IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 WP(C).No. 3612 of 2010(B) ------------------------------------- PETITIONERS: --------------------- 1. P.K.MURALIDHARA MENON, S/O.LATE KESAVAN NAIR, `REVATHY' PANANGAD, COCHIN-682 506. 2. T.K.GOKULAN, S/O.LATE T.APPU MENON, SAJI NIVAS, PANANGAD, COCHIN-682 506. BY ADVS. SRI.V.V.ASOKAN, SRI.P.P.RAMACHANDRAN. RESPONDENTS: ------------------------ 1. COCHIN DEVASWOM BOARD, REPRESENTED BY THEIR SECRETARY, DEVASWOM BUILDINGS ROUND, TRICHUR-1. 2. SREE KAMOTH KSHETHRA KSHEMA SAMITHI, REPRESENTED BY ITS SECRETARY-T.R.MADHU, THEKKINEZHATH HOUSE, PANANGAD. 3. V.PADMANABHAN, S/O.KARTHIYANI AMMA, VELIYIL HOUSE, PANANGAD, COCHIN-682 506. 4. T.R.SATHISH CHANDRAN, S/O.LATE RAGHAVA MENON, KUZHITHINIYIL HOUSE, PANANGAD, COCHIN-682 506. W.P.(C). NO.3612/2010-B: 5. M.D.BOSE, S/O.LATE DAMODARAN MENON, MANATHIL HOUSE, PANANGAD, COCHIN-682 506. 6. KSHETHRA PUNARUDHARANA COMMITTEE, REPRESENTED BY ITS CHAIRMAN V.PADMANABHA PANICKER, PANANGAD SREE KAMOTH BHAGAVATHY TEMPLE, PANANGAD. *ADDITIONAL R.7 IMPLEADED: 7. KAMOTH DEVASWOM, REPRESENTED BY ITS SECRETARY, KAMOTH TEMPLE, PANANGAD. *ADDITIONAL 7TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 25/02/10 IN I.A. 2766/10. R1 BY ADV. SMT.P.K.RADHIKA, S.C, R3 TO R5 BY ADVS. SRI.K.MOHANAKANNAN, SMT.A.R.PRAVITHA, R6 BY SRI.MAHESH V RAMAKRISHNAN, R7 BY ADV. SRI.K.MOHANAKANNAN, ADV. SRI.S.CHANDRASENAN (ADV.COMMISSIONER), ADV.SRI.KRISHNAKUMAR MANGOT. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2010, ALONG WITH W.P.(C). NO. 7604 OF 2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3612/2010-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MINUTES OF THE COMMITTEE MEETING OF THE DEVASWOM DTD. 28/02/2009. EXT.P.2: COPY OF THE BIT NOTICE PUBLISHED AND CIRCULATED BY THE R.6 DTD. 20/07/2009. EXT.P.3: COPY OF THE COMPLAINT FILED BY THE PETITIONERS TO THE COCHIN DEVASWOM BOARD DTD. 18/08/2009. EXT.P.3.A: COPY OF THE COMPLAINT FILED BY THE PETITIONERS TO THE R.1. DTD. 03/10/2009. EXT.P.4: COPY OF THE PROCEEDINGS OF THE R.1. DTD. 18/09/2009. EXT.P.4.A: COPY OF THE RELEVANT PAGES OF THE LEDGER OF THE DEVASWOM DTD. NIL. EXT.P.4.B: COPY OF THE LETTER OF THE ELEPHANT CONTRACTOR TO THE DEVASWOM PRESIDENT DTD. 15/07/2009. EXT.P.4.C: COPY OF THE LETTER OF THE ELEPHANT CONTRCTOR ADDRESSED TO THE COCHIN DEVASWOM BOARD SPECIAL COMMISSIONER DTD. 14/08/2009. EXT.P.5: COPY OF THE PROCEEDINGS OF THE R.1. DTD. 26/10/2009. EXT.P.6: COPY OF THE RECEIPT EVIDENCING COLLECTION OF DONATION BY THE R.2. DTD. 05/11/2009. EXT.P.7: COPY OF THE NOTICE ISSUED BY THE R.1. TO THE P.1. DTD. 28/07/2009. EXT.P.7.A: COPY OF THE NOTICE ISSUED BY THE SECRETARY, KAMOTH DEVASWOM TO THE PETITIONERS DTD. 18/09/2009. EXT.P.8: COPY OF THE COMPLAINT FILED BEFORE THE OMBUDSMAN FOR DEVASWOM BOARDS DTD. 04/11/2009. EXT.P.9: COPY OF THE ORDER PASSED BY THE HONOURABLE COURT IN W.P.(C). 30553/2009 DTD. 08/01/2010. EXT.P.10: COPY OF THE PROCEEDINGS OF THE OMBUDSMAN FOR TRAVANCORE AND COCHIN DEVASWOM BOARDS DTD. 04/11/2009. EXT.P.11: COPY OF THE PROCEEDINGS OF THE COCHIN DEVASWOM BOARD DTD. 18/07/2005. W.P.(C). NO.3612/2010-B: EXT.P.11: COPY OF THE RECEIPTS EVIDENCING COLLECTION OF DONATION BY THE R.2. DTD. 20/03/2010. EXT.P.11.A: COPY OF THE RECEIPTS EVIDENCING COLLECTION OF DONATION (FOR PONKALA) BY THE R.2. DTD. NIL. EXT.P.12: COPY OF THE COVERING LETER FORWARDING THE AUDIT REPORT TO COCHIN DEVASWOM BOARD DTD. 07/07/2009. EXT.P.12.A: COPY OF THE AUDITOR'S REPORT ENCLOSED ALONG WITH EXT.P.12. DTD. 19/05/2009. EXT.P.13: COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE SUB INSPECTOR OF POLICE, PANANGAD DTD. 26/12/2004. EXT.P.14: COPY OF THE ORDER MADE IN W.P.9C).36038/2004 DTD. 08/02/2005. EXT.P.15: COPY OF THE RELEVANT PAGE OF THE MINUTES BOOK DTD. 10/02/2005. EXT.P.16: COPY OF THE CHARGE LIST DTD. 27/03/2009. EXT.P.17: COPY OF THE REQUEST MADE BY THE P.2. TO THE SECRETARY, KAMOTH DEVASWOM DTD, 22/08/2007. EXT.P.18: COPY OF THE RECEIPT ISSUED BY KAMOTH DEVASWOM TO THE P.2. DTD. 11/01/2010. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE ORDER OF THIS HONOURABLE COURT IN W.P.9C). NO.21644/2005. EXT.R3.B: COPY OF THE ORDER DTD. 07/08/2005 OF THE ADVOCATE-COMMISSIONER APPOINTING THE P.2. AS MANAGER. EXT.R3.C: COPY OF THE INTERNAL AUDIT REPORT WITH STATEMENT OF THE DEVASWOM FOR THE PERIOD FROM 01/04/2003 TO 31/03/2009. EXT.R3.D: COPY OF THE REPRESENTATION SUBMITTED BY RESPONDENTS 3 TO 5 BEFORE THE DEVASWOM BOARD. EXT.R3.E: COPY OF THE MINUTES OF THE GENERAL BODY OF THE DEVASWOM COMMITTEE DTD. 10/01/2010. EXT.R3.F: COPY OF THE DECISION OF THE GENERAL BODY OF THE MANAGING COMMITTEE ON 15/01/2010. EXT.R3.G: COPY OF THE MINUTES OF THE MEETING DTD. 24/05/2009. EXT.R3.H: COPY OF THE MINUTES OF THE MEETING DTD. 20/09/2009. W.P.(C). NO.3612/2010-B: EXT.R3.I: COPY OF THE COMMUNICATION SENT BY THE BOARD TO THE DEVASWOM. EXT.R3.J: COPY OF THE JUDGMENT IN W.P.(C).NO.30553/2009 OF THIS HONOURABLE COURT. EXT.R3.K: COPY OF THE RECEIPT ISSUED BY THE CONTRACTOR IN RESPECT OF THE PAYMENT DTD. 05/04/2009 TOWARDS ELEPHANT CHARGES. EXT.R3.L: COPY OF THE RECEIPT OF PAYMENT OF MONEY TO THE SURVEYOR DTD. 29/08/2009. EXT.R3.M: COPY OF THE QUOTATION AND WORK ORDER AND AGREEMENT ENTERED INTO BETWEEN THE DEVASWOM WITH CONTRACTOR. EXT.R3.N: COPY OF THE PROCEEDINGS OF THE R.6. //TRUE COPY// P.A. TO JUDGE. Prv. THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ WP(C) Nos.3612 & 7604 of 2010- ------------------------------------------------------------------------ Dated 10th November 2010 Judgment Thottathil.B.Radhakrishnan, J. These writ petitions relate to Kamoth Temple, Panangad, which is a temple controlled by the Cochin Devaswom Board. There were earlier rounds of litigations also in relation to that temple, before this court. 2. The relevant facts are that pursuant to the directions issued earlier by this court in the form of interim orders in WP(C) No.21644/05, an election was conducted to choose the managing committee for the said temple in accordance with the bye-laws and the scheme framed by the Cochin Devaswom Board. The Advocate Commissioner who was put in charge of the affairs in the interregnum, handed over charge to the elected committee. That election was not challenged. The term of that committee is due to expire on 10.02.2011. This means that a proper election has to be held in terms of the bye-laws WPC 3612 & 7604/10 2 and the scheme, to ensure that a new committee comes into office at the expiry of term of the present committee. To enable this, the managing committee now in office has issued a notice, for convening a meeting for appointing a Returning Officer. 3. WP(C) No.3612/10 is filed by two individuals raking up the issues in relation to the continued management of the committee now in office. With the efflux of time, the prayer for removal of the committee now in office would be infructuous in a short time because, their term is due to expire on 10.02.2011. 4. There is an audit report regarding the management of the temple. That internal audit report appears to be criticised by the petitioners in WP(C) No.3612/10. This court, therefore, appointed a Chartered Accountant to audit the accounts. A report filed by the said Chartered Accountant is also on record. We are not going into the correctness or otherwise or even as to what should be done with the contents of that report, since it is one WPC 3612 & 7604/10 3 among the statutory duties of the Cochin Devaswom Board as the controlling authority of the Devaswom in question in terms of the Travancore-Cochin Hindu Religious Institutions Act, to do all that is required and call for details, on the basis of the contents of the internal audit report or the audit report of the Chartered Accountant as presented before this court, depending upon the acceptability of those reports. We, therefore, order that the Cochin Devaswom Board will do the needful on the basis of those reports. Any action that may be found necessary in this regard shall be resorted to by the Cochin Devaswom Board within a period of three months from now without fail. 5. In the light of this direction, no further orders are called for in WP(C) No.7604/10, as far as this issue is concerned. 6. We find that the managing committee now in office is holding the authority under the bye-laws and the scheme to conduct the election. The election of that managing committee was never challenged. We, therefore, WPC 3612 & 7604/10 4 do not deem it necessary to interfere with the affairs of the committee, though there are allegations of maladministration by that committee. 7. The only issue that now survives in WP(C) No.3612/10 is the request that the election to the managing committee has to be appropriately conducted, if necessary, by appointing an Advocate Commissioner to conduct the election. Going by the pleadings in WP(C) No.3612/10, the managing committee now in office would immediately point out that the petitioners in the said writ petition are none other than the President and the Secretary of the Committee that assumed office, following the earlier election and half way through, they left the committee and have filed this writ petition. It has also an allegation that the second petitioner while being the Secretary of the managing committee was also the Manager of the temple and going by the audit reports, he stands accused of various financial misdeeds. We mention this, only because, we have noted the submission. We do not grant our seal of WPC 3612 & 7604/10 5 approval either to the assertions or denial since those matters are left open to the Cochin Devaswom Board to consider on the basis of different reports. 8. Having found that it is the present committee which is empowered to have the election conducted, we do not deem it appropriate to have an Advocate appointed as Commissioner to conduct the election which would mean that he will have to act as the Returning Officer. We do not find any ground to interfere with the process of election that has to be undertaken in terms of the provisions in the scheme and the bye-laws. Having regard to the totality of the allegations, we accede to the request that an observer could be appointed to oversee the entire electoral process right from the appointment of the Returning Officer. 9. In terms of our earlier orders, Adv.S.Chandrasenan was appointed as Commissioner in terms of orders dated 01.03.2010 and 21.05.2010. With this, we appoint Adv.S.Chandrasenan to be the Observer for the election in question in terms of the aforesaid WPC 3612 & 7604/10 6 directions. The batta for the Observer is fixed as Rs.25,000/- (Rupees Twenty Five Thousand only). 10. The report of the Observer will be made available to the Secretary of the Cochin Devaswom Board who will retain it in the file relating to the temple in question so that if at all there is any challenge to the election before the appropriate authority or court, such material could be readily available in the file. We further order that the Cochin Devaswom Board would appropriately exercise its authority of control in terms of the statutory provisions having regard to the complaints that there are parallel committees, trying to govern the temple in question. 11. We have noticed in our order dated 01.03.2010 that the sufferance of the Commissioner's batta would be finally decided as costs of proceedings. Insofar as the Commissioner's batta covered by our earlier orders, is concerned, an amount of Rs.15,000/- has been met from out of the Devaswom funds and Rs.25,000/- has been paid to the Commissioner by the writ petitioners in WP(C) WPC 3612 & 7604/10 7 No.3612/10. Taking the nature of the allegations and counter allegations into consideration, we order that the batta of Rs.25,000/- payable to Adv.S.Chandrasenan as Observer for the election will be paid by the petitioners in WP(C) No.3612/10 and from out of the Devaswom funds in equal proportion, thereby meaning that the petitioners in the said writ petition will pay Rs.12,500/- and Rs.12,500/- will be paid from the Devaswom funds. 12. It is further ordered that the balance amount in deposit before this court towards Auditor's fee shall be released to the counsel appearing for respondents 3 to 5, who will ensure that the said amount is passed on to the Auditor. The writ petitions are ordered accordingly. Sd/- THOTTATHIL.B.RADHAKRISHNAN, JUDGE Sd/- P.BHAVADASAN, JUDGE sta WPC 3612 & 7604/10 8