavelikkara Devaswom, 9 shop rooms have been extended by an average area of 50 to 100 sq.ft. with temporary roof. In Oachira Shopping Complex, an area 25sq.ft.
has been extended with temporary roof.
Except in Kamankulangara, Puthiyakavu and Oachira Devaswoms and the shop rooms occupied by the petitioner/ complainant in Mavelikkara Devaswom, all extensions are temporary in nature. In the additional counter affidavit dated 01.11.2021, it is stated that, the extensions are not built with the permission of the Local Authorities, which are to be demolished at any moment, if ordered by the Local Authorities. Therefore, no special rent is charged for the extensions or the area of those extensions is included in the agreement. However, in the case of shop rooms as mentioned above, which have been extended by permanent construction, further explanation is sought from the Assistant Devaswom Commissioner concerned. Immediately upon receipt of the same, further action will be taken by the Board.
The petitioner/complainant made extension in the shop room in the year 2001. After verification of the records, the complaint made by the petitioner/complainant will be reconsidered by the Board,
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after rendering him an opportunity of being heard, and fresh orders will be passed within a time frame to be fixed by this Court.
In the additional counter affidavit, it is stated that, in future, if any alterations are made in the shopping complex without prior permission of the Board, it will be treated as the personal liability of the officers who are in charge of that shopping complex, and strict departmental action will be initiated against them and penal liability will be fixed against them.
17. In H.N.Vijayan [2022:KER:50584] this Court noticed that the major source of revenue of 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 various activities in connection with rituals and festivals in the temples and also the rental income generated from the buildings owned by the respective Devaswoms. Therefore, while dealing with the buildings owned by the Devaswoms, Travancore Devaswom Board and its officials have to ensure that proper income is generated from the said building. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs, by ensuring that the lease, rental or licence fee of the buildings
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owned by the Devaswoms is not lower than the prevailing market rent. The action of the Board in demanding lease, rental or licence fee for the buildings owned by the Devaswoms taking into consideration the prevailing market rent cannot be termed as an action of the Board demanding exorbitant or rack-rent, since, while leasing out the buildings owned by the Devaswoms, the Board and its officials have to ensure that proper income is generated from the said buildings. Any default committed by the tenant or licensee of the buildings owned by the Devaswoms in payment of the monthly rent or licence fee, electricity charges, water charges, statutory dues, etc. has to be dealt with appropriately, so also the use of the building for another purpose or making material alteration or addition to the building. In the said decision, this Court held that in view of the provisions under Section 15A of the Act, Travancore Devaswom Board is duty bound to monitor whether its administrative staff and employees in the Maramath wing are functioning properly, by taking prompt action against any such default or violation of the terms and conditions of the lease deed or the licence deed. In view of the law laid down in the decisions referred to supra, while leasing out buildings owned by the Devaswoms, the 1st respondent Board and its officials have to ensure that proper income is generated from
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the said buildings. The lease rental or licence fee of such buildings shall not be lower than the prevailing market rent or licence fee.
No tenant or licensee can be permitted to have additional construction/ extension to the premises in question, without the prior permission of the 1st respondent Travancore Devaswom Board. Any such additional construction/extension can be made only with the approval of the concerned Engineer in the Maramath wing of the Board and after obtaining necessary building permit from the concerned Local Authority. Before executing fresh lease deed or licence agreement or even at the time of its renewal the competent authority in the Maramath wing of the Board has to measure the area of the building or shop room and ensure that no additional construction/extension is made by the tenant or the licensee, without the prior permission of the Board. He shall also ensure that any such additional construction/extension made in the premises in question is after obtaining necessary permission from the concerned Local Authority.
18. In H.N.Vijayan [2022:KER:50584] this Court directed the Travancore Devaswom Board and its officials to take necessary steps to fix rent/licence fee for all the shops/buildings owned by Devaswoms under its management, at the prevailing market rate. The area of the premises in question shall be
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measured by the competent authority in the Maramath wing of the Board, at the time of execution/renewal of the lease deed/licence agreement or while granting a fresh lease/licence. Any additional construction/ extension made by the tenants/licensee, without prior permission of the Board and obtaining necessary permission from the concerned Local Authority shall be demolished, without any further delay and the loss sustained to the Board on account of occupation of such unauthorised construction/extension by the tenant/licensee has to be recovered from him, at the rate equal to the prevailing market rent/licence fee. The Board shall take necessary steps in this regard against the petitioner/complainant and also other tenants/licensees of buildings/shop rooms owned by Devaswoms under its management, taking note of the law laid down by this Court in Suneesh K.S. [ILR (2022) 1 Ker. 1091] and T. Krishnakumar [2022 (5) KHC SN 8]. Necessary steps in this regard shall be taken, as expeditiously as possible, at any rate, within a period of two months from the date of production of a certified copy of this order.
19. 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
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is the duty of the trustees of the property to be faithful to the Trust and execute any document with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. A trustee could not therefore occasion any loss to the Trust and it is his duty to sell the property, if at all that was necessary, to best advantage. Paragraph 4 of that decision reads thus;
“4. There is some controversy on the question whether defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs.21,500, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed Ext.B13 dated July 14, 1960. The fact, however, remains that Defendant 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the 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
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not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee's partner or son, for that would, in fact and substance, indirectly benefit the trustee. Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether the trustee has acted reasonably and in good faith or whether he has 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)
20. In A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482], a Three-Judge Bench of the Apex
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Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/shebaits/employees.
Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fence eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.
21. In Travancore Devaswom Board v. Mohanan Nair [(2013) 3 KLT 132] a Division Bench of this Court noticed that in A.A. Gopalakrishnan [(2007) 7 SCC 482] the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a
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Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of parens patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of properties of the Temple itself, the truth of the same can be gone into by the High Court in these proceedings.
22. In Abu K.S. v. Travancore Devaswom Board [2022 SCC OnLine Ker 1642] - judgment dated 09.02.2022 in W.P.(C) No. 2254 of 2022 - a Division Bench of this Court, in which both of us were parties, was dealing with a case in which Kuthaka right for running Aymanam Sri.
Narasimha-swami Auditorium (sadyalayam) constructed by the Travancore Devaswom Board was auctioned for a period of two years from 01.08.2019 to 31.07.2021, for Rs. 2,41,000/-. The average monthly income generated from the said building constructed by the Travancore Devaswom Board by spending several lakhs of rupees was only Rs. 10,000/-. Relying on the law laid down by the Apex Court in M.V. Ramasubbiar [(1979) 2 SCC 65] this Court held that, while auctioning the right for running that sadyalayam, the
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Travancore Devaswom Board and its officials have to ensure that proper income to the Board is generated from the said building. In case of any default committed by the successful bidder in remitting the balance auction amount, electricity charges or any other statutory dues payable as per the tender conditions, the concerned Assistant Devaswom Commissioner and the Sub Group Officer have to take prompt action against such bidder and the said fact has to be promptly reported to the concerned officer in the Estate Division of the Travancore Devaswom Board.
23. In Abu K.S. [2022 SCC OnLine Ker 1642] the writ petitioner, the successful bidder, remitted only 50% of the auction amount on 18.07.2019. Though he had defaulted payment of the balance amount of Rs. 1,20,500/-, he was permitted to continue to occupy the sadyalayam, even beyond the period of auction, i.e., 31.07.2021. The concerned Assistant Commissioner and the Sub Group Officer have not taken any action against the successful bidder till the order of this Court dated 01.02.2022, whereby they were directed to take over possession of the sadyalayam forthwith, if found necessary with police assistance. In such circumstances, in the said decision, this Court deprecated in the strongest words the conduct of the concerned Assistant Commissioner and the Sub Group Officer and also the concerned
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officers in the Estate Division of the Travancore Devaswom Board in taking no action against the successful bidder, who was a defaulter. In the said decision, this Court found that, the concerned officers of the Travancore Devaswom Board have not shown reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. Since, such irregularities in the conduct of auction for running auditoriums/sadyalayams in the temples under the management of the Travancore Devaswom Board cannot be permitted in future, this Court directed Registry to initiate suo motu proceedings in the that matter.
24. In Suneesh K.S. v. Travancore Devaswom Board and others [ILR (2022) 1 Ker 1091 : 2022 SCC OnLine Ker 611] a Division Bench of this Court, in which both of us were parties, was dealing with the Kuthaka right for sale of pooja items in Valliamkavu Devi Temple under the Management of the Travancore Devaswom Board. In the said decision, this Court held that, the properties of deities and temples are required to be protected and safeguarded from usurpation or encroachment in any manner. Persons entrusted with the duty to manage such properties should be vigilant to prevent such usurpation or encroachment. When such usurpation or encroachment is possible
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only with the passive or active collusion of the authorities concerned, such acts of ‘fence eating the crops’ should be dealt with sternly. The officers concerned and also the devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from usurpation or encroachment, wrongful claims or misappropriation. Therefore, the concerned Assistant Devaswom Commissioner and the Administrative Officer shall take stern action against those who have defaulted payment of instalments in respect of the Kuthaka items, in violation of the tender conditions, if found necessary, after seeking police assistance. If any such request is received, it is the duty of the concerned Station House Officer to render necessary assistance to the concerned Assistant Devaswom Commissioner or the Administrative Officer, in order to protect and safeguard the properties of deities and temples from usurpation or encroachment in any manner.
25. In V.
Muraleedharan Nair v.
Travancore Devaswom Board - Judgment dated 25.11.2015 in W.P.(C) No.
32975 of 2015 - the Division Bench of this Court was dealing with a case in which the writ petitioners were occupiers of different shop rooms in a shopping complex owned by the Travancore
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Devaswom Board. As per Exhibit P8 series of orders, they have been required to enhance the security deposit and the amounts to be paid for occupation. Before the Division Bench, the learned counsel for the petitioners relied on Ext.P7 judgment dated 07.10.2013 in W.P.(C) No. 25586 of 2012. The Division Bench noticed that, the said judgment was issued essentially on consent of the Board and the concession made by the Board was only for renewal for a period upto 2012. Therefore, Exhibit P7 judgment is no answer for any demand that the Travancore Devaswom Board may make in relation to occupation charges for buildings or rooms belonging to and under its control. The Division noticed that, it cannot also ignore the pristine principle that all Devaswom lands vest in Deities and Travancore Devaswom Board are essentially trustees. Therefore, the action of trustees cannot be equated to that of mere landlords. The best interest of the Devaswoms under the control of the Devaswom Boards would be subserved only if income is generated.
26. Ext.R1(c) judgment of this Court in WP(C) No.31039 of 2019 and connected matters is one rendered by a Division Bench of this Court in which one among us [Anil K. Narendran, J.] was a party, after taking note of the law laid down in T.
Krishnakumar [2022 (5) KHC SN 8 : 2022 (4) KLT 798]. The
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direction contained at paragraph 23 of Ext.R1(c) judgment at paragraph No.23 reads thus:
“23. The 2nd respondent Secretary shall refix the market rent/licence fee of the respective shop rooms with individual notice to the petitioners, within a period of two months from the date of receipt of a certified copy of this judgment, after affording them an opportunity of being heard. It would be open to the petitioners to submit written submission before the Secretary of the Board, raising appropriate contentions.
The decision taken by the Secretary of the Board shall be strictly in terms of the law laid down by this Court in the decisions referred to supra. While refixing the monthly rent or licence fee of the shop rooms, the Secretary of the Board shall ensure that the rate of the monthly rent or licence fee is not lower than the prevailing market rent in the locality.
Any decision taken by the Secretary of the Board shall be subject to approval by the Cochin Devaswom Board, which shall be obtained within a further period of one month. While granting such approval, the Board shall ensure that the monthly rent/licence fee of the respective shop rooms so fixed is not lower than the prevailing market rent in the locality. The above directions shall have no application in the case of an occupant of a shop room owned by the 1st respondent Board, in which he is a sub-tenant or is in occupation in violation of the conditions of lease/licence.
27. In Union of India v. Major S.P. Sharma [(2014) 6 SCC 351], a decision relied on by the learned Senior Counsel for the petitioner, the Apex Court held that a decision rendered by a competent court cannot be challenged in collateral proceedings for
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the reason that if it is permitted to do so there would be confusion and chaos and the finality of proceedings would cease to have any meaning. In Gorie Gouri Naidu (Minor) and another v.
Thandrothu Bodemma and others [(1997) 2 SCC 552], another decision relied on by the learned Senior Counsel for the petitioner, the Apex Court held that even if erroneous, an inter- parte judgment binds the party if the court of competent jurisdiction has decided the lis.
28. In S. Ramachandra Rao v. S. Nagabhushana Rao and others [AIR 2022 SC 5317], another decision relied on by the learned Senior Counsel for the petitioner, the Apex Court reiterated that a binding decision cannot lightly be ignored and even an erroneous decision remains binding on the parties to the same litigation and concerning the same issue, if rendered by a court of competent jurisdiction. In Neelima Srivastava v. State of Uttar Pradesh and others [order dated 17.08.2021 in Civil Appeal No.4840 of 2021], another decision relied on by the learned Senior Counsel for the petitioner, the Apex Court held that mere overruling of the principles by a subsequent judgment will not dilute the binding effect of the decision on inter-parties.
29. The learned Senior Counsel for the petitioner would also place reliance on the judgment of a Division Bench of this
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Court in Narayanan Nambiar M.P. v. Ebin Viswanath V.
[2024 KHC OnLine 228] in order to contend that the revision of licence fee of the shop room in question, taking note of the law laid down by this Court in T. Krishnakumar [2022 (5) KHC SN 8 : 2022 (4) KLT 798], is legally impermissible.
30. In Narayanan Nambiar M.P. [2024 KHC OnLine 228] a Division Bench of this Court in which one among us [Anil K. Narendran, J.] was a party examined the scope and effect of judgment in rem and judgment in personam. A judgment in rem would operate as res judicata against the world and judgment in personam would operate as res judicata against the parties in dispute. The said decision of the Division Bench is one rendered taking note of the law laid down by the Apex Court in the following decisions.
31. In Shenoy and Co. v. Commercial Tax Officer, Circle II, Bangalore [(1985) 2 SCC 512] a Three-Judge Bench of the Apex Court was dealing with civil appeals and writ petitions challenging the common judgment dated 24.08.1979 of the Karnataka High Court in a batch of writ petitions challenging the constitutional validity of the Karnataka Tax on Entry of Goods Act, 1979. A Division Bench of the Karnataka High Court, by that common judgment allowed the writ petitions forbearing the State
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Government from taking any proceedings under the Act. The State took the matter in appeal before the Apex Court. However, only one appeal was filed, which was one filed against Writ Petition No.7039 of 1979 filed by Hansa Cooperation, impleading the Corporation alone as a respondent. By the judgment dated 25.09.1980 - State of Karnataka v. Hansa Corporation [(1984) 4 SCC 697] – the Apex Court allowed Civil Appeal No.3049 of 1979, by setting aside the judgment dated 24.08.1979 of the Karnataka High Court and upholding the validity of the Act.
While Civil Appeal No.3049 of 1979 was pending before the Apex Court, the Governor of Karnataka promulgated the Karnataka Tax on Entry of Goods into a Local Area for Consumption, Use or Sale Therein Ordinance of 1980, providing for levy of entry of tax on registered dealers, removing the infirmities in the 1979 Act, that were pointed out by the Karnataka High Court in its judgment dated 24.08.1979 while striking down the Act. The Ordinance of 1980 was replaced by Act 21 of 1980, giving it retrospective effect from 08.06.1980. After the judgment of the Apex Court in Hansa Corporation [(1984) 4 SCC 697], the Governor of Karnataka promulgated another Ordinance of 1980 on 25.10.1980 replacing the Entry Tax Act of 1980, from its inception with certain other directions regarding adjustment of tax, if any, paid. This was
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followed by the Karnataka Tax on Entry of Goods into a Local Area for Consumption, Use or Sale Therein (Repeal) Act, 1981 and Act 10 of 1981 replacing the 1980 Act, which however did not repeal Ordinance level of 1980. In the meantime, the Ordinance 3 of 1981 came into force, which was followed by Act 12 of 1981, which repealed Ordinance 11 of 1980. As a result of the combined operation of Ordinance 3 of 1981 and Act 12 of 1981, the 1979 Act was made to be operative only from 01.10.1980 and not from 01.06.1979, as originally enacted. After the judgment of the Apex Court in Hansa Corporation [(1984) 4 SCC 697], upholding the validity of the 1979 Act, the authorities appointed under the Act issued notices under the Act to all the dealers including those who had filed writ petitions earlier, calling upon them to register themselves under the Act, to file returns and to pay the amount of tax due from them under the original Act of 1979. Aggrieved by the said notices, writ petitions were filed before Karnataka High Court, contending that the notices issued to them were bad inasmuch as the writ of mandamus issued in their favour by the High Court in the earlier judgment survived and was effective since the State had not filed appeals against them and that the judgment of the Apex Court in Hansa Corporation [(1984) 4 SCC 697] could rescue the State from taking proceedings only
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against Hansa Corporation and not against them. The State contended that the judgment of the Apex Court was binding on all and no one could escape from it. The learned Single Judge dismissed the writ petitions holding, among other things, that Section 3 of Act 10 of 1981 revived the 1979 Act and that action taken against the petitioners in the writ petitions was, therefore, valid. The Writ Appeals filed before the Division Bench were also ended in dismissal.
32. A judgment is a formal expression of conclusive adjudication of the rights and liabilities of the parties. The judgment may operate in two ways, in rem or in personam.
Section 41 of the Evidence Act, 1872, which deals with relevancy of judgments in the context of conclusiveness of a judgment, order or decree, reads thus;
“41. Relevancy of certain judgments in probate, etc.
jurisdiction.- A final judgment, order or decree of a competent court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof –
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that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation;
that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;
that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.” 33. In Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. [(2011) 5 SCC 532] the Apex Court held that a right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected solely against specific individuals. Actions in personam refer to actions determining the rights and interests of the parties themselves in the subject-matter of the case, whereas actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property. Correspondingly, a judgment in personam refers to a
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judgment against a person as distinguished from a judgment against a thing, right or status and a judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself. [Vide Black's Law Dictionary]
34. In Vidya Drolia v. Durga Trading Corporation [(2021) 2 SCC 1] a Three-Judge Bench of the Apex Court reiterated that a judgment in rem determines the status of a person or thing as distinct from the particular interest in it of a party to the litigation; and such a judgment is conclusive evidence for and against all persons whether parties, privies or strangers of the matter actually decided. Such a judgment settles the destiny of the res itself and binds all persons claiming an interest in the property inconsistent with the judgment even though pronounced in their absence. By contrast, a judgment in personam, ‘although it may concern a res, merely determines the rights of the litigants inter se to the res’. Distinction between judgments in rem and judgments in personam turns on their power as res judicata, i.e., judgment in rem would operate as res judicata against the world, and judgment in personam would operate as res judicata only against the parties in dispute.
35. In the instant case, as already noticed hereinbefore,
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Ext.R1(c) judgment of this Court in W.P.(C)No.31093 of 2019 and connected matters is one rendered by this Court, after taking note of the law laid down in T. Krishnakumar [2022 (5) KHC SN 8 :
2022 (4) KLT 798], wherein it was held that while leasing out the building owned by the Devaswoms, the Cochin Devaswom Board and its officials have to ensure that proper income is generated from the said buildings. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs.
The action of the Board as a trustee cannot be equated to that of a mere landlord. In view of the law laid down in the said decision, the Board and its officials have to ensure that the lease rental or licence fee of the buildings owned by the Devaswoms is not lower than the prevailing market rate. The process undertaken by the Cochin Devaswom Board for revising the licence fee of shop room bearing No.28/701 having a plinth area of 1650 sq.ft. in the 2nd floor of Western Pallithamon Building at the rate of Rs.30/- per sq.ft., vide Ext.P2 order dated 17.08.2023 cannot be said to be either arbitrary or illegal. As already noticed hereinbefore, though the licence fee for other shop rooms in the very same building ranges from Rs.45/- per sq.ft. to Rs.120/- per sq.ft., the licence fee of the shop room occupied by the petitioner was fixed at the
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rate of Rs.30/- per sq.ft. considering the fact that that shop room does not have a direct view from the public road. The law laid down in the decisions referred to supra, relied on by the learned Senior Counsel for the petitioner will not in any manner vitiate such a process undertaken by the Cochin Devaswom Board to ensure that the licence fee of the shop room in question is not lower than the prevailing market rate. The contentions to the contra can only be rejected as untenable and we do so.
36. Relying on the decision of the Apex Court in Indian Ex- Servicemen Movement [(2022) 7 SCC 323], the learned Senior Counsel for the petitioner would contend that the doctrine of legitimate expectation can be invoked in the case on hand, in view of the provisions in clause (9) of the licence deed dated 01.03.2018 executed between the petitioner and the 1st respondent Cochin Devaswom Board.
37. The doctrine of legitimate expectation can be invoked if a representation made by a public body leads an individual to believe that they would be recipient of a substantive benefit. The doctrine of legitimate expectation, a public law concept, is premised on the principles of fairness and non-arbitrariness in state action. It emerges as a facet of Article 14 of the Constitution of India.
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38. Clause 9 of Ext.P1 licence deed dated 01.03.2018 reads thus;
“9. If licensee desires to continue occupation of the room after the terms above fixed licensee can make a request in writing to the licensor to that effect and in case the licensor agrees to the same the licensee can continue with the minimum increase of 25% in licence fee or as per terms fixed by licensor, after executing a fresh licence deed.” 39. A plain reading of Clause 9 of Ext.P1 licence deed makes explicitly clear that even when a request in writing is made by the licensee to the licensor expressing his desire to continue occupation of the shop room, the licensee can continue to occupy the shop room, in case the licensor agrees to the same, with the minimum increase of 25% in the licence fee or as per terms fixed by the licensor, after executing a fresh licence deed.
40. As already noticed hereinbefore, the status of the 1st respondent Cochin Devaswom Board is essentially that of a trustee in management of incorporated and unincorporated Devaswoms.
Therefore, the Board and its officials have to ensure that the lease rental or licence fee of the buildings owned by such Devaswoms, which belongs to the deity, who is a perpetual minor, is not less than the prevailing market rent, so that proper income is generated from such buildings. The inaction on the part of the
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Board and its officials to protect and safeguard the interest of the deity will amount to breach of trust. The best interest of the Devaswoms under the control of the 1st respondent Board would be subserved only if proper income is generated. For the aforesaid reasons, we find absolutely no merits in the contention raised by the learned Senior Counsel for the petitioner that the doctrine of legitimate expectation can be invoked by the petitioner for its continued occupation of the shop room in question, with a minimum increase of 25% of the existing licence fee. The petitioner cannot also contend that the 1st respondent Board has to return the investment state to have been made by it in the shop room in question for interior works, etc.
41. In the result, the challenge made in this writ petition against Ext.P2 order dated 17.08.2023 of the 1st respondent Board cannot be sustained and the petitioner is not entitled to any of the reliefs sought for in this writ petition.
The writ petition fails and the same is accordingly dismissed.
No order as to costs.
Sd/- ANIL K. NARENDRAN, JUDGE
Sd/-
HARISANKAR V. MENON, JUDGE Skk//30.03.2024
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APPENDIX OF WP(C) NO.36848/2023
PETITIONER'S EXHIBITS:- EXHIBIT P1 TRUE COPY OF THE LICENSE DEED DATED 01/03/2018 EXECUTED BETWEEN THE PETITIONER AND 1ST RESPONDENT EXHIBIT P2 TRUE COPY OF THE ORDER DATED 17/08/2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 24/08/2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P4 TRUE COPY OF THE TABULAR COLUMN SHOWING THE CHEQUE NUMBER AND THE AMOUNT TRANSFERRED TO THE DEVASWOM BOARD AS RENT FROM 01/01/2022 TO 01/03/2024 ALONG WITH THE DETAILS REGARDING THE PAYMENT OF ARREARS RESPONDENTS' EXHIBITS:- EXHIBIT R 1 ( A ) TRUE COPY OF NOTICE BEARING NO.
R1.3648/2013 DATED 06/1/2023 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER.
EXHIBIT R 1 ( B ) TRUE COPY OF RELEVANT PAGE OF THE ATTENDANCE LIST OF THE HEARING CONDUCTED AS PER THE ORDER DATED 26/10/22 IN WPC 31039/19 EXHIBIT R 1 ( C ) TRUE COPY OF COMMON JUDGMENT DATED 26/10/2022 IN WRIT PETITION (CIVIL) NO.
31039 OF 2019 AND CONNECTED CASES, PASSED BY THIS HONOURABLE COURT