Sathyaprabha vs Travancore Devaswom Board
2022 Latest Caselaw 9019 Ker

         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 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
                  W.P.(C)NO.24362 OF 2022
PETITIONER:

         SATHYAPRABHA, S/O SATHYADEVAN,
         AISHWARYA PALACE, PALAYAMKUNNU P.O.,
         VARKALA, THIRUVANANTHAPURAM, PIN - 695 146

         BY ADV K.P.SUJESH KUMAR



RESPONDENTS:

    1    TRAVANCORE DEVASWOM BOARD,
         DEVASWOM HEAD QUARTERS,
         NANTHACODE, KAWDIAR P.O.,
         THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY,
         PIN - 695 003

    2    ASSISTANT DEVASWOM COMMISSIONER,
         TRAVANCORE DEVASWOM BOARD,
         OFFICE OF THE ASSISTANT DEVASOM COMMISSIONER,
         TEMPLE ROAD, VARKALA,
         THIRUVANANTHAPURAM, PIN - 695 141

    3    VARKALA MUNICIPALITY, VARKALA,
         OFFICE OF THE VARKALA MUNICIPALITY, VARKALAN
         P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS
         SECRETARY, PIN - 695 141

         BY ADV SHRI.K.SIJU, SC, VARKALA MUNICIPALITY
 W.P.(C)NO.24362 OF 2022

                               2

OTHER PRESENT:

            SRI G. BIJU- STANDING COUNSEL-TRAVANCORE DEVASWOM
            BOARD ;

            SRI K.SIJU- STANDING COUNSEL ,VARKALA
            MUNICIPALITY




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C)NO.24362 OF 2022

                                     3


                               JUDGMENT

Anil K. Narendran, J.

The petitioner, who was issued with a licence for performing

Balitharpanam at Varkala Papanasam Kadappuram during

Karkidaka vavu of 1193ME on payment of a licence fee of

Rs.5,000/- vide Ext.P1 receipt dated 09.08.2018, has filed this

writ petition, under Article 226 of the Constitution of India,

seeking a declaration that the levy of licence fee charged at the

rate of Rs.7,000/- for Karkidaka Vavu balitharpanam for 1197 ME

by the 1st respondent Travancore Devaswom Board is illegal and

unjust. The petitioner has also sought for a writ of mandamus

commanding the 1st respondent Board to consider and pass

appropriate orders on Ext.P3 representation dated 18.07.2022

made by the petitioner (addressed to Kerala Devaswom Board)

with a request to reduce the licence fee for the current year, which

is fixed by the Board at Rs.7,000/-.

2. Heard the learned counsel for the petitioner, the

learned Standing Counsel for Travancore Devaswom Board for

respondents 1 and 2 and also the learned Standing Counsel for

the 3rd respondent Municipality.

W.P.(C)NO.24362 OF 2022

3. The learned counsel for the petitioner would contend

that the licence fee of Rs.7,000/- fixed by the 1st respondent

Board for issuing licence for performing Balitharpanam at

Papanasam Kadappuram on Karkidaka Vavu 1197ME is on the

higher side and in such circumstances, an interference of this

Court is warranted. Pointing out the illegality in the collection of

such an amount as licence fee, the petitioner has submitted

Ext.P3 representation before the Devaswom Board. The

document marked as Ext.P2 is the conditions that has to be

followed by Purohits in connection with balitharpanam at

Papanasam Kadappuram, which is one issued for the year 1193

ME.

4. The learned Standing Counsel for Travancore

Devaswom Board would submit that for Bhalitharpanam on

Karkidaka Vavu 1197ME (28.07.2022), the 1st respondent Board

has taken a decision on 29.06.2022 and the minutes of the said

meeting has already been communicated to the Devaswom

Commissioner with copy to the concerned officers, vide letter

dated 08.07.2022 of the Secretary of the Board.

5. Page Nos.5 and 6 of that minutes deals with

Bhalitharpanam in Varkala Devaswom under Varkala Group. The W.P.(C)NO.24362 OF 2022

fixation of licence fee as Rs.7,000/- by the Board cannot be said

to be either arbitrary or illegal.

6. The learned Standing Counsel would also submit that

based on the aforesaid decision taken by the Board, all

arrangements have already been made for conducting

Bhalitharpanam at Varkala Papanasam and also in other places.

The learned Standing Counsel for Varkala Municipality would

submit that the conduct of Bhalitharpanam at Papanasam

Kadappuram is being arranged by the Travancore Devaswom

Board and the Municipality has already made necessary

arrangements to ensure that no inconvenience whatsoever is

caused to those who reach Papanasam for performing

Bhalitharpanam.

7. 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 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; W.P.(C)NO.24362 OF 2022

(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.

8. Section 24 of the Act deals with maintenance of

Devaswoms, etc., out of Devaswom Fund. Section 27 of the Act

deals with Devaswom properties. 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 daily worship and ceremonies and of the

festivals in every temple according to its usage.

9. In Rajani P. Kuttan and another v. State of Kerala

and others [2021 (6) KHC 513] a Division Bench of this Court

noticed that among the 1250 temples managed by the Travancore

Devaswom Board, only 60 major temples are self-sufficient and W.P.(C)NO.24362 OF 2022

the rest are being managed utilising the surplus income from

Sabarimala Devaswom. The total number of sanctioned posts in

various categories in the Travancore Devaswom Board is 5692

and the total number of pensioners is 5749. The major source of

revenue of the 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. 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 position. It is submitted that there are 1250 temples under the Administrative Control of the Devaswom Board. The total number of sanctioned posts in various categories 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 vazhipadu, 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, the Devaswom Board gets an approximate sum of 14 crores per annum by way of the rent W.P.(C)NO.24362 OF 2022

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 Devaswom 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 pleadings regarding the financial position of the Devaswom Board in the affidavit dated 14.06.2021 have not been controverted by the petitioners." (underline supplied)

10. 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 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 W.P.(C)NO.24362 OF 2022

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 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 W.P.(C)NO.24362 OF 2022

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)

11. In Suo motu v. State of Kerala and others [2022

(3) KHC 413] this Court held that it is the duty of the Travancore

Devaswom Board to deal with the property of Aluva Devaswom

with reasonable diligence in the manner of an ordinary prudent

man of business would conduct his own affairs. The Board, being

the trustee, could not therefore occasion any loss to the W.P.(C)NO.24362 OF 2022

Devaswom and it is the duty of the Board to deal with the

properties to the best advantage of the Devaswom. When the

major source of revenue to the Travancore Devaswom Board is

the income received by way of offerings 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 temples, the attempt

made by purohits/shantis to obstruct the auctioning of balitharas

by the 4th respondent Administrative Officer, in connection with

Mahashivratri Festival, 2022, cannot be viewed lightly.

Balitharpanam at Aluva Shivratri Manappuram other than on

Karkidaka Vavu, Thula Vavu and Shivratri festival days cannot be

allowed to be conducted by purohits/shantis paying Rs.100/- per

day to the 4th respondent Administrative Officer. As proposed by

the Board, the said right has to be auctioned with 20 or 24

balitharas as per Annexure R2(a) layout plan, on yearly basis. For

the very same reason, lot system cannot be introduced for

allotting balitharas at Aluva Shivratri Manappuram during

Karkidaka Vavu, Thula Vavu and Shivratri festival days. The

Board has to conduct auction of balitharas on those days after

preparing a layout plan with 60 to 80 balitharas, classifying W.P.(C)NO.24362 OF 2022

balitharas facing the river in 'A' sector and those facing the

temple in 'B' sector and fixing base price (upset price) of each

balithara in 'A' and 'B' sectors appropriately.

12. Viewed in the light of the law laid down in the decisions

referred to supra, we do not find any reason to interfere with the

decision taken by the Board in fixing the licence fee for conducting

Bhalitharpanam at Varkala Papanasam Kadappuram during

Karkkidaka Vavu of 1197ME at Rs.7,000/-.

13. In the result, this writ petition fails and the same is

accordingly dismissed.

It is for respondents 1 and 2 and also the 3rd respondent

Municipality to provide proper facilities to those who perform

Bhalitharpanam at Varkala Papanasam Kadappuram, taking note

of the law laid down in the order of this Court Suo motu v. State

of Kerala and others [2022 (3) KHC 413.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE

MIN W.P.(C)NO.24362 OF 2022

NDIX OF WP(C) 24362/2022

PETITIONER EXHIBITS:

Exhibit P1 TRUE COPY OF THE LICENSE CARD ISSUED BY THE FIRST RESPONDENT, DATED 9/08/2018

Exhibit P2 TRUE COPY OF THE DRAFT REGULATIONS ISSUED BY THE FIRST RESPONDENT

Exhibit P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER, DATED 18/07/2022