Full Judgment
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 4TH DAY OF JULY 2023 / 13TH ASHADHA, 1945 RP NO. 685 OF 2023 AGAINST THE ORDER DATED 03.04.2023 IN DBP NO.64 OF 2022 OF HIGH COURT OF KERALA
REVIEW PETITIONER/6TH RESPONDENT: ANIL KUMAR R, AGED 54 YEARS S/O. RAMACHANDRAN, KOCHUPARACKAL, TEMPLE NAGAR, KOTTARAKKARA P.O., KOLLAM, PIN - 691506 BY ADV SHABU SREEDHARAN RESPONDENTS/PETITIONER, RESPONDENTS 1 TO 5 & ADDL. RESPONDENTS 7 TO 11: 1 SUO MOTU 2 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 3 DEPUTY EXAMINER FOR LOCAL FUND AUDIT KERALA STATE AUDIT DEPARTMENT, TRAVANCORE DEVASWOM BOARD AUDIT, NANTHANCODE P.O., THIRUVANANTHAPURAM, PIN - 695033
4 TRAVANCORE DEVASWOM BOARD - TDB REPRESENTED BY ITS SECRETARY, NANTHANCODE, KAWDIAR P.O., THIRUVANANTHAPURAM, PIN - 695003 5 THE ASSISTANT DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, KOTTARAKKARA GROUP, KOLLAM, PIN - 691506
6 THE SUB GROUP OFFICER, KOTTARAKKARA MANIKANTESWARAM SUB GROUP, KOLLAM, PIN - 691506 7 THE SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 8 THE COCHIN DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, ROUND NORTH, THRISSUR, PIN - 680001 9 GURUVAYUR DEVASWOM MANAGING COMMITTEE GURUVAYUR DEVASWOM, GURUVAYUR, THRISSUR REPRESENTED BY ITS ADMINISTRATOR, PIN - 680101 10 THE DIRECTOR VIGILANCE AND ANTI-CORRUPTION BUREAU, VIKAS BHAVAN, LAW COLLEGE ROAD, OPPOSITE KSRTC DEPOT, PALAYAM P.O., THIRUVANANTHAPURAM, PIN - 695603 11 DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD NANTHANCODE, KAWDIAR P.O., THIRUVANANTHAPURAM, PIN - 695003
BY SRI S.RAJMOHAN, SENIOR GOVERNMENT PLEADER BY SRI G.SANTHOSH KUMAR, STANDING COUNSEL, TRAVANCORE DEVASWOM BOARD BY SRI K.P. SUDHEER, STANDING COUNSEL, COCHIN DEVASWOM BOARD THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 04.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
Anil K. Narendran, J.
The 6th respondent in DBP No.64 of 2022 has filed this review petition, invoking the provisions under Section 114 and Order XLVII Rule 1 of the Code of Civil Procedure, 1908 seeking review of the
order of this Court dated 03.04.2023 in DBP No.64 of 2022 whereby
that DBP was disposed of with various directions including a direction to initiate revenue recovery proceedings against the petitioner herein for recovering the balance bid amount defaulted by him, together with penal interest. By the said order, the Travancore Devaswom Board was directed to take necessary steps in that regard, within a period of one month from the date of receipt of a certified copy of that judgment. Paragraphs 34 to 37 and also the last paragraph of that order read thus:-
“34. Having considered the pleadings and materials on record and also the submissions made at the Bar, we are of the considered opinion that a thorough enquiry by a team constituted by the additional 10th respondent Director, Vigilance and Anti-Corruption Bureau is absolutely essential on the conduct of each and every person connected with the auction conducted by the Travancore Devaswom Board in respect of Kuthaka right for conducting pooja stall in Kottarakkara P.D. Manikandeswaram Temple, for the year 2020-21. Therefore, the additional 10th respondent is directed to constitute a team to conduct preliminary enquiry into the whole matter relating to the auction conducted by the Travancore Devaswom Board in respect of the Kuthaka right in question, to ascertain whether a cognizable offence is disclosed or not. If at any stage, during the enquiry, there are reasonable grounds to believe that a public servant has committed an offence under the Prevention of Corruption Act, 1988, further proceedings shall be taken in accordance with law. The files relating to the Kuthaka right in question, handed over by the learned Standing Counsel for Travancore Devaswom Board, in terms of the directions contained in the order dated 08.03.2023, which is kept in safe custody with Registrar (Judicial), shall be returned to the learned Standing Counsel, after obtaining a proper acknowledgment, which the Board shall handover to an officer authorised by the additional 10th respondent Director, Vigilance and Anti-Corruption Bureau.
35. In view of the notification, i.e., G.O.(P)No.83/2023/RD
dated 17.03.2023 (Published in Kerala Gazette Extraordinary No.1001 dated 18.03.2023), whereby the provisions of the Kerala Revenue Recovery Act are made applicable to the recovery of amounts due from any persons or class of persons to the Travancore Devaswom Board, the Board shall initiate revenue recovery proceedings against the 6th respondent for recovering the balance bid amount defaulted by the said respondent, together with penal interest. Necessary steps in this regard shall be taken, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this
order.
36. This DBP is disposed of with the above directions.
37. Considering the facts and circumstances disclosed from
the pleadings and materials on record, we deem it appropriate to direct Registry to register suo motu proceedings in the matter of recovery of defaulted amounts from Kuthaka holders in the temples under the management of Travancore Devaswom Board, Cochin Devaswom Board and also the temple under the management of Guruvayur Devaswom Managing Committee. In the newly registered DBPs in respect of Travancore Devaswom Board and Cochin Devaswom Board, the State of Kerala, represented by the Principal Secretary to Government, Revenue (Devaswom) Department, the concerned officer of the Local Fund Audit and also the concerned Devaswom Board represented by its Secretary shall be arrayed as the respondents. In the DBP registered in respect of Guruvayur Devaswom Managing Committee, the State of Kerala, represented by the Principal Secretary to Government, Revenue (Devaswom) Department and Guruvayur Devaswom Managing Committee, represented by its Administrator shall be arrayed as the respondents. A copy of this order shall form part of the DBPs. Copy of the affidavit dated 03.01.2023 filed on behalf of the Cochin Devaswom Board and that filed on behalf of Guruvayur Devaswom Managing Committee shall form part of the respective DBPs registered in respect of the said Devaswoms. Registry to serve a copy of the respective DBPs to the learned Senior Government Pleader and also the learned Standing Counsel for the respective Devaswoms and list before the Devaswom Bench on 25.05.2023.”
2. In the order dated 03.04.2023, this Court noticed that
th the petitioner (6 respondent), who was a Kuthaka holder for conducting pooja stall in P.D. Manikandeswaram Temple for the year 2020-21 has defaulted payment of the balance bid amount, amounting to Rs.67,00,000/-. Even after the dismissal of W.P.(C)No.13039 of 2020 by the judgment dated 06.07.2021, no action was taken for recovering the balance bid amount from the petitioner. In terms of the order of this Court dated 24.01.2023, the affidavit of the petitioner was placed on record, producing therewith Annexures R6(1) to R6(5) Income Tax Returns for the years 2018-19, 2019-20, 2020-21, 2021-22 and 2022-23 as per which his gross total income is Rs.11,31,922/-, Rs.9,52,027/-, Rs.5,10,810/-, Rs.4,69,290/- and Rs.5,36,870/- respectively. He has also produced as Annexure R6(6) the details of the payments made towards 50% of the bid amount, i.e., payment of a total sum of Rs.67,50,100/-.
3. In the order dated 08.03.2023, this Court recorded the
submission made by the learned counsel for the petitioner that the petitioner has not furnished Bank guarantee for the year balance bid amount of Rs.67,15,100/-, in terms of the tender conditions. On 15.03.2023, this Court recorded the submission made by the learned Standing Counsel for the Board that the petitioner has already been blacklisted on account of his default in remitting the balance bid amount.
4. During the course of arguments, the learned Standing
Counsel for the Board could not offer any explanation for accepting the bid of the petitioner, without insisting bank guarantee for the balance bid amount, in terms of the tender conditions. As evidenced by Annexures R6(1) to R6(5) the gross annual income of the petitioner during the financial years 2018-19 to 2022-23 is in the range of 4.69 lakhs to 11.31 lakhs.
5. The reasoning of this Court as contained in paragraphs 26 to 33 of the order dated 03.04.2023 reads thus:-
26. In Travancore Devaswom Board v. Mohanan Nair
[2013 (3) KLT 132] a Division Bench of this Court noticed that in A.A. Gopalakrishnan v. Cochin Devaswom Board [(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, 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.
27. In Abu K.S. v. Travancore Devaswom Board
[2022/KER/6409 : 2022 SCC OnLine Ker 1642] a Division Bench of this Court, in which both of us were parties, was dealing with a case in which Kuthaka right for running Aymanam Sri. Narasimha-swami Auditorium (sadyalayam) constructed by the Travancore Devaswom Board was auctioned for a period of two years. The writ petitioner, who was the successful bidder, remitted only 50% of the auction amount on 18.07.2019. Though he had defaulted payment of the balance amount of Rs.1,20,500/-, he was permitted to continue to occupy the sadyalayam, even beyond the period of auction, i.e., beyond 31.07.2021. The concerned Assistant Commissioner and the Sub Group Officer have not taken any action against him till the
order of this Court dated 01.02.2022, whereby they were
directed to take over possession of the sadyalayam forthwith, if found necessary with police assistance. In the said decision, relying on the decision of the Apex Court in M.V. Ramasubbiar [(1979) 2 SCC 65], this Court found that, the concerned officers of the Travancore Devaswom Board, who have permitted the successful bidder (who has remitted only 50% of the auction amount) to continue to occupy the sadyalayam,
even beyond the period of the auction, have not shown reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs.
28. In Suneesh K.S. v. Travancore Devaswom Board
and others [ILR (2022) 1 Ker 1091 : 2022/KER/ 5139] a Division Bench of this Court, in which both of us were parties, was dealing with the Kuthaka right to sell pooja items in the premises of Valliamkavu Devi Temple, which is under the management of the Travancore Devaswom Board. In the said decision, this Court held that the properties of deities and temples are required to be protected and safeguarded from usurpation or encroachment in any manner. Persons entrusted with the duty to manage such properties should be vigilant to
prevent such usurpation or encroachment. When such usurpation or encroachment 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 officers concerned and the 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 usurpation or encroachment, wrongful claims or misappropriation. Therefore, the concerned Assistant Commissioner and the Administrative Officer were directed to take stern action against those who have defaulted payment of installments in respect of Kuthaka items, in violation of the tender conditions, if found necessary, after seeking police assistance. In the said decision, it was made clear that, if any such request is received, it is the duty of the concerned Station House Officer to render necessary assistance to the concerned
Assistant Commissioner or the Administrative Officer, in order
to protect and safeguard the properties of deities and temples from usurpation or encroachment in any manner.
29. In Sunil Kumar P.G. v. State of Kerala and others
[2022/KER/71822] a Division Bench of this Court, in which both of us were parties, was dealing with the auction conducted for the Kuthaka item No.119 (maintenance of Pamba toilet block) in Sabarimala Devaswom for the year 1197 ME (2021- 22). By the judgment dated 13.10.2022, W.P.(C) Nos.29772 of 2021 and 29859 of 2021 were disposed of by directing the Chief Vigilance Officer, Travancore Devaswom Board to conduct a detailed enquiry, with notice to the writ petitioners and also the party respondents, on the e-tender process for Kuthaka items in Sabarimala Devaswom, for the year 1197 ME, with specific reference to item No.119 (maintenance of Pamba toilet block), after the Mandala-Makaravilakku Season of 1198 ME is over. The report of the Chief Vigilance Officer was directed to be placed before the Travancore Devaswom Board, by the first week of March, 2023. The decision taken by the Board, based on the enquiry report of the Chief Vigilance Officer, was directed to be placed before this Court, along with the report of the Special Commissioner, Sabarimala.
30. In Sunil Kumar P.G. [2022/KER/71822] this Court
ordered that the entire e-tender for Kuthaka items in Sabarimala Devaswom, from Mandala-Makaravilakku festival season of 1199 ME (2023-24) onwards shall be conducted, after publishing an auction notification specifying the highest bid for the previous three years, excluding the period during which there were restrictions on account of Covid-19 pandemic. After completion of the tender process, the details of the successful bidders along with the bid amount, the balance bid amount payable, its due date, etc., shall be exhibited on the official website of the Board. The list of those who have defaulted payment of the balance bid amount shall also be exhibited on the official website. The list of defaulters shall be forwarded to the Devaswom Commissioner for necessary action. A copy of that list shall also be forwarded to the Special Commissioner, Sabarimala.
31. In Sunil Kumar P.G. [2022/KER/71822] this Court directed the Travancore Devaswom Board to adopt a similar
procedure in respect of all major temples under its management, in which the annual income is above Rs.2 Crore. In respect of such temples, the list of defaulters shall be forwarded to the Devaswom Commissioner for necessary action. The Kuthaka holders, who have defaulted payment of the balance bid amount, shall be proceeded against, in accordance with the tender conditions. In appropriate cases, proceedings shall also be initiated for blacklisting. In the said decision, this Court ordered that the successful bidders and their staff, if any, in respect of Kuthaka items in Sabarimala Devaswom and other Devaswoms under the management of the Travancore Devaswom Board shall be issued with photo identity cards. They shall be required to produce police clearance certificate. In respect of Kuthaka items above Rs.5,00,000/-, the Travancore Devaswom Board shall insist on the Income Tax particulars of the bidders.
32. The pleadings and materials on record and also the
submissions made at the Bar make it explicitly clear that the Travancore Devaswom Board and its officials have not shown reasonable diligence in the manner of an ordinary prudent man of business who conduct his own affairs, in matters relating to the auctioning of Kuthaka right for conducting pooja stall in Kottarakkara P.D.Manikandeswaram Temple, for the year 2020-
21. Even after the dismissal of W.P.(C)No.13039 of 2020 by the
judgment dated 06.07.2021, the Travancore Devaswom Board
has not taken steps to recover the balance bid amount of Rs.67,50,100/- payable by the 6th respondent.
33. In Suo motu v. State of Kerala [2023/KER/ 21878 :
2023 SCC OnLine Ker 2166 : 2023 ICO 491] (Order/Judgment dated 23.03.2023 in SSCR No.29 of 2022 and W.P.(C)No.42987 of 2022, in the matter relating to the default committed by the Kuthaka holder in Sabarimala Devaswom for collecting parking fee from the parking grounds at Nilakkal Base Camp, this Court ordered enquiry by the Vigilance and Anti- Corruption Bureau on the conduct of each and every person connected with the auction conducted by the Travancore Devaswom Board in terms of the tender notification dated 10.08.2022 of Kuthaka rights in Sabarimala Devaswom for the year 1198 ME (2022-23). Paragraphs 33 to 45 of that order/judgment read thus;
“33. In the instant case, as already noticed hereinbefore, as per the Income Tax Returns for the assessment years 2019- 20, 2020-21 and 2021-22 submitted by the parking contractor [petitioner in W.P.(C)No.42987 of 2022, who is the 9th respondent in SSCR No.29 of 2022] his gross total income for the assessment year 2019-20 is only Rs.1,14,802/- and that for the years 2020-21 and 2021-22 are only Rs.1,07,115/- and Rs.1,11,250/- respectively. On 11.01.2023, on a query made by this Court, the submission of the learned counsel for the parking contractor was that the parking contractor owns approximately 5 cents of property at Sooranadu along with a residential building. Though the learned counsel sought time to get instructions as to whether the contractor owns any other landed property, the affidavit filed sworn to the contractor on 13.01.2023 is silent on the above aspect. Such a person has also participated in another tender process in Sabarimala Devaswom for the supply of 15,000kg of cardamom for the year 1198 ME (2022-23).
34. In the matter of Audit Report of the Travancore
Devaswom Board for the year 1967-68 (Sabarimala Improvement Fund) reported in [1990 (1) KLT 347], in the context of Section 32 of the Travancore-Cochin Hindu Religious and Charitable Institutions Act, a Division Bench of this Court reminded the President and Members of the Travancore Devaswom Board about their public accountability. In the said decision, it was made clear that it is for all persons concerned to see that greater vigil is exercised by the President and Members of the Board in the overall administration of the Board and in the collection and disbursement of funds.
35. Despite the directions contained in the decisions of this
Court in Abu K.S. [2022/KER/6409], Suneesh K.S. [ILR (2022) 1 Ker 1091] and Sunil Kumar P.G. [2022/KER/71822] the Travancore Devaswom Board and its officials have not shown reasonable diligence in the manner of an ordinary prudent man of business who conduct his own affairs, in matters relating to the auctioning of Kuthaka rights at Sabarimala Devaswom for the year 1198 ME (2022-23).
36. The Board and its officials, namely, the 2nd respondent-
Commissioner and the 3rd respondent-Executive Officer were aware of the financial condition of the parking contractor from the tender documents submitted by him. In the affidavit filed by the 2nd respondent-Commissioner or the 3rd respondent-Executive officer, they could not offer any explanation for awarding a contract for more than Rs.2 Crore to such a person, even without insisting bank guarantee for the balance bid amount. Contrary to the general conditions, which forms part of the tender notification dated 10.08.2022, in respect of Kuthaka items in Sabarimala Devaswom for the year 1198 ME (2022-23), the parking contractor was permitted to pay 50% bid amount in installments.
37. Though the parking contractor has defaulted payment
of the balance bid amount of Rs.64,69,421/- payable on 30.11.2022 and Rs.64,69,420/- payable on 15.12.2022 and also payment of 1% TDS amounting to Rs.2,58,778/- to the Income Tax Department, the Board and its officials, namely, the 2nd respondent-Commissioner and the 3rd respondent- Executive Officer have permitted him to collect parking fee from the parking grounds at Nilakkal Base Camp. The default committed by the parking contractor was brought to the notice of this Court only on 23.12.2022, by handing over a copy of Ext.R2(c) communication dated 20.12.2022 of the 3rd respondent-Executive Officer, addressed to the Special Officer, Nilakkal. If, as a matter of fact, the 3 rd respondent- Executive Officer has issued Ext.R2(a) reminder dated 28.11.2022 and Ext.R2(b) notice dated 10.12.2022 to the parking contractor, requiring him to remit the defaulted installment payable on 30.11.2022, it could have been brought to the notice of this Court on 19.12.2022, 20.12.2022 or 22.12.2022, when this Court passed various orders in SSCR No.29 of 2022. The fact that the parking contractor has not furnished a bank guarantee in terms of clause 10 of the general conditions, which forms part of the tender notification dated 10.08.2022, and clause 3 of Ext.P1 agreement was also not brought to the notice of this Court.
38. The averments in the affidavit dated 13.01.2023 of the
parking contractor would make it explicitly clear that his intention was to remit the balance bid amount payable on 30.11.2022 and 15.12.2022 in installments, by the end of the pilgrim season, utilising the daily collection from the parking grounds at Nilakkal Base Camp. When the defaults committed by the parking contractor in payment of the balance bid amount of Rs.64,69,421/- payable on 30.11.2022 and Rs.64,69,420/- payable on 15.12.2022 and also payment of 1% TDS amounting to Rs.2,58,778/- to the Income Tax Department are not in dispute and the inability of the parking contractor to pay the said amounts together with penal interest stands admitted in the affidavit dated 13.01.2023, he cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of Inda, seeking a writ of mandamus commanding the Travancore Devaswom Board and its officials not to terminate Ext.P1 contract dated 10.11.2022 entered into with the 3 rd respondent-Executive Officer, Sabarimala Devaswom, only on the ground of delay in payment of the balance bid amount. For the aforesaid reason, the parking contractor cannot raise a valid challenge against the termination of Ext.P1 contract dated 10.11.2022. Once it is found that the parking contractor has approached this Court in W.P.(C)No.42987 of 2022, invoking the extraordinary jurisdiction under Article 226 of the Constitution of India, by suppressing material facts from the notice of this Court, such an attempt made by the petitioner to abuse the process of this Court has to be dealt with appropriately, by dismissing the said writ petition. Hence, W.P.(C)No.42987 of 2022 filed by the petitioner-parking contractor is liable to be dismissed on the above ground.
39. It is for the Travancore Devaswom Board to initiate
appropriate proceedings against the petitioner-parking contractor, in accordance with law, for the recovery of the defaulted payments and other amounts due to the Board, in respect of Ext.P1 contract dated 10.11.2022, taking note of the notification, i.e., G.O.(P)No.83/2023/RD dated 17.03.2023 (Published in Kerala Gazette Extraordinary No.1001 dated 18.03.2023), whereby the provisions of the Kerala Revenue Recovery Act are made applicable to the recovery of amounts due from any persons or class of persons to the Travancore Devaswom Board. The action taken against the petitioner-parking contractor shall be brought to the notice of the Special Commissioner, Sabarimala, who shall bring it to the notice of this Court by filing a fresh report. A copy of this order/judgment shall be enclosed along with the said report of the Special Commissioner, Sabarimala.
40. '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 reported in [2018 (1) KLT 478]. As already noticed hereinbefore, among the 1250 Temples managed by the Travancore Devaswom Board, only 60 major Temples are self-sufficient and the rest are being managed utilising the surplus income from Sabarimala Devaswom. The Board and its officials have a duty to protect and safeguard the interest and properties of the Devaswoms. The Board and its officials should always be vigilant in protecting the interest and properties of the Devaswoms and they have to protect the same from any wrongful claims or misappropriation. Any wrongful claim or misappropriation with the passive or active collusion of the Board and its officials are cases of ‘fence eating the crops’, which should be dealt with sternly.
41. As already noticed hereinbefore, despite the directions
contained in the decisions of this Court in Abu K.S. [2022/KER/6409], Suneesh K.S. [ILR (2022) 1 Ker 1091] and Sunil Kumar P.G. [2022/KER/71822] the Travancore Devaswom Board and its officials, namely, the 2nd respondent-Commissioner and the 3rd respondent- Executive Officer, have not shown reasonable diligence in the manner of an ordinary prudent man of business who conduct his own affairs, in matters relating to the auctioning of Kuthaka rights at Sabarimala Devaswom for the year 1198 ME (2022-23). Though the Board and its officials were aware of the financial condition of the parking contractor from the tender documents submitted by him, he was awarded with a contract for more than Rs.2 Crore in Sabarimala Devaswom, even without insisting bank guarantee for the balance bid amount. In the affidavit filed by the 2nd respondent-Commissioner or the 3rd respondent- Executive officer, they could not offer any explanation for awarding a contract for more than Rs.2 Crore to such a person, even without insisting bank guarantee for the balance bid amount. The parking contractor, who has defaulted payment of the balance bid amount of Rs.64,69,421/- payable on 30.11.2022 and Rs.64,69,420/- payable on 15.12.2022 and also payment of 1% TDS amounting to Rs.2,58,778/- to the Income Tax Department was permitted to collect parking fee from the parking grounds at Nilakkal Base Camp. Such a person has also participated in another tender process in Sabarimala Devaswom for the supply of 15,000kg of cardamom for the year 1198 ME (2022-23).
42. During the course of arguments, on a specific query
made by this Court, the learned Standing Counsel for the Travancore Devaswom Board, on instructions, would submit that no bank guarantee was insisted for the balance bid amount, in terms of clause 3 of the respective agreements and clause 10 of the general conditions, which forms part of the tender notification dated 10.08.2022, in respect of any Kuthaka holder in Sabarimala Devaswom for the year 1198 ME (2022-23). However, the said fact is suppressed in the counter affidavit dated 10.01.2023 of the 2nd respondent- Commissioner and that dated 23.01.2023 of the 3 rd respondent- Executive Officer, which would amount to suppression of material facts from the notice of this Court. It is not discernible from the pleadings and materials on record, whether the Board has taken any decision not to insist on bank guarantee for the balance bid amount in respect of Kuthaka holders in Sabarimala Devaswom for the year 1198 ME (2022-23).
43. As emphasised by the Apex Court in the decision in A.A.
Gopalakrishnan [(2007) 7 SCC 482] it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. Relying on the above principles laid down by the Apex Court, a Division Bench of this Court in Mohanan Nair [2013 (3) KLT 132]
held that the High Court, therefore, is the guardian of the
Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 the High Court is having inherent jurisdiction and the doctrine of parens patriae will also apply in exercising the jurisdiction.
44. Having considered the pleadings and materials on
record and also the submissions made by the learned counsel on both sides, we are of the considered opinion that a thorough enquiry by a team constituted by the Director of Vigilance and Anti-Corruption Bureau is absolutely essential on the conduct of each and every person connected with the auction conducted by the Travancore Devaswom Board, in terms the tender notification dated 10.08.2022, of the Kuthaka rights in Sabarimala Devaswom for the year 1198 ME (2022-23). Therefore, the Director of Vigilance and Anti- Corruption Bureau, who is the additional 12th respondent in SSCR No.29 of 2022 (the additional 8th respondent in W.P.(C)No.42987 of 2022) is directed to constitute a team headed by the Superintendent of Police to conduct a preliminary enquiry into the whole matter relating to the auction conducted by the Travancore Devaswom Board, in terms the tender notification dated 10.08.2022, of the Kuthaka rights in Sabarimala Devaswom for the year 1198 ME (2022-23), to ascertain whether a cognizable offence is disclosed or not. If at any stage, during the enquiry, there are reasonable grounds to believe that a public servant has committed an offence under the Prevention of Corruption Act, 1988, further proceedings shall be taken in accordance with law.
45. The Travancore Devaswom Board and its officials
are directed to ensure strict compliance of the directions contained in the decisions of this Court in Abu K.S. [2022/KER/6409], Suneesh K.S. [ILR (2022) 1 Ker 1091] and Sunil Kumar P.G. [2022/KER/71822] while conducting the auction of Kuthaka rights in Sabarimala Devaswom. Recovery proceedings shall be initiated against the defaulters, in terms of the notification, i.e., G.O.(P)No.83/2023/RD dated 17.03.2023 (Published in Kerala Gazette Extraordinary No.1001 dated 18.03.2023), whereby the provisions of the Kerala Revenue Recovery Act are made applicable to the recovery of amounts due from any persons or class of persons to the Travancore Devaswom Board.”
6. Now the petitioner is before this Court seeking review of
the order dated 03.04.2023 so as to enable him to effect payment of the principal amount outstanding, amounting to Rs.67,50,000/- after waiving the entire interest.
7. Today when this matter was taken up for consideration,
Registry was directed to number the review petition and to list the matter before the Bench at 4.00 p.m., and in the order, it is made clear that the maintainability of the review petition will be decided in the judicial side. By separate order dated 04.07.2023, C.M.Appln.No.1 of 2023 filed by the petitioner seeking condonation of delay is allowed and the delay of 40 days in filing the review petition is condoned.
8. Heard the learned counsel for the petitioner/6th respondent in DBP, the learned Senior Government Pleader and also the learned Standing Counsel for the Travancore Devaswom Board.
9. DBP No.64 of 2022 was registered suo motu based on
the directions contained in the judgment of this Court dated 18.10.2022 in W.P.(C)No.25350 of 2022, which was one filed by the petitioner/6th respondent-Anil Kumar R. along with Sunil Kumar G., who are devotees of Lord Ganapathy of Kottarakkara P.D.Manikandeswaram Temple, seeking a writ of mandamus commanding the Travancore Devaswom Board and its Commissioner to dissolve the Temple Advisory Committee of the said Temple and to constitute a new Temple Advisory Committee, in accordance with law, as early as possible.
10. During the pendency of W.P.(C)No.25350 of 2022, it has
come out that the said Anil Kumar R., the 1st petitioner therein, has defaulted payment of an amount of Rs.67,00,000/- in respect of Kuthaka right for conducting pooja stall in Kottarakkara P.D. Manikandeswaram Temple, for the year 2020-21. On 12.08.2022, the learned Standing Counsel made available for the perusal of this Court a copy of the judgment dated 06.07.2021 in W.P.(C)No.13039 of 2020, in which the said Anil Kumar R. was the 2nd petitioner. The learned Standing Counsel was directed to get instructions on the action, if any, taken against Anil Kumar R., after
the judgment of this Court dated 06.07.2021 in W.P.(C)No.13039 of 2020, for recovering the defaulted payment, and whether he is holding Kuthaka right in any temple under the management of the Travancore Devaswom Board. On 18.10.2022, when W.P.(C)No.25350 of 2022 was taken up for consideration, the learned Standing Counsel submitted that Anil Kumar R. is yet to make payment towards the balance bid amount, which comes to Rs.67,50,100/-.
11. In the judgment dated 18.10.2022 in W.P.(C)No.25350
of 2022 this Court noticed that, despite the fact that Anil Kumar R. is yet to make payment towards the balance bid amount, which comes to Rs.67,50,100/-, the Administrative Officer of Kottarakkara P.D. Manikandeswaram Temple and also the Assistant Commissioner, Kottarakkara Group have not taken any steps against him for recovering the balance bid amount. The inaction on the part of the Travancore Devaswom Board and its officials in initiating coercive steps against him, openly flouting the law laid down by this Court in Abu K.S. v. Travancore Devaswom Board [2022 SCC OnLine Ker. 1642] and Suneesh K.S. v. Travancore Devaswom Board [ILR 2022 (1) Ker. 1091] has to be dealt with appropriately.
12. While dismissing W.P.(C)No.25350 of 2022, by the
judgment dated 18.10.2022, Registry was directed to initiate a suo
motu proceedings on the default committed by the said Anil Kumar R. in remitting the balance bid amount in respect of the Kuthaka right, for the year 2020-21, for conducting pooja stall in Kottarakkara P.D. Manikandeswaram Temple, and the inaction on the part of the Travancore Devaswom Board and its officials in initiating coercive steps against him for recovering the said amount together with 18% penal interest and also their inaction in initiating proceedings for black-listing. By the judgment dated 18.10.2022, the learned Standing Counsel was directed to get instructions as to whether Anil Kumar R. is the holder of Kuthaka right in any temple under the management of the Travancore Devaswom Board.
13. During the course of arguments, the learned Standing Counsel for Travancore Devaswom Board would point out the
judgment of a Division Bench of this Court dated 06.07.2021 in
W.P.(C.) No.13039 of 2020 whereby the writ petition filed by the petitioner herein seeking to absolve him from the liability to pay the balance bid amount (50%) ended in dismissal. The petitioner filed SLP(C.) No.37049 of 2020 before the Apex Court, which also ended in dismissal by the order dated 29.03.2023.
14. The learned Standing Counsel would submit that in terms of the directions contained in the order dated 03.04.2023 in DBP No.64 of 2022, a requisition was made before the District Collector, Kollam on 09.06.2023 for initiating revenue recovery
proceedings against the petitioner for an amount of Rs.1,14,22,765/-. On a query made by this Court, the learned counsel for the petitioner would submit that the payment of penal interest at the rate of 18% per annum for the defaulted payment of balance bid amount is in terms of the tender conditions. Now by filing this review petition, the petitioner is seeking review of the
order dated 03.04.2023 in DBP No.64 of 2022, to waive the liability
of the petitioner to pay penal interest.
15. 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.
16. In Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280] the Apex Court held that in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the
Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice.
17. 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 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.
18. 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.
19. In Thungabhadra Industries Ltd v. Government of
Andhra Pradesh [AIR 1964 SC 1372] the Apex Court held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors.
20. In Northern India Caterers (India) Ltd. v. Lt.
Governor of Delhi [(1980) 2 SCC 167] the Apex Court held that, if the view adopted by the Court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record.
21. In Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715]
the Apex Court, in the context of the power of review under Order
XLVII, Rule 1 of the Code of Civil Procedure, 1908 held that, a
judgment may be open to review inter alia if there is a mistake or
an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record
justifying the Court to exercise its power of review under Order
XLVII, Rule 1 of the Code. In exercise of the jurisdiction under
Order XLVII, Rule 1 of the Code, it is not permissible for an
erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'.
22. Later, in Lily Thomas v. Union of India [(2006) 3
SCC 224] the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.
23. In Anantha Reddy N. v. Anshu Kathuria [(2013) 15
SCC 534] the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self - evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits.
24. In view of the law laid down by the Apex Court in the
decisions referred to supra, the review jurisdiction under Order
XLVII, Rule 1 of the Code is very limited and unless there is mistake or error apparent on the face of the record, the judgment does not
call for review. Further, whilst exercising such power of review, the Court cannot be oblivious of the provisions contained in Order XLVII, Rule 1 of the Code and that the limits within which the Courts can exercise the power of review have been well settled in a catena of decisions. Viewed in the light of the law laid down in the decisions referred to above, conclusion is irresistible that this review petition is nothing but an abuse of process of court, which can only be dismissed. Considering the facts and circumstances of the case, we refrain ourselves from imposing exemplary costs. Sd/- ANIL K. NARENDRAN JUDGE Sd/- P.G. AJITHKUMAR JUDGE DCS/04.07.2023 APPENDIX PETITIONER ANNEXURES
ANNEXURE-P1 THE TRUE COPY OF THE DISCHARGE SUMMARY
OF THE PETITIONER ISSUED FROM THE KIMS HOSPITAL DATED 31.12.2020 ANNEXURE-P2 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE ADMINISTRATIVE OFFICER OF KOTTARAKKARA SREE MAHAGANAPATHY TEMPLE DATED 9.8.2022