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2019 DIGILAW 150 (KER)

A. Raveendran v. State of Kerala

2019-02-13

N.NAGARESH

body2019
JUDGMENT : 1. The petitioners, who are Non Hereditary Trustees of Kadavathoor Sree Kuroolikkavu Bhagavathi Temple, Thalassery, seek to call for the records leading to Exts.P2 and P3 and to quash all further proceedings in furtherance thereto. The petitioners further seek to declare that the Lok Ayukta has no power or authority to interfere with the administration and conduct of temples controlled and administered under the provisions of the Hindu Religious and Charitable Endowment Act, 1951. 2. The petitioners state that they are appointed as Non Hereditary Trustees of Kadavathoor Sree Kuroolikkavu Bhagavathi Temple pursuant to a notification issued under the provisions of Sections 39 and 41 of the Hindu Religious and Charitable Endowment Act, 1951. According to the petitioners, the Area Committee conducted interview and decided to appoint the petitioners. The petitioners state that the 3rd respondent, who was an applicant to the post of Non Hereditary Trustee, filed Ext.P3 complaint before the Lok Ayukta seeking for a direction to the 2nd respondent-Assistant Commissioner not to appoint any respondent as new Trustee Board members and to restrain other respondents from forming annual festival committee and collecting amounts from the devotees and conducting festivals, without the consent of the Trustee Board. On the said complaint, the Lok Ayukta passed Ext.P2 interim order directing the officials concerned/respondents in the complaint not to collect donations for conducting 'Thira Mahotsavam' or any other festival in the temple unless it is against proper receipts issued by the Malabar Devaswom Board. The Lok Ayukta further ordered that formation of a new Trustee Board for the temple will be subject to further orders to be passed by the Lok Ayukta. The Lok Ayukta also observed that formation of annual festival committee violating the Circular referred to in Ext.P2 order, will be at the risk of the members of the Committee. 3. The petitioners contend that the said Ext.P2 order passed by the Lok Ayukta is beyond the powers of the Lok Ayukta. The complaint of the 3rd respondent is not a 'grievance' as defined under Section 2(h) of the Kerala Lok Ayukta Act, 1999. It is the case of the petitioners that Section 8 of the Act, 1999 excludes the actions challenged, from the purview of the Act. The complaint of the 3rd respondent is not a 'grievance' as defined under Section 2(h) of the Kerala Lok Ayukta Act, 1999. It is the case of the petitioners that Section 8 of the Act, 1999 excludes the actions challenged, from the purview of the Act. If the complainant before the Lok Ayukta is aggrieved by any action of the Area Committee, a revision petition to the Government under Section 99 of the HR & CE Act is the proper remedy. In view of the statutory remedy, Ext.P3 complaint is not maintainable before the Lok Ayukta. Ext.P3 does not contain any allegation of maladministration and for this reason also, the complaint is not maintainable. Violation of the provisions contained in the Circular referred to in Ext.P2 order does not fall within the ambit of the powers of the Lok Ayukta, contend the petitioners. 4. The 2nd respondent-Assistant Commissioner of Malabar Devaswom Board filed a statement in the writ petition. According to the 2nd respondent, the petitioners herein were selected for appointment as Non Hereditary Trustees by the Area Committee, which is the duly constituted statutory body vested with the power of selection of Non Hereditary Trustees. The Lok Ayukta has issued an order directing that the formation of new Trustee Board shall not be carried out until further orders are passed by the Lok Ayukta. In view of the orders of the Lok Ayukta, the 2nd respondent has made an interim arrangement by posting an Executive Officer in the temple giving him additional charge, for smooth conduct of the annual festival 'Thira Mahotsavam'. No committee or person was found collecting money on behalf of the temple. The allegation of the 3rd respondent to the effect that illegal committee was working in the temple violating the existing Circular of the Malabar Devaswom Board was enquired into. No cogent evidence was produced by the complainant. If any committee or individual is found to be collecting money illegally, necessary action will be taken. The impugned interim order of the Lok Ayukta has been passed without hearing the 2nd respondent and it goes against the temple interest in as much as it has been passed at a time when the annual festival 'Thira Mahotsavam' is to be conducted. 5. The 3rd respondent opposed the writ petition filing counter affidavit. The impugned interim order of the Lok Ayukta has been passed without hearing the 2nd respondent and it goes against the temple interest in as much as it has been passed at a time when the annual festival 'Thira Mahotsavam' is to be conducted. 5. The 3rd respondent opposed the writ petition filing counter affidavit. According to the 3rd respondent, a complaint was filed by him pointing out patent violation of Ext.R3(a) Circular. As per Ext.R3(a), a Committee can collect fund from the public only through receipts provided by the Devaswom Board. The petitioners in the writ petition were Trustees of the temple in the previous year also. The Devaswom has no control over the working of parallel committees formed to conduct 'Thira Mahotsavam'. Huge amount of public money are collected without proper records or audit. Several construction works and improvements are carried out by such Committee in Temple land violating the guidelines in Ext.R3(c). The petitioners have approached this Court suppressing material facts. The findings of the Lok Ayukta are based on cogent reasons and is intended to prevent maladministration. 6. Learned counsel for the petitioners argued that the issue pending before the Lok Ayukta is not a matter which can be investigated by the Lok Ayukta, in view of Section 7 of the Act, 1999. The counsel for the petitioners further argued that this is a matter which cannot be subjected to investigation in view of Section 8(3) of the Act. The actions challenged before the Lok Ayukta are statutory actions contemplated under the HR & CE Act. If any person has any grievance regarding those actions, a revisional remedy is provided under Section 99 of the HR & CE Act. Relying on the judgment in State of Kerala v. John Joseph [ 2011 (3) KLT 23 ], the counsel for the petitioners argued that none of the conducts complained of by the 3rd respondent amounts to maladministration as defined under Section 2(k) of the Act, 1999. For all the above reasons, Ext.P2 interim order of the Lok Ayukta is liable to be set aside. 7. The learned counsel for the contesting respondents argued that Ext.P3 complaint shows gross illegalities being perpetuated in the functioning of a temple administration. Unauthorised Committees are running the affairs of the temple. Huge amounts are collected by persons without issuing receipts duly sealed by the Malabar Devaswom Board. 7. The learned counsel for the contesting respondents argued that Ext.P3 complaint shows gross illegalities being perpetuated in the functioning of a temple administration. Unauthorised Committees are running the affairs of the temple. Huge amounts are collected by persons without issuing receipts duly sealed by the Malabar Devaswom Board. Unauthorised constructions are being made in the temple land without any authority. Each of the above acts would amount to maladministration as the 2nd respondent has miserably failed to check the illegalities. It was further argued on behalf of the contesting respondents that what has been passed by the Lok Ayukta is only an interim order which need not be interfered invoking Article 226 of the Constitution of India. 8. I have heard the learned counsel for the petitioners and the respondents and have perused the pleadings. 9. Ext.P3 complaint based on which Ext.P2 interim order has been passed by the Lok Ayukta contains the following allegations:- (i) The affairs of the Sree Kuroolikkavu Bhagavathi Temple are conducted in violation of Circular dated 15.06.2007 issued by the Commissioner of HR & CE. (ii) A number of Committees are working in the temple premises, without any authority. (iii) Buildings are constructed by unauthorised Committees in temple properties without the consent of the Trustee Board. (iv) An unauthorised Annual Festival Committee is collecting huge amount from devotees without any authorisation, using their own receipt. 10. Section 2(k) of the Act, 1999 defines maladministration. The term 'maladministration' is defined to mean action taken or purporting to have been taken in the exercise of administrative functions in any case where there has been wilful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay. Therefore, if the complaints made by the 3rd respondent as stated above are proved to be true, definitely that is an instance of maladministration in as much as the authorities who are duty bound to avert such unauthorised constructions of buildings in the temple premises and to avoid illegal collection of funds in the name of the temple without issuing proper receipts, have neglected to prevent the same. 11. Section 7 of the Act, 1999 provides for the matters which may be investigated by the Lok Ayukta and Upa-Lok Ayukta. 11. Section 7 of the Act, 1999 provides for the matters which may be investigated by the Lok Ayukta and Upa-Lok Ayukta. As per Section 7, the Lok Ayukta or Upa-Lok Ayukta, as the case may be, may also investigate any action which is taken by or with the general or specific approval of any public servant in any case where a complaint involving a grievance or an allegation is made in respect of such actions or such actions can be the subject of a grievance or an allegation. The term 'allegation' as defined in Section 2(b) would include an affirmation that the public servant concerned has abused his position as such public servant to obtain any gain or favour to himself or to any other person. A failure or refusal of an authority to act would also amount to abusing his position. Therefore, if the facts stated in the complaint of the 3rd respondent are proved to be proved, then, the statements contained in the complaint would amount to “allegation” as defined in Section 2(b) of the Act, 1999. 12. Section 8 of the Act, 1999 provides as to the matters which are not to be subjected to investigation by Lok Ayukta. None of the allegations made in the complaint filed by the 3rd respondent will fall under the ambit of Section 8. Therefore, taking into account the nature of the allegations made before the Lok Ayukta, I am of the opinion that the Lok Ayukta has the power or jurisdiction to entertain the complaint. 13. The contention of the counsel for the petitioners that the complainant has an alternate remedy of revision to the Government by way of Section 99 of the HR & CE Act, is also not sustainable. The revisional remedy given by the HR & CE Act and the remedy to approach Lok Ayukta, both are available to the complainant. The complainant will be entitled to choose any of the forum of adjudication, invoking the doctrine of election. The revisional remedy given by the HR & CE Act and the remedy to approach Lok Ayukta, both are available to the complainant. The complainant will be entitled to choose any of the forum of adjudication, invoking the doctrine of election. In a somewhat identical case, when a question arose whether the Lok Ayukta can be approached when a remedy is provided under Section 69 of the Kerala Co-operative Societies Act, this Court in the judgment in Kerala State Co-operative Bank Ltd v. Kerala Lok Ayukta and another [ 2016 (3) KLT 591 ], held that in spite of the availability of a statutory remedy, the Lok Ayukta still has the jurisdiction to interfere with the matter. Therefore, the argument of the petitioners in this regard is also not appealing. Further more, I find that the order impugned in this writ petition is only of an interlocutory nature. The Lok Ayukta has made a preliminary enquiry on the basis of the materials before it and has passed an interim order. The petitioners can very well place the facts, refuting the allegations made by the complainant before the Lok Ayukta and seek for a dismissal of the complaint if the allegations therein are untrue. 14. This writ petition has been filed in the year 2015. For that reason also, I do not deem it necessary to interfere with the interim order of the Lok Ayukta at this distance of time. The petitioners will be getting ample opportunity before the Lok Ayukta to place their defence. In the circumstances, I find no reason to set aside Ext.P2 or to grant other reliefs sought for by the petitioners. Consequently, this writ petition is dismissed. However, it is made clear that I have not expressed anything on the merits of the complaint pending before the Lok Ayukta.