K V Pramodh v. *The State Of Kerala - Kerala High Court, 19 Sept 2023

Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MRS.JUSTICE SOPHY THOMAS TUESDAY, THE 19TH DAY OF SEPTEMBER 2023 / 28TH BHADRA, 1945 W.P.(C)NO.20218 OF 2023 PETITIONER:

K V PRAMODH, AGED 49 YEARS, S/O VASU, KANDAMPULLI HOUSE, KOONAMMOOCHI P O, THRISSUR DISTRICT, PIN – 680504.

BY ADV G.SREEKUMAR (CHELUR)

RESPONDENTS:

*[THE STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT (REVENUE DEPARTMENT) GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PINCODE-695 001.]

THE DESCRIPTION OF R1 SUO MOTU CORRECTED AS PER THE ORDER DATED 26.06.2023 IN IA NO.2/2023 IN WP(C)NO.20218/2023 AS FOLLOWS:

STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE(DEVASOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 OO1.

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*[THE ADMINISTRATOR, GURUVAYOOR DEVASWOM, GURUVAYOOR P O, THRISSUR DISTRICT, PINCODE-680101.]

THE DESCRIPTION OF R2 SUO MOTU CORRECTED AS PER THE ORDER DATED 26.06.2023 IN IA NO.2/2023 IN WP(C)NO.20218/2023 AS FOLLOWS:

THE ADMINISTRATOR, GURUVAYOOR DEVASWOM MANAGING COMMITTEE, GURUVAYUR, THRISSUR DISTRICT-680101.

*[THE GURUVAYOOR DEVASWOM MANAGING COMMITTEE, REPRESENTED BY ITS CHAIRMAN, GURUVAYOOR P O, THRISSUR DISTRICT, PINCODE-680 101.]

THE DESCRIPTION OF R3 SUO MOTU CORRECTED AS PER THE ORDER DATED 26.06.2023 IN IA NO.2/2023 IN WP(C)NO.20218/2023 AS FOLLOWS:

GURUVAYUR DEVASWOM MANAGING COMMITTEE, GURUVAYUR, REPRESENTED BY ADMINISTRATOR, GURUVAYUR P.O, THRISSUR DISTRICT, PIN CODE:680101.

4 THE GURUVAYOOR MULTI-PURPOSE CO-OPERATIVE SOCIETY, NO.R.1214, GURUVAYOOR P O, REPRESENTED BY ITS PRESIDENT SUBRAMANIAN PAKKATH, PAKKATH HOUSE, SHARUN NIVAS, GURUVAYOOR P O, THRISSUR DISTRICT, PIN – 680101.

**5

** [THE GURUVAYOOR DEVASWOM BOARD, REP. BY THE SECRETARY, OFFICE OF THE GURUVAYOOR DEWASWOM BOARD, GURUVAYOOR P.O, THRISSUR DIST., PIN-680 101.]

R5 IS DELETED FROM THE PARTY ARRAY AS PER THE ORDER DATED 26.06.2023 IN IA.NO.2/2023 IN WP(C)NO.20218/2023.

ADDITIONAL 6TH RESPONDENT IMPLEADED:

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ADDL.R6

@ THE DEPUTY DIRECTOR, STATE AUDIT DEPARTMENT, GURUVAYUR DEVASWOM, GURUVAYUR P.O., THRISSUR DISTRICT, PIN-680 101.

ADDL R6 IS IMPLEADED AS PER ORDER DATED 26.06.2023 IN IA.NO.1/2023 IN WP(C)NO.20218/2023.

BY ADVS.

SRI.RAJIT SRI.G.SREEKUMAR (CHELUR)

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT Anil K. Narendran, J.

The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P13 order dated 31.05.2023 of the 2nd respondent Administrator, Guruvayur Devaswom Managing Committee, whereby, in continuation of Kuthaka right granted for the year 2022-23, from 09.07.2022 till 08.07.2023, for conducting cloakrooms (paid counters) in Kizhakke Nada and Padinjare Nada and footwear counter (free counter) in Thekke Nada of the Guruvayur Sree Krishna Temple, the 4th respondent Guruvayur Multi-Purpose Co-operative Society has been granted the said Kuthaka right for the year 2023-24, from 09.07.2023 till 08.07.2024, at a rate 5% above the rate for the previous year plus 18% GST and 5% security deposit, without a tender process.

Ext.P13 order of the 2nd respondent is one issued based on the decision taken by the 3rd respondent Guruvayur Devaswom Managing Committee, vide Ext.R2(g) resolution No.35 dated 09.05.2023, a copy of which is placed on record along with the counter affidavit filed by the 2nd respondent.

2. On 26.06.2023, when this writ petition came up for

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admission, the learned Senior Government Pleader took notice for the 1st respondent State and also for the additional 6th respondent Deputy Director, State Audit Department, Guruvayur Devaswom Audit, and the learned Standing Counsel for Guruvayur Devaswom Managing Committee took notice for respondents 2 and 3. Urgent notice on admission by special messenger was ordered to the 4th respondent Guruvayur Multi-Purpose Co-operative Society, returnable by 30.06.2023.

By the order dated 06.07.2023, this Court passed an interim order to the effect that the award of contract to the 4th respondent Society based on Ext.P13 order dated 31.05.2023 of the 2nd respondent Administrator will be provisional and subject to further orders to be passed in this writ petition.

Respondents 2 and 3 have filed a counter affidavit dated 29.06.2023, producing therewith Exts.R2(a) to R2(h) documents. The 4th respondent has filed a counter affidavit dated 03.07.2023, producing therewith Exts.R4(a) and R4(b) documents. The petitioner has filed a reply affidavit dated 05.07.2023, reiterating the contentions raised in the writ petition.

The 6th respondent-Deputy Director, Kerala State Audit Department has filed a counter affidavit dated 27.07.2023.

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Heard the learned counsel for the petitioner, the learned Senior Government Pleader for the 1st respondent and additional 6th respondent, the learned Standing Counsel for Guruvayur Devaswom Managing Committee for respondents 2 and 3 and the learned counsel for the 4th respondent Guruvayur Multi- Purpose Co-operative Society.

The learned counsel for the petitioner and the learned Senior Government Pleader for the additional 6th respondent Deputy Director, State Audit Department, Guruvayur Devaswom Audit, would contend that the action of the Managing Committee in entrusting the right to run the cloakroom and chappal counter to the 4th respondent without inviting fresh tender though, there is a nominal increase of 5% of the tender amount, is per se arbitrary, illegal and unsustainable, as it denied an opportunity to others to participate in the tender process. The Apex Court in Ext.P12 order dated 02.03.2020 in Civil Appeal No.1906 of 2020 directed the Managing Committee to invite fresh tender for a period of one year. After the Covid-19 pandemic restrictions, a fresh tender was invited by the Managing Committee, for the period from 09.07.2022 to 08.07.2023 and the right was awarded to the 4th Respondent, as they were the highest bidder.

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The learned Senior Government Pleader would submit that the audit of the accounts of Guruvayur Devaswom is being conducted by the Director, Kerala State Audit Department, in accordance with Rule 17 of Guruvayur Devaswom Rules, 1980. In view of the provisions under Section 25 of the Guruvayur Devaswom Act, it is the duty of the additional 6th respondent Deputy Director to verify and report in the Audit Report all cases of irregular, illegal or improper expenditure or of failure to recover money or other property due to the Devaswom or of loss or waste of money or other property thereof, caused by neglect or misconduct of the authority and issue Audit Report to the Guruvayur Devaswom Commissioner. On verification of the file connected with the auction of the East Nada cloakroom, the West Nada cloakroom and the chappal counter (File No.P1-4353/2019) and other documents in the writ petition, it is seen that when the tender was invited for running the cloakroom and chappal counter for the period from 09.07.2022 to 08.07.2023, the 4th respondent Guruvayur Multi-Purpose Co-operative Society was the highest bidder and hence the Devaswom entrusted the tender in favour of the said respondent. On expiry of the period, considering the application of the 4th respondent for an extension of the period for

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a further one year, the Managing Committee took Ext.R2(g) decision No.35 dated 09.05.2023 in favour of the said respondent based on which Ext.P13 order was issued extending the period of tender further for one year from 09.07.2023 to 08.07.2024, with 5% increase in tender amount, instead of inviting fresh tender, which is per se arbitrary and illegal.

The learned Standing Counsel for Guruvayur Devaswom Managing Committee would submit that the discretion not to invite fresh tenders was exercised by the Managing Committee judiciously taking into account all relevant factors including the comfort of the devotees, interest of the Devaswom, performance of the 4th respondent and the facilities provided by the 4th respondent, etc. The said decision has been taken in a fair and transparent manner and the decision-making process does not call for any interference invoking the power of judicial review of this Court under Article 226 of the Constitution of India.

Therefore, Ext.P13 order does not suffer from any irregularities and illegalities as the extension was granted taking into account various factors including the best interest of the Devaswom as well as the devotees, who are finding the digitalization of the cloakroom very convenient.

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The learned counsel for the 4th respondent would point out that when the cloakrooms were taken over by the said respondent on 09.07.2022, the system which was in vogue, was not systematic or scientific. The storing of luggage and articles and issuance of receipts were done manually. There were numerous complaints by devotees regarding the damages caused to their articles, misplacement and inordinate delay in entrusting the articles in the cloakroom, etc. After conducting a study, it was decided to computerize the cloakroom with cards like ATM cards with QR codes and to expand the area of the cloakroom.

Accordingly, the 4th respondent submitted an application seeking permission, based on which the Managing Committee granted permission and the 4th respondent expended Rs.16,00,000/- and digitalized the cloakroom, without the Devaswom Managing Committee incurring any expenses. The learned counsel would point out Exts.R4(a) and R4(b) news reports published in Mathrubhoomi Daily and Malayala Manorama Daily dated 25.09.2022 regarding the digitalized cloakrooms. The learned counsel would submit that the digitized cloakrooms were very well accepted by the devotees and they have expressed their appreciation to the staff of the 4th respondent. After digitalization,

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there are no complaints with regard to loss of luggage, damage to luggage or any delay at the counter. Based on the work undertaken by the 4th respondent and the extra expenditure incurred in digitalizing the cloakrooms, Ext.R2(f) application was made with a request to award the contract for the year 2023-24 on the same terms. The Managing Committee deliberated on that request and decided vide Ext.R2(g) decision, to allow the request of the 4th respondent for an extension of the term for a further period of one year, on payment of an additional amount of 5% above Rs.65,55,555/- paid for the previous year. Accordingly, the 4th respondent remitted an amount of Rs.15,00,000/- with the Managing Committee on 12.06.2023. After relying on the law laid down by this Court in Dr.P.K.Lazar v. State of Kerala [2023:KER:23732], the learned counsel for the 4th respondent would contend that 4th respondent being a Co-operative Society stands on a different footing and that, the action of the Managing Committee in extending the term by one year on payment of an additional amount of 5% above Rs.65,55,555/- paid for the previous year is not a colourable exercise of power, warranting interference under Article 226 of the Constitution of India.

Moreover, the provisions under Sections 10, 21 and 27 or any

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other provisions under the Guruvayur Devaswom Act impose a restriction that the Managing Committee has to mandatorily put all contracts in a public auction.

10. The learned Standing Counsel for the Managing Committee would submit that, as evident from Ext.R2(h) FIR, the petitioner is an accused in Crime No.266/2019 of Temple Police Station on the allegation of theft of articles from the Thulabharam Counter of the temple. He was arrested and remanded to custody and was later enlarged on bail. The police conducted a detailed investigation after collecting scientific evidence from CCTV footage and the final report was filed before the Judicial First Class Magistrate Court, Chavakkad. The matter has been taken cognizance, which is pending before that court C.C.No.52 of 2020.

The blacklisting process of the petitioner is under consideration of the Managing Committee.

11. The properties belonging to Sree Krishna Temple, Guruvayur, and the income derived therefrom, including the endowments and offerings are vested in the deity, Lord Guruvayurappan, a perpetual minor. A reading of the preamble of the Guruvayur Devaswom Act, 1978 will clearly show that the authorities constituted under the said Act, especially the

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Guruvayur Devaswom Managing Committee, the Administrator and the Commissioner are enjoined with the duty to administer, control and manage the affairs of the Temple, its properties and endowments.

12. Clause (a) of Section 2 of the Act defines ‘Administrator’ to mean the Administrator appointed under Section 14. Clause (b) of Section 2 defines ‘Commissioner’ as an officer not below the rank of Secretary to Government, who professes the Hindu Religion and believes in temple worship, appointed by the Government by notification in the Gazette.

Clause (c) of Section 2(c), ‘Committee’ means Guruvayur Devaswom Managing Committee constituted under Section 3. The function of the Committee is to administer, control and manage the Devaswom including its properties.

13. Section 4 of the Act deals with the composition of Guruvayur Devaswom Managing Committee. As per sub-section (1) of Section 4, the Committee shall consist of the Zamorin Raja;

the Karanavan for the time being of the Mallisseri lllom at Guruvayur;

the Thanthri of the Temple, ex-officio;

a representative of the employees of the Devaswom nominated by the Hindus among the Council of Ministers; not more than five

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persons, of whom one shall be a member of a Scheduled Caste, nominated by the Hindus among the Council of Ministers from among persons having interest in the Temple.

14. Section 10 of the Act deals with the duties of the Committee. As per clause (a) of Section 10, subject to the provisions of the Act and the Rules made thereunder, it shall be the duty of the Committee, subject to the custom and usage in the Temple, to arrange for the proper performance of the rites and ceremonies in the Temple and the subordinate temples attached thereto in accordance with the dittam or scale of expenditure fixed for the temple and the subordinate temples under Section 20 or, till the dittam or scale of expenditure is fixed under that Section, in accordance with the dittam or scale of expenditure fixed for the Temple and the subordinate temples under Section 51 of the Madras Hindu Religious and Charitable Endowments Act, 1951; as per clause (b) of Section 10, to provide facilities for the proper performance of worship by the worshippers; (d) to ensure maintenance of order and discipline and proper hygienic conditions in the temple and the subordinate temples attached thereto and of proper standard of cleanliness and purity in the offerings made therein; and (g) to do all such things as may be

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incidental and conducive to the efficient management of the affairs of the Devaswom and the convenience of the worshippers.

15. Section 20 of the Act deals with fixing standard scales of expenditure. As per sub-section (1) of Section 20, the Committee may, from time to time, submit to the Commissioner proposals for fixing the dittam or scale of expenditure in the Devaswom, and the amounts which should be allotted to the various objects connected with the Devaswom or proportion in which the income or other property of the Devaswom may be applied to such objects. As per sub-section (2) of Section 20, the Committee shall publish such proposals at the premises of the Devaswom and in such other manner as the Commissioner may direct together with a notice stating that within one month from the date of such publication, any person having interest in the Temple may submit objection or suggestion to the Commissioner.

As per sub-section (3) of Section 20, if, on scrutiny of such proposals, and any objections and suggestions made by persons having interest in the temple, it appears to the Commissioner that the scale of expenditure or any item in the scale of expenditure is at variance with the established usage of the Devaswom, or is not justified by its financial position, the Commissioner may call for

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the remarks of the Committee and if, after considering the same, the Commissioner is of the opinion that any modification is required in the scale of expenditure or any item in the scale of expenditure, he shall pass orders accordingly and such orders shall subject to the provisions of sub-section (4), be final. As per sub-section (4) of Section 20, the Committee may, within three months from the date of receipt by it of the order passed by the Commissioner under sub-section (3), institute a suit in the court to modify the order or to set it aside.

16. Section 21 of the Act deals with the budget. As per sub- section (1) of Section 21, the Committee shall, before the end of March in each financial year, submit to the Commissioner, in such form as may be fixed by him, a budget estimate of the receipts and expenditure of the Devaswom for the following financial year.

As per sub-section (2) of Section 21, every such budget shall make adequate provision for - (a) the dittam or scale of expenditure for the time being in force; (b) the due discharge of all liabilities binding on the Devaswom; (c) the construction, repair, maintenance and renovation of buildings connected with the Devaswom; and (d) the maintenance of a working balance. As per sub-section (3) of Section 21, the Commissioner may, after giving

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notice to the Committee in the prescribed manner and after considering its representations, if any, make such alterations, omissions or additions in the budget as the Commissioner may deem fit. As per sub-section (4) of Section 21, the Commissioner shall send a copy of the budget as approved by him to the Government.

17. Section 27 of the Act deals with the authority of the Committee to incur expenditure for certain purposes. As per Section 27, the Committee may, after making adequate provision for the purposes referred to in sub-section (2) of section 21, incur expenditure out of the funds of the Devaswom for all or any of the following purposes, namely: (a) maintenance, management and administration of the temple, its properties and the temples subordinate thereto; (b) training of archakas to perform religious worship and ceremonies in the temple and the temples subordinate thereto; (c) medical relief, water supply and other sanitary arrangements for the worshippers and the pilgrims and construction of building for their accommodation; (d) culture and propagation of the tenets and philosophy associated with the temple; (e) the establishment and maintenance of or the making of any grant or contribution to, any poor home or other similar

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institution which is maintained for the benefit mainly of persons belonging to the Hindu Community; (ee) the construction of buildings connected with the affairs of the Devaswom; (f) the establishment and maintenance of any educational institution which provides for the encouragement of education in Sanskrit or Malayalam Language, the maintenance of any such educational institution owned or managed by the Devaswom or in which the Devaswom has an interest; and (g) the making of any contribution to any religious institution. As per the first proviso, nothing contained in clause (e) shall prevent the continuance of any grant or contribution to any poor home or other similar institution which is maintained by or for the benefit of persons other than those belonging to the Hindu Community, if such grant or contribution was being made to such poor home or institution before the commencement of the Act as the customary practice associated with the temple. As per the second proviso, no expenditure shall be incurred for any of the purposes mentioned in clauses (f) and (g) unless the same is sanctioned by custom or practice associated with the temple.

18. A reading of the provisions under the Guruvayur Devaswom Act would make it explicitly clear that the role assigned

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to the Guruvayur Devaswom Managing Committee constituted under Section 3 of the said Act is that of a trustee in management of the properties vested in the deity. The Managing Committee, which functions as a trustee, is bound to administer, control and manage the properties belonging to Guruvayur Devaswom in accordance with the public interest and in the interest of the worshippers. As provided in Section 17, the Administrator shall function as the Secretary to the Managing Committee, who shall be the Chief Executive Officer functioning subject to the control of the Managing Committee. The Administrator is bound to carry out the decisions taken by the Managing Committee in accordance with the provisions of the Act.

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 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

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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 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

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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 Hindu Seva Kendram, Rep. by its Treasurer v.

State of Kerala and others [2022 (3) KHC SN 8 : 2022 SCC OnLine Ker 1708 : 2022:KER:15165] a Division Bench of this Court in which one among us [Anil K. Narendran, J.] was a party held that in view of the provisions under Guruvayur Devaswom Act, the authorities constituted under the said Act, namely, the

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Managing Committee and the Administrator are enjoined with duty to administer, control and manage the affairs of Guruvayur Devaswom, its properties and endowments. The role assigned to the Managing Committee is that of a trustee in the management of the properties vested in the deity. In view of the law laid down by the Apex Court in M.V. Ramasubbiar [(1979) 2 SCC 65], considering the fiduciary position as the trustee, it is the duty and obligation of the Managing Committee to be faithful to the Devaswom and deal with its properties, both movable and immovable, with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. The Commissioner and the Administrator shall also function within the framework of the Statute. In the matter of alienation of Devaswom properties, the Managing Committee and the Commissioner have to scrupulously follow the statutory mandate of Section 11 of the Act. Before according sanction for alienation of the properties, the Commissioner has to record his satisfaction that such alienation is necessary or beneficial to the Devaswom, as provided under sub- section (1) or sub-section (2) of Section 11 of the Act.

21. The tendering process in respect of cloakrooms and footwear counter in Guruvayur Sree Krishna Temple, vide Ext.P1

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notification dated 07.05.2019 of the 2nd respondent Administrator, for the period from 01.06.2019 to 31.05.2020, was the subject matter of challenge in W.P.(C)No.25406 of 2019 filed by the petitioner herein. The said writ petition and the connected matter, i.e., W.P.(C)No.27656 of 2019 filed by the 4th respondent Guruvayur Multi-Purpose Co-operative Society were decided by Ext.P11 judgment dated 20.12.2019. By the said judgment, W.P.(C)No.25406 of 2019 filed by the petitioner herein was disposed of directing the Managing Committee and the Administrator to finalise the tender process treating the last date for submission of tenders as 10.09.2019, as directed in Ext.P9 judgment dated 02.09.2019 in W.P.(C)No.18517 of 2019. The relief sought for in W.P.(C)No.27656 of 2019 filed by Guruvayur Multi-Purpose Co-operative Society was to stay all further proceedings pursuant to the decision taken by the Managing Committee on 24.09.2019 [Ext.P8 in that writ petition]. The Division Bench found that the Managing Committee took the said decision in order to abide by the directions contained in Ext.P9 judgment. In such circumstances, W.P.(C)No.27656 of 2019 was dismissed, declining interference on the said decision dated 24.09.2019 of the Managing Committee.

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22. Ext.P11 judgment was under challenge before the Apex Court in Civil Appeal No.1906 of 2020 filed by Guruvayur Multi- Purpose Co-operative Society. That Civil Appeal was disposed of by Ext.P12 order dated 02.03.2020, as the tender was floated to cover the period up to 31.05.2020, which is going to come to an end in less than three months. The said order reads thus;

“After hearing the learned Senior Counsel appearing for the parties at length, we find that the tender was floated for the period which is going to end on 31.05.2020. The tender was initially floated on 07.05.2019 and the bid which was submitted by respondent No.1 was not accepted.

Thereafter, a fresh tender was floated, in which respondent No.1 did not submit his tender. Thereafter, time was extended by the High Court by passing an order dated 02.09.2019, to submit further tender. Thereafter, a fresh tender was floated on 04.09.2019. The third tender floated was withdrawn on 24.09.2019 as it was issued on the basis of a misunderstanding of the order passed by the High Court. The High Court passed the impugned order on 20.12.2019 that the second tender which was floated, should be acted upon as there was an order of the High Court. Maybe that order of the High Court was required to be complied with, however, in the facts and circumstances of the case, as the tender was floated to cover the period up to 31.05.2020, which is going to come to an end in less than three months, it would not be appropriate to grant the contract for a short period which is remaining. Therefore,

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we set aside the order passed by the High Court and direct that let fresh tender be issued for a period of one year. Let the tender be floated within a period of three weeks from today, in which respondent No.1 shall also be free to participate in accordance with law. With respect to the blacklisting of respondent No.1 without a hearing, the High Court has rightly set aside the order considering the allegation that was made against respondent No.1. It was necessary to grant the opportunity of hearing to respondent No.1 before blacklisting. As that carries serious civil consequences, as such, we are not interfering with that part of the Judgment and order, however, the Managing Committee is free to take action in accordance with law, if it so desires, in the matter of misconduct of respondent No.1, if any.

In view of the above modification of the order, the appeal is disposed of.” (underline supplied)

23. After, Ext.P12 order of the Apex Court, the Managing Committee vide Ext.R2(a) decision No.30 dated 06.03.2020 resolved to proceed with the tender notification dated 17.03.2020, which was kept in abeyance on account of the lockdown due to the spread of the Covid-19 pandemic. Thereafter, vide Ext.R2(b) decision No.17 dated 11.10.2021, the Managing Committee decided to proceed with the tender process. Accordingly, the 2nd respondent Administrator issued Ext.R2(b) tender notification dated 17.11.2021. However, since there was only one tender, the

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Managing Committee vide Ext.R2(d) decision No.9 dated 20.04.2022 decided to issue a fresh tender notification.

Accordingly, Ext.R2(e) re-tender notification dated 04.05.2022 was issued. The petitioner did not participate in the re-tender process. The 4th respondent quoted the highest amount of Rs.65,55,555/-. The 2nd highest bidder quoted Rs.46,50,000/, the 3rd highest bidder quoted Rs.42,42,100/- and the 4th highest bidder quoted Rs.15,06,000/-. Including GST, the amount payable by the 4th respondent was Rs.80,63,333/-. Accordingly, the tender was confirmed in favour of the 4th respondent. Thereafter, the cloakrooms were handed over to the 4th respondent on 09.07.2022.

24. Thereafter, the 4th respondent Guruvayur Multi- Purpose Co-operative Society sought the permission of the Managing Committee to digitize the cloakroom, so as to avoid the complaints of the devotees and to ensure transparency in the accounts. That proposal was accepted by the 2nd respondent Administrator, since the 4th respondent agreed to digitize the entire cloakroom free of cost, at its expense. In the counter affidavit of the 4th respondent, it is stated that after digitalization, the complaints of the devotees regarding the functioning of the

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cloakrooms are very minimal and the complaints regarding non- delivery of the items are practically nil.

25. The 4th respondent made Ext.R2(f) request on 24.03.2023, seeking an extension by one year on the same terms and conditions. That request was considered by the Managing Committee in its meeting held on 09.05.2023. Vide Ext.R2(g) decision No.35, the Managing Committee decided to grant an extension to the 4th respondent by one year. The extension of time was granted on condition that the 4th respondent shall pay an additional amount of 5% above Rs.65,55,555/- remitted for the previous year.

26. As held by this Court in Hindu Seva Kendram [2022 (3) KHC SN 8 : 2022:KER:19165] the role assigned to Guruvayur Devaswom Managing Committee is that of a trustee in the management of the properties vested in the deity, i.e., Lord Guruvayoorappan. In view of the law laid down by the Apex Court in M.V. Ramasubbiar [(1979) 2 SCC 65], considering the fiduciary position as the trustee, it is the duty and obligation of the Managing Committee to be faithful to the Devaswom and deal with its properties, both movable and immovable, with reasonable diligence in the manner of an ordinary prudent man of business

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would conduct his own affairs. The Commissioner and the Administrator shall also function within the framework of the Statute.

27. The award of Kuthaka right for conducting cloakrooms and footwear counter in Guruvayur Sree Krishna Temple was granted to the 4th respondent Guruvayur Multi-purpose Co- operative Society for the year 2022-23, i.e., for the period from 09.07.2022 till 08.07.2023, for an amount of Rs.65,55,555/-.

Instead of conducting a fresh auction for the year 2023-24, Guruvayur Devaswom Managing Committee vide Ext.R2(g) resolution No.35 dated 09.05.2023 decided to grant Kuthaka right for the year 2023-24, i.e., for the period from 09.07.2023 till 08.07.2024, at the rate of 5% above the rate for the previous year plus 18% GST and 5% security deposit, without a tender process.

Based on that resolution of the Managing Committee, the 2nd respondent Administrator issued Ext.P13 order dated 31.05.2023, which is under challenge in this writ petition.

28. The stand taken in the counter affidavit filed by the 3rd respondent Managing Committee is that, considering the comfort of the devotees, who found the digitalized cloakroom very convenient, the Managing Committee in exercise of its discretion

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decided not to invite fresh tenders and grant extension to the 4th respondent Co-operative Society for the year 2023-24 on payment of an additional amount of 5% above the amount paid for the previous year. The fact that the 4th respondent Co-operative Society spent Rs.16,00,000/- for digitalization of the cloakroom is not in dispute. But that is not a valid reason for the Managing Committee to extend the term for a further period of one year on payment of an additional amount of 5%, without calling for fresh tenders. If a digitalized cloakroom is more convenient for the devotees, the Managing Committee could have incorporated such a condition in the tender notification for the year 2023-24, instead of permitting the 4th respondent Co-operative Society to continue for one more year. By adopting such a procedure, the Managing Committee denied an opportunity for others to participate in the tender process. Such a procedure adopted by the Managing Committee is per se arbitrary and illegal. While taking such a decision the Managing Committee failed to discharge its statutory duty and obligation, considering its fiduciary position as a trustee in the management of the properties of the deity, to act with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs.

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29. Relying on the law laid down by this Court in Dr.P.K.Lazar [2023:KER:23732], the learned counsel for the 4th respondent would contend that the 4th respondent being a Co- operative Society stands on a different footing and as such the 3rd respondent Managing Committee cannot be found fault with in granting an extension of the term for a period of one year, without a tender process. In the said decision, a Division Bench of this Court held that the award of the contract of downloading and publishing the materials in respect of 74 translated titles in 26 subjects from the website of the State Council for Educational Research and Training (SCERT) to the 4th respondent Calicut University Central Co-operative Stores Ltd., which is functioning in the Calicut University, after reducing the royalty from 15% to 5%, was done in the best interest of the student community and no private agency can compel the Government that the said work be entrusted to them. In the said decision, one of the contentions raised was that the translation work of SCERT is not one to be commercialised and it is one intended to be supplied to the students at the rates prescribed. Private publishers are always undertaking contracts for commercial marketing and hence unauthorised printing and distribution cannot be easily checked.

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The observations made by the Division Bench in the said decision in no way support the case of the 4th respondent Co-operative Society for preferential treatment by granting an extension of the term of the cloakroom and footwear counter in Guruvayur Sree Krishna Temple, without a tender process, for a further period of one year on payment of an additional amount of 5% above the amount for the previous year.

30. As evident from Ext.R2(h) FIR, the petitioner is an accused in Crime No.266/2019 of Temple Police Station on the allegation of theft of articles from the Thulabharam Counter of the temple. He was arrested and remanded to custody and was later enlarged on bail. The final report was filed before the Judicial First Class Magistrate Court, Chavakkad and the matter has been taken cognizance, which is pending before that court as C.C.No.52 of 2020. The learned Standing Counsel for the Managing Committee would submit that ‘blacklisting process’ of the petitioner is under the consideration of the Managing Committee.

31. In this writ petition, the petitioner is seeking a writ of certiorari to quash Ext.P13 order dated 31.05.2023 of the 2nd respondent Administrator, whereby, in continuation of Kuthaka right granted for the year 2022-23, for conducting cloakrooms and

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footwear counter in Guruvayur Sree Krishna Temple, the 4th respondent Co-operative Society has been granted the said Kuthaka right for the year 2023-24, without a tender process, at a rate 5% above the rate for the previous year. The fact that the petitioner is an accused in C.C.No.52 of 2020 pending before the Judicial First Class Magistrate Court, Chavakkad, on the allegation of theft of articles from the Thulabharam Counter of the temple, is not a valid ground for not entertaining the challenge made in this writ petition against Ext.P13 order dated 31.05.2023 of the 2nd respondent Administrator. However, the entitlement of the petitioner to participate in the tender process would certainly depend upon the disqualification clause in the tender notification, including police verification and the decision, if any, taken by the Managing Committee to blacklist him.

32. In order to support the decision taken by the Managing Committee, as evidenced by Ext.R2(g) resolution dated 09.05.2023 for granting extension to the 4th respondent Co- operative Society for a further period of one year, the learned Standing Counsel for the Managing Committee and also the learned counsel for the 4th respondent Co-operative Society would rely on the provisions under Sections 10, 21 and 27 of the

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Guruvayur Devaswom Act. As per clause (b) of Section 10 of the Act, it shall be the duty of the Committee to provide facilities for the proper performance of worship by the worshippers; as per clause (d) to ensure maintenance of order and discipline and proper hygienic conditions in the temple and the subordinate temples attached thereto and of proper standard of cleanliness and purity in the offerings made therein; and as per clause (g) to do all such things as may be incidental and conducive to the efficient management of the affairs of the Devaswom and the convenience of the worshippers. As per clause (a) of sub-section (2) of Section 21, every budget shall make adequate provision for the dittam or scale of expenditure for the time being in force; as per clause (b) the due discharge of all liabilities binding on the Devaswom; and as per clause (c) the construction, repair, maintenance and renovation of buildings connected with the Devaswom. As per clause (a) of sub-section 2 of Section 27, after making adequate provision for the purposes referred to in sub- section (2) of Section 21, the Managing Committee shall incur expenditure out of the funds of the Devaswom for maintenance, management and administration of the temple, its properties and the temples subordinate thereto; as per clause (c) medical relief,

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water supply and other sanitary arrangements for the worshippers and the pilgrims and construction of building for their accommodation.

33. The provisions in Sections 10, 21 and 27 of the Guruvayur Devaswom Act would not enable the 3rd respondent Guruvayur Devaswom Managing Committee to give preferential treatment to the 4th respondent Co-operative Society, by granting an extension of the term for a further period of one year on payment of an additional amount of 5% above the amount for the previous year, without a tender process. The offerings from the devotees and the revenue generated through the auction of Kutahka rights are the major sources of income for the Guruvayur Devaswom Managing Committee. The best interest of the Devaswom would be subserved only if proper income is generated from the auction of Kuthaka rights. The interest of the devotees could have been protected by the Managing Committee by issuing a tender notification for the year 2023-24, for a digitalized cloakroom with the very same facilities presently available.

34. In view of the provisions under Section 25 of the Act, it is the duty of the additional 6th respondent Deputy Director to verify and report in the Audit Report all cases of irregular, illegal

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or improper expenditure or of failure to recover money or other property due to the Devaswom or of loss or waste of money or other property thereof, caused by neglect or misconduct of the authority and issue Audit Report to the Devaswom Commissioner.

35. In the above circumstances, we find no reason to sustain Ext.P13 order dated 31.05.2023 of the 2nd respondent Administrator, whereby, in continuation of Kuthaka right granted for the year 2022-23, from 09.07.2022 till 08.07.2023, for conducting cloakrooms (paid counters) in Kizhakke Nada and Padinjare Nada and footwear counter (free counter) in Thekke Nada of the Guruvayur Sree Krishna Temple, the 4th respondent Co-operative Society has been granted the said Kuthaka right for the year 2023-24, from 09.07.2023 till 08.07.2024, at a rate 5% above the rate for the previous year plus 18% GST and 5% security deposit, without a tender process, based on Ext.R2(g) decision No.35 of the 3rd respondent Managing Committee referred to therein.

In the result, this writ petition is disposed of by setting aside Ext.P13 order dated 31.05.2023 of the 2nd respondent Administrator and Ext.R2(g) decision No.35 of the 3rd respondent Managing Committee referred to therein and the said respondents

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are directed to issue a tender notification inviting tenders for digitalized cloakrooms and footwear counter in Guruvayur Sree Krishna Temple for the year 2023-24 or for a period of one year.

The exercise in that regard shall be completed within two months from the date of receipt of a certified copy of this judgment. Till such time, the 4th respondent Co-operative Society shall be permitted to continue, in case the said respondent has already paid the proportionate bid amount, in addition to Rs.15,00,000/- stated to have been paid after the issuance of Ext.P13 order.

Sd/- ANIL K. NARENDRAN, JUDGE

Sd/- SOPHY THOMAS, JUDGE DSV

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PETITIONER’S EXHIBITS:

EXHIBITP1 A TRUE COPY OF THE TENDER NOTIFICATION PUBLISHED BY THE GURUVAYOOR DEVASWOM DATED 7.5.2019.

EXHIBITP3 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE GURUVAYOOR DEVASWOM MANAGING COMMITTEE DATED 10.6.2019.

EXHIBITP5 A TRUE COPY OF THE TENDER NOTIFICATION DATED 6.7.19 ISSUED BY THE 2ND RESPONDENT.

EXHIBITP6 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED DATED 15.7.2019 IN WP(C) 18517/2019.

EXHIBITP7 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEVASWOM DATED 25.7.19, IN WP(C) 18517/2019.

EXHIBITP8 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED DATED 30.7.19 IN WP(C) 18517/2019.

EXHIBITP10 A TRUE COPY OF THE TENDER NOTIFICATION ISSUED DATED 4.9.19.

EXHIBITP11 COMMON JUDGMENT DELIVERED BY THIS HON'BLE COURT IN W P (C) NO 25406 OF 19 AND CONNECTED CASES DATED 20.12.19.

EXHIBITP12 A TRUE COPY OF THE JUDGMENT DELIVERED BY THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO. 1906 OF 2020 DATED 05.03.2020.

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EXHIBITP13 A TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 31.05.2023.

RESPONDENT’S EXHIBITS:

EXHIBIT R2(A) TRUE COPY OF THE RESOLUTION NO: 30 DATED 06-03-2020 OF THE GURUVAYUR DEVASWOM MANAGING COMMITTEE.

EXHIBIT R2(B) TRUE COPY OF THE RESOLUTION NO. 17 DATED 11-10-2021 OF THE GURUVAYUR DEVASWOM MANAGING COMMITTEE.

EXHIBIT R2(C) TRUE COPY OF THE TENDER NOTIFICATION DATED 17-11-2021 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT R2(D) TRUE COPY OF THE RESOLUTION NO: 9 OF THE GURUVAYUR DEVASWOM MANAGING COMMITTEE DATED 22-4-2022.

EXHIBIT R2(E) TRUE COPY OF THE TENDER NOTIFICATION DATED 4-5-2022 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT R2(F) TRUE COPY OF THE REQUEST OF THE 4TH RESPONDENT DATED 24-3-2023.

EXHIBIT R2(G) TRUE COPY OF THE RESOLUTION NO. 35 DATED 9- 5-2023 OF THE GURUVAYUR DEVASWOM MANAGING COMMITTEE.

EXHIBIT R2(H) TRUE COPY OF THE FIR IN CRIME NO: 266 OF 2019 OF GURUVAYUR TEMPLE POLICE STATION.

EXHIBIT R4(A) TRUE COPY OF THE NEWSPAPER REPORT IN MATHRUBHUMI DAILY DATED 25.09.2022.

EXHIBIT R4(B) TRUE COPY OF THE NEWSPAPER REPORT IN MANORAMA DAILY DATED 25.09.2022.