IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WP(C).No. 36836 of 2008(I) -------------------------- PETITIONERS: --------------- 1. MOHAN NAMBIAR, 737 A, PULYAKULAM ROAD,COIMBATORE 641 045. 2. M.N.NAMBIAR TRUST, REPRESENTED BY TRUSTEE N.MOHAN NAMBIAR, NO.4, SIXTH STREET GOPALAPURAM, CHENNAI 600 086. BY ADV. SRI.P.RAVINDRAN, SENIOR ADVOCATE SRI.ANIL SIVARAMAN SRI.V.G.SANKARAN RESPONDENTS: --------------- 1. THE TRAVANCORE DEVASWOM BOARD THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, TRAVANCORE DEVASWOM BOARD THIRUVANANTHAPURAM. 3. THE OMBUDSMAN, TRAVANCORE DEVASWOM BOARD,THIRUVANANTHAPURAM. BY ADV. MR. V. KRISHNA MENON, SC, TDB. ADV. SRI.KRISHNAKUMAR MANGOT,AMI.CUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ................................................................................ W.P.(C) No. 36836 OF 2008 ......................................................................... Dated this the 15th October, 2009 J U D G M E N T P.R. Raman, J: The first petitioner is one of the the trustees of the second petitioner- a charitable Trust. The founder of the Trust was a devotee of Lord Ayyappa. With the intention to provide relief to fellow pilgrims, he constructed two rest houses in Sabarimala and three halls near Malikappuram temple. Soon after its construction, they were handed over to the Travancore Devaswom Board, subject to the condition that these buildings will be properly maintained by the Travancore Devaswom Board and that during the pilgrimage season, the buildings should be made available to the founder or his nominees. Subsequently there arose some dispute between the Devaswom Board and the petitioner in the matter of use of the building and the period to W.P.(C) No. 36836 OF 2008 2 which the petitioners will be entitled to get it on rent free basis. Like disputes arose with regard to the building constructed by some other donors also. 2. Ombudsman had considered all these cases and submitted Ext. P16 report. In paragraph No.3 of the report , it is stated as follows: “3. As per the agreement executed by majority of the donors, the donors have only right to use free of charge the rooms of which they are the licensees for 5 days in a year (i.e. 2 days in Mandala Pooja period, 2 days in Makaravilakku period and 1 day in Vishu period). Free accommodation passes are sent to donors before starting of the pilgrimage season every year. But in certain cases, the Board is permitting to use rooms throughout the festival period and sometimes throughout the year on payment of room rent in lump sum.” 3. The Ombudsman had also referred to the report submitted by the Special Commissioner, Sabarimala stating that W.P.(C) No. 36836 OF 2008 3 'seasonal allotment of rooms to donors causes revenue loss to the Devaswom Board and there are complaints of subletting and collecting of rent'. The Ombudsman has concluded his report suggesting certain guidelines to be issued in the matter of allotment of rooms from the next season onwards. 4. The petitioners herein contended that he was not given an opportunity to place certain facts before the Ombudsman regarding the special nature of the agreement. The relief prayed for in the present Writ Petition is for issuance of a writ of mandamus directing the first respondent to give possession of the premises to the petitioners in accordance with the terms and conditions of Ext.P4 draft agreement. It is contended that Ext.P4 being an agreement between the Board and the petitioners, the conditions of which cannot be abrogated unilaterally by the Board and that on the strength of Ext. P4, he has certain rights. 5. Before considering the said contentions, we thought it fit to refer the matter to the learned Ombudsman since the W.P.(C) No. 36836 OF 2008 4 earlier matter was considered by him and submitted a report. We referred the matter to the Ombudsman for consideration and suggestion to be made with reference to the factual details furnished in the Writ Petition as well as the contentions, if any, to be raised by the respondents. Accordingly, the Ombudsman issued notices to the parties and submitted his report, as Report No.122 of 2009. In paragraph No.3 of the report, the specific stand of the Devaswom Board, as revealed from the letter submitted before the Ombudsman, has been extracted, as hereunder.: “Hence it has been decided that the donor rooms have to be reserved after stipulating five days at free of cost for the donor during the season period and in addition to that another five days for their nominee on payment and it should be intimated ten days ahead. “ The said letter is also produced as Annexure -A along with the report. Though the petitioners contended that he has right to W.P.(C) No. 36836 OF 2008 5 get the rooms on payment of rent during the entire festival season, it was not accepted by the Ombudsman while submitting the report. After a detailed discussion between the learned Counsel for the Petitioners and the learned Standing Counsel for the Devaswom Board, a consensus was arrived at before the Ombudsman, as per which: instead of five days, as suggested by the Devaswom Board, the petitioners can be given ten days accommodation on payment of rent, apart from the five days already available to them free of rent so that the total number of days the donor can avail the facility will be 15 days in the Mandalam-Makaravilakku season; the ten days during which accommodation is required on payment of rent will be spread over as three days during Makaravilakku season and seven days during Mandalam Season; one day rent free during Vishu period can be shifted to the Mandalam seasom, so that during Mandalam Season the petitioners will get seven days on payment of rent and three days rent W.P.(C) No. 36836 OF 2008 6 free and during Makaravilakku season the petitioners will get three days on payment of rent and two days rent free accommodation; during off season, any accommodation is required, the same can be requested for on payment of rent as other devotees and if accommodation is available, the same can be provided. 6. Since the report is based on the consensus arrived at between the parties, it is only just and appropriate to pass orders based on the recommendations made by the Ombudsman. Accordingly, we order that the petitioners can avail the accommodation facility for 15 days during Mandalam- Makaravilakku season. Out of which rent will be paid for 10 days, in the following manner: i) Three days during Makaravilakku season, ii) seven days during Mandalam season. The balance five days will be free of rent, out of which, three days will be during Mandalam season and two days will be W.P.(C) No. 36836 OF 2008 7 during Makaravilakku season. During off season, the petitioners shall be treated alike any other devotee and if accommodation is available, they can be accommodated on payment of usual rent. The Writ Petition is disposed of as above. P.R. RAMAN, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk