SUO MOTU v. STATE OF KERALA

ORDER This DBP is registered suo motu, vide proceedings dated

16.06.2023, based on a complaint made by a devotee of Sree Janardhanaswamy Temple, Varkala, which is a temple under the management of the Travancore Devaswom Board, regarding repair and polishing work of the golden flag mast of that temple.

2. On 20.06.2023, when this DBP came up consideration, the learned Standing Counsel for Travancore Devaswom Board sought time to get instructions.

3. On 27.06.2023, it was submitted before this Court the 5th respondent Thiruvabharanam Commissioner conducted an inspection in the temple on 26.06.2023 and that, an affidavit on behalf of the 2nd respondent Board, enclosing therewith the report of the Thiruvabharanam Commissioner, shall be placed on record within one week.

4. The 2nd respondent has filed an affidavit dated

11.07.2023, producing therewith Annexure R2(a) report dated

26.06.2023 of the Thiruvabharanam Commissioner, addressed to the Liaison Officer, Travancore Devaswom Board.

5. On 13.07.2023, when this matter came up for consideration, the Superintendent of Police (Vigilance and DBP No.47 of 2023 4 Security), Travancore Devaswom Board was suo motu impleaded as the additional 7th respondent. The learned Standing Counsel for the Board made available for the perusal of this Court, communication No.ROC 6608/23/SUIT/Vigilance

03.07.2023 of the Secretary of the Board, whereby the additional 7th respondent has been authorised to conduct an enquiry in the matter and submit a report. By the order dated

13.07.2023, the additional 7th respondent was directed to conduct a proper enquiry and submit a report before this Court.

6. On 12.09.2023, when this DBP came up consideration, Registry was directed to issue a copy of the complaint dated 26.08.2023 submitted by the devotee, who had submitted the earlier complaint, based on which this DBP was registered suo motu, to the learned Senior Government Pleader and the learned Standing Counsel for Travancore Devaswom Board. The original complaint, along with its envelope, was directed to be kept in safe custody by Registrar (Judicial), after incorporating a photocopy of that complaint in the Judges’ papers of this DBP. The learned Standing Counsel for the Board sought time to get instructions on the enquiry conducted by the additional 7th respondent. DBP No.47 of 2023 5

7. On 18.10.2023, when this DBP came up consideration, the learned Standing Counsel for the Board submitted that the additional 7th respondent has already submitted a report dated 28.09.2023, which will be placed before the Board in its next meeting. The learned Standing Counsel made available for the perusal of this Court a copy of that report. On a perusal of the same, this Court noticed that, after the order of this Court dated 13.07.2023, a Sub Inspector of Police in the Vigilance Wing of the Travancore Devaswom Board conducted the enquiry and submitted a report before the additional 7th respondent, the Superintendent of Police (Vigilance and Security), which has been forwarded to the Board for action along with a covering letter dated 28.09.2023 of the additional 7th respondent.

8. By the order dated 18.10.2023, the learned Standing Counsel for the Board was directed to place on record the report of the Sub Inspector of Police and the covering letter dated

28.09.2023 of the additional 7th respondent. In the said order, this Court noted that despite the direction contained in the order dated 13.07.2023, the additional 7th respondent Superintendent of Police (Vigilance and Security) conducted enquiry through a Sub Inspector of Police in the Vigilance Wing of the Board and DBP No.47 of 2023 6 thereafter, that report was simply forwarded to the Board, along with a covering letter dated 28.09.2023. By the order dated

18.10.2023, the additional 7th respondent was directed to file an affidavit explaining the facts and circumstances, within ten days.

9. On 31.10.2023, when this DBP came up consideration, the learned Standing Counsel for the Board submitted that the report of the additional 7th respondent Superintendent of Police (Vigilance and Security) has already been placed before the Board, its meeting held on

30.10.2023.

10. The additional 7th respondent Superintendent of Police (Vigilance and Security) has filed an affidavit dated 30.10.2023, explaining the facts and circumstances. Paragraphs 2 to 9 of that affidavit read thus; "2. It is humbly submitted that vide ROC No.6608/23/Suit/ Vig dated 03.07.2023 of the Travancore Devaswom Board, I was entrusted to conduct an enquiry regarding the loss of two gold plated Alilas installed at the top most portion of the golden flag pole erected at Sree Janardhana Swami Temple, Varkala. In the above Board order, it is mentioned that the Hon’ble High Court of Kerala has initiated suo motu proceedings in the matter and a copy of the suo motu proceedings of this Hon’ble Court dated 16.06.2023 in DBP No.47 of 2023 also was attached. A report prepared DBP No.47 of 2023 7 the Thiruvabharanam Commissioner, Travancore Devaswom Board in this matter was also forwarded to me.

3. It is respectfully submitted that while perusing the report, it is noted that the Thiruvabharanam Commissioner has stated that, vide ROC 35/2023/TM dated 10.03.2023 the flagpole was polished excluding the top most portion where the Peedam, over which the Vahanam is fixed, and also the gold plated Alilas were installed. He also stated that no records were found in Varkala Devaswom in respect of the safe custody of any fallen Alilas earlier from the flagpole and no mahazar or report was prepared by the Administrative Officers of Varkala Devaswom in this regard. During the time of polishing the flagpole, Alilas were not detached from the flagpole and as the area where the Temple situated is affected strongly by wind from the nearby sea and due to this it cannot be assumed whether the Alilas were lost earlier or not. In the report, the Thiruvabharanam Commissioner has stated that he cannot find out how many Alilas are left in the flagpole and suggested that after obtaining the opinion of Tanthri of the temple, drones or similar technology should be used to ascertain the number of Alilas now present in the flagpole. Along with the report, the statements of Smt.Asha Bindhu, the then Administrative Officer of Varkala Devaswom, Sri.J.S.Hariraj, Junior Superintendent incharge of Assistant Devaswom Commissioner, Varkala Group, Sri.Gopakumaran Nair, Head Clerk, Deputy Devaswom Commissioner’s Office, Thiruvananthapuram Sri.T.M.Manikandan, Smith, recorded Thiruvabharanam Commissioner were also attached. I have perused these statements and found that the flagpole was DBP No.47 of 2023 8 polished excluding its top most portion where the gold plated Alilas were installed.

4. It is humbly submitted that I have discussed the matter with the Thiruvabharanam Commissioner and thereafter deputed the Sub Inspector of Police, South Zone, Vigilance Unit, Travancore Devaswom Board to examine the matter in detail and to furnish a report in this regard. I also gave direction to the Sub Inspector of Police to avail the service of the photographer of Travancore Devaswom Board with tele lens to examine the exact number of gold plated Alilas remaining in the flagpole. It is ascertained with the help of the photographer that only six small Alilas are now remaining in the flagpole.

5. It is submitted that the Sub Inspector reported that only six small Alilas are available in the flagpole now and I directed him to obtain the mahazar which was prepared during the time of the installation of the golden flagpole to find out the actual number of Alilas fixed at the time installation. On a perusal of the mahazar, it is understood that 34 small Alilas and 5 big Alilas were fixed during the time of the installation of the flagpole. The Sub Inspector also reported that it is heard from the Devaswom staff that some gold plated Alilas, which had fallen from the flag mast earlier, are kept in the strong room. I directed him to inspect those Alilas and issued official communication to the Thiruvabharanam Commissioner to make arrangements to open the strong room of Varkala Devaswom.

6. It is submitted that the strong room of Varkala Devaswom was opened in the presence of Smt.K.R.Lekha, Assistant Devaswom Commissioner, Varkala Smt.S.Anithakumari, Administrative Officer, Varkala DBP No.47 of 2023 9 Devaswom. The Sub Inspector on inspecting the registers of the strong room could see that four Alilas are kept in the strong room as item number 1069. Then the Mudrapothi was opened and the same was inspected by the Devaswom Smith who was present during that time of this inspection. He reported that those are gold plated small Alilas installed at the golden flag pole. Its weight is noted as 73 grams 500 mg. On seeing the small golden Alilas, Administrative Officer of Varkala Devaswom, Smt.S.Anitha Kumari informed that two Alilas like this are kept in the store room and the Sub Inspector asked the Administrative Officer to produce the same. The Administrative Officer produced it and the same was inspected by the Devaswom smith. The Smith after inspection opined that those are gold plated Alilas of big size installed in the flagpole. The Sub Inspector contacted me over phone and reported the matter in detail. The Alilas weighed 115 grams 300 mg. Then it was entered in the Thiruvabharanam register of Varkala Devaswom as item number 11970 and handed over to the Assistant Devaswom Commissioner, Varkala to keep safely in the strong room.

7. It is submitted that the Sub Inspector reported all the matters before me in person and I directed him to prepare a detailed report incorporating all the matters found on enquiry. The inspection was conducted strictly in terms of my directions on each aspect. Thereafter the Sub Inspector submitted the report to me and I perused the report thoroughly and found that all the aspects revealed on inspection are correctly and properly reported. Hence the same was forwarded to the Board for consideration. DBP No.47 of 2023 10

8. It is humbly submitted that the Vigilance and Security Unit of Travancore Devaswom Board is headed by me. The Vigilance wing is divided into three zones, i.e., South Zone, Central Zone and North Zone. Each zone has one Sub Inspector of Police and one Vigilance Officer appointed from the Devaswom Board. The petitions received in my office are entrusted to these officers and I personally monitor the enquiries in respect of serious matters and give timely instructions to enhance the quality of the enquiry. The reports submitted by these officers are scrutinized and after approving the report it is forwarded to the Board for further action. Here, the enquiry in respect of loss of Alilas in the golden dwajam at Sree Janardhanaswami temple was personally monitored by me on each stage and the same was proceeded and completed under my directions.

9. It is respectfully submitted that the order dated

13.07.2023 passed by this Hon’ble Court was not communicated to me. Hence as per ROC 6608/23/SUIT/ Vigilance dated 03.07.2023 in which the Board authorised me to conduct an enquiry in the matter and to submit report. The enquiry was conducted through the sub inspector and I personally monitored the same at each stage and the same was proceeded and completed on my directions. I always used to obey and comply with all the directions issued by this Hon’ble Court and act to uphold the majesty and prestige of this Hon’ble Court. The inconvenience caused to this Court and the lapse, if any, on my part is not deliberate or intentional and happened due to the reasons stated above and the same may kindly be DBP No.47 of 2023 11 excused. I seek unconditional apology inconvenience caused to this Hon’ble Court."

11. On behalf of the 2nd respondent Travancore Devaswom Board an additional affidavit dated 19.01.2024 was placed on record producing therewith Annexure R2(b) order dated

06.11.2023. Paragraphs 3 and 4 of that affidavit read thus; "3. It is submitted that the Board directed the additional 7th respondent to conduct an enquiry and to submit a report in the matter as per ROC No.6608/23/Suit/Vig dated

03.07.2023. The 7th respondent after conducting an enquiry through the Sub Inspector of Police under him and submitted report dated 28.09.2023. It is submitted that the report states that as per the mahazar prepared at the time of installation of the golden flag pole, 34 small Alilas and 5 big Alilas were fixed at the time of its installation and now only 6 small Alilas are found in the flagpole. Four small Alila’s are kept in the strong room of Varkala Devaswom and two big Alilas are kept in the store room of Varkala Devaswom. It is further reported that no evidence is received to substantiate the allegations against Smt.Asha Bindu, the former Assistant Devaswom Commissioner and Alilas might have fallen due to the heavy wind and/or due to corrosion of the wire used to hang the Alila on the flag pole. The above has to be ascertained through examination by metal detector.

4. It is submitted that the Board considered the report of the additional 7th respondent and decided to (i) close the further proceedings against Smt.Asha Bindu, Assistant Devaswom Commissioner, since nothing was found to DBP No.47 of 2023 12 prove the allegations against her, (ii) the maintenance of the flagpole when done in future have to be done either by the Board or through sponsors, (iii) the Devaswom Commissioner was authorised to give instructions to the Deputy Devaswom Commissioner’s, Assistant Devaswom Commissioners’ & Administrative Officers’ of the temples to prepare complete mahazar of the activities undertaken including the Vahanam of the flag pole while doing the repair works, cleaning works, etc., and (v) the 7th respondent is authorised to explore the feasibility of conducting an examination with the assistance of metal detectors to find out the missing Alilas, if any, lying under the ground. True copy of the proceedings of the Travancore Devaswom Board, ROC 6608/23/Suit/Vig dated 06.11.2023 is produced herewith and marked as Annexure R2(b)."

12. By the order dated 06.02.2024, the Senior Deputy Director, Kerala State Audit Department, Travancore Devaswom Board Audit, was suo motu impleaded as the additional 8th respondent.

13. Heard the learned Senior Government Pleader for the 1st respondent State and also the additional 8th respondent Senior Deputy Director and the learned Standing Counsel for Travancore Devaswom Board for respondents 2 to 6 and also for the additional 7th respondent.

14. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the DBP No.47 of 2023 13 administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with duties of the Board. As per Section 15A, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials 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 the temples for the devotees. Section 16 of the Act deals with supervision and control by the Board. As per Section 16, the Board shall, subject to the provisions of Part I 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.

15. Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. As per Section 24, the Board shall, out of the Devaswom Fund constituted under Section 25, maintain the Devaswoms mentioned in Schedule I DBP No.47 of 2023 14 [i.e. incorporated Devaswoms], keep in a state of good repair the temples, buildings, and other appurtenances thereto, administer the said Devaswoms in accordance with recognised usages, make contributions to other Devaswoms in or outside the State and meet the expenditure for the customary religious ceremonies and may provide for the educational upliftment, social and cultural advancement and economic betterment of the Hindu community.

16. Section 31 of the Act deals with management of Devaswoms. As per Section 31, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage.

17. Under the provisions of the Act, the Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in Sree Janardhanaswamy Temple, Varkala are performed promptly; to monitor whether the administrative officials and the employees, and also the employees connected with religious rites are functioning properly; and to establish and maintain proper facilities in Sree DBP No.47 of 2023 15 Janardhanaswamy Temple, Varkala for the devotees. Subject to the provisions of Part I of the Act and the Rules made thereunder, the Board shall manage the properties and affairs of Sree Janardhanaswamy Temple, Varkala and arrange for the conduct of the daily worship and ceremonies and of the festivals in Sabarimala according to the usage.

18. In Ram Mohan Das v. Travancore Devaswom Board [1975 KLT 55] a learned Single Judge of this Court held that under Section 31 of the Travancore-Cochin Hindu Religious Institutions 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.

19. In Suo Motu v. State of Kerala and others [2022 (2) KHC 411], in the context of Sabarimala Devaswom, this Court held that, in view of the provisions under the Act and also the law laid down in the decisions referred to therein, the Travancore Devaswom Board is duty bound to ensure proper DBP No.47 of 2023 16 administration, supervision 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 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. DBP No.47 of 2023 17

20. Today, during the course of arguments, the learned Standing Counsel for Travancore Devaswom Board has made available for the perusal of this Court two photographs of the gold plated Alilaas kept in the strong room of Varkala Devaswom. Those photographs are reproduced hereunder;

21. In the instant case, from the additional affidavit dated

19.01.2024 filed by the 2nd respondent, in which reference has been made to the enquiry conducted by the Vigilance Wing of the Travancore Devaswom Board, this Court noticed that as per the mahazar prepared at the time of installation of golden flag pole of Sree Janardhanaswamy Temple, Varkala, the flag pole was fitted with 34 small Alilaas and 5 big Alilaas. Now only 6 small Alilaas are found in the flag pole. Four small Alilaas are kept in the strong room of Varkala Devaswom along with 2 big Alilaas. In the enquiry no evidence could be collected to substantiate the allegations against Smt.Asha Bindhu, the former DBP No.47 of 2023 18 Assistant Devaswom Commissioner. The Board considered the report of the additional 7th respondent Superintendent of Police (Vigilance and Security) and decided to close the further proceedings against Smt.Asha Bindhu, since nothing was found to prove the allegations made against her. In Annexure R2(b) order dated 06.11.2023, while closing the proceedings initiated against the concerned Assistant Devaswom Commissioner, the Board has also decided to restore the lost Alilaas of the flag pole either by the Board or through sponsors and the Devaswom Commissioner has been instructed to issue general directions to all Assistant Devaswom Commissioners, Administrative Officers and Deputy Devaswom Commissioners regarding preparation of mahazar while undertaking repair work, cleaning work, etc. of golden flag poles in the temples under the management of the Board. In the above circumstances, this DBP is disposed of taking note of the stand taken by the Travancore Devaswom Board in the additional affidavit dated 19.01.2024 and by directing the Board and its officials to ensure strict compliance of the general directions contained in Annexure R2(b) Board order dated

06.11.2023, while undertaking cleaning and repair works of DBP No.47 of 2023 19 golden flag poles in the temples under the management of the Travancore Devaswom Board. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- HARISANKAR V. MENON, JUDGE AV/ DBP No.47 of 2023 20 APPENDIX OF DBP 47/2023 RESPONDENT ANNEXURES Annexure-R2(a) Annexure-R2(b) TRUE COPY OF THE REPORT VIDE R.O.C. NO.35/2023/TM DATED 26.06.2023 OF THE THIRUVABHARANAM COMMISSIONER ADDRESSED TO THE LIAISON OFFICER, TRAVANCORE DEVASWOM BOARD ALONG WITH THE DEPOSITIONS TRUE COPY OF THE PROCEEDINGS OF THE TRAVANCORE ROC 6608/23/SUIT/VIG DATE 06.11.2023 DEVASWOM BOARD,