Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 6TH DAY OF FEBRUARY 2023 / 17TH MAGHA, 1944 WP(C) NO. 29243 OF 2022 PETITIONER:
SANDEEP G S, AGED 47 YEARS, S/O. R. GOPINATHAN NAIR, TC 25, 1464/1, AMARAVATHY, S.S KOVIL ROAD, THAMPANOOR P.O., THIRUVANANTHAPURAM-695 001
BY ADVS.C.RAJENDRAN B.K.GOPALAKRISHNAN RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE (DEVASWOM ) DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 SANGHUMUGHAM DEVI TEMPLE, SANGHUMUGHAM, PALAYAM AIRPORT ROAD, VALLAKKADAVU, THIRUVANANTHAPURAM-695 008, REPRESENTED BY ITS ADMINISTRATOR.
3 TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANDANCODE, KAWADIAR P.O., THIRUVANANTHAPURAM-695 003, REPRESENTED BY SECRETARY.
4 SUB GROUP OFFICER, SANGHUMUGHAM DEVASWOM, SANGHUMUGHAM, PALAYAM AIRPORT ROAD, VALLAKKADAVU, THIRUVANANTHAPURAM- 695 008, *5 SURESH S KUMAR, MANUFACTURER, D J AMUSEMENT, NEAR GANAPATHY TEMPLE, MAIN MARKET, PALAKKAD DISTRICT-678 001 THE ADDRESS OF THE 5TH RESPONDENT IS CORRECTED AS "GANESH KUMAR.S, MANAGER, D.J. AMUSEMEMENT, NEAR GANANPATHY TEMPLE, MAIN MARKET, PALAKKAD DISTRICT - 678001., AS PER ORDER DATED 20.10.2022 IN IA 1/2022 IN WPC NO. 29243/2022.
6 THIRUVANANTHAPURAM CORPORATION, OFFICE OF THE THIRUVANANTHAPURAM CORPORATION, VELLAYAMBALAM ROAD, PMG, THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS SECRETARY.
BY ADVS.SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD N.NANDAKUMARA MENON (SR.)
P.K.MANOJKUMAR SUMAN CHAKRAVARTHY, SC, THIRUVANANTHAPURAM CORPORATION
SRI S.RAJMOHAN- SR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2023, 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 mandamus commanding respondents 2 to 4 and 6 to stop the functioning of the amusement park within the compound of the Sanghumugham Devi Temple, which is under the management of the 3rd respondent Travancore Devaswom Board. The petitioner has also sought for a writ of mandamus commanding the respondents to demolish/dismantle the entire structures constructed within the compound in connection with the amusement activities;
a writ of mandamus commanding respondents 2 to 4 to conduct a Devaprasnam immediately and also get all the remedial measures which are suggested by astrologers; a writ of mandamus commanding respondents 1 and 3 to initiate disciplinary proceedings against the official responsible for permitting the functioning of amusement park within the compound of Sanghumugham Devi Temple and recover expenses met for the Devaprasnam and remedial measures from the persons who are responsible for letting of the
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temple compound; and a writ of mandamus commanding the 2nd respondent to produce the entire records in connection with letting of the temple compound for the anti-spiritual activities, before this Court.
2.
The grievance of the petitioner is against the permission granted by the Travancore Devaswom Board to the 5th respondent to conduct amusement park within the compound of Sanghumugham Devi Temple, which is under the management of the Board.
3.
On 13.09.2022, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for the 1st respondent. The learned Standing Counsel for Travancore Devaswom Board took notice for respondents 3 and 4. The learned Standing Counsel took notice for the 6th respondent Thiruvananthapuram Corporation. This Court issued notice by special messenger to the 5th respondent.
4.
On 19.09.2022, when this writ petition came up for consideration, the learned Standing Counsel for Travancore Devaswom Board has made available for the perusal of this Court
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a copy of Board order dated 06.08.2022, whereby 1 Acre of vacant land of Sanghumugham Devaswom is given on payment of ground rent of Rs.5,000/- to the 5th respondent for the period from 22.08.2022 till 20.09.2022, for conducting a festival, by name, ‘Sanghumugham Onam Fest’. By the order dated 19.09.2022, the learned Standing Counsel for Travancore Devaswom Board was directed to make available for the perusal of this Court the entire files relating to the order dated 06.08.2022 issued by the Board. The learned Standing Counsel for the 6th respondent Thiruvananthapuram Corporation, on instructions, submitted that the licence granted by the Corporation to the 5th respondent was only for the period from 03.09.2022 till 12.09.2022. The learned Standing Counsel for Travancore Devaswom Board submitted that the 5th respondent has already vacated the Devaswom ground on 12.09.2022.
5.
The said order was followed by the orders dated 30.09.2022, 20.10.2022, 16.11.2022, 12.12.2022 and 05.01.2023.
6.
By the order dated 05.01.2023 in I.A.No.2 of 2022 this Court permitted the petitioner to effect service of notice on the
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5th respondent by affixture. The report dated 25.01.2023 of the District Judge, Palakkad enclosing therewith the affixed copy of the notice on the 5th respondent is placed on record.
7.
The 3rd respondent has filed an affidavit dated 06.02.2023. Paragraphs 5 to 9 of the said affidavit read thus;
“5. It is submitted that Sanghumukham Devaswom is in possession of 7 acres and 37 cents of property. The property given on rent for conducting Onam Fest is lying on the extreme western end of the compound far away from the elamathil of the temple and the one acre property, where the temple is situated.
6. It is submitted that Sri. Ganeshkumar, Manager, D.J.
Amusements has approached the Board seeking permission to get the vacant land in front of Sanghumukham Devaswom on rental basis for 30 days from 22.08.2022 to 20.09.2022 for conducting the programme, "SHANGHUMUKHAM ONAM FEST". The Board, on receipt of the request, asked the Devaswom Commissioner to submit a report on the matter.
Accordingly, the Devaswom Commissioner submitted a report after obtaining inputs from the Assistant Devaswom Commissioner, Thiruvananthapuram. Thereafter the Board considered the request along with the report of the Devaswom Commissioner and in principle decided to give permission to give the vacant land lying in front of Sanghumukham Devaswom on rental basis from 22.08.2022 to 20.09.2022 to D.J Amusement for conducting Onam Fest without causing any disturbance/obstruction to the rituals of
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the temple and devotees and on further condition that the land will not be used for any activities detrimental to the religious practices of the temple, not causing any obstruction to the way leading to the temple from the western gopuram, the rented premises shall be cleaned and surrendered after the Fest and to execute agreement incorporating the above conditions. The Executive Engineer, Estate Division was directed to compute the rent to be charged.
7. It is submitted that the Executive Engineer, Estate Division computed the rent on the basis of G.O(Rt) No.269/2016/PWD dated 05.02.2016 after obtaining the fair value of the land. from Village Office, Petta. The Executive Engineer, Estate Division reported that Rs.3960/- + 18% GST can be charged as rent per day and Rs.75,000/- be collected as security deposit. True copy of G.O. (Rt.)
No.269/2016/PWD dated 05.02.2016 relied on for fixing rent is produced herewith and marked as Exhibit-R3(a). The Chief Engineer reported to the Board that the Devaswom land can be given for conducting Shanghumukham Onam Fest charging Rs.4,000/- + 18% GST and Rs.1,50,000/- as security deposit. True copy of the report of the Chief Engineer, Travancore Devaswom Board, dated 05.08.2022 is produced herewith and marked as Exhibit-R3(b).
8. It is submitted that the Board considered Exhibit-R3(b) report of the Chief Engineer and fixed Rs.5,000/- + 18% GST as daily rent and Rs.1,50,000/- as security deposit. True copy of the proceedings of the Travancore Devaswom Board, R.O.C. No. 5292/22/Mis 2 dated 06.08.2022 is produced herewith and marked as Exhibit-R3(c). Accordingly, the
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Assistant Devaswom Commissioner, Travancore Devaswom Board, Thiruvananthapuram Group executed an agreement with Sri. Ganeshkumar, Manager, D.J. Amusements on receiving the agreed rent and security deposit.
9. It is submitted that D.J Amusements conducted the Onam Fest in terms of the agreement without causing any difficulties to the devotees and temple activities and vacated the premises on 12.09.2022. The allegations contained in para 4 to 7 of the writ petition that because of the exhibition the importance, purity and sanctity of the temple is being destroyed is not correct. The Sankhumugham Devaswom is situated in a vast extent of 7 acres and 37 cents. The property given for conducting Onam Fest is lying on the western end of the compound far away from the temple and Its elamathil and the Fest was conducted without affecting the religious activities or rituals of the temple or causing any difficulties to the devotees.”
8.
Heard the learned counsel for the petitioner, the learned Senior Government Pleader for the 1st respondent, the learned Standing Counsel for Travancore Devaswom Board for respondents 3 and 4 and also the learned Standing Counsel for the 6th respondent Corporation. Despite service of notice, none appears for the 5th respondent.
9.
Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and
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unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per subsection (3) of Section 1 of the Act, substituted by the Kerala Adaptation of Laws Order, 1956, Part I of the Act shall extend to Travancore, Part II of the Act shall extend to Cochin and Part III of the Act shall extend to the whole of the State of Kerala, excluding the Malabar District.
10. Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with vesting of administration in Board. As per Section 3, the administration of incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds as well as the fund constituted under the Devaswom Proclamation, 1097 M.E. and the surplus fund constituted under the Devaswom (Amendment) Proclamation, 1122 M.E. which were under the management of the Ruler of Travancore prior to the first day of July, 1949, except the Sree Padmanabhaswamy Temple, Sree Pandaravaka properties and all other properties and funds of the said temple, and the management of all institutions which were under the Devaswom Department shall vest in the Travancore Devaswom Board.
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11. Section 4 of the Act deals with constitution of the Travancore Devaswom Board. As per sub-section (2) of Section 4, the Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board.
12. Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub-section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per sub-section (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their jurisdiction.
13. Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with duties of the Board. As per
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Section 15A, 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. Section 16 of the Act deals with supervision and control by the Board. As per Section 16, the Board shall, subject to the provisions of Part I of the Act, exercise supervision and control over the acts and proceedings of all officers and servants of the Board and of the Devaswom Department.
14. 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
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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 upliftment, social and cultural advancement and economic betterment of the Hindu community.
15. Section 27 of the Act deals with Devaswom properties.
As per Section 27, immovable properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30th Meenam, 1097 corresponding to the 12th April, 1922, shall be dealt with as Devaswom properties. The provisions of the Land Conservancy Act of 1091 shall be applicable to Devaswom lands as in the case of Government lands.
16. Section 31 of the Act deals with management of Devaswoms. As per Section 31, 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
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daily worship and ceremonies and of the festivals in every temple according to its usage.
17. 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 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
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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 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
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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)
18. In A.A.
Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex 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 ‘fences eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be
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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.
19. 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 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,
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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.
20. 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 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
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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.
21. 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 officers in the Estate Division of the Travancore Devaswom Board in taking no action against the
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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.
22. 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
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possible only with the passive or active collusion of the authorities concerned, such acts of ‘fences 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.
23. In V.
Muraleedharan Nair v. Travancore Devaswom Board [Judgment dated 25.11.2015 in W.P.(C) No.
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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 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 Bench 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.
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24. In T.Krishnakumar v. Cochin Devaswom Board [2022 (5) KHC SN 8 : 2022 (4) KLT 798], a Division Bench of this Court, in which both of us were parties, 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 mere landlord. The best interest of the Devaswoms under the control of the Board would be subserved only if income is generated.
25. 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
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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 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
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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.
26. 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 and 3 since June, 1999. Based on an application made by him, by
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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,
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with penal interest at the rate of 18%. It was followed by Annexure 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.
27. In H.N.Vijayan, 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
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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 payable by the petitioner is placed in the meeting of the Board scheduled on 14.07.2021.
28. In H.N.Vijayan, 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 owned by the Devaswoms is not lower than the prevailing market rent. The
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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
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officials have to ensure that proper income is generated from 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.
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29. In H.N.Vijayan, 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 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].
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30. In view of the provisions under Section 15A of the Act, it shall be the duty of the Board to see that the regular traditional rites and ceremonies according to the practice prevalent in Sanghumugham Devi Temple are performed promptly; and to establish and maintain proper facilities in Sanghumugham Devi Temple for the devotees. In view of the provisions under Section 31 of the Act, the Board shall manage the properties and affairs of Sanghumugham Devaswom and arrange for the conduct of the daily worship and ceremonies and of the festivals in Sanghumugham Devi Temple according to its usage.
31. The photographs placed on record as Ext.P2 would show the state of affairs in front of Sanghumugham Devi Temple, when the amusement park was conducted by the 5th respondent during Onam festival of the year 2022, from 22.08.2022 till 20.09.2022. The stand taken in the counter affidavit filed by the 3rd respondent is that based on the report dated 01.08.2022 of the Executive Engineer, Estate Division, Thiruvananthapuram, the Chief Engineer submitted Ext.R3(b) report dated 05.08.2022 before the Board fixing ground rent of 1 Acre land of Sanghumugham Devaswom for conducting Sanghumugham
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Onam Fest as Rs.4,000/- plus 18% GST, per day and a security deposit of Rs.1,50,000/-. The Board considered Ext.R3(b) report of the Chief Engineer and fixed Rs.5,000/- plus 18% GST, per day, as ground rent with 1,50,000/- as security deposit, vide Ext.R3(c) proceedings dated 06.08.2022. The fixation of ground rent in Ext.R3(b) report of the Chief Engineer and Ext.R3(c) proceedings of the 3rd respondent Travancore Devaswom Board is based on the guidelines appended to Ext.R3(a) Government Order, i.e., G.O.(Rt.)No.269/2016/PWD dated 05.02.2016, which is the revised guidelines for fixing the rate of rent of the building taken for accommodating Government offices. In that context, the said guidelines prescribes the method of calculation of rent of building portion and rent of land portion. The method of calculation of rent of land portion contained in the guidelines annexed to Ext.R6(a) Government Order has absolutely no application, when 1 Acre Devaswom land on a prime location is given on ground rent basis for conducting exhibitions, fairs, etc.
during festival season. It is for the Joint Director, Kerala State Audit Department to consider the said aspect in the statutory audit of Sanghumugham Devaswom, for the year 2022.
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32. As already noticed hereinbefore, the photographs placed on record as Ext.P2 would show the state of affairs in front of Sanghumugham Devi Temple, when the amusement park was conducted by the 5th respondent during Onam festival of the year 2022, from 22.08.2022 till 20.09.2022. The 3rd respondent Travancore Devaswom Board, which has statutory duty under Sections 15A and 31 of the Act to see that the regular traditional rites and ceremonies according to the practice prevalent in Sanghumugham Devi Temple are performed promptly; to establish and maintain proper facilities in Sanghumugham Devi Temple for the devotees; and to arrange for the conduct of the daily worship and ceremonies and of the festivals in Sanghumugham Devi Temple according to its usage, should not permit any activity in the Devaswom land, adversly affecting the conduct of daily worship and ceremonies in the said temple according to its usage. Even in a case in which such activity can be undertaken in the Devaswom land, without adversely affecting the conduct of daily worship and cermenonies in the temple according to its usage, while fixing ground rent of the Devaswom land, the 3rd respondent Travancore Devaswom Board and its
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officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. In such transactions, they have to ensure that fixation of ground rent of the Devaswom land is strictly in accordance with the law laid down by this Court in T.Krishnakumar [2022 (5) KHC SN 8 : 2022 (4) KLT 798] and Abu K.S. [2022 SCC OnLine Ker.1642] and H.N.Vijayan [2022/KER/50584].
In the result, this writ petition is disposed of with the directions contained hereinbefore. Registry shall communicate a copy of this judgment to the Deputy Director, Kerala State Audit Department, for necessary action.
Sd/- ANIL K. NARENDRAN, JUDGE
Sd/- P.G. AJITHKUMAR, JUDGE
AV/20/2
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APPENDIX OF WP(C) 29243/2022
PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOGRAPHS SHOWING NAME BOARD OF THE AMUSEMENT PARK UNDER THE NAME AND STYLE "D J AMUSEMENTS".
Exhibit P2 THE PHOTOGRAPH SHOWING THE RUSH OF PEOPLE AT THE GATE AND THE BOARD COVERING THE FIGURE OF 'DWARAPALAKA".
RESPONDENTS’ EXHIBITS:
EXT.R3(a) TRUE COPY OF G.O.(RT)NO.269/2016/PWD DATED 05.02.2016 RELIED ON FOR FIXING THE RENT.
EXT.R3(b) TRUE COPY OF THE REPORT OF THE CHIEF ENGINEER, TRAVANCORE DEVASWOM BOARD, DATED 5.8.2022 EXT.R3(c) TRUE COPY OF THE PROCEEDINGS OF THE TRAVANCORE DEVASWOM BOARD, R.O.C.NO.5292/22/MIS 2 DATED 06.08.2022