IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 DBAR.No. 6 of 2008() -------------------- (IN THE MATTER OF COCHIN DEVASWOM BOARD - GERNERAL ADMINISTRATION - KONGANPADA ULSAVAM - CHITTUR - AUDIT OF ACCOUNTS FOR THE YEAR 1183 M.E. (2008 AD) PETITIONER ------------- THE DEPUTY DIRECTOR, LOCAL FUND AUDIT, COCHIN DEVASWOM BOARD AUDIT, THRISSUR. BY SR. GOVERNMENT PLEADER SRI. R. LAKSHMINARAYAN. RESPONDENT: --------------- SECRETARY, COCHIN DEVASWOM BOARD, THRISSUR. ADV. SRI.C.E.UNNIKRISHNAN, S.C. FOR CDB. ADV. SRI.A.K.MADHAVAN UNNI, FOR DESAPRAMANAKKAR. ADV. SRI. KRISHNAKUMAR MANGOT- AMICUS CURIAE FOR OMBUDSMAN. THIS DEVASWOM BOARD AUDIT REPORT HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. = = = = = = = = = = = = == == = = = DBAR NO. 6 OF 2008 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 23RD DAY OF OCTOBER, 2009. O R D E R Raman, J. The Audit work by the Local Fund in the matter of Cochin Devaswom Board for the year 1183 M.E. was referred to the Ombudsman. The audit objection relates to the Konganpada Ulsavam, Chittur for the year 1183 M.E. The main objection in the audit report is that the direction of this Court for conducting the Konganpada Ulsavam has not been complied with. This Court directed that money should be collected only on the strength of receipts with the seal of the Devaswom and the amount so collected should be credited to the bank immediately and the amount be drawn from the bank only through cheques. As per the statement filed by the Deputy Director of Local Fund Audit, receipt books are not seen sealed by the Devaswom and no separate cash book has been maintained. Previous year also similar objection was considered in DBAR 1 & 4 of 2007 and the Cochin Devaswom Board was directed to issue proper guidelines to supervise the samithies constituted for the purpose of DBAR 6/2008 2 conducting the Ulsavam. Subsequently, the matter was closed and the Devaswom Board has complied with the order. Annexure A and B are copies of the orders. The Konganpada Festival Committee took the stand that the festival has nothing to do with the Devaswom, that it is a hereditary right, that they are submitting the accounts before the Deity after the festival, that there is no bye-law for the festival that there is no reason for the receipts to be got sealed by the Devaswom Authorities and however, if this Court issues any direction, they will consider at that time. Annexure C to the report of the Ombudsman is the reply of the said Committee. The Ombudsman reports that this is not in tune with the earlier order passed by this Court and therefore, concluded that notice be issued to the Konganpada Festival Committee to see that they follow the guidelines contained in the Circular. 2. Pursuant to the receipt of the report by the Ombudsman, we have passed an order dated 11th June, 2009, wherein the learned counsel Sri. Madhavan Unni, appearing on behalf of the Desapramanakars submitted that they have no such stand that they are not bound to submit the accounts. But no direction as such is issued as contended by the other side. Later, by another order dated 20th August, 2009, they were directed to produce the accounts for the year 2009 before this Court and accordingly, they produced DBAR 6/2008 3 the accounts and stated that the same has been inspected by the Local Fund Audit. The learned Government Pleader submitted, on instruction from the Local Fund Audit, that the said accounts have been verified. Accordingly, the same was ordered to be returned to the learned counsel Sri. Madhavan Unni, representing the Committee, after obtaining acknowledgment thereof. 3. In the reply affidavit filed by Sri. A. Parameswara Menon, Desapramanakkaran, it is stated that Konganpada festival of the year 1184 ME (2009 AD) was as usual conducted in March, 2009 and that the accounts for the same is kept ready for audit which is duly informed to the Devaswom Audit. (Subsequently, as noticed above, the same has been audited.) It is stated further that the receipts are not being signed by the Devaswom since there is no such instruction from competent authority or by this Court to do so, that Konganpada is an Ulsavam of Chittur Desakkar and as per customs, members nominated by Karanavans from four Nair Tharavads in Chittur become "Pramanakkar" whose responsibility is to collect contribution and to see that all rituals of the festival is done properly, that preparation of budget for the expenses of the Konganpada and reading it before the "Parisha" is also a custom, that the Ulsavam is conducted with rituals followed from time immemorial, that 'Parisha" and "Desapramanakkar" draw guidance from the old senior persons and from a DBAR 6/2008 4 book "Kongappada" by P.R. Menon, that on the last day of the Ulsavam in the last ritual called "Pallu" the income and expenditure account of the Ulsavam is read before the "Parisha" in front of the deity when the Velichappadu calls for it, that without permission or concurrence of the 'Parisha', Pramanakkar have no right to spend any money collected for Konganpada Ulsavam, that money collected for Konganpada Ulsavam cannot be used or utilized for any other purpose, that Konganpada Ulsavam is not conducted by the Devaswom or on its supervision, that the Devaswom has no right or responsibility in the conduct of the said Ulsavam, that devotees in large numbers make donation and conduct vazhipadu, that considerable amount is received in the Bhandaram and also as Nadavaravu, that Devaswom is earning a lot of money in connection with the Konganpada Ulsavam, that the Ulsavam is not conducted by any committee created or authorised under the Devaswom, that the parisha of Chittur desom and the Desa Pramanakkar conduct the Ulsavam treating it as their divine responsibility and there is no chance given for misuse of funds or authority. Accordingly, they prayed that appropriate orders may be passed stopping the procedure of audit of Konganpada Ulsavam Accounts by the Local Fund Audit. 4. We have heard the learned counsel Sri. Madhavan Unni, appearing DBAR 6/2008 5 on behalf of the Desapramanakkar of the Konganpada Ulsavam, learned Standing Counsel appearing for the Cochin Devaswom Board and the learned Government Pleader appearing on behalf of the Local Fund audit. 5. Earlier, in DBAR 1 & 4 of 2007, a co-ordinate Bench of this court passed an order on 1.10.2007, while considering the Audit report relating to the conduct of the festival in 2006. After hearing the parties, this Court passed an order directing the Cochin Devaswom Board to issue guidelines to supervise the Samithy constituted for the purpose of conducting festivals, especially when they deal with money collected from the devotees. There was also a direction that money will be collected only on the strength of receipt with the seal of the Devaswom and the amount so collected should be credited to the Bank immediately and the amount be drawn from the bank only through cheques. It is pursuant to that, the circular was issued by the Board in tune with the direction. In such circumstances in so far as those orders are not modified, parties are bound by it. 6. The stand now taken by the Desapramanakkar is that Konganpada Ulsavam is conducted by the four Nair Tharvadus in Chittoor as Pramanakkars, which is a custom immemorial and the customary procedures were followed all these years and the Devaswom has not played any role in the affairs of the festival. However, these contentions as DBAR 6/2008 6 such were not raised before this Court in the earlier proceedings and as such, there was no occasion for this Court to consider the same. It is also stated that Konganpada Ulsavam is not conducted by any committee constituted as it is a customary right of the Desapramanakkar of Chittoor Desom to conduct the Ulsavam. 7. We have in extenso referred to the practice hitherto followed based on custom immemorial in the above paragraph and it is unnecessary to reiterate the same. It is however, submitted by the four Desapramanakkars in their letter dated 2.2.2009 produced as Annexure C along with the report of the Ombudsman that though the festival is being conducted in accordance with the customary right and in the absence of any direction, they were not getting the receipts sealed by the Devaswom. However, it is stated as follows: "If the Hon'ble High Court gives any such directions we will consider at that time." In the wake of the previous order passed by this Court, we find that the circular issued being in tune with the direction issued by this Court, it has to be found that the account books have to be submitted for verification. Annexure A is an order passed as early as in 2007 by a Division Bench of this Court and if for any reason, the Desapramanakkar had any grievance, DBAR 6/2008 7 they ought to have sought for a review of that order. That has not been done. However, taking into consideration the averments made in the affidavit now filed and in the absence of any contra averment made as to the manner in which the Konganpada Ulsavam is being conducted, until the customary right of the Desapramanakkars in conducting the festival in a particular manner as per the custom is established in any civil court, they are bound to follow certain procedures as it involves public money. 8. Accordingly, we direct that the accounts relating to the Konganpada Ulsavam every year be submitted before the Local Fund as hereinbefore and get audited by the Local Fund. Collection, if any, made from the public shall be through receipt issued and it is open to the Desapramanakkar to submit the receipt books sufficiently early before starting of the Ulsavam and within one week of the same, the Devaswom shall seal the receipt and return the same to the Desapramanakkars. The receipt book along with the accounts as stated earlier, will be verified by the Local Fund audit. Atleast these minimum safeguards have to be followed. Since in the present year the books have been verified and audited and in view of the fact that Ulsavam is already over, collection of any amount without getting the receipt book sealed by the Devaswom is condoned. However, from the coming year, the directions issued by this Court in DBAR 6/2008 8 DBAR 1 & 4/2007 will be complied with in so far as the collection of the amount from the public be made only after the receipt books are got sealed from the Devaswom Board and proper accounts shall be maintained and submitted before the Local Fund. This order will continue to be in force unless and until any customary right as pleaded by the Konganpada Ulsavam Committee is established before a court of law in an appropriate civil proceeding and dehors what we have stated above, it is open to the civil court to decide the issue. Leaving open such right of the Desapramanakkar to establish their right, if any, based on custom, the above order shall be strictly adhered to, subject to any such decision that may be made in such proceedings, if any, taken up by the Konganpada Ulsavam Committee. DBAR is closed. P.R. RAMAN, (JUDGE) P.R. RAMACHANDRA MENON, (JUDGE) KNC/-