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2016 DIGILAW 42 (KER)

KANTARARU MOHANARU v. TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHENCODE, THIRUVANANTHAPURAM

2016-01-14

ANU SIVARAMAN, THOTTATHIL B.RADHAKRISHNAN

body2016
Judgment Thottathil B.Radhakrishnan, J . 1. The fundamental issue raised for decision is as to whether the petitioner is to be permitted to perform 'Tantric' rites and attendant duties in the Dharma Sastha Temple at Sabarimala; hereinafter, 'temple', for short. The temple is world-famous and its seat is embedded with such glory, sentiments and feelings of crores of believers as is discernible from the different orders issued by this Court, from time to time, relating to the management of the affairs of that acclaimed religious institution. Different issues relating to pre-decisional hearing and jurisdiction of the Travancore Devaswom Board; 'TDB' for short and the Devaswom Commissioner of TDB; for short, 'Commissioner'; are raised challenging the Commissioner's Ext.P1 communication to the petitioner, making reference to TDB's decision dated 31.7.2015 and informing the petitioner that he would not be permitted to perform the duties of a 'Thantri' in the temple. Here and now, we may notice that on its face, the impugned communication, makes reference to TDB's decisions dated 9.4.2012 and 5.11.2013. Through amendment, the petitioner seeks a declaration that he is eligible to perform the duties of a 'Thantri' in the temple and that he is not legally disqualified to perform that activity. The factual backdrop of the challenge will unfold as we proceed. 2. TDB's counter affidavit was criticized on behalf of the petitioner during submissions on 30.10.2015, pointing out that the impugned Ext.P1 does not disclose any reasons while through its counter affidavit, the TDB tries to augment its impugned decision with reasons which are not reflected in it. Thereupon, the TDB has placed on record the decisions dated 9.4.2012 and 5.11.2013 in obedience to this Court's direction to do so. 3. It is argued on behalf of the petitioner that he has been unlawfully deprived of his right to discharge duties as the Thantri on the basis of a false criminal case and that he has been so kept out only in relation to Sabarimala Dharma Sastha temple while he continues to carry out tantram responsibilities in relation to around fifty other temples. It is argued that petitioner's fundamental rights, particularly those discernible with reference to Articles 14, 19, 21 and 25, are violated. It is argued that petitioner's fundamental rights, particularly those discernible with reference to Articles 14, 19, 21 and 25, are violated. More particularly; it is contended that the fundamental ground on which Ext.P1 is to be quashed even at opening instance is that it discloses no reason whatsoever for its making, though it is an administrative decision which visits the petitioner with adverse civil consequences. It is argued that the impugned action results in deprivation of traditional rights in terms of religious tenets, rituals and practices. The decisions of the Hon'ble Supreme Court of India in Commr. of Police v. Gordhandas [ AIR 1952 SC 16 ], Mohinder Singh v. Chief Election Commr. [ AIR 1978 SC 851 ], Gurdial Singh Fijji v. State of Punjab [ (1979)2 SCC 368 ] and Dharampal Satyapal Ltd. v. CCE [ (2015) 8 SCC 519 ] were referred to, to buttress the submission that 'reasons' provide the link to a decision, without which it would be arbitrary; and that, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so stated and cannot be supplemented by fresh reasons, through affidavit or otherwise. It is pointed out that otherwise, a decision, invalid at inception, may be sought to be cured through reasons introduced by supplementation, on the face of the challenge. This is impermissible, it is argued. The arrangement of distribution of tantric responsibilities between the two branches of Thazhamon Madom is pointed out to argue that the petitioner, who belongs to one of the two branches, is being individually isolated from carrying out tantric rites and functions. This amounts to unconstitutional exclusion from performing legitimate and fundamental rights relatable to Article 25 of the Constitution, it is argued. In this regard, reliance is sought to be made on the decision of the Apex Court in Adi Saiva Siovachariyargal Nala Sangam & Ors. v. The Government of Tamil Nadu & Anr. [judgment dated 16.12.2015 in W.P.(C) Nos.354, 355, 383 and 384, all of 2006] and on the judgment of this Court in Vasudevan Bhattathirippad v. Mallapally Thirumalida Mahadeva Temple [ILR 2014(4) Ker. 389]. 4. v. The Government of Tamil Nadu & Anr. [judgment dated 16.12.2015 in W.P.(C) Nos.354, 355, 383 and 384, all of 2006] and on the judgment of this Court in Vasudevan Bhattathirippad v. Mallapally Thirumalida Mahadeva Temple [ILR 2014(4) Ker. 389]. 4. Per contra, the learned counsel for TDB argued that Ext.P1 communication of the Commissioner refers to TDB's decision dated 31.7.2015 which, in turn, refers to the earlier decisions of TDB rendered on 9.4.2012 and 5.11.2013; and that, the reference made to those decisions is sufficient enough to communicate to the petitioner the reason for his exclusion, which is not an immediate event but one that continues ever since from sometime in 2012 when the petitioner was involved in an incident that led to a criminal case; and from then onwards, the petitioner is well aware of the one and only reason why he stands excluded from performing the tantric rites in the temple. He further pointed out that the materials in this writ petition, by themselves, disclose that TDB had decided even earlier, that it would not permit the petitioner to act as Thantri or even to assist his father in the temple on the aforementioned factual situation, in view of the criminal proceedings, and that this Court had passed orders clearly holding that in the first instance, it is within the domain of TDB to decide as to whether it would permit the petitioner to officiate as Thantri. 5. It was recorded in the order dated 11.4.2012 in WPC.No.30982 of 2011 that TDB may reconsider the issue after the termination of the criminal proceedings in which the petitioner is shown as the victim. This Court stated in that order that it does not express anything on the fact situation that would be obtained as a result of, either the conviction or the acquittal of the accused in that case. 6. A revision under Section 397 of Crl.P.C. is now pending before this Court, as Crl.R.P.No.978 of 2015, at the instance of Sobha John who was convicted in the aforenoted criminal case. We called for that file and noticed its pendency. Her conviction was affirmed in an appeal in the Sessions Division and the revision we have noted is pending against her conviction and sentence. We called for that file and noticed its pendency. Her conviction was affirmed in an appeal in the Sessions Division and the revision we have noted is pending against her conviction and sentence. Being judgments of criminal Courts and because of the pendency of the revision, we dissuade ourselves from stating anything further regarding the matters in issue in those proceedings, though we have deciphered for ourselves the nature of allegations and the basic substratum of that criminal case. As of now, it would be improper for us to make any assessment of the conduct of the petitioner on the basis of the facts, accusations and findings in the criminal case. We leave that matter here. 7. Ext.P1 was issued by the Commissioner. It makes reference to TDB's decision dated 31.7.2015 which is at sl.no.4 in Ext.P1. That communicates the decision that TDB is not prepared to deviate from its prior decisions taken on 9.4.2012 and 5.11.2013. It is obvious that the petitioner is aware of the contents and impact of those earlier decisions of TDB since from those days he had not been discharging the rites and functions as Thantri of the temple. Therefore, when Ext.P1 is issued making reference to TDB's decisions, including the earlier ones; and without stating anything further, it is explicit that the reasons which led to the prior decisions of TDB are facts and factors which have to be reasonably and prudently inferred as being within the knowledge of the petitioner in the common course of human conduct, more particularly when he had been kept out of the opportunity to discharge duties of Thantri of temple from 2012 or even much before that, when he was not allowed to assist his father in connection with tantram rites in that temple. Even going by petitioner's own showing, through his pleadings and exhibits, there is no reason on the basis of which he has been excluded, except the one referable to his conduct leading to the matters in issue in the criminal case which is now pending in this Court in a revision under Section 397 Crl.P.C., as against the conviction and sentence of Sobha John. 8. 8. Of critical importance in the holistic and inclusive domain; we are inclined to refer to some among the different orders issued by this Court touching the exclusion of the petitioner from carrying out the tantric rites and functions in the temple. Ext.P4 order was rendered by this Court on 25.9.2007 in DBA.No.59 of 2007, making reference to the allegations that led to the registration of the criminal case referred to above. As is discernible from paragraphs 6 and 7 thereof; after perusing the case diary of the criminal case; this Court held that, taking into consideration the religious feelings and sentiments of crores of devotees, it would be in public interest, that the petitioner be kept away from performing tantric rites at Sabarimala till the controversy dies down. The stand taken by TDB to keep the petitioner away from performing tantric rites was then held as one not with any mala fide intention to oust the powers of the petitioner's father or due to any ill-feeling towards the son, who is the petitioner before us and that TDB's stand was only one respecting the sentiments and feelings of crores of devotees who come to Sabarimala for offering prayers and to receive blessings from the Santhi and Thantri of the temple. This Court then held that it is in the best interest of the world famous temple that TDB felt that the petitioner herein shall be kept away from performing tantric rites, even along with his father till the issues finally settle down. The nature of the allegations which led to the registration of the criminal case against the petitioner is reflected through that order dated 25.9.2007 rendered by the Division Bench of this Court in DBA.No.59 of 2007. 9. What are 'reasons' for a decision? How are they to be expressed? How are they to be communicated to the person who may be aggrieved by the decision? When the decision affects a particular person, the reasons for that decision have to be stated. That decision and the reasons for it are dependent on the facts which are relevant to arrive at the decision in question. The decision has to be expressed in a manner which communicates it to the recipient. If it is adverse to the recipient, the decision has to contain the reasons for such adverse decision. That decision and the reasons for it are dependent on the facts which are relevant to arrive at the decision in question. The decision has to be expressed in a manner which communicates it to the recipient. If it is adverse to the recipient, the decision has to contain the reasons for such adverse decision. The content of a decision is to be coupled with the reasons for that decision, when it is communicated to a person who is likely to be adversely affected by the process of decision- making which has resulted in such a decision. Hence, the question whether a decision which is adverse to a person is supported by reasons and whether the decision and the reasons therefor have been effectively communicated to the person who would be affected by the decision are primarily, and fundamentally, a question of fact. There can be no cut and dried jurisprudential formula which can be applied to all instances of decision-making process and communication of the reasons and the decision that would affect a person. Hence, the factual matrix of a decision; the reasons for that decision; the manner in which those reasons and the conclusion have been expressed and communicated to the person who may be affected by such decision; are essentially; facts-centric, issues-centric and situation- centric. This conclusion that we deduce here, is more fundamentally applicable to administrative decisions of the nature of the one which we are dealing with; which are primordially in the realm of what we may call as an admixture of non- statutory and statutory administrative decision- making process that would have a bearing on the management of critical issues relating to religious institutions where practice of religion, and, adherence to faith and rituals, have to be honoured to the extent they are in consonance with the constitutional and consequential statutory regulatory measures. 10. In the factual matrix of the case in hand; and, in view of the legal principles deduced herein above, we are unable to hold that the impugned decision has been rendered without disclosing its reasons. The reasons for issuance of Ext.P1 are explicit on its face and are clearly reflected therein. Those reasons are nothing but replicate and reverberation of the earlier consistent stand of TDB, against permitting the petitioner to perform the tantric rites and duties in the temple; or even to assist his father; in doing so. The reasons for issuance of Ext.P1 are explicit on its face and are clearly reflected therein. Those reasons are nothing but replicate and reverberation of the earlier consistent stand of TDB, against permitting the petitioner to perform the tantric rites and duties in the temple; or even to assist his father; in doing so. That view of the matter and the decisions so rendered honouring the will and faith of the devotees; has run prevailing and permeating the field of the matter for quite an extent of time, with the petitioner being particularly aware of the one and only one reason for TDB's such stand; to wit, his conduct in connection with the matter that led to the criminal case; be he the accused or victim. The materials on record in this case and as part of the records of this Court, through various proceedings issued with reference to the larger issues in relation to the matter in hand, clearly show; with no shadow of doubt, to any human mind of ordinary and common prudence that the petitioner is certain of the one and only ground on which TDB had decided against him; and that it is that what has been communicated to him by the Commissioner through Ext.P1. 11.Remember here; this is not merely a matter revolving on administrative law issues; but, more fundamentally relating to religion and faith, which involves inexcusably expected high degree of adherence to values. This we say here and now because we visualize that this value based rendition of justice, which is imminently and abundantly required, appears to have prompted the learned Justices in delivering the order dated 25.9.2007 in DBA.No.59 of 2007. We are of the firm view that the said decision is in conformity with the core constitutional values of truth, righteousness and sublimity. That is only to be honoured. 12. Be that as it may, without forgetting our earlier indication that we excuse ourselves from speaking anything on the contents of the criminal court proceedings and the findings etc. in that jurisdiction, we think that it would be just and reasonable that TDB extends an opportunity of personal hearing to the petitioner in the matter after all the proceedings in the criminal case are finally terminated. in that jurisdiction, we think that it would be just and reasonable that TDB extends an opportunity of personal hearing to the petitioner in the matter after all the proceedings in the criminal case are finally terminated. We hold so, having taken into consideration all the relevant factors, including the petitioner's version of his conduct; which, of course, is pending consideration in the criminal revision petition noted above. Even if the petitioner is the victim in the eye of the penal laws, there may be an institutional need to assess his conduct to ultimately decide on his claim for opportunity to perform the rites and duties of the 'Thantri' of the Dharma Sastha Temple at Sabarimala. But, that cannot be done now as the criminal case is pending; as of now, in a statutory revision at the instance of an accused. 13. Also taking note of the consistent stand of TDB during the previous years, we are unable to hold that the impugned order is vitiated as if it is one rendered in violation of pre-decisional hearing. We repel that plea. 14. For the aforesaid reasons, we are of the view that though Ext.P1 does not call for any interference in writ jurisdiction, in the light of the aforesaid, the petitioner could be given an opportunity of hearing on the issue by TDB after final termination of the criminal case referred to above and following such hearing, TDB could take a decision as to whether the petitioner is to be permitted to perform duties and rites of Thantri of the temple. This decision making process shall be carried out by TDB taking comprehensive stock of all relevant facts, factors and materials that may be relevant, and not merely depending on its earlier views; but only after the final termination of the criminal case noted above. In the result, repelling the challenge as against Ext.P1 and sustaining TDB's decision referred to therein, this writ petition is ordered directing TDB to afford the petitioner an opportunity of hearing and take an appropriate decision in the light of all what are stated in this judgment, on any request that the petitioner may make, to permit him to perform duties and rites of Thantri of Sabarimala Dharma Sastha temple; after the final determination and disposal of the criminal case referred to herein above and the proceedings thereupon.