Amal Muhammed Ali vs State Of Kerala
2022 Latest Caselaw 6240 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                             &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
  FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
                  WP(C) NO. 18122 OF 2022
PETITIONER:

          AMAL MUHAMMED ALI,
          AGED 20 YEARS
          S/O MUHAMMED ALI VAKIALTHODI HOUSE
          PERUMANATHAZHAM ROAD PONEEKKARA EDAPPALLY, AIMS
          POONEKKARA POST, ERNAKULAM DISTRICT.
          PIN- 682041.
          BY ADV SAJI SANKARAN NAIR


RESPONDENTS:

    1     STATE OF KERALA,
          REPRESENTED BY SECRETARY TO GOVERNMENT,
          REVENUE (DEVASWOM) DEPARTMENT,
          GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM - 695001.
    2     GURUVAYOOR DEVASWOM MANAGING COMMITTEE,
          REPRESENTED BY ITS ADMINISTRATOR, GURUVAYOOR,
          THRISSUR 680101.
    3     COMMISSIONER, GURUVAYOOR DEVASWOM,
          OFFICE OF THE GURUVAYOOR DEVASWOM COMMISSIONER,
          MAIN BLOCK, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM - 695 001.

          DESCRIPTION OF R1 AND R3 IS SUO MOTU CORRECTED
          AS PER ORDER DATED 03.06.2022.
          SRI.S.RAJ MOHAN, SR. GP
          SRI.T.K. VIPIN DAS, SC FOR GURUVAYOOR DEVASWOM
          BOARD
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C)No.18122 of 2022

                                   2

                              JUDGMENT

Anil K. Narendran, J.

The petitioner, who was the 5th respondent in W.P.

(C)No.284 of 2022, has filed this writ petition under Article 226

of the Constitution of India, seeking a declaration that he is

entitled to get a copy of the order passed by the 3 rd respondent

Commissioner of Guruvayur Devaswom, affecting the rights of

the petitioner. The petitioner has also sought for a writ of

mandamus commanding the respondents to consider the

Earnest Money Deposit already made by the petitioner

pursuant to Ext.P1 auction notice dated 10.12.2021 in W.P.

(C)No.284 of 2022, as valid for the re-auction of Mahindra

Thar jeep bearing registration No.KL46/V-9454, which is

scheduled to be held on 06.06.2022 at 11.00 a.m, as per

Ext.P2 re-tender notice dated 16.05.2022 issued by the

Administrator of Guruvayur Devaswom.

2. The petitioner had participated in the auction

conducted by the 2nd respondent Guruvayur Devaswom

Managing Committee on 18.12.2021 for the sale of a Mahindra

Thar Jeep bearing registration No.KL-46/V-9454, which was an W.P.(C)No.18122 of 2022

offering to Lord Guruvayurappan, the minor deity of Guruvayur

Temple. The Hindu Seva Kendram filed W.P.(C)No.284 of 2022,

seeking a writ of certiorari to quash the proceeding of the said

tender notice dated 10.12.2021. That writ petition was

disposed of by Ext.P1 judgment dated 23.03.2022, reported in

Hindu Seva Kendram v. State of Kerala [2022 (3) KHC

SN 8 : 2022 SCC OnLine Ker 1708]. Paragraphs 28 to 31

and also the last paragraph of that judgment read thus;

"28. In view of the provisions under Guruvayur Devaswom Act, the authorities constituted under the said Act, namely, the Managing Committee and the Administrator are enjoined with duty to administer, control and manage the affairs of Guruvayur Devaswom, its properties and endowments. The role assigned to the Managing Committee is that of a trustee in management of the properties vested in the deity. In view of the law laid down by the Apex Court in M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65] , considering the fiduciary position as the trustee, it is the duty and obligation of the Managing Committee to be faithful to the Devaswom and deal with its properties, both movable and immovable, with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. The Commissioner and the Administrator shall also function within the frame work of the Statute.

W.P.(C)No.18122 of 2022

29. In the matter of alienation of Devaswom properties, the Managing Committee and the Commissioner have to scrupulously follow the statutory mandate of Section 11 of Guruvayur Devaswom Act. Before according sanction for alienation of the properties, the Commissioner has to record his satisfaction that such alienation is necessary or beneficial to the Devaswom, as provided under sub- section (1) or sub-section (2) of Section 11 of the Act. Before according such sanction, the Commissioner has to follow the procedure prescribed under sub-section (3) of Section 11 of the Act, by inviting objections and suggestions from the Managing Committee or persons having interest in Guruvayur Temple. It is also the duty of the Commissioner to consider all such objections and suggestions before according sanction for such alienation. As per the mandate of sub-section (4) of Section 11, while according sanction for alienation, the Commissioner may impose such conditions and such directions as he may deem necessary regarding utilisation of the amount raised by such transaction, the investment thereof, etc. On a copy of the order made by the Commissioner communicated to the competent authorities and published in the manner prescribed, the Managing Committee or any persons having interest in Guruvayur Temple can institute a suit in the court to modify the order or set aside the same, as provided under sub-section (6) of Section 11 of the Act. Sub-rule (4) of Rule 12 of Guruvayur Devaswom Rules prescribes W.P.(C)No.18122 of 2022

the procedure that has to be followed by the Commissioner before according sanction for alienation of any movable or immovable properties.

30. The specific stand taken in the counter affidavit filed by the 3rd respondent Commissioner is that, in view of the provisions under sub-section (3) of Section 11 of the Act, the Commissioner intends to publish a notice inviting objections and suggestions from persons having interest in Guruvayur Temple on the sale of Mahindra Thar jeep. Thereafter, he will take a decision in that matter, after considering the objections and suggestions from such persons, observing all procedural formalities. The learned Senior Government Pleader would submit that the legal and factual contentions raised by the petitioner, the 2nd respondent and also the 5th respondent can be raised before the 3rd respondent Commissioner, which shall be dealt with appropriately, before taking a decision in the matter.

31. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the 3 rd respondent Commissioner to consider the request made by the 2 nd respondent Guruvayur Devaswom Managing Committee seeking sanction for the sale of Mahindra Thar jeep bearing registration No.KL-46/V-9454, and take an appropriate decision, strictly in accordance with the provisions under Section 11 of Guruvayur Devaswom Act read with Rule 12 of Guruvayur Devaswom Rules, after adverting to the legal and factual contentions raised by W.P.(C)No.18122 of 2022

the petitioner, the 2nd respondent, the 5th respondent or any other person having interest in Guruvayur Temple, who submits objections or suggestions on publication of notice as contemplated under sub-section (3) of Section 11 of the Act. While taking such a decision, the 3 rd respondent Commissioner shall consider whether the procedure adopted by the Managing Committee while conducting the auction sale is in accordance with the provisions under Section 11 of the Act, whether such alienation is necessary or beneficial to the Devaswom, and if so, the manner in which such amount has to be utilised for the benefit of the Devaswom, namely, Guruvayur Devaswom.

Considering the urgency of the matter, we deem it appropriate to direct the 3rd respondent Commissioner to conduct a personal hearing for considering the objections or suggestions, as provided under sub-section (3) of Section 11 of the Act, within a period of three weeks from the date of receipt of a certified copy of this judgment, and take a decision on the request made by the 2nd respondent, within a further period of three weeks."

3. Pursuant to the directions contained in Ext.P1

judgment, the 3rd respondent Commissioner conducted a

personal hearing in which the petitioner and others were

heard. The 3rd respondent by order No.GDC.2/5/2022-GDC

dated 09.05.2022 set aside the auction conducted on W.P.(C)No.18122 of 2022

18.12.2021 and Guruvayur Devaswom Managing Committee is

permitted to conduct a re-auction, subject to the conditions

stipulated in that order. The last paragraph of the said order

reads thus;

"എന ൽ ഗരവ യർ ദ വസ മ ദ ജ ഗ കമ റ ടതയ 18/12/2021-ല ദ ആകല ലസകൻ 11(1)-ൽ ഷർഷ കന ര'തയലളള അനവ മൻകർ വ ങ ലത ടതയത ല അതരതൽ ടതയ ദ തൽ ദകവ ഒര ൾ മ തദമ പല4ടതള (Single Tender) എന ക രണത ല ഥ ർ വ ഹ തല 18/12/2021-ല ദ ടപട ഇത ൽ അസ രല=ടത ഉതരവ കന. ഗരവ യർ ദ വസ ക ണകയ യ ഭച മഹ'ന 2020 ദമ ഡൽ ഥ ർ ജ'=, 15 കവ അതല ജ .എസ.ടയ അടസ വ കണക ക പരസHമ യ വ'ണ ലടൻഡർ -ക ദ ലJയനത ഗരവ യർ ദ വസ മ ദ ജ ങ കമറക ഇത ൽ ത ലM=റയന വHവസകൾ പക ര അനമത ൽകന.

     1) ദ   ത    ആവശHമ യ പരസH രണ പമഖ പതങള ല (തശർ എഡഷൻ), വജ പ
     ദ വസ       ലവബ     സസറല       ദ   ത          കറഞത    15       വസ     മൻലപ4ല
      ൽക യരദകണത ണ.

2) ബഹ ദകരള സഹദക ടത Kiran Global Chemicals v/s State of Kerala &

others എന ദകസല ഉതരവല അടസ തല മറ ഒര ൾ മ ത പല4ടകന ദ

രത ഹല=ടദതണത ണ എന വധ പസ വചടണ. ഇതല അടസ തൽ ഇ

ടതന ലടൻഡർ -ക - ദ തൽ ഏറവ കടതൽ ആൾക ർ ദ തൽ പല4ടകന എന

ഏറവ കടതൽ തക ദ വM സമ ഹരക ൻ കMയലമന ദ വസ മ ദ ജങ കമ റ

ഉറപവരദതണത ണ.

     3) ഇ       ടതന ലടൻഡർ -ക - ദ        തൽ        ഭകന തക ഭരണസമത ത'രമ           കന
     ക രHങൾക യ        ഉപദയ ഗ ക വനത ണ         അലc4ൽ     ഗരവ യർ      ദ വസ      ദഗ ശ ,
     ആ ലക ടൽ          എന വയലട      വ'കരണങൾക           ഭകജ ങൾക           അന    തന
     വ ദയ ഗ ദകണത ണ.
     ദമൽ ത'രമ     സകലക ണലക ണ WP(C) No.284/2022                 മർ ദകസൽ പറല=ടവച
     23.03.2022 ത'യതയല വധ H യ           ട=    കലക ണ ഉതരവ പറല=ടവകന."
 W.P.(C)No.18122 of 2022

4. Pursuant to the directions contained in the said

order dated 09.05.2022, the 2 nd respondent has issued Ext.P2

re-tender notice, whereby the re-auction of Mahindra Thar

Jeep is scheduled to be held on 06.06.2022 at 11.00 a.m. As

per Ext.P2 re-tender notice, EMD of Rs.40,000/- can be

remitted upto 10.30 a.m. on 06.06.2022.

5. During the course of arguments, the submission

made by the learned counsel for the petitioner is that the

petitioner is yet to be served with a copy of the order dated

09.05.2022 of the 3rd respondent Commissioner. Another

contention raised by the learned counsel for the petitioner is

that the petitioner has not been issued with individual notice

regarding the re-auction scheduled to be held on 06.06.2022.

6. When this writ petition moved as 'today motion' was

taken up for consideration at 3.45 p.m., the learned Senior

Government Pleader was directed to get instructions as to

whether the order dated 09.05.2022 of the 3 rd respondent has

already been communicated to the petitioner. The learned

Standing Counsel for Guruvayur Devaswom Managing

Committee was directed to get instructions as to whether the W.P.(C)No.18122 of 2022

said order was published, as provided under sub-section (5) of

Section 11 of the Guruvayur Devaswom Act, 1978.

7. When this writ petition is taken up again at 4.45

a.m., the learned Senior Government Pleader, on instructions,

would submit that a copy of the order dated 09.05.2022 of the

3rd respondent has already been sent through IGS to the

address of the petitioner at Ernakulam, on 27.05.2022. Even

prior to that, a copy of the order was communicated to the

Government and also to Guruvayur Devaswom Managing

Committee, as provided under sub-section (5) of Section 11 of

the Act, for publication in the prescribed manner.

8. The learned Standing Counsel for Guruvayur

Devaswom Managing Committee would submit that, on receipt

of a copy of the order dated 09.05.2022 of the 3 rd respondent

Commissioner, the same was published in the notice board in

the administrative block. Thereafter, as directed in the said

order, the re-tender notice was published in Mathrubhoomi

daily and also in Malayala Manoramma daily dated 17.05.2022.

A copy of the re-tender notice has also been issued to the

Public Relations Officer, Guruvayur Devaswom, for giving wide W.P.(C)No.18122 of 2022

publicity through print and visual media. The said notice was

also published in the official website of Guruvayur Devaswom.

9. The learned counsel for the petitioner would submit

that the respondent ought to have issued individual notice to

the petitioner regarding the re-auction scheduled on

06.06.2022. The learned counsel would also submit that, in

case this Court is not interfering with Ext.P2 re-tender notice,

the petitioner or his authorised representative may be

permitted to participate in the re-auction with the EMD already

deposited pursuant to the auction notice dated 10.12.2021.

10. In Bijesh Kumar M. v. State of Kerala [2021 (1)

KHC 51] a Full Bench of this Court held that the role assigned

to Guruvayur Devaswom Managing Committee constituted

under Section 3 of the Guruvayur Devaswom Act, 1978, is that

of a trustee in management of the properties vested in the

deity. Guruvayur Devaswom Managing Committee, which

functions as a trustee, is bound to administer, control and

manage the properties belonging to Guruvayur Devaswom in

accordance with public interest and in the interest of the

worshippers. As provided in Section 17, the Administrator shall W.P.(C)No.18122 of 2022

function as the Secretary to Guruvayur Devaswom Managing

Committee and he shall be the Chief Executive Officer

functioning subject to the control of the Committee. He is

bound to carry out the decisions taken by Guruvayur

Devaswom Managing Committee in accordance with the

provisions of the Act.

11. 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.

12. In Bijesh Kumar M. [2021 (1) KHC 51] the Full

Bench held that Guruvayur Devaswom Managing Committee

constituted under Section 3 of the Guruvayur Devaswom Act is W.P.(C)No.18122 of 2022

legally bound to administer, control and manage all the

properties belonging to Guruvayur Devaswom in accordance

with the provisions of the said Act. The Administrator and the

Commissioner shall also function within the frame work of the

statute. The legal status of Guruvayur Devaswom Managing

Committee constituted under Section 3 of the Act is that of a

trustee in management of the Devaswom properties and the

Committee is duty bound to scrupulously follow the

stipulations contained in the Act of 1978.

13. Having considered the submissions made by the

learned counsel on both sides, we find that, Ext.P2 re-tender

notice is one issued by the Administrator of Guruvayur

Devaswom in terms of the directions contained in the order

dated 09.05.2022 of the 3rd respondent Commissioner. In the

said order, the 3rd respondent found procedural irregularities in

the auction conducted on 18.12.2021. The re-tender notice has

already been published in two malayalam dailies on

17.05.2022 and also in the notice board.

14. In such circumstances, we find no reasons to

interfere with the re-auction scheduled to be held on W.P.(C)No.18122 of 2022

06.06.2022 in terms of Ext.P2 re-tender notice dated

16.05.2022. The grievance of the petitioner can be redressed

by permitting him or his authorised representative to

participate in that auction with the Earnest Money Deposit,

which he had already made in terms of tender notice dated

10.12.2021.

With the above direction, this writ petition is disposed of.

Sd/-

ANIL K. NARENDRAN JUDGE

Sd/-

P.G. AJITHKUMAR JUDGE yd W.P.(C)No.18122 of 2022

APPENDIX

PETITIONERS' EXHIBITS:

Exhibit P1 TRUE COPY OF JUDGMENT IN WPC 284/2022 DATED 23.03.2022.

Exhibit P2 TRUE COPY OF THE TENDER CUM AUCTION NOTICE APPEARED ON THE WEB SITE OF GURUVAYOOR DEVASWOM.

RESPONDENT'S EXHIBITS:NIL

TRUE COPY

P.A. TO JUDGE