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2024 DIGILAW 168 (KER)

Kochukunju v. Malabar Devaswom Board

2024-02-08

ANIL K.NARENDRAN, G.GIRISH

body2024
JUDGMENT : Anil K. Narendran, J. The petitioners are the devotees of Sree Valliyoorkavu Devi, the main deity of Sree Valliyoorkavu Devi Temple in Wayanad District, which is a controlled institution under the 1st respondent Malabar Devaswom Board - Sl.No.33 in List A in Appendix I in notification No.HR 3/5691/93 dated 15.02.1994 issued by the Commissioner of erstwhile the Hindu Religious and Charitable Endowments (Administration) Department, Government of Kerala. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 2, namely, Malabar Devaswom Board and its Commissioner, to take appropriate disciplinary and remedial action as envisaged under Sections 20, 39 and 45 of the Madras Hindu Religious and Charitable Endowments Act, 1951 against respondents 4 to 6, after a full-fledged enquiry, keeping away the 4th respondent hereditary trustee and the 5th respondent non-hereditary trustee from the office, re-compensating the loss sustained to Sree Valliyoorkavu Devaswom from respondents 7 and 8, the Kuthaka holders in connection with the annual temple festival-2022, who have defaulted payments, and directing the 3rd respondent Executive Officer of Sree Valliyoorkavu Devaswom to withdraw all funds and deposits of the Devaswom from the Co-operative Societies/Banks/Institutions and redeposit the same in some Nationalised Banks, in order to secure the Devaswom funds. 2. In the writ petition, it is alleged that due to the illegalities and irregularities committed by respondents 4 and 5, with the help of the 6th respondent, who was the then Executive Officer of Sree Valliyoorkavu Devaswom, favouring respondents 7 and 8, the Kuthaka holders in connection with the annual temple festival-2022, who have defaulted payments, there occurred a loss of more than 25 lakhs to the Devaswom, in connection with Ulsavam-2022 exhibition, trade fair and ‘chantha lelam’ and also depositing Devaswom funds in Co-operative Societies, and institutions, interested by the Trustees. 3. On 23.12.2022, when this writ petition came up for admission, this Court admitted the matter on file. The learned Standing Counsel for Malabar Devaswom Board took notice for respondents 1 and 2. This Court issued notice by speed post to respondents 3 to 8 returnable within two weeks. The learned Standing Counsel for Malabar Devaswom Board was directed to get instructions. 4. Respondents 4 and 5 have filed a counter affidavit dated 15.02.2023, producing therewith Exts.R4(a) to R4(e) documents, opposing the reliefs sought for in this writ petition. This Court issued notice by speed post to respondents 3 to 8 returnable within two weeks. The learned Standing Counsel for Malabar Devaswom Board was directed to get instructions. 4. Respondents 4 and 5 have filed a counter affidavit dated 15.02.2023, producing therewith Exts.R4(a) to R4(e) documents, opposing the reliefs sought for in this writ petition. The 6th respondent has filed a counter affidavit dated 31.05.2023, producing therewith Ext.R6(a) letter dated 11.08.2022. The 8th respondent has filed a counter affidavit dated 23.06.2023. The 7th respondent has filed a counter affidavit dated 09.07.2023. The petitioner has filed a reply affidavit dated 24.09.2023. The 3rd respondent Executive Officer has filed a counter affidavit dated 11.10.2023, producing therewith Exts.R3(a) to R3(b) documents. 5. On 11.10.2023, when this writ petition came up for consideration, the State of Kerala, represented by the Chief Secretary to Government; the Principal Secretary to Government, Revenue (Devaswom) Department; the Secretary to Government, Department of Co-operation; the Registrar of Co-operative Societies; the Director, Kerala State Audit Department; and the Deputy Director, Local Fund Audit, Malabar Devaswom Board Audit were impleaded as additional respondents 9 to 14. The learned Standing Counsel for Malabar Devaswom Board sought time to get instructions on the action, if any, taken by the 2nd respondent Commissioner on Ext.P4 report dated 15.10.2022 of the Assistant Commissioner in which the irregularity in Sree Valliyoorkavu Devaswom maintaining fixed deposits in Co-operative Societies was specifically pointed out. The 2nd respondent Commissioner was directed to explain the circumstances in which the Devaswom funds of the controlled institutions are permitted to be deposited in Co-operative Societies, including Co-operative Societies in which the non-hereditary trustee(s) of the respective Devaswoms are the director(s). 6. On 14.12.2023, the learned Standing Counsel for Malabar Devaswom Board filed I.A.No.4 of 2023 seeking an order to accept Exts.R2(a) Decision No.71 taken by the Malabar Devaswom Board in its meeting held on 17.10.2023 and R2(b) Circular No.H.7/3309/2022/MDB dated 18.10.2023 issued by the Commissioner, Malabar Devaswom Board as additional documents. 7. Heard the learned counsel for the petitioners, the learned Standing Counsel for Malabar Devaswom Board for respondents 1 and 2 and the respective counsel for respondents 3, 4, 5, 6, 7 and 8 and also the learned Senior Government Pleader for additional respondents 9 to 14. 8. 'Deva' means God and 'swom' means ownership in Sanskrit and the term 'Devaswom' denotes the property of God in common parlance. 8. 'Deva' means God and 'swom' means ownership in Sanskrit and the term 'Devaswom' denotes the property of God in common parlance. (see: Prayar Gopalakrishnan and another v. State of Kerala and others - 2018 (1) KLT 478 = 2018 (1) KHC 536 ) 9. 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 the best advantage. Paragraph 4 of that decision reads thus; “4. There is some controversy on the question whether defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs.21,500, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed Ext.B13 dated July 14, 1960. The fact, however, remains that Defendant 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the trust and it was his duty to sell the property, if at all that was necessary, to best advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It 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 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) 10. In A.A. Gopalakrishnan v. Cochin Devaswom Board ( 2007 (4) KLT 965 (SC) = (2007) 7 SCC 482 ) a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archakas/shebaits/employees. In A.A. Gopalakrishnan v. Cochin Devaswom Board ( 2007 (4) KLT 965 (SC) = (2007) 7 SCC 482 ) a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards, require 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 ‘fence eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and 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 wrongful claims or misappropriation. 11. In Travancore Devaswom Board v. Mohanan Nair ( (2013) 3 KLT 132 ) a Division Bench of this Court noticed that in A.A. Gopalakrishnan ( 2007 (4) KLT 965 (SC) = (2007) 7 SCC 482 ) a Three-Judge Bench of 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 Division Bench further noticed that 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 is the guardian of the deity and apart from the revisional jurisdiction under Section 103 of the Kerala Land Reforms Act, 1963, the High Court has inherent jurisdiction and the doctrine of parens patriae will also apply in exercising the jurisdiction. 12. Sree Valliyoorkavu Devi Temple is a controlled institution under the Malabar Devaswom Board, which is a listed temple (Sl.No.33 in List A in Appendix I) in notification No.HR 3/5691/93 dated 15.02.1994 issued by the Commissioner of erstwhile Hindu Religious and Charitable Endowments (Administration) Department. The 4th respondent is the hereditary trustee and the 5th respondent is the non-hereditary trustee of Sree Valliyoorkavu Devaswom. The 4th respondent is the hereditary trustee and the 5th respondent is the non-hereditary trustee of Sree Valliyoorkavu Devaswom. As held in the decisions referred to supra, it is the duty of the trustees, i.e., respondents 4 and 5, to be faithful to the Devaswom and manage, protect and safeguard the interest and properties of the Devaswom, with reasonable diligence. The Malabar Devaswom Board and its officials are duty-bound to exercise their supervisory control in order to ensure that the interests and properties of the Devaswom are protected and safeguarded by its trustees and the employees of the Devaswom. Any act of ‘fence eating the crops’ should be dealt with sternly by the Board and its officials. 13. The document marked as Ext.R4(e) along with the counter affidavit filed by respondents 4 and 5 is a copy of circular No.H9/1637/2010 dated 02.03.2010 issued by the 2nd respondent Commissioner, Malabar Devaswom Board. Paragraphs 1, 2 and 18 of that circular read thus; 14. On 03.10.2023, the petitioners have filed a reply affidavit dated 24.09.2023. Paragraph 8 of the reply affidavit reads thus; “8. There is blatant violation of Ext.R4(e) circular issued by the Commissioner dated 02.03.2010. Clauses 1, 2, 8 etc., are flagrantly overlooked. The CPM ruled Co-operative Banks are benefitted by the Devaswom funds and the present-day trend of Co-operative Society deposits in a vacuum is to be judicially taken note of by this Hon’ble Court. The deposits are with Mananthavady Urban Co-operative Society, Kerala Bank, Mananthavady Rural Co-operative Society, Thirunelli Co-operative Temple Employees Society, Co-operative Rural Society, Suseela Gopalan Memorial Vanitha Co-operative Society, Waynad District Temple Employees Co-operative Society and North Waynad Rubber and Agricultural Marketing Society. Crores of Rupees have no security in the CPM administered Co-operative Societies. These facts are borne out from Exts.P2 and P4 reports of the Assistant Commissioner.” 15. On 10.10.2023, when this writ petition came up for consideration, the learned counsel for respondents 4 and 5 sought time to get instructions with specific reference to the averments contained in paragraph 8 of the reply affidavit filed by the petitioners. 16. On 11.10.2023, when this writ petition came up for consideration, the learned counsel for respondents 4 and 5 made available for the perusal of this Court the list of Banks/Co-operative Societies in which the savings accounts of Sree Valliyoorkavu Devaswom are being maintained. 16. On 11.10.2023, when this writ petition came up for consideration, the learned counsel for respondents 4 and 5 made available for the perusal of this Court the list of Banks/Co-operative Societies in which the savings accounts of Sree Valliyoorkavu Devaswom are being maintained. The said list consists of State Bank of India, Mananthavady Branch - Rs.75,457/- in A/c.No.7311; Indian Bank, Mananthavady Branch - Rs.9,37,711/- in A/c.No.1602; Treasury Savings Bank - Rs.60,588/- in A/c.No.1040 and Rs.13,323/- in A/c.No.5434; Mananthavady Farmers Service Co-operative Bank – Rs.82,144.08 in A/c.No.644, Rs.5,156/- in A/c.No.8758 and Rs.79,232/- in A/c.No.7977; Sultan Bathery Co-operative Urban Bank Ltd. - Rs.28,194/- in A/c.No.583; Mananthavady Co-operative Urban Society Ltd. – Rs.16,32,074/- in A/c.No.2147; Kerala Bank – Rs.2,20,299/- in A/c.No.0998 and Rs.20,17,849/- in A/c.No.0076; Panamaram Service Co-operative Bank Ltd. – Rs.2,401.16 in A/c.No.5442; Mananthavady Co-operative Rural Society Ltd. – Rs.26,08,366/- in A/c.No.0047; Kerala Gramin Bank - Rs.4,695/- in A/c.No.2605; Wayanad District Temple Employees Co-operative Society - Rs.4,00,000/- in A/c.No.517; and Suseela Gopalan Co-operative Society - Rs.3,00,000/- in A/c.No.1303. In addition to the above savings accounts, Sree Valliyoorkavu Devaswom has fixed deposits in Sub Treasury, Kerala Bank and also in Co-operative Societies. The list handed over by the learned counsel for respondents 4 and 5 consists of Wayanad District Rubber Marketing Co-operative Society; Farmers’ Co-operative Bank; Suseela Gopalan Co-operative Society; Sub Treasury, Mananthavady; Sultan Bathery Co-operative Bank; Panamaram Co-operative Bank; Wayanad District Temple Employees Co-operative Society; Co-operative Rural Society; Kerala Bank; and Urban Co-operative Society. The amounts in the fixed deposits are not mentioned in the said list. The learned counsel for respondents 4 and 5 handed over a copy of both lists to the learned counsel for the petitioner, the learned Standing Counsel for Malabar Devaswom Board, the learned Senior Government Pleader and the learned counsel for the party respondents. 17. By the order 11.10.2023, the learned counsel for respondents 4 and 5 was directed to place on record a copy of the aforesaid lists, along with an application to accept additional documents, furnishing therewith the amount as on date in those savings accounts and fixed deposits. 18. 17. By the order 11.10.2023, the learned counsel for respondents 4 and 5 was directed to place on record a copy of the aforesaid lists, along with an application to accept additional documents, furnishing therewith the amount as on date in those savings accounts and fixed deposits. 18. On 11.10.2023, the learned counsel for the petitioners pointed out Ext.P2 report dated 22.08.2022 submitted by the Assistant Commissioner, Thalassery to the 2nd respondent Commissioner, Malabar Devaswom Board, wherein it is pointed out that a sum of Rs.65,90,360/- obtained by auctioning the Kuthaka right in the annual festival for the year 2022 is deposited in Kerala Bank and in Co-operative Urban Society. In Ext.P4 report dated 15.10.2022 of the Assistant Commissioner to the 2nd respondent Commissioner it is pointed out that the deposits of Devaswom funds in the Co-operative Societies may invite audit objection. The relevant paragraph of Ext.P4 report reads thus; 19. In paragraph 4 of the reply affidavit, the petitioner has stated that the 5th respondent, who is a non-hereditary trustee of Sree Valliyoorkavu Devaswom, is a person nominated by a political party, who is also a Director of Mananthavady Co-operative Urban Society controlled by that political party. Paragraph 4 of the reply affidavit reads thus; “4. In 2023, Ulsavam, Chantha Lelam was confirmed for Rs.1.20 Crores (Rs.60.60 lakhs in 2022), Exhibition and Trade Fair was confirmed for Rs.38 lakhs (Rs.22 lakhs in 2022). The reduction of auction amount basing COVID as a reason is flimsy and beyond credibility as the beneficiaries (the 7th respondent and the 8th respondent) are the direct associates of respondents 4 and 5. The 5th respondent non-hereditary trustee is a party nominee; being Mananthavady CPM ruled Local Committee Member and Director of CPM Ruled Mananthavady Co-operative Urban Society.” 20. On 11.10.2023, during the course of arguments, on a query made by this Court, the learned counsel for the 4th respondent Hereditary Trustee, who is also appearing for the 5th respondent Non-Hereditary Trustee, admitted that the 5th respondent is one of the Directors of Mananthavady Urban Co-operative Society Ltd. The learned counsel submitted that some of the savings accounts/fixed deposit accounts of Sree Valliyoorkavu Devaswom were opened in Co-operative Societies more than 10 years back. On another query made by this Court, the learned Standing Counsel for Malabar Devaswom Board submitted that, if Devaswom funds are deposited in the accounts maintained in the Co-operative Societies, it is in violation of the terms of Ext.R4(e) circular dated 02.03.2010 issued by the Commissioner, Malabar Devaswom Board. The learned Standing Counsel sought time to get instructions on the action, if any, taken by the 2nd respondent Commissioner on Ext.P4 report dated 15.10.2022 of the Assistant Commissioner in which the irregularity in Sree Valliyoorkavu Devaswom maintaining fixed deposits in Co-operative Societies was specifically pointed out. 21. In the order dated 11.10.2023, this Court found that the Devaswom funds of Sree Valliyoorkavu Devaswom are kept in the savings accounts and fixed deposits maintained in various Co-operative Societies, in violation of the terms of Ext.R4(e) circular dated 02.03.2010 issued by the Commissioner, Malabar Devaswom Board. Despite the said fact being pointed out in Ext.P4 report dated 15.10.2022 of the Assistant Commissioner, Thalasserry, the Malabar Devaswom Board or the Commissioner has not taken any action on the violation of the terms of Ext.R4(e) circular. 22. After the order of this Court dated 11.10.2023, the Malabar Devaswom Board has taken Exts.R2(a) Decision No.71 in its meeting held on 17.10.2023, based on which the Commissioner, Malabar Devaswom Board issued Ext.R2(b) Circular No.H.7/3309/2022/MDB dated 18.10.2023, which were placed on record along with I.A.No.4 of 2023 filed by Malabar Devaswom Board. In the affidavit filed in support of I.A.No.4 of 2023, it is stated that the temples under the supervisory jurisdiction of the Board are bound to follow the circular dated 02.03.2010 as well as the Rules framed under Section 100(2)(k) of the Madras Hindu Religious and Charitable Endowments Act. In the meeting held on 17.10.2023, the Board has considered the matter and resolved by Ext.R2(a) decision No.71, to issuing a circular reiterating Circular No.H9.1637/2010 dated 02.03.2010; with certain modifications. Accordingly, the Commissioner, Malabar Devaswom Board issued Ext.R2(b) Circular No.H.7/3309/2022/MDB dated 18.10.2023. 23. Ext.R2(a) decision No.71 taken in the meeting of the Malabar Devaswom Board held on 17.10.2023 reads thus; 24. Ext.R2(b) circular dated 18.10.2023 issued by the Commissioner, Malabar Devaswom Board, based on Ext.R2(a) decision of the Board, reads thus; 25. We do not propose to consider the legality of Ext.R2(a) decision taken by the Malabar Devaswom Board on 17.10.2023, to the extent of making certain modifications to the earlier circular dated 02.03.2010. Ext.R2(b) circular dated 18.10.2023 issued by the Commissioner, Malabar Devaswom Board, based on Ext.R2(a) decision of the Board, reads thus; 25. We do not propose to consider the legality of Ext.R2(a) decision taken by the Malabar Devaswom Board on 17.10.2023, to the extent of making certain modifications to the earlier circular dated 02.03.2010. Having considered the pleadings and materials on record and also the submissions made at the Bar, we deem it appropriate to direct respondents 1 to 3 to take necessary steps to ensure that the Devaswom funds of Sree Valliyoorkavu Devaswom are deposited by its Board of Trustees and the Executive Officer, in Nationalised Banks or Scheduled Banks or other institutions specified in the rules made under Section 100(2)(k) of the Madras Hindu Religious and Charitable Endowments Act, read with circular No.H9.1637/2010 dated 02.03.2010. At the time of audit of accounts, the additional 14th respondent Deputy Director, State Audit Department, Malabar Devaswom Audit shall ensure that the deposit of Devaswom funds of Valliyoorkavu Devaswom are strictly in terms of the statutory requirements. Any violation shall be dealt with appropriately with stern action. It would be open to the petitioners to specifically point out the violation of those statutory requirements before the 2nd respondent Commissioner, Malabar Devaswom Board, in which event the said respondent shall consider the same and pass appropriate orders thereon, with notice to the petitioners, the Executive Officer of the Valliyoorkavu Devaswom and its Board of Trustees. 26. In case the petitioners are having any specific case for initiating proceedings against the Trustees, either hereditary trustee or non-hereditary trustees of Valliyoorkavu Devaswom, it is for them to approach the Deputy Commissioner for invoking his powers under Section 45 of the Madras Hindu Religious and Charitable Endowments Act, in which they can also point out the irregularities, if any, in connection with the grant of Kuthaka rights to respondents 7 and 8 and the default committed by the said respondents in remitting the bid amount. The contentions raised in the counter affidavits filed by respondents 7 and 8 are left open to be raised before the Deputy Commissioner, at the appropriate stage. The writ petition is disposed of with the above directions.