MOHANDAS.N.K v. STATE OF KERALA

Along with the writ petition, the petitioner has placed on record Ext.P5 photographs showing entry of devotees to the Chuttambalam of Chottanikkara Bhagavathi Temple for darshan, through rear door; Ext.P10 series of photographs showing parking of vehicles in the Nadappanthal of Chottanikkara Bhagavathi Temple, causing obstruction to the movement of devotees. Some of the vehicles parked in the Nadappanthal bear the name board ‘Government of India’, ‘Kerala State’, etc. Ext.P14 photographs show the presence of stray dogs near the Sreemoolasthanam of the temple.

On 12.12.2023, when this writ petition came up for consideration, the learned Senior Government Pleader was directed to get instructions as to whether the vehicles under the custody of the Police are being parked in the Devaswom parking ground of Chottanikkara Bhagavathi Temple. On 20.12.2023, the learned Standing Counsel for Cochin Devaswom Board pointed out the judgment of a Division Bench of this Court dated 24.11.2014 in W.P.(C)No.17633 of 2014 regarding parking of such vehicles in the Devaswom land.

Heard the learned counsel for the petitioner, learned Senior Government Pleader for respondents 1, 2 & additional 8th W.P.(C)No.41148 of 2023 5 respondent and the learned Standing Counsel for Cochin Devaswom Board for respondents 3 to 6.

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 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 subsection (1), the regulation and control of all rituals and ceremonies temple of Sree Poornathrayeesa at Trippunittura and in the Pazhayannur W.P.(C)No.41148 of 2023 6 Bhagavathy temple at Pazhayannur shall continue to be exercised as hitherto by the Ruler of Cochin.

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.

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 provisions of Part II of the Act, exercise supervision and control over the acts and W.P.(C)No.41148 of 2023 7 proceedings of all officers and servants of the Board and of the Devaswom Department.

Regarding crowd management and other aspects in connection with Mandala-Makaravilakku festival season of 1199 ME (2023-24), which is the subject matter in SSCR No.29 of 2023, and the steps to be taken to provide adequate facilities to pilgrims at Sabarimala Edathavalams, which is the subject matter in SSCR No.36 of 2023, this Court passed a detailed order on 09.01.2024 (at 12:30 p.m.). Chottanikkara Bhagavathi Temple is identified as Sabarimala Edathavalam in which facilities are provided to pilgrims during Mandala-Makaravilakku festival seasons in terms of the directions issued by this Court. Paragraphs 9 to 16 of that order read thus; “9. In SSCR No.36 of 2023 filed by the Special Commissioner, Sabarimala, pursuant to the directions contained in the order of this Court dated 10.01.2023 in SSCR No.20 of 2022, regarding the steps to be taken to provide adequate facilities to pilgrims at Sabarimala Edathavalams, during Mandala-Makaravilakku Festival Season of 1199 ME (2023-24), this Court has issued various directions.

10. In the order dated 14.11.2023 in SSCR No.36 of 2023, this Court held that in view of the provisions contained in Section 15A and Section 73A of the Travancore-Cochin Hindu Religious Institutions Act, the Travancore Devaswom W.P.(C)No.41148 of 2023 8 Board and the Cochin Devaswom Board have a statutory duty to ensure that proper facilities are provided to Sabarimala pilgrims in Sabarimala Edathavalams/temples under its management. In view of the provisions under Section 31A and 76A of the Act, the Temple Advisory Committees of the temples, which are identified by the Travancore Devaswom Board/Cochin Devaswom Board, to provide facilities to Sabarimala Pilgrims, during Mandala- Makaravilakku festival season, have a statutory duty to render necessary assistance to the concerned Sub Group Officer/Devaswom Officer in providing such facilities to Sabarimala pilgrims. Similarly, in view of the provisions contained in Section 10 of the Guruvayur Devaswom Act, 1978, the Guruvayur Devaswom Managing Committee has a statutory duty to ensure that proper facilities are provided to Sabarimala pilgrims in Guruvayur Sree Krishna Temple.

11. By the order dated 14.11.2023 in SSCR No.36 of 2023, this Court directed the concerned Assistant Devaswom Commissioner in the temples under the management of Travancore Devaswom Board/Cochin Devaswom Board and the Deputy Administrator of Guruvayur Sree Krishna Temple to conduct periodical inspections in those temples, in order to ensure that proper facilities are provided to Sabarimala pilgrims, during Mandala-Makaravilakku festival season of 1199 ME (2023-24).

12. A devotee of Chottanikkara Devi Temple has filed W.P.(C)No.41148 of 2023, in which it is pointed out that the Nadapanthal in front of the temple is being used for parking vehicles, thereby causing serious inconvenience to the devotees. Chottanikkara Devi Temple, which is a temple under the Management of the Cochin Devaswom Board, is W.P.(C)No.41148 of 2023 9 identified as ‘Sabarimala Edathavalam’ in which a large number of Sabarimala pilgrims’ avail annadhanam, viri and toilet facilities. The photographs produced as Ext.P10 in that writ petition, to show the parking of vehicles, including vehicles exhibiting name boards ‘Kerala State’, ‘Government of India’, etc. in the Nadapanthal of Chottanikkara Devi Temple, causing inconvenience to the devotees and Sabarimala pilgrims, are reproduced hereunder;

13. In Suo Motu v. Guruvayur Devaswom Managing Committee and others [2022 (6) KLT 849] this Court held that a ’worshipper’, who shows reverence and adoration for Lord Guruvayurappan, is duty bound to W.P.(C)No.41148 of 2023 10 exercise his right to worship in an accustomed manner and subject to the practice and tradition in Guruvayur Sree Krishna Temple. Nadapanthal is not intended for the movement of worshippers in vehicles. Entry of vehicles through Nadapanthal will certainly cause inconvenience to the worshippers, especially children of tender age, senior citizens, persons with disabilities and also mentally challenged persons. Restricted entry of vehicles through the northern gate, causing inconvenience worshippers moving through the Nadapanthal, can be permitted for disabled persons or aged persons with restricted movement. Similarly, restricted movement of vehicles for the supply of articles to the temple for offerings and annadhanam, causing least inconvenience to the worshippers moving through the Nadapanthal, can also be permitted. In addition to this, the movement of ambulance through Nadapanthal, in case of emergency, can also be permitted. However, the practice of permitting a class of worshippers to bring their vehicles upto Bhagavathy Temple, through the Nadapanthal, with the active support of the members of the Managing Committee or the Administrator, has to be stopped with immediate effect.

14. In Suo Motu v. Administrator, Guruvayur Devaswom Managing Committee and others [2023 (3) KHC 531] this Court held that the decoration of the Nadapanthal of a temple with ornamental leaves and decorative hangings, with few flowers, cannot be termed as ‘Pushpalankaaram’. Such activities cannot be permitted in the Nadapanthal of Guruvayur Sree Krishna Temple. Admittedly, ‘Pushpalankaaram’ is not a Vazhipadu item in the published list of Vazhipadu in Guruvayur Sree Krishna W.P.(C)No.41148 of 2023 11 Temple. During temple festivals, the Nadapanthal of Guruvayur Sree Krishna Temple can be decorated in the traditional way, by the Managing Committee. Every day, a large number of devotees, including children of tender age, senior citizens and persons with disabilities, have darshan at Guruvayur Sree Krishna Temple. The endeavour of the Managing Committee, in the discharge of its statutory duties under Section 10 of the Guruvayur Devaswom Act, should be to provide facilities for proper performance of worship by the devotees, instead of giving permission to a class of devotees perform ‘Pushpalankaaram’ Nadappanthal, after availing the services of Event Management Groups.

15. In Suo Motu v. State of Kerala and others [2022:KER: 76999] this Court held that a ‘worshipper’ reverence adoration Lord Guruvayurappan is duty bound to exercise his right to worship in an accustomed manner and subject to the practice and tradition in Guruvayur Sree Krishna Temple. A worshipper of Lord Guruvayurappan or a group of worshippers who offer Vilakku Vazhipadu during Guruvayur Ekadashi cannot erect flex boards in the Nadappanthal or on the premises of Guruvayur Sree Krishna Temple. Therefore, Guruvayur Devaswom Managing Committee cannot permit a worshipper or a group of worshippers who offer Vazhipadu in Guruvayur Sree Krishna Temple to erect flex boards in the Nadappanthal or on the premises of the temple. The Managing Committee and the Administrator of Guruvayur Devaswom were directed to ensure that no such incidents are repeated in Guruvayur Sree Krishna Temple in future.

16. A ’worshipper’ who shows reverence and adoration for W.P.(C)No.41148 of 2023 12 the Deity is duty-bound to exercise his right to worship in an accustomed manner and subject to the practice and tradition of the temple. ‘Nadapanthal’ of a temple is not intended for the movement of worshippers in vehicles, for the parking of vehicles or for erecting flex boards by a worshipper or a group of worshippers. The entry or parking of vehicles in the Nadapanthal of a temple will certainly cause inconvenience to the worshippers, especially children of tender age, senior citizens, persons with disabilities and also mentally challenged persons. Therefore, it is for the Travancore Devaswom Board, Cochin Devaswom Board and the Guruvayur Devaswom Managing Committee to take necessary steps to prevent the movement or parking of vehicles in the Nadapanthal of the temples under its management and also erection of flex boards, etc., in the Nadapanthal, causing obstruction to the movement of worshippers and pilgrims.”

By the order dated 09.01.2024 in SSCR No.29 of 2023 and connected matters, the Travancore Devaswom Board, Cochin Devaswom Board and Guruvayur Devaswom Managing Committee are directed to take necessary steps to prevent the movement or parking of vehicles in the Nadappanthal of the temple under its management and also the erection of flex boards, etc., in the Nadappanthal causing obstruction the movement of worshippers and pilgrims.

The learned Standing Counsel for Cochin Devaswom Board has made available for the perusal of this Court a Board W.P.(C)No.41148 of 2023 13 order dated 08.01.2024, i.e., Order No.H1.1364/22, which reads thus; “PROCEEDINGS OF THE COCHIN DEVASWOM BOARD Repainting and repairs to Darsana Sudarsana block - Chottanikkara temple. Read 1. Report from DAC Chottanikkara on M.2369/23 dt. 04-01-2024

2. Note from AE dt. 05-01-2024

3. Note from AEE dt. 05-01-2024

4. Note from EE dt. 05-01-2024

5. Board Resolution No. 11 dt. 05-01-2024 Order on H1. 1364/22 dt. 08-01-2024 As per the paper (1) cited above, Devaswom Assistant Commissioner has reported that the existing dilapidated building situated between Narayanamandiram and Darsana Sudarsana block to be demolished and the space be levelled out and used for parking VIP and VVIP vehicles coming to the temple which can be accessed through a new gate opposite to police station. As per the other papers cited above Assistant Engineer is directed to prepare the upset value of the building to be demolished. Devaswom Assistant Commissioner, Chottanikkara is directed to auction the building after obtaining the upset value.”

Having considered the pleadings and materials on record and the submissions made at the Bar, we deem it appropriate to direct respondents 2 to 6 to regulate the movement of vehicles through the Nadappanthal in front of Chottanikkara W.P.(C)No.41148 of 2023 14 Bhagavathi Temple to Sathram buildings, in terms of the directions contained in the order dated 09.01.2024 in SSCR No.29 of 2023 and connected matters. No vehicle shall be permitted to be parked in the Nadappanthal in front of the temple, including the vehicles referred to in the Board order dated 08.01.2024. Such vehicles coming to Sathram buildings shall be parked inside the Sathram compound. Once alternative arrangements are made for the parking of such vehicles, in terms of Board order dated

08.01.2024, the entry of such vehicles through the Nadappanthal in front of Chottanikkara Bhagavathi Temple shall also be prevented.

On a query made by this Court, the learned Standing Counsel for Cochin Devaswom Board would submit that there are 139 rooms in the ‘Sathram’ at Chottanikkara Bhagavathi Temple, for the use of the devotees on payment of a nominal rent. Certain rooms in that Sathram are allotted to the temple employees, whose presence is required in the early morning before the temple opens at 03:30 a.m. It is for the 3rd respondent Board to take an appropriate decision, within a period of one month from the date of receipt of a certified copy of this judgment, regarding allotment of rooms in the ‘Sathram’, so that the maximum number of W.P.(C)No.41148 of 2023 15 devotees can avail the accommodation facility in that Sathram at a nominal rent.

Regarding the entry of devotees to the Chuttambalam of Chottanikkara Bhagavathi Temple for darshan through the rear door, the learned Standing Counsel for Cochin Devaswom Board would submit that the devotees, who offer ‘Neykkudam vazhipadu’, who have to carry ‘Neykkudam’ from the vazhipadu counter and offer the same in front of sanctum sanctorum, are permitted entry to Chuttambalam through the rear door. As per the customary practice being followed, a devotee who offer ‘Neykkudam’ can be accompanied by five others. In addition to this, the temple employees, the local residents, who are daily worshippers and those referred to in the Board order dated

08.01.2024 are permitted entry through rear door. In addition to this, the devotees who are in the temple for Bhajana are permitted entry to Chuttambalam through the door on the southern side.

It is for the 3rd respondent Cochin Devaswom Board to take an appropriate decision for providing a special queue for aged persons, children of tender age and persons with disabilities, on festival seasons and special days, as done in other major temples. A decision in this regard shall be taken, as expeditiously as W.P.(C)No.41148 of 2023 16 possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment.

Another relief sought for is a writ of mandamus commanding the 2nd respondent District Collector, Ernakulam to consider and pass appropriate orders on Ext.P15 representation dated 27.02.2023 made by the petitioner, pointing out the discrimination in the entry of devotees to the Chuttambalam of Chottanikkara Bhagavathi Temple.

In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145], a Three- Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction.

In State of U.P. v. Harish Chandra [(1996) 9 SCC 309] the Apex Court held that under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty W.P.(C)No.41148 of 2023 17 by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law.

In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law.