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 23RD DAY OF AUGUST 2022 / 1ST BHADRA, 1944 PETITIONER: K.RAMESH, AGED 53 YEARS, S/O. VENUGOPAL, SREENIVAS HOUSE, KAPLIPARA, MUNDOOR, PALAKKAD DISTRICT - 678 592 BY ADVS. K.MOHANAKANNAN H.PRAVEEN (KOTTARAKARA) RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM - 695 001 2 DIRECTOR, KERALA STATE AUDIT DEPARTMENT, DISTRICT AUDIT OFFICE, HOUSING BOARD BUILDING, SHANTHI NAGAR, THIRUVANANTHAPURAM -695001 3 DEPUTY DIRECTOR, KERALA STATE AUDIT DEPARTMENT, MALABAR DEVASWOM BOARD AUDIT, REGIONAL OFFICE, PALAKKAD DISTRICT - 678 001. 4 COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSE FED COMPLEX, ERANHIPALAM, KOZHIKODE DISTRICT - 673 006. 5 ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, PALAKKAD DIVISION, PALAKKAD DISTRICT - 678 013. 6 EXECUTIVE OFFICER, SREE PALAKKEEZH BHAGAVATHY DEVASOM, MUNDUR, PALAKKAD DISTRICT - 678 592. 7 THE TRUSTEE BOARD, SREE PALAKKEEZH BHAGAVATHY DEVASOM, REPRESENTED BY ITS MANAGING TRUSTEE (K.M.RAVEENDRANADH), PALAKKAD DISTRICT-678 592.
8 A.K.MOHANDAS, ANAPPARA HOUSE, NOCHIPULLY P.O., MUNDUR, PALAKKAD DISTRICT - 678 592. 9 K.K.RAVEENDRANADHAN, KURUKKAMPATTA HOUSE, NOCHIPULLY P.O., MUNDUR, PALAKKAD DISTRICT - 678 592. 10 K.M.RAVEENDRANADH KAYYARA HOUSE, NOCHIPULLY P.O., MUNDUR, PALAKKAD DISTRICT - 678 592. 11 ULSAH, CLERK, SREE PALAKKEEZH BHAGAVATHY DEVASWOM, MUNDUR, PALAKKAD DISTRICT -678 592 BY ADVS. SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD MAHESH V RAMAKRISHNAN HARISH R. MENON P.B.KRISHNAN BINOY VASUDEVAN P.B.SUBRAMANYAN SABU GEORGE MANU VYASAN PETER OTHER PRESENT: SMT DEVISHRI R.- GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Anil K. Narendran, J.
The petitioner, who is a devotee of Sree Palakeezhu Bhagavathy Temple, Mundur in Palakkad District, a temple under the control of the Malabar Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 2 to 5 to recover the amounts covered by Ext.P1 audit report and shown in Ext.P5 tabulated form prepared by the petitioner, from respondents 7 to 11 and other persons responsible, within a time frame to be fixed by this Court. The petitioner has also sought for a writ of mandamus commanding the 4th respondent to initiate action against respondents 8 and 10 under the provisions of Section 45 of the Madras Hindu Religious and Charitable Endowments Act, 1951, in the light of Ext.P1 audit report and defalcation of funds and acting against the interest of the Devaswom. The 7th respondent is the Trustee Board of Sree Palakeezhu Bhagavathy Devaswom and respondents 8 and 9 are the former trustees. The 9th respondent was the Convenor of a committee which had undertaken various constructions in the temple. The 10th respondent was the Joint Convenor of that committee, is presently the Managing Trustee. The 11th respondent is a Clerk working in the temple. In the writ petition, it is alleged that the committee headed by respondents 8 to 10 made certain constructions like Kalyanamandapam and Nadappanthal. Large amounts were collected from the devotees. In Ext.P1 audit report the State Audit noticed various discrepancies and anomalies in maintaining accounts in the temple. Vide Ext.P1 letter dated 14.07.2021 of the 3rd respondent Deputy Director, Kerala State Audit Department, the 6th respondent Executive Officer was required to submit reply to the audit report of the Devaswom for the period from 2014 to 2019. The relevant extract of the audit report was enclosed along with Ext.P1 communication. The grievance of the petitioner is that the delay in finalization of the audit for the relevant period and initiation of consequential action against respondents 8 to 11 under the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951, by initiating recovery proceedings against them.
2. On 06.01.2022, when this writ petition came up for
admission, the learned Senior Government Pleader took notice for respondents 1 to 3. The learned Standing Counsel for Malabar Devaswom Board took notice for respondents 4 and 5. Urgent notice by speed post was ordered to respondents 6 to 11, returnable within three weeks. The learned Senior Government Pleader and also the learned Standing Counsel for Malabar Devaswom Board sought time to get instructions and file statements.
3. A statement on behalf of the 4th respondent has been filed by the learned Standing Counsel for Malabar Devaswom Board. The petitioner has filed a reply affidavit dated 15.02.2022.
4. The respondents 2 and 3 have filed a counter affidavit dated 14.03.2022. Paragraphs 4 to 17 of that counter affidavit read thus;
“4. The audit of the temple for the period from 2014 to 2019 was conducted by the 3rd respondent between 19.10.2020 and 29.10.2020 and audit report thereon issued on 14.07.2021 vide KSA-MLP.3/445/2020
5. The administration and management of the temple is
carried out by a Trustee Board, represented by its Managing Trustee as approved by Malabar Devaswom Board from time to time. The 8th respondent was the Managing Trustee during 2014 to 2019. The 9 th respondent was the Convenor and the 10th respondent was the Joint Convenor of the Nirmana Committee which had undertaken various construction activities in the temple during the audit period. The 11th respondent presently working in the temple.
6. The accounts of the religious institutions expand
coming under Malabar Dewaswom Board are subjected to audit as per Section 71 of Hindu Religious & Charitable Endowment Act, 1951, Section 9(1) of Kerala Local Fund Audit Act 1994 and Rule 15(3) of Kerala Local Audit Rules 1996, which stipulates that the accounts relating to a financial year shall be presented for audit within four months from the close of the Financial Year, if the accounting year followed by the institution differs from a financial year, then the annual accounts of such institutions shall be presented for audit within four months from the close of the accounting year. This office was in receipt of the Annual Financial Statement pertaining the years 2014-19 only on 13.02.2020 and the audit was started soon after the lifting of Covid lockdown.
7. A committee headed by respondents 8 to 10 undertook
construction and renovation activities in the temple. For this purpose, public money was collected from devotees. The 8th respondent was the Managing Trustee of the temple from 01.01.2014 1o 31.12.2019. During this period, the Chairman of the Trustee Board authorised the payments and issued receipts in token of collection of money. The discrepancies and anomalies pointed out in the audit report, such as the non-production of receipts and payment statement of Kalyanamandapam were not
rectified so far. Similarly, the defects pointed out in construction of Panchaloha Vigraham also rectification.
8. As regards the loss found in receipts pointed out in
paras 2-1 and 2-2 amounting to Rs.1,10,757/- charge proposals under Rule 20(1) of Kerala Local Fund Audit Rules, 1996 were being prepared by the 3rd respondent and forwarded to the 2nd respondent vide Lr.No. KSA. MLP.3/445/2020, dated 15.12.2021 to recover the said amount from the person at fault and further action in the matter is under progress. The total amount objected in the Audit Report for the years 2014 to 2019 comes to the tune of Rs.3,58,990/-. Out of which, Rs.82,040/- is objected for want of proper cash receipts in connection with the expenditure incurred for purchasing gas cylinders
to prepare Prasadam. Similarly, the expenditure held
under objection in paras 3-7 and 3-8 amounting to Rs.70,450/- and Rs.22,600/- respectively were due to non-production of proper vouchers and muster roll.
9. The sum of Rs.2,14,544/- stated in the writ petition as
objected amount is neither objected nor disallowed, as it is the total amount of fee payable by Devaswom to the State Audit Department for the period from 2006 to 2019 with the exception of years 2009 and 2010. Audit charges as fixed by Government from time to time is charged on the institution as per Section 19 of Kerala Local Fund Audit Act, 1994 and Rule 24 of Kerala Local Fund Audit Rules,
1996. Section 19(4) of Kerala Local Fund Audit Act, 1994 provides that where a local authority does not pay the audit charges within one year from the date of its
becoming due, and where no grant or other sum is payable by the Government to the local authority, the amount of audit charges may be recovered from the local authority, as if it were arrears of public revenue due on land, under the provisions of the Kerala Revenue Recovery Act, 1968 for the time being in force. Similarly, the objected amount shown as Rs.7,22,686/- is the collective figure of all objections put together raised in various audit reports from 2004 to 2019. The Chairman of the Trustee Board is responsible only the extent of the amount pointed out in para 4-3 of the Audit Report 2014 to 2019.
10. As stated in the writ petition, in spite of the lapse of
statutory time limit of two months from the date of issue of this Audit Report, rectification report from the Executive Officer is not received in this office so far. The Trustee Board Chairman forwarded a letter to the 3rd respondent, without the approval of the trustee Board, stating that all the records are in the custody of the Vazhivadu Clerk. The anomalies and defects pointed out in para 2-1 and 2-2 in connection with the non-production of all receipts and registers related to Navarathri Festival and Bhagavatha Sapthaham and these items were not included in the Annual Financial Statement.
11. In the audit report, expenditure in connection with
temporary appointments made against unapproved posts in para no.3-1, lack of proper cash bill for purchase of gas cylinder in para no.3-6, lack of acknowledgements by Thanthri in token of receipt of money in para no. 3-7 and
non preparation of muster rolls in para no. 3-8 are held
under objection, whereas para nos.2-1 and 2-2 mention the loss of receipts and registers of devaswom. A Rectification Report as specified in Rule 23(1) of Local Fund Audit Rules, 1996, is yet to be furnished by the temple authorities. In the absence of Rectification Report from Devaswom, further report was issued by the 3rd respondent on 15.12.2021 vide Lr.No.KSA MLP.3/445/2020 to recover the amount mentioned in para 2-1 and 2-2. The Charge proposal has already forwarded to the Director of Kerala State Audit Department vide Lr.No.KSA.MLP.3/445/2020, dated 15.12.2021 and further action in is regard is under progress. Whereas, in the case of objections, a rectification report from the Executive Officer is still pending hence the objections are yet to be settled.
12. It is submitted that Madras Hindu Religious and
Charitable Endowment Rules, 1951, Rule 2 of the Rules under Section 100(2)(n) states that it shall be the duty of the trustee to produce all the books, accounts, documents and papers and furnish such information and particulars as may be required by the auditor for purposes of audit and Rule 16(2) of the Rules under Section 100(2)(j) provides that where the institution has no executive officer duly authorised but has more that one trustee a. the Chairman of the Trustee shall be deemed to be the Trustee for the purpose of Rules 1 to 17 of the Rules under Section 100(2)(j) and b. any trustee authorised by the trustees to sanction expenditure shall be deemed to be "trustee" for the
purposes of Rule 10 to 15 of the Rules under Section 100(2)(j). Rule 2 of the Rules under Section 100(2)(j) says "the trustee of the institution shall be responsible for making all collections of income, whether in cash or kind". Rule 10 of the Rules under Section 10(2)(j) says “All collections shall be brought into account without delay" Rule 100(2)(6) 10 says No expenditure shall be incurred without the written order of the trustee. Before incurring expenditure on any purpose, the trustee shall satisfy himself that the expenditure is necessary and that the scale of such expenditure does not exceed the 'dittum' where the expenditure relates to poojas and festivals, and the budget sanction in other matters"
13. In view of the above Rules, the responsibility falls on
the Chairman of the Trustee Board. Unless the Trustee Board Chairman clarify the objections and produce the documents called for in the audit paragraphs concerned or get ratification of the Board, he is bound to indemnify the loss sustained to the devaswom.
14. Rectification Report under Section 15(1) of Local Fund
Audit Act with regard to the defects and irregularities pointed out in audit report has not yet submitted by the devaswom authorities. It is up to the Trustees and the Executive Officer to take immediate steps to rectify the defects and report the matter without further delay. For recovery of the loss amount from the person at fault, charge proposals are under the consideration of the 2nd respondent. As regards the objections in the Audit Report, a rectification report is due from the Executive Officer.
15. The Commissioner, Malabar Devaswom Board can
invoke Section.48 of HR&CE Act, 1951 and initiate actions against the trustees as and when i. there is persistent defaults in the submission of Budgets, Accounts, returns. ii. for willful disobedience of any lawful order passed by Government, Commissioner, Deputy Commissioner, the Area Committee or the Assistant Commissioner iii. for any misfeasance, breach of trust or neglect of duty in respect of the trust. iv. for any misappropriation of or improper dealing with he properties of the institution. v. for unsoundness of mind or other mental or physical defect or infirmity which unfits him for discharging the functions of the trustee.
16. The Commissioner or Deputy Commissioner, as the
case may be, shall frame charges against the trustee concerned and give him the opportunity of meeting such charges, of testing the evidence in his favour. Except for the year 2019, there has been no income from Kalyanamandapam during the audit period. The average vazhipad receipt for an year comes around 17 lakhs in the temple. There was no separate head of account for Kalyanamandapam and hence collection by way of rent is included as vazhipadu receipt during 2019. The exact number of marriages that took place in the Kalyanamandapam during this period is also not known. Similarly, the income said to be received by conducting the Chitty is also not reflected in the Annual Financial
Statements.
17. Regarding the conduct of Chitty, no connected
records were produced for Audit. Various Committees functioning at the temple during the audit period had contributed an amount of 3.5 lakhs for Nadappanthal construction. An amount of 3 lakh rupees is said to be retained by those committees in a separate bank account, but the details were not readily forthcoming. This item also was not included in the Annual Financial Statement.”
5. The 6th respondent Executive Officer has filed a counter affidavit dated 03.07.2022. Paragraphs 4 to 8 of that affidavit read thus;
“4. I respectfully further submit that Sree Palakkeezh Bhagavathi Devaswom, Mundur, Palakkad is a public religious institution coming under the purview of Madras HR & CE Act, 1951. The said temple is being administered by the Board of Trustees constituted by the 4th respondent herein. Till the year 2020, there was no Executive Officer for the temple and the administration was under the complete control of the NH trustees being appointed by the 4th respondent from time to time. An Executive Officer was appointed by the Malabar Devaswom Board for the first time in the year 2020. The first Executive Officer took charge on 22.09.2020. When that Executive Officer was transferred to another temple, I took charge in the temple on 12.08.2021 pursuant to orders passed by the Commissioner, Malabar Devaswom Board and has been
continuing since then.
5. I respectfully further submit that Ext.P1 Audit Report
was sent to this respondent, being the Executive Officer of the concerned temple, by the 5th respondent as per Letter No.A4/2765/2021/MDB dated 06.09.2021. After the receipt of the said letter, while this respondent has started verifying the previous records of the temple to verify whether there is any objectionable defect in the said report, it was realised that no such records were handed over to the temple by the former administration. Neither this respondent nor the former Executive Officer of the temple received any such records, from the earlier Trustee Board, while taking charge at the temple. Hence the temple is not having such records. The Audit based on which Ext.P1 Audit Report was issued, was done before an Executive Officer was appointed at the temple. From the records now available at the temple, there is no scope for raising any objection against Ext.P1 Audit Report by this respondent. Based on the further report dated 15.12.2021 of the Audit Department, this respondent has been directed as per letter dated 17.01.2022 to take up the issue forthwith so as to avoid surcharge proceedings and further directed the Assistant Commissioner of Malabar Devaswom Board Palakkad Division to ensure the further follow-ups regarding the matter
6. I respectfully submit that auditing of temple accounts
and the further action thereon is the sole function of the State Local Fund Audit Department from the year 1996 onwards. Before that, even though the auditing was done
by the State Audit Department under Section 71, further action was taken by the HR & CE (Admn) Dept. However, by the enactment of the Kerala Local Fund Audit Act, 1994, auditing and certification of defects are the sole functions of the Local Fund Audit Department. The said authority has ample power to deal with any issues regarding such audit including initiation of surcharge proceedings. The procedure to be followed after getting the report of the Director of the Local Fund Audit Department under Section 13 of the Kerala Local Fund Audit Act is governed by Sections 15 and 23 of the said Act. In view of the relevant provisions under the said Act regarding the further proceedings to be followed based on Ext.P1 Audit Report, which are still pending, it will not be legally possible for the petitioners to seek the reliefs sought for in the above writ petition.
7. I respectfully further submit that on expiry of the term
of the former NH Trustees, the present NH Trustees were appointed by the 5th respondent herein after complying with all the procedural formalities as per proceedings No.A5/2780/2021/MDB (D.Dis) dated 11.01.2021. One of the NH Trustees so appointed is Sri.K.M.Raveendranath (10th respondent herein) whose name alone was mentioned in the Audit Report. As such, Section 45 proceedings against the present trustee board is not contemplated. Avoiding participation of the NH trustees in administration will adversely affect the temple administration.
8. I respectfully further submit that the inclusion of one of
the persons mentioned in Ext.P1 Audit Report itself is not a valid reason to take action under Section 45 the Madras HR & CE Act, 1951 against the whole trustee board. Apart from this, further proceedings on Ext.P1 Audit Report is still pending and are yet to be finalised. In such circumstances, the Writ Petition is premature.”
6. Heard the learned counsel for the petitioner, the
learned Government Pleader for respondents 1 to 3, the learned Standing Counsel for respondents 4 and 5, the learned counsel for respondents 6 and 7 and also the learned counsel for respondents 8 and 9. Despite service of notice, none appears for respondents 10 and 11.
7. The pleadings and materials on record and also the
submissions made by the learned counsel on both sides would show that the audit report of Sree Palakeezhu Devaswom for the period from 2014 to 2019 is now pending audit before the 3 rd respondent Deputy Director, State Audit Department. By Ext.P1 communication, the 6th respondent Executive Officer is directed to submit reply to the audit report, the relevant extract of which is enclosed along with Ext.P1 communication. The grievance of the petitioner is the delay in finalisation of the audit. According to the petitioner, there is a calculated attempt by the party respondents in delaying the finalization of the audit. The learned Standing Counsel for Malabar Devaswom Board and also the learned counsel for the party respondents would submit that, since the statutory audit for the period from 2014 to 2019 is pending before the 3rd respondent Deputy Director, no interference of this Court is warranted and that the parties shall co-operate with the proceedings pending before the State Audit Department, so that the audit for the said period can be finalized at the earliest.
8. Having considered the submissions made by the
learned counsel on both sides, this writ petition is disposed of by directing the 3rd respondent Deputy Director to finalise the audit of Sree Palakeezhu Bhagavati Devaswom, Mundoor for the period from 2014 to 2019 covered by the audit report, which forms part of Ext.P1 communication, as expeditiously as possible, at any rate, within a period of two months from the date of production of a certified copy of this judgment. After finalization of the audit, its outcome shall be communicated to the petitioner by the 5 th respondent Assistant Commissioner, within a period of three weeks. The legal and factual contentions raised by both sides are left open to be raised before the 3rd respondent Deputy Director, at appropriate stage. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE MIN APPENDIX OF WP(C)No.385/2022 PETITIONER'S EXHIBITS: Exhibit P1 TRUE COPY OF THE COPY OF THE AUDIT REPORT SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 6TH RESPONDENT DATED 14/07/2021 Exhibit P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 22/10/2021 Exhibit P3 TRUE COPY OF THE COMMUNICATION SENT BY THE 3RD RESPONDENT TO THE PETITIONER DATED Exhibit P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 03/12/2021 Exhibit P5 TRUE COPY OF THE LIABILITY SHOWN IN THE AUDIT REPORT Exhibit P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 24/1/2022 WITH REPLY DATED 2/2/2022 Exhibit P7 TRUE COPY OF THE PROCEEDINGS ISSUED BY THE COMMISSIONER TO THE EXECUTIVE OFFICER DATED Exhibit P8 TRUE COPY OF THE INFORMATION FURNISHED BY THE MUNDOOR GRAMA PANCHAYAT RESPONDENTS' EXHIBITS: Exhibit R8(A) TRUE COPY OF THE COPY OF THE PETITION DATED 10.12.2021