N.A.Kumaran vs Cochin Dewasom Board , ...
2023 Latest Caselaw 1717 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 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944
                 W.P.(C) NO. 2315 OF 2023
PETITIONER:

          N.A.KUMARAN
          AGED 75 YEARS, S/O LATE AYYAN,
          RESIDING AT NELLISSERI HOUSE, AYINE,
          THOMASPURAM, MARADU P.O , ERNAKULAM-682304.
          BY ADVS.
          R.SANJITH
          C.S.SINDHU KRISHNAH


RESPONDENTS:

    1     COCHIN DEWASOM BOARD , REPRESENTED BY ITS
          SECRETARY
          DEWASOM HEAD QUARTERS, SWARAJ ROUND WEST,
          THRISSUR - 680 001.
    2     DEVASWOM COMMISSIONER, COCHIN DEVASWOM BOARD
          COCHIN DEVASWOM BOARD, DEWASOM HEAD QUARTERS,
          SWARAJ ROUND WEST TRICHUR - 680001.
    3     DEVASWOM OFFICER, VYTILLA DEVASWOM OFFICE,
          COCHIN DEWASOM BOARD, VYTILLA DEVASWOM OFFICE
          VYTILLA JUNCTION , COCHIN DEVASWOM BOARD ,
          ERNAKULAM - 682019.
                                 2
W.P.(C) No.2315 of 2023


    4*       ASSISTANT COMMISSIONER (AUDIT),
             COCHIN DEVASWOM BOARD,
             ROUND NORTH, THRISSUR-680 001.

    5*       ASSISTANT COMMISSIONER,
             COCHIN DEVASWOM BOARD,
             THRIPUNITHURA GROUP, THRIPUNITHURA-682301.

     6       PRASOBH V.N , MEMBER , ADVISORY COMMITTEE ,
             THIRU AYINI SHIVA TEMPLE , MARADU, THEKEDATH
             AYINU, THOMASPURAM, MARADU P.O, ERNAKULAM-
             682304.
     7       JAYESH K.K., MEMBER, ADVISORY COMMITTEE,
             THIRU AYINI SHIVA TEMPLE, MARADU,
             KIZHIPALLIYIL, JAYANTHI ROAD, MARADU-682301,
             PIN - 682301
     8       MANIKANDAN T.N., MEMBER, ADVISORY COMMITTEE,
             THIRU AYINI SHIVA TEMPLE, MARADU,
             THEKKEDATHU HOUSE, NEAR THIRU AYINI SHIVA
             TEMPLE, MARADU-682301.
             *ADDRESS OF RESPONDENTS 4 AND 5 IS SUO MOTU
             CORRECTED AS PER ORDER DATED 01.02.2023.
             BY ADVS.
             K.P. SUDHEER ADVOCATE
             ABHILASH K.N.
             SUNIL NAIR PALAKKAT



         THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL
HEARING     ON   01.02.2023,   THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
                                       3
W.P.(C) No.2315 of 2023



                            JUDGMENT

P.G. Ajithkumar, J.

Thiru Ayini Shiva Temple, Maradu, Ernakulam is a temple

under the administration of the 1st respondent-Cochin

Devaswom Board. There is a Temple Advisory Committee in

the Temple constituted in terms of Section 76A of the

Travancore-Cochin Hindu Religious Institutions Act, 1950. On

elapsing its term a new Temple Advisory Committee was

elected in the meeting of the General Body held on

11.12.2022. After considering the report of the Assistant

Commissioner with respect to the matters transpired in that

General Body meeting, the 2nd respondent issued Ext.P8 order

on 05.01.2023 constituting the Temple Advisory Committee

comprising 19 elected members and two ex-officio members.

Respondent Nos.6 to 8 are also members of the Committee.

They were the office bearers of the previous Temple Advisory

Committee. Since certain irregularities in the audited accounts

of the previous Temple Advisory Committee during the periods

2019-20, 2020-21 and 2021-22 were pointed out, a re-audit

W.P.(C) No.2315 of 2023

of the accounts by the Assistant Commissioner (Audit) was

also ordered. The petitioner alleges that despite there having

serious allegations, respondent Nos.6 to 8 have been retained

in the Temple Advisory Committee, which is against the

stipulations in Ext.P1 bye-law and they are taking part of the

affairs of the Committee. Hence the petitioner filed this Writ

Petition seeking the following reliefs,-

"i) To issue a writ of mandamus and command the 4 th Respondent to complete re-audit of accounts for the years 2019-2022 of Thiru Ayini Shiva Temple, Maradu within a time frame to be fixed by this Court;

ii) To issue a writ of mandamus and command the 2 nd Respondent to initiate appropriate proceedings against Respondents Nos. 6 to 8 based on the Re-audit report of the 4th Respondent and recover the loss if any, caused to the Thiru Ayini Shiva Temple, Maradu from the personal assets of Respondents 6 to 8;

iii) To issue a writ of mandamus and command the 1 st and 2nd Respondents to initiate proceedings to debar Respondents 6 to 8 from further contesting to the advisory committee of Thiru Ayini Shiva Temple, Maradu based on the Re-audit report;

iv) To issue a writ of mandamus and direct the 1 st respondent to consider and pass orders on Exts.P6

W.P.(C) No.2315 of 2023

and P7 representations preferred by the petitioner, after affording an opportunity of hearing to the petitioner within a time frame to be fixed by this Court."

2. The 1st respondent filed a counter affidavit

explaining the facts and circumstances leading to the election

of the present Temple Advisory Committee. He explained that

in terms of the directions of this Court in Ext.P2 judgment,

General Body meeting was convened and election of the

Temple Advisory Committee was held. In obedience to the

direction in that judgment, a three-member committee was

constituted for the audit of the accounts. However, one

member of the said committee withdrew and he has filed W.P.

(C) No.37689 of 2022 before this Court. That Writ Petition

was dismissed on 23.11.2022. It was thereafter the petitioner,

who was a member of the earlier Temple Advisory Committee,

filed the present Writ Petition, which is without any basis. The

steps taken for the re-audit and the actions proposed in

respect of the allegations against respondent No.6 to 8 are

explained in para 6 of the counter affidavit, which reads as

W.P.(C) No.2315 of 2023

follows:-

"6. It cannot be disputed that the petitioner also participated in the general body convened on 11.12.2022. The petitioner is serial No. 16 in Exhibit P5 minutes (page No. 54). Exhibit P5 would further show that the members of the temple advisory committee were nominated on consensus. It is submitted that the Devaswom Assistant Commissioner, Thripunithura group submitted a report reference No. M4-3297/22 dated 12.12.2022 to the Devaswom Commissioner recommending a re-audit of the accounts by the audit wing of the Devaswom as agreed in Exhibit P5 general body. In this regard a true copy of report reference No. M4-3297/22 dated 12.12.2022 submitted by the Devaswom Assistant Commissioner, Thripunithura group to the Devaswom Commissioner is produced herewith and marked as Exhibit R1(e). By that time, the term of the Devaswom Commissioner was over on 20.12.2022 and in terms of Ext.R1(e) report, the first respondent has taken a decision on 27.12.2022 for re-

auditing of the accounts. In this regard true copy of the official memorandum A5-7399/22 dated 31.12.2022 issued by the 1st respondent is produced herewith and marked as Exhibit R1(f). The Devaswom Assistant Commissioner, Thripunithura group on receipt of Ext.R1(f) official memorandum submitted report reference No.M4-3297/22 dated 03.01.2023 to the

W.P.(C) No.2315 of 2023

Devaswom Commissioner. In this regard a true copy of report reference No. M4-3297/22 dated 03.01.2023 issued by the Devaswom Assistant Commissioner, Thripunithura Group to the Devaswom Commissioner is produced herewith and marked as Exhibit R1(g). In terms of Ext.R1(g) report, the 2 nd respondent issued order No. A5-7399/22 dated 05.01.2023. A true copy of order No. A5-7399/22 dated 05.01.2023 issued by the 2nd respondent is produced herewith and marked as Exhibit R1(h). It is submitted that Exhibit P8 order was issued constituting a temple advisory committee which was nominated on consensus with a specific condition that respondents 6 to 8 are not entitled to become office bearers of the temple advisory committee and their inclusion in the temple advisory committee will be subject to the final outcome of the re-audit by the Assistant Commissioner (Audit). The 3 rd respondent Devaswom Officer has already directed the erstwhile committee to submit the entire documents for re-audit and the erstwhile committee has not submitted the entire documents for conducting re-audit. It is submitted that on receipt of the entire documents the re-audit can be done as expeditiously as possible. The main prayer in the writ petition is for fixing a time frame for the re-audit and to initiate appropriate proceedings against respondents 6 to 8 based on the re-audit report."

W.P.(C) No.2315 of 2023

3. Respondent Nos.6 to 8 also filed a counter

affidavit. They denied all the allegations levelled against them.

They would contend that there was no irregularity in the

statement of accounts, but the mistake in the audited account

occurred solely due to the fault on the part of the Chartered

Accountant. They have submitted all the records, but a few

were omitted to be noticed in the audit report. Thus they

claimed that the allegations levelled against them are totally

incorrect. They further would contend that the petitioner with

the help of his henchmen has been trying to lay a pathway

along the property of the Temple, which these respondents

objected to. On account of that enmity, the petitioner filed this

Writ Petition.

4. Heard the learned counsel appearing for the

petitioner, the learned Standing Counsel for Cochin Devaswom

Board, and the learned counsel appearing for respondents No.

6 to 8.

5. Sri.Hari Menon filed W.P.(C) No.25180 of 2022

essentially for issuing a direction to constitute Temple

W.P.(C) No.2315 of 2023

Advisory Committee in Thiru Ayini Shiva Temple by convening

a proper General Body meeting and to subject the audited

account of the outgoing Temple Advisory Committee to

scrutiny. This Court as per Ext.P2 judgment disposed of the

said Writ Petition with the following directions:-

"7. In such circumstances, the 4 th respondent Devaswom Officer is directed to convene a General Body for considering the audit reports of the Temple Advisory Committee of Thiru Ayini Shiva Temple and also for electing new members to the Temple Advisory Committee, after complying with the statutory requirements.

8. The notice for convening the General Body shall be published on the notice board at the Cochin Devaswom Board inside the Temple premises as well as on all 'gopurams'. As provided in Ext.P1 by-law, the membership in the Temple Advisory Committee shall be confined to those who have the required qualifications as per Clause 3 of Ext.P1 by-laws, who are regular worshippers and had contributed considerably for the betterment of the Temple, who do not have any disqualification under the said clause. The audited accounts of the Temple Advisory Committee for the year 2019-20, 2020-21 and 2021-

22 shall be placed before the General Body, for

W.P.(C) No.2315 of 2023

consideration. The entire exercise in this regard shall be commenced within a period of ten days from the date of receipt of certified copy of this judgment, which shall be completed as expeditiously as possible, within a period of 45 days, after complying with the statutory requirements, in order to ensure that the newly elected Temple Advisory Committee takes charge before the commencement of the next annual festival.

Since the audited accounts for the year 2019-20, 2020-21 and 2021-22 are going to be placed before the General Body for its approval, the relief sought for in this writ petition seeking a writ of mandamus commanding the 2nd respondent to constitute an enquiry team and conduct a probe with respect to the administration of the erstwhile committee chaired by the 5th and 6th respondents during the years of 2019- 22, is left open."

6. In terms of the said directions, General Body

meeting was convened. The audited accounts of the outgoing

Temple Advisory Committee, to which respondent Nos. 6 to 8

were the office bearers, was presented before the General

Body. Members of the General Body pointed out irregularities

in the accounts and that resulted in constituting a three-

member committee for scrutiny of the accounts. Sri.Hari

W.P.(C) No.2315 of 2023

Menon was one among the said three member committee. But

he withdrew and did not cooperate with the committee for

scrutiny of the statement of accounts. He then has filed W.P.

(C) No.37689 of 2022 seeking the following reliefs:-

"i. To issue Writ of Mandamus or any other appropriate writ or order or direction to call for all the record in pursuant to the general body meeting convened on 13/11/2022 by the 4th respondent; ii. To issue a Writ of Mandamus or any other appropriate writ or order or direction to the 5 th and 6th respondents to hand over the key of the Kshethra Upadeshaka Samithi office to the 4 th respondent until constituting a new temple committee; iii. To issue a Writ of Mandamus or any other appropriate writ or order or direction to the 4 th respondent to hand over the administration of the Kshethra Upadeshaka Samithi to the 4 th respondent until constituting a new temple committee; iv. To issue a Writ of Mandamus or any other appropriate writ or order or direction to the 4 th respondent to consider and pass orders on Exhibit P3 representation submitted by the petitioner and constitute a Kshethra Upadeshaka Samithi in the light of proposed members mentioned in the Exhibit P3."

W.P.(C) No.2315 of 2023

That Writ Petition was dismissed as per the judgment dated

20.12.2022. Ext.R1(d) is the judgment holding that it was

filed without any bona fides.

7. In the General Body meeting convened on

11.12.2022, a new Temple Advisory Committee was elected.

Respondent No.6 to 8 are also members of that Committee.

The sub committee constituted for scrutiny of the audited

accounts of the outgoing Temple Advisory Committee for the

period 2019-20, 2020-21 and 2021-22 pointed out

discrepancies in the accounts. The minutes of the meeting is

Ext.P5. Ext.R1(e) is the report submitted by the 5 th

respondent-Assistant Commissioner with respect to the

matters concerning the said meeting to the 2 nd respondent-

Commissioner. The 1st respondent-Board on considering

Ext.R1(e) report decided to conduct a re-audit of the accounts

of the Temple Advisory Committee. Assistant Commissioner

(Audit), the 4th respondent was appointed to hold the re-audit.

Ext.R1(h) dated 05.01.2023 is the order issued by the 2 nd

respondent in that regard.

W.P.(C) No.2315 of 2023

8. In Ext.P8 is the order issued by the 2nd respondent

constituting the Temple Advisory Committee. It is specifically

directed in Ext. P8 that respondent Nos.6 to 8 would not be

entitled to become office bearers of the Committee. It has

also been directed that membership of respondent Nos.6 to 8

in the Committee would be subject to the outcome of the re-

audit being conducted by the 4th respondent.

9. During the course of arguments, the learned

counsel appearing for the petitioner would submit that the

President of the present Temple Advisory Committee has

resigned. It is alleged that due to the illegal interference by

respondent Nos.6 to 8 in the affairs of the committee, the

President had resigned. The said allegation is stoutly opposed

by the learned counsel appearing for respondent Nos.6 to 8.

The learned Standing Counsel for the Cochin Devaswom Board

conceded that the President of the Committee has resigned.

However, the said fact has no relevance as far as the dispute

involved in this Writ Petition is concerned, and therefore we

do not propose to consider that aspect.

W.P.(C) No.2315 of 2023

10. In the circumstances mentioned above, we are of the

view that this Writ Petition can be disposed of by directing to

expedite the process of re-audit and respondent Nos.6 to 8 not

to involve in the matters of the Temple Advisory Committee for

the time being. We add that the procedure for audit of the

accounts of the Temple Advisory Committee is provided in clause

25 of Ext.P1 bye-law. The audit as well as its follow-up actions

shall be by scrupulously following the said directions. Exts.P6 and

P7 representations were submitted to ventilate the grievances

raised in this Writ Petition. In the light of the directions being

issued hereinafter, there is no need of any order concerning the

said representations.

11. Accordingly, this Writ Petition is disposed of,

without making any observations about legal and factual

contentions of both sides, with the following directions:

i) the 4th respondent shall complete re-audit of the accounts of the Temple Advisory Committee for the year 2019-20, 2020-21 and 2021-22 within a period of two months from the date of production of certified copy of the judgment; and

W.P.(C) No.2315 of 2023

ii) Respondent Nos.6 to 8 shall not involve in the affairs of the Temple Advisory Committee till the allegations against them with reference to the accounts of the Temple Advisory Committee are cleared.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr

W.P.(C) No.2315 of 2023

APPENDIX OF WP(C) 2315/2023

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE BYE-LAWS FOR CONSTITUTING TEMPLE ADVISORY COMMITTEE EXHIBIT P2 JUDGEMENT OF THE HIGH COURT OF KERALA DATED 12.10.2022 IN WRIT PETITION (CIVIL) NO. 25180/2022 EXHIBIT P3 TRUE COPY OF THE MINUTES OF THE GENERAL BODY MEETING CONDUCTED ON 13.11.2022 EXHIBIT P5 TRUE COPY OF THE MINUTES OF THE GENERAL BODY MEETING CONDUCTED ON 11.12.2022 EXHIBIT P4 TRUE COPY OF THE REPORT OF THE ENQUIRY TEAM DATED 08.12.2022 EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 03.01.2023 PREFERRED BY THE PETITIONER TO RESPONDENT NO.1 EXHIBIT P6 PHOTOCOPY OF THE REPRESENTATION DATED 26.12.2022 PREFERRED BY THE PETITIONER TO RESPONDENT NO.1 EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGES OF THE ORDER BEARING NO.A5.7399/2022 DATED 05.01.2023 PASSED BY RESPONDENT NO.3 EXHIBIT P8(A) TYPED COPY OF EXHIBIT P8

RESPONDENT EXHIBITS EXHIBIT R1 A TRUE COPY OF ORDER ON A5. 15319/2019 DATED 07.01.2020-KUS-466/20 ISSUED BY THE 1ST RESPONDENT.

W.P.(C) No.2315 of 2023

EXHIBIT R1 B TRUE COPY OF THE AFFIDAVIT DATED 5.12.2022 FILED BY THE 1ST RESPONDENT HEREIN IN WP(C) NO. 37689/2022.

EXHIBIT R1 C TRUE COPY OF PETITION FILED FOR EXTENSION OF TIME DATED 7.12.2022 IN WP(C) 25180/2022 BY THE 3RD RESPONDENT HEREIN (DEVASWOM OFFICER, VYTTILA DEVASWOM).

EXHIBIT R1 D TRUE COPY OF JUDGMENT DATED 20/12/2022 IN WP(C) NO. 37689/2022 PASSED BY THIS HONOURABLE COURT.

EXHIBIT R1 E TRUE COPY OF REPORT REFERENCE NO. M4-

3297/22 DATED 12.12.2022 SUBMITTED BY THE DEVASWOM ASSISTANT COMMISSIONER, THRIPUNITHURA GROUP TO THE DEVASWOM COMMISSIONER.

EXHIBIT R1 F TRUE COPY OF THE OFFICIAL MEMORANDUM A5-7399/22 DATED 31.12.2022 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT R1 G TRUE COPY OF REPORT REFERENCE NO. M4-

3297/22 DATED 3.1.2023 ISSUED BY THE DEVASWOM ASSISTANT COMMISSIONER, THRIPUNITHURA GROUP TO THE DEVASWOM COMMISSIONER.

EXHIBIT R1 H TRUE COPY OF ORDER NO. A5-7399/22 DATED 05/01/2023 ISSUED BY THE 2ND RESPONDENT.