Kerala High Court
Managing Trustee vs State Of Kerala on 5 November, 2024
Author: Anil K.Narendran
Bench: Anil K.Narendran
2024:KER:82471
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 5TH DAY OF NOVEMBER 2024/14TH KARTHIKA, 1946
W.P.(C) NO. 22106 OF 2024
PETITIONER:
MANAGING TRUSTEE
SRI AYYAPPANKAVU DEVASWOM, CHERUPULASSERY P.O.,
PALAKKAD, PIN - 679503.
BY ADVS.
K.MOHANAKANNAN
A.R.PRAVITHA
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT RREVENUE
DEVASWOM DEPARTMENT GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
2 MALABAR DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY OFFICE OF THE
MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX,
ERANJIPALAM, KOZHIKODE DISTRICT, PIN - 673003.
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2
W.P.(C) No.22106 of 2024
3 THE COMMISSIONER
MALABAR DEVASWOM BOARD, OFFICE OF THE MALABAR
DEVASWOM BOARD, HOUSEFED COMPLEX, ERANJIPALAM,
KOZHIKODE DISTRICT, PIN - 673003.
4 ASSISTANT COMMISSIONER
MALABAR DEVASWOM BOARD , OFFICE OF THE
ASSISTANT COMMISSIONER MALABAR DEVASWOM BOARD
PALAKKAD DIVISION, PALAKKAD, PIN - 678013.
5 CHERUPLASSERY MUNICIPALITY
REP BY ITS SECRETARY CHERPULASSERY,
PIN - 679503.
6 THE MUNICIPAL COUNCIL
REP BY ITS CHAIRPERSON CHERPULASSERY
MUNICIPALITY, PIN - 679503.
7 P.N.SREERAMAN
AGED 58 YEARS, S/O.NARAYANA SWAMI,
‘SREELAKSHMI NIVAS' VELLINEZHI,
CHERUPLASSERY, PALAKKAD, PIN - 679503.
BY ADVS.
R.RANJANIE,SC, MALABAR DEVASWOM BOARD
SHAMEENA SALAHUDHEEN,SC,CHERUPLASSERY
MUNICIPALITY
R7 BY R.RANJANIE
SHAMEENA SALAHUDHEEN
KRISHNADAS P. NAIR
K.L.SREEKALA
HARIDAS P.NAIR
M.A.VINOD
K.G.MANOJ KUMAR
M.RAJESH KUMAR
PRASOON.K.P
VISHNU PRASAD
ABHIRAMI P.S.
MERLIN THOMAS
SWATHYKRISHNA K.
ANU PRABHAKAR
BIJU VISWANATH
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3
W.P.(C) No.22106 of 2024
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL
HEARING ON 23.10.2024, THE COURT ON 05.11.2024 DELIVERED
THE FOLLOWING:
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4
W.P.(C) No.22106 of 2024
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
-----------------------------------------------------------
W.P.(C) No.22106 of 2024
-----------------------------------------------------------
Dated this the 5th day of November, 2024
JUDGMENT
P.G.Ajithkumar, J.
The Government has evolved a scheme, "take a break"
concerning construction of public toilets. Cherpulassery
Municipality implemented the said scheme under the Suchitwa
Mitra Project. On the request of the petitioner, the 5 th
respondent-Cherpulassery Municipality took up a project of
constructing a toilet complex in the premises of Sri
Ayyappankavu Temple, Cherpulassery which is a controlled
institution under the Malabar Devaswom Board. On
completion of construction, it was inaugurated on 30.04.2023.
Thereafter, there arose a litigation and this writ petition is the
second round.
2. Sri.P.N.Sreeraman, 7th respondent, filed W.P.(C)
No.24711 of 2023 seeking a writ of certiorari quashing the
agreement dated 23.02.2022, Ext.P2, regarding construction
of the said toilet complex and also a writ of mandamus
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commanding the 3rd respondent, Commissioner of Malabar
Devaswom Board to ensure that no construction is carried out
in the properties of the Temple. The said writ petition was
disposed of by this Court as per Ext.P4 judgment. Operative
part of the said judgment reads,-
"25. A reading of the Government order dated
27.07.2020 would make it explicitly clear that the
constructions of such toilet complexes intended for
the use of public, giving right to the Local Self
Government Institutions to make provision for the
operation and maintenance of the toilet block by
auctioning that right by way of public auction or
entrusting the same to Kudumbasree Unit, cannot be
permitted in temples, which are controlled institutions
under the Malabar Devaswom Board. As evident from
Ext.P3 photograph the name of Cherpulassery
Municipality is exhibited prominently in the building,
which is legally impermissible in respect of a building
constructed in the Devaswom land.
26. During the course of arguments, the learned
Standing Counsel for Cherpulassery Municipality and
also the learned counsel for the 4 th respondent
Managing Trustee would submit that in terms of the
directions contained in the order of this Court dated
14.09.2023, the operation and maintenance of toilet
block is being done by the temple authorities.
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Having considered the submissions made at the Bar,
we deem it appropriate to make the interim order
dated 14.09.2023 absolute and this writ petition is
disposed of by directing the 2nd respondent
Commissioner, Malabar Devaswom Board to take an
appropriate decision on the amount spent by
Cherpulassery Municipality for the construction of the
toilet block, with notice to the Secretary,
Cherpulassery Municipality and the 4th respondent
Managing Trustee of Cherpulassery Sree Ayyappan
Kavu and also the petitioner in this writ petition. A
decision as directed above shall be taken, as
expeditiously as possible, at any rate, within a period
of two months from the date of receipt of a certified
copy of this judgment."
3. In terms of the said directions, the 3 rd respondent
quantified the expenses incurred in connection with
construction of the toilet complex in the premises of the Sri
Ayyappankavu Temple, Cheruplassery. After giving notice and
also an opportunity of being heard to the parties concerned,
such a quantification was made. On the basis of the
quantification, the 3rd respondent issued Ext.P10 directing the
trustee board of the Temple to pay Rs.17,49,470/- to the 5 th
respondent-Municipality, which was the cost of construction.
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In Ext.P10, the Commissioner directed also to realise an
amount of Rs.50,300/- from the managing trustee of the
Temple, being the amount spent in connection with electrical
and plumbing works in the toilet complex. The petitioner has
filed this writ petition challenging the said directions in
Ext.P10 and to quash the same and also Ext.P11, which was
issued by the 5th respondent to the petitioner asking to pay
the amount.
4. The 3rd respondent has filed a counter-affidavit
explaining the circumstances in which Ext.P2 was happened to
be executed and the steps taken by the Malabar Devaswom
Board in relation to the construction of the toilet complex.
5. The 5th respondent filed a counter-affidavit
explaining details of the construction and the expenses
incurred in that connection. It is contended that in the light of
Ext.P4 judgment, the Municipality despite carrying out the
construction, could not fulfill its obligation as per Ext.P2
agreement. When the public fund was utilised for the
construction of the toilet complex and the same could not be
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put in use for the benefit of the general public, the petitioner
is obligated to pay to the Municipality the cost of its
construction. Non-payment of that amount will be an audit
infraction on the part of the Municipality and that will result in
a huge financial loss to it.
6. Heard the learned counsel for the petitioner, the
learned Senior Government Pleader, the learned Standing
Counsel for the Malabar Devaswom Board, the learned
Standing Counsel for the Cherpulassery Municipality and the
learned counsel for the 7th respondent.
7. W.P.(C) No.24711 of 2023 was filed challenging the
legality and correctness of allotting property of Sri
Ayyappankavu Temple, Cherplassery for the construction of
toilet complex. The construction was carried out by the 5 th
respondent-Municipality on the request of the petitioner.
Ext.P2 is the agreement in that regard. As is evident from
Ext.P2 and as observed in Ext.P4 judgment, the construction
was carried out making use of the fund of the Municipality.
The expenses met by the Municipality for the purpose was
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quantified by the 3rd respondent and it is Rs.17,49,470/-. No
party has raised any objection to that quantification. In the
circumstances, the question is as to whether or not the
directions issued by the 3rd respondent directing the petitioner
to pay the said amount to the Municipality and also to realise
an amount of Rs.50,300/- from the managing trustee are
correct.
8. An interim order was passed by this Court in W.P.
(C) No.24711 of 2023 that the petitioner should manage and
maintain the toilet complex and the 5th respondent did not
have any authority in that matter. Going by the provisions in
Ext.P2, the ownership of the land where the toilet complex
was constructed should continue with the Temple. In the said
circumstances, the 5th respondent would not have any control
in the management and maintenance of the toilet. It is true
that the intended beneficiaries of the toilet complex are the
general public. Now, the toilet is to be managed by the
Temple authorities. Can then the general public continue to be
the beneficiaries.
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9. The 5th respondent produced along with its counter
a site plan, which is Ext.R5(a). It is seen from Ext.R5(a) that
the toilet complex is near to the Pattambi-Cherpulassery
public road. A building separates the road and the toilet. It is
away from the Temple and its pond. In between the toilet and
the Temple as well as the pond there is a parking yard. A
provision for access for the public from the said public road to
the toilet is available. In the said circumstances, the said toilet
can be used by the public during the period when it is kept
open.
10. The toilet complex is constructed in the property of
the Temple. The said portion also is an integral part of the
property where the Temple and its structures are situated. Of
course, operating of such a toilet complex would not cause
any inconvenience to the worshipers or the rites and practices
in the Temple. However, it being a construction on the Temple
property, it cannot be kept open for the use of the general
public, as of right. At the same time, by allowing the general
public to use the toilet subject to restrictions to be followed in
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the Temple premises, no prejudice would be caused to the
Temple or the Temple authorities in terms of ownership and
enjoyment of the Temple and its premises. Having spent such
a huge public money, it is only appropriate also to allow the
general public to use the toilet complex, subject, of course, to
the restrictions imposed by the authorities of the Temple. In
such circumstances, we are of the view that the Temple
authorities can be absolved from making payment of the
expenses incurred by the 5th respondent for the construction
of the toilet complex subject to the condition for its use by the
members of the public as aforementioned. The direction in
Ext.P10 in that regard can therefore be quashed.
11. From the materials produced by the petitioner, it is
seen that a decision to expend Rs.50,300/- towards the cost
of electrical and plumbing works in the toilet complex was
taken by the Board of Trustees. Before incurring such an
expense, the Managing Trustee should have obtained
permission from the Malabar Devaswom Board. However, for
the reason of such an irregularity alone, the Managing Trustee
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cannot be held personally responsible for that sum
particularly, when the Temple and devotees are the
beneficiaries of that expenditure. However, we strongly
deprecate such an irresponsible act on the part of the
Managing Trustee.
12. Accordingly, this writ petition is allowed and the
direction in Ext.P10 to make payment of Rs.17,49,470/- by
the petitioner to the 5th respondent and to recover
Rs.50,300/- from the Managing Trustee of the Temple are set
aside, subject to the conditions as laid down above regarding
management and maintenance, and also use of the toilet
complex in question.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
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APPENDIX OF WP(C) 22106/2024
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE REPRESENTATION SENT
BY THE PETITIONER TO THE MUNICIPAL
COUNCIL DATED 16-11-2021
EXHIBIT P2 TRUE COPY OF THE AGREEMENT EXECUTED BY
THE PETITIONER WITH THE 5TH RESPONDENT
DATED 23-2-2022
EXHIBIT P3 TRUE COPY OF THE INTERIM ORDER PASSED
ON 14-9-2023 IN WRIT PETITION(C)
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WRIT
PETITION(C)24711 OF 2023 DATED 30-10-
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION ISSUED
BY THE 3RD RESPONDENT 27-3-2024 WITH
TYPED COPY
EXHIBIT P6 TRUE COPY OF THE MINUTES OF THE
MEETING OF THE DEVASWOM DATED 2-4-2024
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION ISSUED
BY THE ASSISTANT COMMISSIONER, MALABAR
DEVASWOM BOARD, PALAKKAD NO.A4/564/
2024/ MDB DATED 8-5-2024 WITH
ANNEXURES
EXHIBIT P8 TRUE COPY OF THE ANNUAL STATEMENT OF
ACCOUNTS SHOWING THE INCOME &
EXPENDITURE OF SRI AYYAPPANKAVU,
TEMPLE, CHERPULASSERY FOR THE YEAR
2021 TO 2023
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER BEFORE THE
3RD RESPONDENT DATED 9-4-2024
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EXHIBIT P10 TRUE COPY OF THE ORDER NO.J5/3805/
2023/ MDB DATED 20-4-2024 OF THE 3RD
RESPONDENT
EXHIBIT P11 RUE COPY OF THE LETTER NO.PW1-70/2023
DATED 06-06-2024 ISSUED BY THE 6TH
RESPONDENT TO THE PETITIONER
RESPONDENT EXHIBITS
EXHIBIT R5 (A) TRUE COPY OF THE SITE PLAN PREPARED BY
THE MUNICIPAL ENGINEER OF
CHERPULASSERY MUNICIPALITY
EXHIBIT R5 (B) A TRUE COPY OF THE ESTIMATE PREPARED
BY THE MUNICIPAL ENGINEER OF
CHERPULASSERY MUNICIPALITY
EXHIBIT R5 (C) A TRUE COPY OF THE COMPLETION
CERTIFICATE ISSUED BY THE ASSISTANT
ENGINEER, CHERPULASSERY MUNICIPALITY
DATED NIL
