Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN & THE HONOURABLE MR. JUSTICE G. GIRISH THURSDAY, THE 15TH DAY OF FEBRUARY 2024/26TH MAGHA, 1945 WP(C) NO.42625 OF 2023 PETITIONER:
TEMPLE ADVISORY COMMITTEE, THIRUMADHURA SREEKRISHNA SWAMI TEMPLE SOUTH MARADY P.O., MUVATTUPUZHA REPRESENTED BY ITS PREIDENT GINU P.V, AGED 43, S/O VISWAMBHARAN, PONGASSERY H, SOUTH MARADY P.O. MUVATTUPUZHA, ERNAKULAM, PIN 686 673
BY ADV N. JAGATH
RESPONDENTS:
1 TRAVANCORE DEVASWAM BOARD DEVASWAM HEAD QUARTERS, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. TRAVANCORE DEVASWAM BOARD, DEVASWAM HEAD QUARTERS, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM, PIN – 695 003
2 THE EXECUTIVE ENGINEER, TRAVANCORE DEVASWAM BOARD, KOTTAYAM DIVISION, THIRUNAKKARA P.O., KOTTAYAM, PIN – 686 001
3 THE ASSISTANT DEVASWAM COMMISSIONER, TRAVANCORE DEVASWAM BOARD, THRIKKARIYOOR GROUP, THRIKKARIYOOR P.O., KOTHAMANGALAM, ERNAKUALM DISTRICT, PIN – 686 692
4 THE SECRETARY TRAVANCORE DEVASWAM BOARD, DEVASWAM HEAD QUARTERS, NANTHANCODE, KOWDIAR P.O, THIRUVANANTHAPURM, PIN – 695 003
*ADDL.R5
CHIEF ENGINEER TRAVANCORE DEVASWAM BOARD, DEVASWAM HEAD QURTERS NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM, PIN – 695 003
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*ADDL.R6
*ADDL.R7
[ADDITIONAL R5 IS IMPLEADED AS PER ORDER DATED 15.1.2024 IN I.A.1/2024 IN WP(C)].
STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM)DEPARTMENT
DEPUTY DIRECTOR, KERALA STATE AUDIT DEPARTMENT, TRAVANCORE DEVASWOM BOARD AUDIT
[ADDITIONAL R6 AND R7 ARE SUO MOTU IMPLEADED AS PER ORDER DATED 15.2.2024 IN WP(C)No.42625 of 2023].
BY ADV SRI S. RAJMOHAN – SR.GOVERNMENT PLEADER ;
SRI G. SANTHOSH KUMAR - STANDING COUNSEL – TDB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT Anil K. Narendran, J.
The petitioner-Temple Advisory Committee of Thirumadhura Sreekrishna Swamy Temple, which is a temple under the management of the 1st respondent Travancore Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2nd respondent Executive Engineer, Travancore Devaswom Board to take immediate steps for e-tendering the works sanctioned as per Ext.P5 sanction order dated 13.10.2023 issued by the 1st respondent Board; and a writ of mandamus commanding the respondents to complete the work sanctioned as per Ext.P5 order, before the end of Anunja Period (July 2024), in a time bound manner; and a writ of mandamus commanding the 1st respondent Board to accord sanction the remaining works of Thidappilly, Sarpathara, Nadapanthal and Chuttumathil of Thrumadhura Sreekrishna Swamy Temple, in a time bound manner.
2.
Going by the averments in the writ petition, the temple premises of Thirumadhura Sreekrishna Swamy Temple, which is on the banks of Muvattupuzha River, consists of the Sreekovil of Lord Sreekrishna, Devi Prathishta, Ayyappaswami Prathishta, etc. Due to lack of maintenance, the temple
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structures are in a dilapidated condition. The office bearers of the Temple Advisory Committee and also the devotees made several complaints before the 1st respondent Board and its officials from the year 2013 onwards. The Board accorded administrative sanction for an amount of Rs.34,35,000/- and thereafter tenders were invited. The contractor started the work on 20.01.2020. The period of completion of the work expired on 20.07.2021. The contractor completed the work only up to Utharam (lindale level) of the Sreekovil of the Sreekrishna Swami Temple and thereafter abandoned the balance work. Despite several notices from the officials of the Board, the contractor was not ready to resume the balance works, who had requested the Board to cancel the work citing financial crisis. The Temple Advisory Committee again submitted petitions before the Board and its officials. Ultimately, by Ext.P5 proceedings dated 13.10.2023, the 1st respondent Board accorded administrative sanction for completing the construction, at the risk and cost of the previous contractor, under the sponsorship of a devotee. The Chief Engineer is authorized to direct the Executive Engineer to re-tender the work based on the revised estimate, at the risk and cost of the original contractor, as per the prevailing rules. The Chief Engineer is also authorized to intimate the Devaswom Commissioner the amount
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to be remitted by the sponsor as his contribution and the Devaswom Commissioner is directed to take necessary steps for remittance of that amount by the sponsor, to the Devaswom fund. According to the petitioner, without any valid reasons, the 2nd respondent Executive Engineer is delaying the e-tendering of the work.
3.
On 19.12.2023, when this writ petition came up for consideration, this Court passed the following order;
“The Temple Advisory Committee of Thirumadhura Sreekrishna Swamy Temple, South Marady, Muvattupuzha, which is a temple under the management of the Travancore Devaswom Board, has filed this writ petition seeking various reliefs in respect of the reconstruction works of the Sreekovil, thidappilly, mandapam etc. of that temple. The document marked as Ext.P2 is the photographs of the temple structures, which remain incomplete. The photograph of Sreekovil without roof is reproduced hereunder;
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2. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per the provisions under Section 3 of the Act, the administration of incorporated and unincorporated Devaswoms shall vest in the Travancore Devaswom Board.
3. As per Section 15A of the Act, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions; (iv) to establish and maintain proper facilities in the temples for the devotees.
4. As per Section 31 of the Act, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated, and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage.
5. The learned Standing Counsel for the Travancore Devaswom Board seeks time to get instructions and file counter affidavit. Counter Affidavit on behalf of the Board shall be placed on record by 03.01.2024.
6. The learned counsel for the petitioner to file an
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application to implead the Chief Engineer, Travancore Devaswom Board as an additional respondent.
List on 10.01.2024.”
4.
By the order dated 15.01.2024, this Court allowed I.A.No.1 of 2024 and the Chief Engineer, Travancore Devaswom Board was impleaded as the additional 5th respondent.
5.
Respondents 1 to 4 have filed a counter affidavit dated 03.02.2024. paragraphs 3 to 6 of that counter affidavit read thus;
“3.
It is submitted that Marady Thirumadhura Sreekrishna Swamy Temple is one of the ancient temples under the Ramamangalam Devaswom in Thrikkariyoor group of Travancore Devaswom Board. The Travancore Devaswom Board had been granted an administrative sanction for the construction of Sreekovil for Sreekrishna, Devi, Ayyappa, and for constructing Mandapam at an estimated cost of Rs. 34,35,000/- on 30.01.2018. The contract for the aforementioned construction was awarded to Sri Suraj Haridas at the rate of 0.25% below the approved estimate, as per ROC No. 2846/18M dated 30.04.2018. Following the report of the Chief Engineer confirming the commencement of Balalaya Prathishta and the initiation of work by the contractor on 20.01.2020, the contractual deadline for completion, as per the agreement, lapsed on 20.07.2021.
The contractor however had only completed the construction of Sreekrishna Sreekovil up to the utharam level and the work is at stand still. Despite several notices urging
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resumption of work, the contractor has requested cancellation of work citing financial crisis. Subsequently, the Board revoked the contract upon withdrawal by the contractor and granted administrative approval for a revised estimate.
4. It may be noted that the revised estimate was submitted by the Chief Engineer incorporating provisions of executed quantities and for pending works for an amount of Rs. 44,20,898/- based on DSR 2018, including GST at 18%. The estimate consisted of two appendices, that is work already done and the provisions for the works to be done. He has also reported that the quantities of various items were taken as per actual execution in the revised estimate. The second appendix consists of four appendices such as constructing of Sreekovil for Sreekrishnaswamy (estimate amount Rs.14,23,000/-), Constructing Sreekovil for Devi Temple (estimate amount Rs.5,51,000/-) Constructing Sreekovil for Ayyappa (estimate amount Rs.5,80,000/-) and Constructing Mandapam (estimate amount Rs.3,82,000/- ). In the light of these circumstances, the report of the Devaswom Commissioner was received by the Board explaining that it is necessary to complete the construction of 'Nadapanthal' and 'Sarpathara' in addition to the aforementioned works, and for which the Chief Engineer should be entrusted with. Subsequently, the Board discussed the matter in detail and directed the Chief Engineer to promptly furnish a report regarding the construction progress of Nadapanthal and Sarpathara with immediate effect.
5. It is submitted that the 2nd respondent had invited
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Notice inviting E-Tender for the work on 15.12.2023 fixing the date of the opening of the tender on 23.12.2023. A true copy of the Notice inviting E-Tender dated 15.12.2023 issued by the Executive Engineer, Kottayam is produced herewith and marked as Exhibit R4(a). As there was no response to Ext.R4(a) tender, the 2nd respondent had again issued Notice inviting E-Tender for the work on 23.12.2023 fixing the date of the opening of the tender on 29.12.2023. A true copy of the Notice inviting E-Tender dated 23.12.2023 issued by the Executive Engineer, Kottayam is produced herewith and marked as Ext.R4(b). However, there was no response to the said tender notice also.
6. It is Further Submitted that thereafter the 2nd respondent had directed the Assistant Engineer, Muvattupuzha to invite sealed competitive short quotations on 09.01.2024 and the last date of opening was fixed as 16.01.2024. Even thereafter also there was no response and hence as directed by the 2nd respondent, the Assistant Engineer, Muvattupuzha has informed that he will once again invite sealed negotiable quotations on 06.02.2023. The Petitioner also is taking all their earnest efforts to see that the work is undertaken and completed in all sense.”
6.
Heard the learned counsel for the petitioner, the learned Standing Counsel for the Travancore Devaswom Board for respondents 1 to 5 and also the learned Senior Government Pleader for the additional respondents 6 and 7.
7.
In the order dated 19.12.2022, which is extracted
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hereinbefore at paragraph 5, this Court reproduced a photograph of the Sreekovil of Thirumadhura Sreekrishna Swami Temple, without roof. In that order, this Court noticed the provisions under Section 15A and Section 31 of the Travancore-Cochin Hindu Religious Institutions Act, as per which the 1st respondent Board has a statutory duty to arrange for the conduct of daily worship and ceremonies and the festivals in every temple, according to its usage.
8.
Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. As per Section 24, the Board shall, out of the Devaswom Fund constituted under Section 25, maintain the Devaswoms mentioned in Schedule I [i.e. incorporated Devaswoms], keep in a state of good repair the temples, buildings, and other appurtenances thereto, administer the said Devaswoms in accordance with recognised usages, make contributions to other Devaswoms in or outside the State and meet the expenditure for the customary religious ceremonies and may provide for the educational uplift, social and cultural advancement and economic betterment of the Hindu community.
9.
In view of the statutory provisions, the Board has to establish and maintain proper facilities in the temples under its
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management, for the devotees to exercise their right to worship in an appropriate manner. The Board has to keep in a state of good repair the temples, buildings and other appurtenances thereto and administer the Devaswom in accordance with the recognized usages.
10. The document marked as Ext.R4(a) is an e-tender notification issued on 15.12.2023 regarding various construction works including the construction of Sreekovils for Sreekrishna, Devi, Ayyappa and constructing mandapam in Thirumadhura Sreekrishna Swami Temple (Sl.No.3) under Marady Thirumadhura Devaswom. Ext.R4(b) is the tender notification dated 23.12.2023, in which the aforesaid construction work is serial No.2 (re-tender). The stand taken in the affidavit filed by respondents 1 to 4 is that despite the issuance of Exts.R4(a) and R4(b) e-tender notifications, there is no response. Therefore, the 2nd respondent Executive Engineer has directed the Assistant Engineer, Muvattupuzha to invite competitive short quotations.
11. In this writ petition, we do not propose to consider the legality of the procedure adopted by the 2nd respondent Executive Engineer by directing the Assistant Engineer, Muvattupuzha to invite competitive short quotations. It is for the 1st respondent Board and its officials to take necessary steps to
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ensure that any procedure adopted for inviting tenders/ quotations for undertaking the construction work in question is strictly in accordance with law.
12. Having considered the pleadings and materials on record and also the submissions made at the Bar, we deem it appropriate to dispose of this writ petition by directing the 1st respondent Board and its officials to take necessary steps to ensure, strictly in accordance with law, that the entire construction, in respect of which administrative sanction has already been granted vide Ext.P5 proceedings dated 13.10.2023, which is one issued at the risk and cost of the original contractor, is completed within a period of six months. The Board shall ensure that the procedure adopted by the 2nd respondent Executive Officer for awarding the contract work is strictly in accordance with law.
13. The 1st respondent Board, through the Devaswom Commissioner or the 2nd respondent Executive Engineer, shall file an action taken report before the learned Ombudsman, within a period of three months. If found necessary, the learned Ombudsman shall file a report before this Court seeking further directions in the matter. The entire expenditure for the construction shall be subject to audit by the State Audit
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Department. It would be open to the Temple Advisory Committee to bring it to the notice of the learned Ombudsman, any delay on the part of the Board in completing the construction works.
Accordingly, this writ petition is disposed of with the above directions.
Registry to communicate a copy of this judgment to the learned Ombudsman, along with a copy of the writ petition.
Sd/- ANIL K. NARENDRAN, JUDGE
Sd/- G. GIRISH, JUDGE
ded
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APPENDIX OF WP(C) 42625/2023
PETITIONER EXHIBITS
EXHIBIT P1 THESELECTION NOTICE NO. 63/MVP/17-18 DATED 08.07.2019 INTIMATING THE CONTRACTOR ABOUT THE AWARDING OF WORK EXHIBIT P2 PHOTOGRAPHS SHOWING THE PRESENT STATUS OF TEMPLE PREMISES EXHIBIT P3 THE TRUE COPY OF PETITION DATED 18.02.2023 SUBMITTED BY THE PETITIONER BEFORE THE PRESIDENT TRAVANCORE DEVASWAM BOARD EXHIBIT P4 THE TRUE COPY OF LETTER NO.CE/KTVM.7/2023/28 29.03.2023 ISSUED BY THE CHIEF ENGINEER OF BOARD TO THE EXECUTIVE ENGINEER KOTTAYAM DIVISION EXHIBIT P5 THE PROCEEDINGS OF THE BOARD. NO ROC.2846/18/M DATED 13.10.2023 ACCORDING SANCTION FOR CONTRACT WORK
RESPONDENT EXHIBITS
EXHIBIT R4(B) TRUE COPY OF THE NOTICE INVITING E-TENDER DATED 23/12/2023 ISSUED BY THE EXECUTIVE ENGINEER, KOTTAYAM.
EXHIBIT R4(A) TRUE COPY OF THE NOTICE INVITING E-TENDER DATED 15/12/2023 ISSUED BY THE EXECUTIVE ENGINEER, KOTTAYAM.