SANDEEP P.R v. COCHIN DEVASWOM BOARD

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 W.P.(C) No. 14604 of 2021 -8- Conservancy Act, 1957 shall be applicable to Devaswom lands as 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 W.P.(C) No. 14604 of 2021 -9- for the purposes of the institutions which have to be met from 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 W.P.(C) No. 14604 of 2021 -10- per Section 64, the Board shall, subject to the 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 86 of the Act provides that alienation of property without sanction of Board void. As per sub-section (1) of Section 86, any exchange, sale, mortgage, pledge, lease or other alienation of the property of an institution executed or made or any debt contracted on its behalf, shall be void unless it is executed or made or contracted with the previous sanction of the Board or with the previous sanction of the Civil Court when in any suit, appeal or other proceedings in relation to the institution a Receiver has been appointed by the civil court for the management of the properties of the institution. As per the proviso to sub-section (1) of Section 86, the court shall before granting or refusing such sanction give notice to the Board and hear the objections, if any, of the Board. As per sub-section (2) of Section 86, the Board may prefer an appeal to the High Court from the order passed by such court within thirty days of the order and such appeal shall be heard and disposed of by a Bench W.P.(C) No. 14604 of 2021 -11- of not less than two Judges. As per sub-section (3) of Section 86, any person aggrieved by an order under sub-section (1) may appeal to the High Court within thirty days from the date of publication of the order in the Gazette and such appeal shall be heard and disposed of by a Bench of not less than two Judges. As per sub-section (4) of Section 86, every order of the Board under sub-section (1) shall be published in the Gazette.

14. 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. 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 W.P.(C) No. 14604 of 2021 -12- 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 the W.P.(C) No. 14604 of 2021 -13- 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)

15. ‘Deva’ means God and ‘swom’ means ownership in Sanskrit and the term ‘Devaswom’ denotes the property of God in common parlance. See: Prayar Gopalakrishnan v. State of Kerala [2018 (1) KHC 536].

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 W.P.(C) No. 14604 of 2021 -14- 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 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 W.P.(C) No. 14604 of 2021 -15- 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, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of parens patriae will also apply in exercising the jurisdiction. Therefore, when a 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. By the proceedings of the Diwan of Cochin [order No.Dis.21/B/98

06.11.1922], Devaswom Superintendent and Diwan Peshkar were informed that the registry of all tanks, utsavom grounds, roads and lanes attached to the puramboke should be altered from ‘Sirkar puramboke’ to ‘temple puramboke’ (as in British India).

19. In Payappar Sree Dharmasastha Temple A. Com. v. A.K. Joseph [(2009) 14 SCC 628] it was contended before the Apex Court that the Travancore Devaswom Board is a W.P.(C) No. 14604 of 2021 -16- statutory body which came into being only by the Travancore- Cochin Hindu Religious Institutions Act, 1950 and before that, the Government and Devaswom were one and the same and there was no separate existence, and therefore, whatever order was passed by the Government prior to 1950 regarding the land in question, it was also binding upon the Board. It was also contended that Section 27 of the Act does not nullify any assignment by the Government before the Travancore Devaswom Board came into existence. As per Section 27, which deals with Devaswom properties, immovable properties entered or classed in the revenue records as ‘Devaswom Vaga’ or ‘Devaswom Poramboke’ and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30th Meenam 1097 corresponding to

12.04.1922 shall be dealt with as Devaswom properties. The provisions of the Land Conservancy Act of 1091 shall be applicable to Devaswom lands as in the case of Government lands. After perusing the provisions under Section 27, which deals with Devaswom properties, the Apex Court noticed that after coming into force of the Act of 1950 the administration of W.P.(C) No. 14604 of 2021 -17- temples and all their properties and funds, except Sree Padmanabhaswami Temple got vested in the Travancore Devaswom Board. It is clearly mentioned in Section 27 that the immovable properties entered or classed in the revenue records as Devaswom property, which is in the possession or enjoyment of the Devaswom effective from 12.04.1922 shall be dealt with as Devaswom properties. The Apex Court held that the interpretation given by the High Court, so far as Section 27 of the Act is concerned, was incorrect as the High Court totally overlooked the fact that Section 27 of the Act stipulates that immovable properties entered or classed in the revenue records as ‘Devaswom Vaga’ or ‘Devaswom Poramboke’ after 12.04.1922 would be dealt with as Devaswom properties, whether or not the same Devaswom properties was the issue which was sought to be resolved and adjudicated by the High Court by looking into various documents which were placed on record.

20. As already noticed hereinbefore, as per Sub-section (1) of Section 62 of the Act, the administration of incorporated and unincorporated Devaswoms and Hindu Religious Institutions which were under the management of the Ruler of Cochin W.P.(C) No. 14604 of 2021 -18- 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 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 in the case of Government lands.

21. As already noticed hereinbefore, as directed by the 1st respondent Cochin Devaswom Board, the additional 8th respondent Special Tahsildar (Land Conservancy) was directed to survey the Devaswom land of Sree Keraleswarapuram Temple and to demarcate its boundaries. The survey of the Devaswom land by the additional 8th respondent is already over.

22. In the above circumstances, this writ petition is disposed of by directing the additional 8th respondent Special W.P.(C) No. 14604 of 2021 -19- Tahsildar (Land Conservancy), Cochin Devaswom Board to finalise the proceedings already initiated for survey of the Devaswom land of Sree Keraleswarapuram Temple, comprised in Survey Nos.212 and 212/1, 2 and 3 of Methala Village covered by Ext.P1 settlement deed, with notice to the petitioner, the Secretary of the 4th respondent Kodungallur Municipality and other affected parties, if any, 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, taking note of the statutory provisions referred to hereinbefore and the law laid down in the decisions referred to supra. It is for the Cochin Devaswom Board, a trustee in management of Devaswom property, to ensure that the Devaswom land of Sree Keraleswarapuram Temple is protected without any encroachments whatsoever. ANIL K. NARENDRAN, JUDGE Sd/- Sd/- G. GIRISH, JUDGE W.P.(C) No. 14604 of 2021 -20- APPENDIX OF WP(C) 14604/2021 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 Exhibit P11 Exhibit P12 Exhibit P13 Exhibit P14 COPY OF THE SETTLEMENT REGISTER WITH TYPED COPY . COPY OF THE APPLICATION SUBMITTED UNDER THE RTI ACT DTD. 18.03.2021. COPY OF THE REPLY GIVEN BY THE 4TH RESPONDENT DTD. 03.04.2021. COPY OF THE APPLICATION SUBMITTED UNDER THE RTI ACT. COPY OF THE REPLY GIVEN BY THE DEVASEOM DTD. 03.04.2021. COPY OF THE APPLICATION SUBMITTED UNDER THE RTI ACT DTD 26.04.2021. COPY OF THE REPLY GIVEN BY THE DEVASWOM DTD. 06.05.2021. COPY OF THE COMPLAINT DTD. 06.03.2021. COPY OF THE STOP MEMO WITH TYPED COPY DTD. 05.03.2021. COPY OF THE COMPLAINT. COPY OF THE LETTER OF THE THANTHRI DTD. 17.3.2021 COPY OF THE COMPLAINT DTD. 07.06.2021. COPY OF THE RECEIPT DTD. 08.06.2021. COPY OF THE JUDGMENT OF THE APEX COURT, IN WPC NO. 649/2018 DTD. 05.07.2018.