Kerala High Court

Parama Sivan T vs Guruvayur Devaswom Board on 13 April, 2023

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT

        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                             &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 THURSDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
                 W.P.C) NO. 26112 OF 2019
PETITIONER:

          PARAMA SIVAN T.
          AGED 68 YEARS, S/O. KUNJI AMMA, THOMATTIL
          HOUSE, MANJOOR POST, NANDIPULAM VILLAGE,
          CHALAKUDY TALUK, THRISSUR DISTRICT,
          PIN - 680 312.
          BY ADV M.K.DILEEP KUMAR


RESPONDENTS:

    1     GURUVAYUR DEVASWOM BOARD
          REPRESENTED BY THE ADMINISTRATOR, GURVAYUR,
          THRISSUR DISTRICT, PIN - 680 101.
    2     THE DEPUTY TAHASILDAR,
          CHALAKUDY TALUK, THRISSUR DISTRICT.
    3     THE VILLAGE OFFFICER
          NANDIPALAM VILLAGE, THRISSUR DISTRICT,
          PIN - 680 312.
          R1 BY ADV T.K.VIPINDAS
          R2 & R3 BY SRI S.RAJMOHAN - SR GOVERNMENT
          PLEADER
                             2
W.P.(C) No.26112 of 2019



      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL
HEARING ON 20.02.2023, THE COURT ON 13.04.2023 DELIVERED
THE FOLLOWING:
                                  3
W.P.(C) No.26112 of 2019



                            JUDGMENT

P.G. Ajithkumar, J.

Guruvayur Devaswom Managing Committee, the 1 st

respondent herein, tendered the right to conduct "pay and use

comfort station" on the east-nada of Sree Guruvayoorappan

Temple during the period from 01.08.2013 to 31.07.2014. The

petitioner offered an amount of Rs.11,11,111/-. He deposited

Rs.50,000/- as earnest money deposit. He was the highest

bidder. He, however, retracted stating that he fell ill

immediately after submission of the quotation. The 1 st

respondent therefore forfeited his earnest money deposit and

the right was re-tendered. The highest bidder quoted only

Rs.5,33,334/-. Therefore, the 1 st respondent sustained a loss

of Rs.4,83,334/-. On the request of the 1 st respondent,

revenue recovery proceedings was initiated for realisation of

Rs.5,47,446/-, which includes that amount of loss and the

additional charges. Ext.P6 is the recovery notice issued under

Section 7 of the Revenue Recovery Act, 1968. The petitioner,

alleging that Ext.P6 notice is illegal and issued beyond the

W.P.(C) No.26112 of 2019

period of limitation, has filed this Writ Petition seeking the

following reliefs,-

"I. Declare that the 1st respondent by initiating revenue recovery proceedings for the amount from the petitioner, which is unliquidated damages and its recovery is closed once by it earlier by Ext.P5 proceedings, and the present attempt to recover the said time barred debt through the Ext.P6 notice and the steps pursuant to that, has acted illegally and violative of the law declared by this Hon'ble court and therefore, the proposed recovery is liable to be quashed and the petitioner is deserving to be met with act of consolation by releasing the EMD amount of Rs.50,000/- forfeited by the 1st respondent back to him;

II. Issue a writ of certiorari or such other writ or order quashing the Exhibit P6 notice or other steps taken under the Revenue Recovery Act for realising any amount from him for the default of running the comfort station of the 1st respondent during the year 2003-04;

III. Issue a writ of mandamus or such other writ or order, or direction to the 1st respondent for releasing the forfeited EMD money of Rs.50,000/- to the petitioner, as an act of consolation towards an ailing human being who served it during the healthy days."

W.P.(C) No.26112 of 2019

2. The 1st respondent has filed a counter affidavit. It is

contended that the petitioner disputes his liability and that

question requires adjudication based on evidence and

therefore, the Writ Petition filed under Article 226 of

Constitution of India is not maintainable. The address of the

petitioner as well as the person came second in the first

tender were the same. That indicated that there was obvious

collusion between the petitioner and the other tenderer.

Therefore, when the petitioner withdrew, the other bidder

could not be accepted. The reason stated by the petitioner for

retracting from the tender is incorrect. In such circumstances,

the earnest money deposited by the petitioner was forfeited

and he was blacklisted. In the re-tender, the amount quoted

by the highest bidder was very low and the loss sustained

thereby should be compensated by the petitioner. The

Guruvayur Devaswom Managing Committee as per resolution

No.80 dated 07.12.2017 decided to initiate recovery

proceedings for realisation of the loss sustained to the 1 st

respondent. Ext.R1(e) is a copy of the resolution. Since the 1 st

W.P.(C) No.26112 of 2019

respondent quantified the loss and decided to initiate action

on 07.12.2017, there is no bar of limitation to the claim of the

1st respondent. Accordingly, the 1st respondent sought to

dismiss the Writ Petition. No separate counter affidavit was

filed by respondents 2 and 3.

3. Heard the learned counsel appearing for the

petitioner, the learned Standing Counsel for the 1st respondent

and the learned Senior Government Pleader for respondents 2

and 3.

4. Ext.P5 is a copy of the resolution of the Guruvayur

Devaswom Managing Committee No.57 dated 28.02.2014.

The learned counsel appearing for the petitioner would submit

that the 1st respondent as per Ext.P5 had decided to confine

the action against the petitioner in forfeiting the E.M.D. and

blacklisting him alone and therefore no amount can be

recovered from the petitioner. He does not explain how he

obtained Ext.P5. The 1st respondent does not admit or deny its

genuineness. Since it is not able to fix its genuineness from

the available records, we do not propose to act upon Ext.P5.

W.P.(C) No.26112 of 2019

5. The further contention of the petitioner is that the

claim in Ext.P6 revenue recovery notice is barred by the law

of limitation. It is contended that the dues is with respect to

the period from 01.08.2013 to 01.07.2014 and as Ext.P6

was issued only on 23.07.2019, the claim is barred and the

respondents cannot pursue the revenue recovery

proceedings.

6. In State of Kerala v. V.R.Kalliyanikutty

[(1999) 3 SCC 657], the question whether proceedings

under the Revenue Recovery Act is possible if the claim is

barred by law of limitation was considered. The Apex Court

held that the Kerala Revenue Recovery Act does not create

any new right. It merely provides a process for speedy

recovery of moneys due. Since this Act does not create any

new right, the person claiming recovery cannot claim recovery

of amounts which are not legally recoverable nor can a

defence of limitation available to a debtor in a suit or other

legal proceeding be taken away under the provisions of the

Kerala Revenue Recovery Act. The provisions in the Act are

W.P.(C) No.26112 of 2019

intended for coercive recovery of the amount due. Therefore,

all claims which are legally recoverable and are not time-

barred on that date alone can be recovered. Under Section 71

of the Kerala Revenue Recovery Act claims which are time-

barred on the date when a requisition is issued under Section

69(2) of the said Act are not treated as amounts due and

cannot be recovered under the said Act.

7. The learned counsel appearing for the 1st

respondent would submit that the amount is due to the Deity

and the Deity being a perpetual minor, there cannot be a bar

of limitation to the claim in view of the provisions of Section 6

of the Limitation Act, 1963. In order to fortify the contention

that the Deity is a minor, the learned counsel has placed

reliance on the decision in Hindu Seva Kendram v. State of

Kerala and others [2022 (3) KHC SN 8 : 2022 KHC

Online 274]. This Court held that Deity, Guruvayurappan is a

perpetual minor. There cannot be any dispute with respect to

that proposition. Every Deity/Idol of a Temple is a perpetual

minor.

W.P.(C) No.26112 of 2019

8. The question is, can a Deity claim the benefit of

Section 6 of the Limitation Act. This question was considered

by the Apex Court in M. Siddiq (D) Thr. LRs v. Mahant

Suresh Siddique Das and others [(2020) 1 SCC 1]. The

Apex Court after an elaborate discussion held that the legal

fiction of a deity as a minor had been evolved to obviate the

inability of the Deity to institute legal proceedings on its own.

A human agent must institute legal proceedings on behalf of

the deity to overcome the disability. However, the fiction has

not been extended to exempt the deity from the applicability

of the law of limitation. The Deity, although fictionally is a

perpetual minor, cannot claim the benefit of Section 6 of the

Limitation Act. Therefore, the 1st respondent cannot resort to

Section 6 of the Limitation Act to support its contention that

there cannot be any bar of limitation to its claim for money

due to the Deity under a contract or otherwise.

9. The learned Standing Counsel for the 1 st respondent

would contend that only when Ext.R1(e) resolution was adopted

on 07.12.2017, the action against the petitioner has begun and

W.P.(C) No.26112 of 2019

in view of that matter there cannot be any bar of limitation to the

claim in Ext.P6, which was issued on 23.07.2019. The said

contention is unsustainable in law. Notice demanding payment of

the amount of compensation in relation to the contract in

question was issued to the petitioner on 27.09.2013. Ext. P3 is

that notice. The period of limitation would start from the said

date, i.e., 27.09.2013. Ext.P6 was issued only on 23.07.2019.

Even Ext.R1(e) resolution, by which it was decided to initiate

revenue recovery proceedings, was adopted only on 07.12.2017.

In any view of the matter, the period of limitation of three years

for suing for realisation of the amount claimed in Ext.P6 elapsed

much before. Therefore, the claim in Ext.P6 is barred by the law

of limitation and the action initiated against the petitioner is

unsustainable in law. Hence, the Writ Petition is liable to be

allowed and Ext.P6 quashed.

10. In Bijesh Kumar M. and others v. State of

Kerala and others [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

W.P.(C) No.26112 of 2019

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 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 Bijesh Kumar M. the Full Bench further held

that, all the properties, including movable and immovable

properties and money, dedicated to or endowed in the name

of Lord Guruvayurappan or any property acquired in any

manner by Guruvayur Devaswom shall vest in the idol of

Lord Guruvayurappan, consecrated in Sree Krishna Temple,

Guruvayur. Guruvayur Devaswom Managing Committee

W.P.(C) No.26112 of 2019

constituted under Section 3 of the Guruvayur Devaswom Act is

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. Unless a contrary intention, either

expressly or by necessary implication, arises from the

provisions of the statute in any particular subject or context,

Guruvayur Devaswom Managing Committee is legally bound to

administer and manage the Devaswom and its properties in

accordance with the settled legal principles relating to the

administration of Hindu Religious Trusts. Guruvayur Devaswom

Managing Committee, being the trustee in management of

Devaswom properties, is legally bound to perform its duties

with utmost care and caution.

W.P.(C) No.26112 of 2019

12. In M.V.Ramasubbiar v. Manicka Narasimachara

[1979 KHC 518 : (1979) 2 SCC 65 : AIR 1979 SC 671],

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 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

W.P.(C) No.26112 of 2019

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 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

W.P.(C) No.26112 of 2019

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)

13. It is the duty of the Guruvayur Devaswom

Managing Committee being the trustee in management of the

Devaswom properties is obliged to deal with the property and

affairs of the Devaswom with reasonable diligence in the

manner an ordinary prudent man of business would conduct

his own affairs. The Managing Committee, being the trustee,

W.P.(C) No.26112 of 2019

could not, therefore, have occasioned such a loss to the

Devaswom on account of the lapse in taking timely action for

recovery of the amount due from the petitioner. Hence we

direct the Guruvayur Devaswom Managing Committee to take

appropriate action in the matter. We emphasize that it is the

absolute obligation of the Guruvayur Devaswom Managing

Committee to ensure that such incidents do not recur in

future.

With the aforesaid observations, this Writ Petition is

allowed. Ext.P6 demand notice dated 23.07.2019 issued by the

2nd respondent-Deputy Tahsildar, Chalakudy Taluk under Section

7 of the Revenue Recovery Act, 1968 is quashed.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr

W.P.(C) No.26112 of 2019

APPENDIX OF WP(C) 26112/2019

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE REQUEST DATED 15-05-

2013 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT FOR EXEMPTING FROM TENDER OBLIGATIONS DUE TO HIS ILL-HEALTH EXHIBIT P2 TRUE COPY OF MEDICAL CERTIFICATE ISSUED BY DR. A.K. MATHEW EXHIBIT P3 TRUE COPY OF COMMUNICATION DATED 29-

09-2013 FROM THE FIRST RESPONDENT CONVEYING FORFEITURE OF EMD MONEY OF RS. 50,000/-

EXHIBIT P4 TRUE COPY OF COMMUNICATION DATED 27-

09-2013 FROM THE FIRST RESPONDENT DEMANDING RS.4,83,334/- FROM THE PETITIONER EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 28-02-2014 FROM FIRST RESPONDENT CONVEYING FORFEITURE OF EMD AND BLACK LISTING OF PETITIONER AND CLOSING THE FILE EXHIBIT P6 TRUE COPY OF THE DEMAND NOTICE DATED 23-07-2019 FROM THE SECOND RESPONDENT FOR ATTACHING AND SALE OF MOVABLES OF THE PETITIONER FOR THE LIABILITY TOWARDS THE FIRST RESPONDENT

W.P.(C) No.26112 of 2019

RESPONDENT EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE RESOLUTION NO.37 DATED 09.05.2013.