Anil K. Narendran, J.
Desavilakku in terms of that permission. The petitioner has also
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attempts to conduct Desa Vilakku on 30.11.2024.
2. On 28.11.2024, when this writ petition came up for
Station House Officer. Urgent notice on admission by special
29.11.2024 at 10.15 a.m. Paragraph 4 of the order of this Court
3. On 29.11.2024, when this writ petition came up for
"The 3rd respondent enters appearance through counsel,
who seeks time to file counter affidavit. On a query made
by this Court, the learned counsel would admit that Ext.P4
notice is one published by the 3rd respondent
Thathwamasy Desha Vilakku Committee.
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2. The learned counsel for the 3rd respondent and also the
learned Standing Counsel for Cochin Devaswom Board has
made available for the perusal of this Court a copy of
Board order dated 27.11.2024, which is one issued based
on an order dated 27.11.2024 of the Devaswom
Commissioner, whereby, the 3rd respondent Committee
has been permitted to conduct Ayyappan Vilakku in the
temple compound of Thalakottukara Bhagavathy Temple,
subject to the conditions stipulated in that order, which is
one authorising a committee by name Thathwamasy
Ayyappan Vilakku Committee.
3. The learned counsel for the petitioner would point out
the statutory provisions contained in Section 76A of the
Travancore-Cochin Hindu Religious Institutions Act, 1950
and also the bye-laws framed by the Board in exercise of
its powers under sub-section (3) of Section 76A of the Act.
4. The learned counsel for the 3rd respondent has handed
over an original receipt bearing No.1305 dated
28.11.2022.
5. Registrar (Judicial) to keep the said receipt in safe
custody.
6. Counter affidavit on behalf of the 1st respondent Cochin
Devaswom Board and also that of the 3rd respondent shall
be placed on record by 03.12.2024.
7. Petitioner to file an application to implead Thathwamasy
Ayyappan Vilakku Committee as an additional respondent."
4. By the order of this Court dated 04.12.2024 in
I.A.No.1 of 2024, Thathwamasy Ayyappan Vilakku Committee
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was impleaded as the additional 7th respondent. The learned
counsel, who entered appearance for the additional 7 th
respondent, sought time to cure the defects noted by Registry in
the vakalath filed on behalf of the 3rd respondent, i.e.,
Thathwamasy Desa Vilakku Committee. By the order dated
04.12.2024, this Court directed that a counter affidavit on behalf
of the 1st respondent Cochin Devaswom Board shall be placed on
record within one week.
5. The 1st respondent Cochin Devaswom Board has filed
a counter affidavit dated 27.01.2025. Paragraphs 2 to 4 of that
counter affidavit read thus;
"2. It is submitted that the above writ petition is filed
praying for issuing a writ of mandamus directing
respondents 1 and 2 to ensure that Ext.P3 order is
complied with in letter and spirit. The further reliefs
sought for is for a direction to respondents 1 and 2 to
ensure that respondents 3 and 4 do not collect
contributions in the name of Thalakkottukara Bhagavathy
temple and also do not conduct Thathwamasi Desavilakku
on 30.11.2024 in the temple property or its vicinity. The
petitioner also prays for a direction to the 6th respondent
to take action against respondents 3 and 4 and its
members in case there are attempts to conduct
Desavilakku on 30.11.2024. At the outset, it is
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respectfully submitted that the above writ petition is not
maintainable either in law or on facts.
3. It is submitted that the petitioner is a member of
temple advisory committee of Thalakottukara temple and
he is serial No.9 in Exhibit P1 order dated 06.10.2022.
The petitioner has also impleaded the temple advisory
committee as 5th respondent in the writ petition. The
grievance sought to be projected by the petitioner is that
respondents 3 to 5 are collecting funds in the name of
Thalakottukara Bhagavathy temple for the purpose of
conducting Desavilakku. Ext.P3 order dated 16.11.2024
would show that an application dated 12.08.2024 was
submitted by Kshethra Kshema Samithy and on
11.08.2024 an application was submitted by the 3rd
respondent. An application was also submitted by the
temple advisory committee on 11.10.2024. Based on the
report of the Assistant Commissioner, Thrissur Group
dated 03.09.2024 and 14.10.2024, the first respondent
board has taken a decision on 15.11.2024 and it is based
on that decision, Ext.P3 order dated 16.11.2024 was
issued. Ext.P3 order would show that the application
submitted by the Kshethra Kshema Samithy and the 3rd
respondent for conducting Desavilakku was rejected by
the first respondent. The first respondent has not granted
any permission to publish Exhibit P4 notice. Based on
Ext.P3 order, Desavilakku was conducted by the temple
advisory committee on 19.11.2024.
4. It is submitted that an application dated 23.11.2024
was submitted by one T. V. Karthikeyan and P.V.Sajeesh as
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the President and Secretary of Thathwamasi Vilakku
Committee to the President of the first respondent Board.
In this regard true copy of application dated 23.11.2024
submitted by the Secretary, Thathwamasi Ayyappan
Vilakku Committee to the President of the first respondent
Board is produced herewith and marked as Exhibit R1(a).
Exhibit R1(a) application was forwarded to the Devaswom
Commissioner and after obtaining the remarks of the
Assistant Commissioner, Thrissur Group, Order No.A5-
14213/23 dated 27.11.2024 was issued by the first
respondent. In this regard a true copy of order No.A5-
14213/23 dated 27.11.2024 issued by the first
respondent is produced herewith and marked as Exhibit
R1(b). The Assistant Commissioner, Thrissur Group
submitted report bearing No. M1.5049/2023 dated
29.11.2024 to the Devaswom Commissioner. In this
regard true copy of report bearing No.M1.5049/2023
dated 29.11.2024 submitted by the Assistant
Commissioner, Thrissur Group to the Devaswom
Commissioner, Cochin Devaswom Board is produced
herewith and marked as Exhibit R1(c). It is submitted that
the entire issues arises out of certain factional disputes
between the local residents. Ext R1(b) order was issued
considering the interest of the devotees and to avoid
further disputes between them. There is absolutely no
illegality or arbitrariness in issuing Exhibit R1(b) order
dated 27.11.2024. In such circumstances, it is respectfully
submitted that the petitioner is not entitled to any relief in
a proceeding under Article 226 of the Constitution of
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India."
6. Heard the learned counsel for the petitioner, the
learned Standing Counsel for Cochin Devaswom Board for
respondents 1 and 2, the learned Senior Government Pleader for
the 6th respondent Station House Officer and also the learned
counsel for the 3rd respondent and the additional 7th respondent.
7. The issue that requires consideration in this writ
petition is as to whether any association of devotees other than
the Temple Advisory Committee constituted as per the bye-laws
(Rules) framed under sub-section (3) of Section 76A of the
Travancore-Cochin Hindu Religious Institutions Act, 1950, can
have any activity whatsoever in temples, which are under the
management of the 1st respondent Cochin Devaswom Board.
8. The Travancore-Cochin Hindu Religious Institutions
Act, 1950, was made for making provisions for the
administration, supervision and control of incorporated and
unincorporated Devaswoms and of other Hindu Religious
Endowments and Funds. Chapter VIII of the Act deals with
Cochin Devaswom Board. Section 62 of the Act deals with
vesting of administration in the Board. As per sub-section (1) of
Section 62, the administration of incorporated and
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unincorporated Devaswoms and Hindu Religious Institutions
which were under the management of the Ruler of Cochin
immediately prior to the first day of July, 1949 either under
Section 50G of the Government of Cochin Act, XX of 1113, or
under the provisions of the Cochin Hindu Religious Institutions
Act, 1 of 1081, and all their properties and funds and of the
estates and all institutions under the management of the
Devaswom Department of Cochin, shall vest in the Cochin
Devaswom Board. As per sub-section (2) of Section 62,
notwithstanding the provisions contained in sub-section (1), the
regulation and control of all rituals and ceremonies in the temple
of Sree Poornathrayeesa at Trippunittura and in the Pazhayannur
Bhagavathy temple at Pazhayannur shall continue to be
exercised as hitherto by the Ruler of Cochin.
9. Section 62A of the Act, inserted by Act 14 of 1990,
deals with Devaswom properties. As per Section 62A, all
immovable properties vested in the Cochin Devaswom Board
under sub-section (1) of Section 62 shall be dealt with as
Devaswom Properties. The provisions of the Kerala Land
Conservancy Act, 1957 shall be applicable to Devaswom lands as
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in the case of Government lands. As per Section 62B, all
unassigned lands belonging to the Devaswom under the sole
management of the Board shall be deemed to be the property of
the Government for the purpose of the Kerala Land Conservancy
Act, 1957 and all the provisions of that Act shall, so far as they
are applicable, apply to such lands.
10. Section 68 of the Act provides for administration by
the Board as a trustee. As per sub-section (1) of Section 68,
subject to the provisions of the Act and of any other law for the
time being in force, the Board shall be bound to administer the
affairs of incorporated and unincorporated Devaswoms and
institutions under its management in accordance with the objects
of the trust, the established usage and customs of the
institutions and to apply their funds and property for such
purposes. As per sub-section (2) of Section 68, notwithstanding
anything contained in sub-section (1), the Board may, out of the
funds under their control, set apart such sum as they deem fit
for the educational uplift, cultural advancement and economic
betterment of the Hindu community, after providing adequately
for the purposes of the institutions which have to be met from
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the said fund.
11. Section 73A of the Act deals with duties of the Board.
As per Section 73A, it shall be the duty of the Board to perform
the functions enumerated in clauses (i) to (iv), namely, (i) to see
that the regular traditional rites according to the practice
prevalent in the religious institution are performed promptly; (ii)
to monitor whether the administrative staff and employees and
also the employees connected with religious rites are functioning
properly; (iii) to ensure proper maintenance and upliftment of
the Hindu Religious Institutions; (iv) to establish and maintain
proper facilities in major temples for the devotees.
12. Section 74 of the Act deals with vesting of jurisdiction
in the Board. As per Section 74, subject to the provisions of sub-
section (2) of Section 62, all rights, authority and jurisdiction
belonging to or exercised by the Ruler of Cochin prior to the
1st day of July, 1949 in respect of incorporated and
unincorporated Devaswoms and Institutions shall vest in and be
exercised by the Board in accordance with the provisions of the
Act. Section 74 of the Act deals with superintendence and control
by the Board. As per Section 64, the Board shall, subject to the
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provisions of Part II 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.
13. Section 76A of the Act deals with formation of Temple
Advisory Committees in the temples under the Cochin Devaswom
Board. As per sub-section (1) of Section 76A, a committee for
each temple in the name "Temple Advisory Committee'' (name of
the Temple)" may be constituted in order to ensure participation
of Hindu devotees. As per sub-section (2), the Temple Advisory
Committee constituted under sub-section (1) may be approved
by the Board. As per sub-section (3), the composition of an
Advisory Committee under sub-section (1) shall be such as may
be prescribed by rules made by the Board, not inconsistent with
any practice, prevailing, if any.
14. In Ram Mohan Das v. Travancore Devaswom
Board and others [1975 KLT 55], in the context of Section 31
of the Travancore-Cochin Hindu Religious Institutions Act, which
deals with the management of Devaswoms by Travancore
Devaswom Board, a provision which is pari materia Section 68 of
the said Act, a learned Single Judge of this Court held that under
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Section 31 of the Act, the Travancore Devaswom Board shall
manage the properties and affairs of the Devaswoms, both
incorporated and unincorporated and arrange for the conduct of
the daily worship and ceremonies and of the festivals in every
temple according to its usage. The position of the Board in
regard to the Devaswoms - incorporated and unincorporated - is
analogous to that of trustees. Any improper act of the Trustees
could be questioned by a worshipper. The law laid down in the
said decision applies with equal force in matters relating to the
administration of incorporated and unincorporated Devaswoms
by the Cochin Devaswom Board.
15. 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 the 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
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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 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
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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)
16. In A.A. Gopalakrishnan v. Cochin Devaswom
Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex
Court held that the properties of deities, temples and Devaswom
Boards are required to be protected and safeguarded by their
trustees/archakas/shebaits/employees. Instances are many
where persons entrusted with the duty of managing and
safeguarding the properties of temples, deities and Devaswom
Boards have usurped and misappropriated such properties by
setting up false claims of ownership or tenancy or adverse
possession. This is possible only with the passive or active
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collusion of the authorities concerned. Such acts of 'fence eating
the crops' should be dealt with sternly. The Government,
members or trustees of boards/trusts, and devotees should be
vigilant to prevent any such usurpation or encroachment. It is
also the duty of courts to protect and safeguard the properties of
religious and charitable institutions from wrongful claims or
misappropriation.
17. In Travancore Devaswom Board v. Mohanan Nair
[(2013 (3) KLT 132] a Division Bench of this Court noticed
that in A.A. Gopalakrishnan [(2007) 7 SCC 482] the Apex
Court emphasised that it is the duty of the courts to protect and
safeguard the interest and properties of the religious and
charitable institutions. The relevant principles under the Hindu
law will show that the Deity is always treated similar to that of a
minor and there are some points of similarity between a minor
and a Hindu idol. The High Court therefore is the guardian of the
Deity and apart from the jurisdiction under Section 103 of the
Land Reforms Act, 1963 viz. the powers of revision, the High
Court has inherent jurisdiction and the doctrine of parens patriae
will also apply in exercising the jurisdiction. Therefore, when a
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complaint has been raised by the Temple Advisory Committee,
which was formed by the devotees of the Temple, about the loss
of properties of the Temple itself, the truth of the same can be
gone into by the High Court in these proceedings.
18. In Suo Motu v. State of Kerala and others [2022
(2) KHC 411], in the context of Sabarimala Devaswom, which
is an incorporated Devaswom mentioned in Schedule I of the
Act, under Chengannur Group, this Court held that, in view of
the provisions under the Act and also the law laid down in the
decisions referred to supra, the Travancore Devaswom Board is
duty bound to ensure proper administration, supervision and
control of Sabarimala Devaswom, the Board has a statutory duty
to monitor whether its administrative officials and employees
and also the employees connected with religious rites are
functioning properly. The Board is duty bound to exercise proper
supervision and control over the acts and proceedings of all
officers and servants and to manage the properties and affairs of
Sabarimala Devaswom and conduct daily worships and
ceremonies and also festivals in the temple according to its
usage. Position of the Board in this regard is analogous to that of
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trustees, as held by this Court in Ram Mohan Das [1975 KLT
55]. Any improper act of the trustees could be questioned by a
worshiper. The Board and those entrusted with the duty of
managing the properties and affairs of Sabarimala Devaswom
are duty bound to protect the properties of the deity from any
wrongful claims, theft or misappropriation. Any such wrongful
claims, theft or misappropriation with the passive or active
collusion of the authorities concerned, which are acts of 'fence
eating the crops' should be dealt with sternly. Since the deity
being a perpetual minor, this Court is having inherent jurisdiction
to protect and safeguard the interest and properties of the deity
and the doctrine of parens patriae will also apply in the exercise
of such jurisdiction.
19. Viewed in the light of the statutory provisions referred
to hereinbefore and also the law laid down in the decisions
referred to supra, conclusion is irresistible that in exercise of the
statutory duty under Section 73A of the Act, the 1st respondent
Cochin Devaswom Board has to take necessary steps to ensure
that the regular traditional rites according to the practice
prevalent in Thalakottukara Bhagavathy Temple are performed
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promptly. The role of the 5th respondent Temple Advisory
Committee of that temple, which is constituted as per the
provisions contained in the bye-laws (Rules) framed under sub-
section (3) of Section 76A of the Act, which consists of the
devotees of that temple, is to render necessary assistance to the
Board and its officials in discharging their statutory duty, i.e., to
see that the regular traditional rites according to the practice
prevalent in the said temple are performed promptly. The
statutory framework of Section 76A of the Act and the bye-laws
(Rules) framed sub-section (3) of Section 76A of the Act, would
make it explicitly clear that the 3rd respondent Thathwamasy
Desa Vilakku Committee or the additional 7th respondent
Thathwamasy Ayyappan Vilakku Committee cannot be granted
permission to conduct 'Desa Vilakku' or and other religious rites
or customary practices in Thalakkottukara Bhagavathy Temple or
to collect any money from the devotees of Thalakkottukara
Bhagavathy. Therefore, the 1st respondent Cochin Devaswom
Board ought not to have permitted the additional 7th respondent
Thathwamasy Ayyappan Vilakku Committee to conduct 'Desa
Vilakku' in Thalakkottukara Bhagavathy Temple on 30.11.2024.
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20. From the pleadings and materials on record, we
notice that the persons behind the Thathwamasy Desa Vilakku
Committee and Thathwamasy Ayyappan Vilakku Committee are
the same, which is evident from Ext.R1(a) request dated
23.11.2024 made before the President of the 1st respondent
Cochin Devaswom Board. In paragraph 4 of the counter affidavit
of the 1st respondent Board, it is stated that Ext.R1(b) order
dated 27.11.2024 granting permission to the additional 7th
respondent Thathwamasy Ayyappan Vilakku Committee was
issued, in order to ensure that there is no issues during the
temple festival. We notice that the above stand taken by the 1st
respondent Cochin Devaswom Board cannot be sustained in law,
in view of the statutory provisions referred to hereinbefore. In
case, the members of the 3rd respondent Thathwamasy Desa
Vilakku Committee or the additional 7th respondent
Thathwamasy Ayyappan Vilakku Committee, created an issue,
which was likely to affect the proper conduct of the annual
festival of the temple, by creating a law and order issue, the
Board ought to have sought for police assistance, by approaching
the concerned Station House Officer.
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21. As noticed in paragraph 4 of the order of this Court
dated 28.11.2024 in Ext.P4 notice published by the 3rd
respondent Thathwamasy Desa Vilakku Committee, the name of
the said Committee is written as "Cochin Devaswom
Thalakottukara Bhagavathy Kshetram Thathwamasy Desa
Vilakku Committee". Since the temple in question is under the
management of the 1st respondent Cochin Devaswom Board, the
3rd respondent Thathwamasy Desa Vilakku Committee or the
additional 7th respondent Thathwamasy Ayyappan Vilakku
Committee cannot use the name of the said temple or the name
of Cochin Devaswom Board in any notice published by the said
Committees. In addition to that, the said Committees cannot
collect any money from the devotees of Thalakottukara
Bhagavathy Temple, in connection with Desa Vilakku or any
traditional rites or customary practices in the said temple. Any
such collection of money from the devotees can only be made by
the Temple Advisory Committee of that temple, against sealed
coupons issued by the concerned officer of the Cochin Devaswom
Board.
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In such circumstances, this writ petition is disposed of by
directing the 1st respondent Cochin Devaswom Board and its
officials including the Devaswom Officer of Thalakottukara
Bhagavathy Temple to take necessary steps to ensure that the
3rd respondent Thathwamasy Desa Vilakku Committee or the
additional 7th respondent Thathwamasy Ayyappan Vilakku
Committee are not permitted to conduct Desa Vilakku in the said
temple or collect any money from the devotees of Thalakottukara
Bhagavathy, in connection with Desa Vilakku or any other
religious rites or ceremonies in the temple. The Board shall
ensure that no committee or association of devotees, other than
the 4th respondent Temple Advisory Committee constituted under
Section 76A of the Travancore-Cochin Hindu Religious
Institutions Act, have activities in Thalakottukara Bhagavathy
Temple.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
AV
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APPENDIX OF WP(C) 42178/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER BEARING
NO.A5.10506-2022 DATED 06.10.2022 ISSUED BY
THE 1ST RESPONDENT
Exhibit P2 A TRUE COPY OF THE ORDER BEARING NO. A5-
10506/2022 DATED 07.11.2024 ISSUED BY THE
1ST RESPONDENT
Exhibit P3 A TRUE COPY OF THE ORDER DATED 16.11.2024
ISSUED BY THE 1ST RESPONDENT
Exhibit P4 THE TRUE COPY OF THE BROCHURES AND
ADVERTISEMENT BROUGHT OUT BY THE 4TH
RESPONDENT IN RESPECT OF THE DESA VILAKKU
PROPOSED TO BE CONDUCTED ON 30.11.2024
RESPONDENT EXHIBITS
EXHIBIT R 1 ( A ) TRUE COPY OF APPLICATION DATED 23/11/2024
SUBMITTED BY THE SECRETARY, THATHWAMASI
AYYAPPAN VILAKKU COMMITTEE TO THE PRESIDENT
OF THE FIRST RESPONDENT BOARD
EXHIBIT R 1 ( B ) TRUE COPY OF ORDER NO. A5- 14213/23 DATED
27/11/2024 ISSUED BY THE FIRST RESPONDENT.
EXHIBIT R 1 ( C ) TRUE COPY OF REPORT BEARING NO. M1.
5049/2023 DATED 29/11/2024 SUBMITTED BY THE
ASSISTANT COMMISSIONER, THRISSUR GROUP TO
THE DEVASWOM COMMISSIONER, COCHIN DEVASWOM
BOARD.
