Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 26TH DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944 W.P.(C)NO.33998 OF 2022 PETITIONER:
SHEENA M.S., AGED 41 YEARS, W/O.SURESH P.K., PANTHALANGATTIL HOUSE, KUNDANNOOR P.O., THALAPILLY TALUK, THRISSUR DISTRICT, PIN – 680 590
BY ADVS.
BABU S. NAIR SMITHA BABU P.A.RAJESH SHAMSEERA. C.ASHRAF JINU ANTONY HANAN ASHARAF RESPONDENTS:
1 THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS COMMISSIONER, DEVASWOM COMMISSIONER OFFICE, NANTHANCODE, THIRUVANANTHAPURAM PIN – 695 003 THE DESCRIPTION OF THE R1 IS SUO MOTU CORRECTED AS PER ORDER DATED 26.10.2022 AS:
TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM, PIN- 695 003.
2 THE EXECUTIVE OFFICER, TRAVANCORE DEVASWOM BOARD, SABARIMALA DEVASWOM, PATHANAMTHITTA DISTRICT, PIN - 689662
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3 THE ADDITIONAL DISTRICT MAGISTRATE, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT PIN – 680003 4 ADDITIONAL R4 IMPLEADED THE COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM, PIN – 695 003 ADDITIONAL R4 IS SUO MOTU IMPLEADED BY THE ORDER DATED 26.10.2022
BY ADV GOVERNMENT PLEADER
OTHER PRESENT:
SRI S. RAJMOHAN - SR. GOVERNMENT PLEADER ;
SRI G. BIJU - SC-TRAVANCORE DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Anil K. Narendran, J.
The petitioner, who is the holder of Ext.P2 licence in Form LE-1 issued by the Additional District Magistrate, Thrissur, under the provisions of the Explosive Rules, 2008, which is one issued on 28.12.2013, participated in the re-e- tender pursuant to the notification issued by the Additional 4th respondent Devaswom Commissioner, for the kuthaka item ‘Vedi Vazhipadu’ in Sabarimala Devaswom (Item No.6 in the re-e-tender notification) during Mandala-Makaravilakku Maholsavam, Maasapooja and Medavishu of the year 1198 ME (from 01.11.2022 till 31.10.2023). The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1st respondent Travancore Devaswom Board and the 2nd respondent Executive Officer of Sabarimala Devaswom not to proceed with the re-tendering of that Vazhipadu item based on Ext.P7 re-e-tender notification dated 18.10.2022 issued by the additional 4th respondent Devaswom Commissioner; a writ of mandamus commanding respondents 1, 2 and the additional 4th respondent to give right to the petitioner to conduct ‘Vedi Vazhipadu’ at Sabarimala Devaswom, as the petitioner being
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the highest bidder for the year 1198 ME (2022-23), after accepting the bid amount; and a writ of mandamus commanding the 3rd respondent Additional District Magistrate, Thrissur to issue the petitioner licence in Form LE-2 of the Explosive Rules, 2008, based on Ext.P6 application dated 17.10.2022. The document marked as Ext.P8 is the general conditions, which forms part of the e-tender notification issued by the additional 4th respondent Devaswom Commissioner, inviting e-tenders for various kuthaka items in Sabarimala Devaswom for the year 1198 ME (from 11.11.2022 till 31.10.2023).
2.
According to the petitioner, in the re-e-tender conducted by the additional 4th respondent on 12.10.2022, the petitioner quoted the highest bid for Rs.5,28,528/- and including GST, the petitioner has to pay an amount of Rs.6,23,663/-. The grievance of the petitioner is that, instead of accepting the said highest bid, the additional 4th respondent Devaswom Commissioner issued Ext.P7 re-e- tender notification dated 18.10.2022, in respect of various kuthaka items in Sabarimala, Pamba and Nilakkal, including ‘Vedi Vazhipadu’ in Sabarimala Devaswom, which according to the petitioner is per se arbitrary, illegal and unsustainable.
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3.
Today, when this writ petition came up for admission, as item No.104 in the forenoon, we have directed the learned Standing Counsel for Travancore Devaswom Board to get instructions as to the auction amount for the kuthaka item ‘Vedi Vazhipadu’ in Sabarimala Devaswom for the previous years, prior to the restrictions imposed on account of Covid-19 pandemic, and the matter was directed to be listed at 02:00 p.m.
4.
Heard the learned counsel for the petitioner and also the learned Standing Counsel for Travancore Devaswom Board for the respondents.
5.
The learned Standing Counsel for Travancore Devaswom Board, on instructions, would submit that the highest bid for the kuthaka item ‘Vedi Vazhipadu’ in Sabarimala Devaswom for the year 2016-17 was Rs.16,00,000/-. For the year 2017-18, it was Rs.16,25,000/-.
In the year 2018-2019, in the absence of licensed bidders, no auction was conducted. In the auction for the 2019-20, the highest bid was for Rs.4,20,000/-. No auction was conducted in the year 2020-21 due to Covid-19 restrictions. In the auction conducted for the year 2021-22, during Covid-19 restrictions, the highest bid was for Rs.3,90,000/-.
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6.
The submission made by the learned counsel for the petitioner is that in the re-e-tender for the Kuthaka item ‘Vedi Vazhipadu’ in Sabarimala Devaswom, for the year 2022- 23, the petitioner offered Rs.5,28,528/-, which is above the highest bid of Rs.4,20,000/- for the year 2021-20 and Rs.3,90,000/- for the year 2021-22. Therefore, the additional 4th respondent Devaswom Commissioner committed a grave irregularity in ordering re-tender and issuing Ext.P7 re-e- tender notification dated 18.10.2022, as per which the last date for submission for tender is on 27.10.2022 at 11:00 a.m.
and the opening of the tender is on 28.10.2022 at 11:00 a.m.
7.
We notice that, during previous years, there were restrictions in the number of pilgrims permitted to have darshan at Sabarimala Sannidhanam, by limiting the number of devotees per day. Such restrictions were lifted to certain extent during the end of the pilgrim season of 1197 ME, based on various directions issued by this Court in DBP.No.13 of 2021 and connected matters. By the end of that pilgrim season the number of devotees permitted to have darshan per day was raised upto 60,000. Now, no such restrictions are there at Sabarimala and pilgrims without any such restrictions are permitted Sabarimala darshan, through Virtual-Q
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platform, which is now managed by the Travancore Devaswom Board based on the orders of this Court in DBP.No.13 of 2021. When the auction amounts for the years 2016-17 and 2017-18 were Rs.16,00,000/- and Rs.16,75,000/- respectively, the additional 4th respondent Devaswom Commissioner cannot be found fault with in issuing Ext.P7 re-e-tender notification, since the highest bid amount for the year 1198 ME is only Rs.5,28,528/- for ‘Vedi Vazhipadu’ in Sabarimala Devaswom.
8.
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 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.
9.
Clause (a) of Section 2 of the Act defines the term ‘Board’ to mean the TDB constituted under Chapter II of the Act in accordance with the covenant. Clause (c) of Section 2
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defines the term ‘incorporated Devaswoms’ to mean the Devaswoms mentioned in Schedule I, and ‘unincorporated Devaswoms’ to mean those Devaswoms including Hindu Re- ligious Endowments whether in or outside Travancore which were under the management of the Ruler of Travancore and which have separate accounts of income and expenditure and are separately dealt with. Sabarimala Devaswom is an incor- porated Devaswom mentioned in Schedule I of the Act, under Chengannur Group, Pathanamthitta Taluk.
10. 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 Section 15A, it shall be the duty of the Board to per- form the following functions, namely, (i) to see that the reg- ular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly;
(ii) to monitor whether the administrative officials and em- ployees 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 es- tablish and maintain proper facilities in the temples for the devotees. Section 16 of the Act deals with supervision and
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control by the Board. As per Section 16, the Board shall, sub- ject 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.
11. 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 incorpo- rated and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festi- vals in every temple according to its usage.
12. Under the provisions of the Act, the Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in Sabarimala are per- formed promptly; to monitor whether the administrative offi- cials and the employees, and also the employees connected with religious rites are functioning properly; and to establish and maintain proper facilities in Sabarimala for the devotees.
Subject to the provisions of Part I of the Act and the Rules made thereunder, the Board shall manage the properties and affairs of Sabarimala Devaswom and arrange for the conduct
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of the daily worship and ceremonies and of the festivals in Sabarimala according to the usage.
13. In M.V.
Ramasubbiar v. Manicka Nara- simachara [(1979) 2 SCC 65], in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court ex- plained 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 pru- dent man of business would conduct his own affairs. A trustee could not therefore occasion any loss to the Trust and it is his duty to sell the property, if at all that was necessary, to best advantage. Paragraph 4 of that decision reads thus;
“4. There is some controversy on the question whether Defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs.21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs.
21,500, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed
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Ext.B13 dated July 14, 1960. The fact, however, re- mains that Defendant 1 was the trustee of the prop- erty, 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 enti- tled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not al- lowed to put himself in any such position in which a conflict may arise between his duty and personal in- terest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the pro- hibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee.
It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee's partner or son, for that would, in fact and substance, indirectly benefit the trustee. Where therefore a trustee makes the sale of a property belonging to the trust, without
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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 im- portant aspect of the law although it had a direct bear- ing on the controversy before it.” (underline supplied) 14. In Ram Mohan Das v. Travancore Devaswom Board [1975 KLT 55] a learned Single Judge of this Court held that under Section 31 of the Travancore-Cochin Hindu Religious Institutions Act the Travancore Devaswom Board shall manage the properties and affairs of the Devaswoms, both incorporated and unincorporated and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. The position of the Board in regard to the Devaswoms - incorporated and unincorporated - is analogous to that of trustees. Any improper act of the Trustees could be questioned by a worshipper.
15. In Rajani P. Kuttan v. State of Kerala [2021 (6) KHC 513] a Division Bench of this Court noticed
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that among the 1250 Temples managed by the Travancore Devaswom Board, only 60 major Temples are self-suffi- cient and the rest are being managed utilising the surplus in- come from Sabarimala Devaswom. The total number of sanc- tioned posts in various categories in the Travancore Devas- wom Board is 5692 and the total number of pensioners is 5749. The major source of revenue of the Travancore Devas- wom Board is the income received by way of offering by the devotees, the amount received from V azhipadu and the rev- enue generated through the auction of temple premises for various activities in connection with rituals and festivals in the Temples. Paragraph 59 of the said decision reads thus;
“59. The Financial position of the Devaswom Board:- The competent officer of the Devaswom Board filed an affidavit dated 14.06.2021 stating its financial posi- tion. It is submitted that there are 1250 temples under the Administrative Control of the Devaswom Board.
The total number of sanctioned posts in various cate- gories in the Devaswom Board is 5692, and the total number of pensioners is 5749. It is further submitted that the major sources of revenue of the Devaswom Board are the income received by way of offerings from devotees, the amount received from V azhipadu, and the revenue generated through the auction of the temple premises for various activities in connection with rituals and festivals in the temples. Besides this,
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the Devaswom Board gets an approximate sum of 14 crores per annum by way of the rent of the buildings owned by it. The annual contribution from the State Government under Article 290A of the Constitution of India is Rs. 80 lakhs. It is further submitted that among the 1250 temples managed by the Devas- wom Board, only 60 major temples are self-sufficient, and the rest are being managed utilising the surplus income from Sabarimala Devaswom. Now, due to the spread of the Covid-19 pandemic, the temples remain closed, and the major source of income has come down. The Devaswom Board is finding it difficult even to pay the salary of the existing employees. The plead- ings regarding the financial position of the Devaswom Board in the affidavit dated 14.06.2021 have not been controverted by the petitioners.” (underline supplied) 16. In Abu K.S. v. Travancore Devaswom Board and others [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 Ay- manam Sri Narasimha-swami Auditorium (sadyalayam) con- structed 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.
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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 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.
17. In T. Krishnakumar v. Cochin Devaswom Board [2022 (4) KLT 798 : 2022 (5) KHC SN 8] 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. [2022 SCC OnLine Ker 1642], relying on the decision of the Apex Court in M.V. Ramasubbiar [(1979) 2 SCC 65], while leasing out the buildings owned by the Devas- woms, the Cochin Devaswom Board and its officials have to
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ensure that proper income is generated from the said build- ings. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary pru- dent man of business to conduct his own affairs. The action of the Board as a trustee cannot be equated to that of a mere landlord. The best interest of the Devaswoms under the con- trol of the Board would be subserved only if income is gener- ated.
18. In Suneesh K.S. v. Travancore Devaswom Board [ILR 2022 (1) Ker. 1091 : 2022 SCC OnLine Ker 611] this Court noticed that, as per clause (8) of the tender conditions, the Travancore Devaswom Board has the right to cancel the bid of successful bidders who failed to remit the entire amount within the time stipulated by the Board and to conduct re-auction. In which event, the original bidder will be responsible for the loss, if any, sustained by the Board. As per clause (10) of the tender conditions, the successful bidder will be liable to pay 18% interest for belated remittance of instalments. In case of default in remitting the said amount, i.e., defaulted instalments together with 18% interest, the Board will have the right to initiate appropriate legal proceed- ings against the bidder for recovering the loss caused to it.
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As per clause (12) of the tender conditions, in case the bidder has defaulted payment of bid amount in any manner, which has resulted in the Board sustaining loss, the Board shall have the right to proceed against the movable and immovable properties of the bidder for recovering the said loss. Proceed- ings under clause (23) of the tender conditions shall also be initiated against such defaulters, for black-listing.
19. In view of the law laid down in the decisions referred to supra, while auctioning kuthaka rights in Sabarimala Devaswom, the Travancore Devaswom Board and its officials have to ensure that proper income is generated in such auctions. While conducting such auctions, 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. As laid down in the decisions referred to supra, the best interest of the Devaswoms under the control of the Travancore Devaswom Board would be subserved only if proper income is generated in the auction of kuthaka rights.
In that view of the matter, we find no reason to interfere with Ext.P7 re-e-tender notification issued by the additional 4th respondent Devaswom Commissioner, who shall proceed with the said notification further.
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20. The provisions under Section 15A and Section 31 of the Travancore-Cochin Hindu religious Institutions Act referred to hereinbefore cast a statutory duty on the Travancore Devaswom Board to see that regular traditional rites and ceremonies according to the practice prevalent in Sabarimala are performed promptly and to arrange for the conduct of daily worship and ceremonies and of the festivals in Sabarimala Temple according to its usage. Therefore, the Board has to make necessary arrangements for the conduct of ‘Vedi Vazhipadu’ in Sabarimala Devaswom, in discharge of its statutory duty. In case there is any cartel formation among the bidders, it is for the Board and its officials to deal with such issues appropriately in order to ensure that proper income is generated by auctioning that kuthaka right.
In the result, the challenge made in this writ petition against Ext.P7 re-e-tender notification issued by the additional 4th respondent Devaswom Commissioner, insofar as it relates to ‘Vedi Vazhipadu’ in Sabarimala Devaswom, fails. The writ petition is accordingly dismissed, leaving open the legal and factual contentions raised by the petitioner. The additional 4th respondent shall proceed with Ext.P7 re-e- tender notification, strictly in terms of the eligibility criteria
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prescribed in the e-tender notification originally issued and Ext.P8 general conditions, which forms part of that notification, and keeping in mind the law laid down in the decisions referred to supra.
Sd/- ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
MIN
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APPENDIX OF WP(C) 33998/2022
PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ORDER DATED 21-2- 2022 OF THE 3RD RESPONDENT Exhibit P2 TRUE COPY OF THE LE-1 LICENCE ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT Exhibit P3 A TRUE COPY OF THE BID ACKNOWLEDGMENT AND BID SUBMISSION CONFIRMATION DATED, 11-10-2022 Exhibit P4 A TRUE COPY OF THE PRICE SCHEDULE SUBMITTED BY THE PETITIONER Exhibit P5 A TRUE COPY OF THE POWER OF ATTORNEY ISSUED BY THE PETITIONER DATED, 18- 10-2022 Exhibit P6 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED, 17-10-2022 Exhibit P7 A TRUE COPY OF THE NOTIFICATION ISSUED BY THE FIRST RESPONDENT DATED, 18-10-2022 FOR RE-TENDER Exhibit P8 A TRUE COPY OF THE GENERAL CONDITIONS OF TENDERS FOR THE PILGRIM YEAR 2022- 23 OF SABARIMALA DEVASWOM