IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 WP(C).No. 4256 of 2010(O) ------------------------- CMA.103/2009 of D.C & SESSIONS COURT,TRIVANDRUM OS.1831/2009 of PRL.M.C.,TRIVANDRUM .................... PETITIONERS: --------------- 1. UTHRADAM THIRUNAL MARTHANDA VARMA, PATTOM PALACE, THIRUVANANTHAPURAM. 2. SREE PADMANABHASWAMY TEMPLE, REP. BY THE EXECUTIVE OFFICER, SREE PADMANABHASWAMY TEMPLE, EAST FORT, THIRUVANANTHAPURAM. BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV RESPONDENTS: --------------- 1. UNION OF INDIA, REP. BY THE SECRETARY, MINISTRY OF CULTURE, SASTHRI BHAVAN, NEW DELHI. 2. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. N.VISWAMBARAN, S/O.NARAYANAN, RESIDING AT BEENA COTTAGE, BALARAMAPURAM, THIRUVANANTHAPURAM. 4. R.PADMANABHAN, S/O.RAMA IYER, AGED 44 YEARS, RESIDING AT WEST NADA, FORT, THIRUVANANTHAPURAM. 5. G.GEETHAKUMARI, GEETHA BHAVAN, MUNDELA, VELLANADU, THIRUVANANTHAPURAM. 6. R.CHANDRANKUTTY,S/O.RAGHAVAN PILLAI, GENERAL SECRETARY,"SREE PADMANABHA TEMPLE STAFF ORGANIZATION,NORTH NADA,FORT,THIRUVANANTHAPURAM, RESIDING AT T.C.NO.39/2158,'BINDU BHAVAN', PADANNAVU LANE,MANACAUD P.O.,THIRUVANANTHAPURAM. ADDL. RESPONDENT: 7. SREE PADMANABHA SWAMY TEMPLE EMPLOYEES' UNION, REG. NO.01/31/97, FORT, THIRUVANANTHAPURAM-23, REP. BY ITS GENERAL SECRETARY, SRI.P.RAJENDRA DAS. (ADDL. 7TH RESPONDENT IS IMPLEADED AS PER ORDER DT.3.11.2010 IN I.A. NO.15387/2010.) ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R1 GOVT. PLEADER SRI.LAKSHMI NARAYAN FOR R2 SRI.VAKKOM N.VIJAYAN FOR R3 SMT.V.RENJU FOR R3 SRI.P.ANIYAN FOR R3 SMT.M.A.RAMITHA FOR R3 SRI.M.BALAGOVINDAN FOR R4 SRI.T.K.ANANDA PADMANABHAN FOR R4 SRI.R.RAJASEKHARAN PILLAI FOR R5 SMT.SABINA JAYAN FOR R5 SRI.D.SOMASUNDARAM FOR R6 SRI.PIRAPPANCODE V.S.SUDHIR FOR ADDL.R7 SRI.JELSON J.EDAMPADAM FOR ADDL R 7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2010, ALONG WITH WPC NO.36487 OF 2009, THE COURT ON 31/01/2011 DELIVERED THE FOLLOWING: APPENDIX (WPC NO.4256/2010) PETITIONERS' EXHIBITS: P1: TRUE COPY OF THE COVENANT. P2: TRUE COPY OF PLAINT IN O.S. 625/2007 OF SUB COURT, TRIVANDRUM. P3: TRUE COPY OF PLAINT IN O.S. 1618/2009 BEFORE THE 1ST ADDITIONAL MUNSIFF'S COURT, TRIVANDRUM. P4: TRUE COPY OF MEMORANDUM OF APPEAL IN CMA 103/09 PENDING BEFORE THE DISTRICT COURT, TRIVANDRUM. P5: TRUE COPY OF THE PLAINT IN O.S. NO.1831/2009 DT.2810.2009 PENDING BEFORE THE MUNSIFF'S COURT, TRIVANDRUM. P6: TRUE COPY OF WRITTEN STATEMENT SUBMITTED BY THE STATE IN O.S. NO.625/2007 BEFORE THE SUB COURT, TRIVANDRUM. RESPONDENT'S EXHIBITS: R4(a): TRUE COPY OF PLAINT IN O.S. 253/1976 OF THE PRINCIPAL SUB COURT, TRIVANDRUM. R4(b): TRUE COPY OF WRITTEN STATEMENT FILED BY THE LATE CHITHIRA THIRUNAL BALARAMA VARMA. R4(c): COPY OF THE LETTER NO.364/SPST DT.24.10.2008 ISSUED BY 2ND PETITIONER. R4(d): TRUE COPIES OF THE VAZHIPADU RECEIPTS. R4(e): TRUE COPY OF THE CIRCULAR DT.2.8.2007. R4(f): TRUE COPY OF I.A. NO.605/2008. R4(g): TRUE COPY OF THE LETTER DT.23.9.2007. R4(h): TRUE COPY OF LETTER DT.29.9.2007. R4(i): TRUE COPY OF INTERIM REPORT DT.23.11.2007. R4(j): TRUE COPY OF APPLICATION MADE TO THE ADVOCATE COMMISSIONER. R4(k): TRUE COPY OF LETTER DT.27.9.2008 CAUSED TO PETITIONERS. R4(l): TRUE COPY OF NOTICE TO THE 2ND PETITIONER DT.20.10.2009. R4(m): TRUE COPY OF REPLY DT.26.10.2009. R5(a): COPY OF THE IMPRESSED PAYMENT ORDER. R5(b): COPY OF THE IMPRESSED PAYMENT ORDER EVIDENCING PAYMENT OF WAGES OF APRIL 2007. (WPC NO.4256/2010) R5(c): COPY OF LETTER DT.6.5.2008. R5(d): COPY OF LETTER DT.14.9.2009. R5(e): COPY OF THE COMPLAINT DT.24.11.2009. R5(f): COPY OF THE FIR DT.28.1.2010. R6(a): TRUE COPY OF THE RELEVANT PAGES OF (THRIPADITHANAM) TRAVANCORE STATE MANUAL VOL.2 BY T.K.VELUPILLAI, PUBLISHED BY KERALA GAZETTE DEPARTMENT. R6(b): TRUE COPY OF REGISTRATION CERTIFICATE NO.01/36/1987 DT.15.10.1987. R6(c): TRUE COPY OF IMPLEADING PETITION DT.26.9.2007. R6(d): TRUE COPY OF JUDGMENT IN W.P.28245/2007 OF THIS HON'BLE COURT DT.2.7.2008. R6(e): TRUE COPY OF I.A. FILED JAYASEKHARAN NAIR. R6(f): TRUE COPY OF LETTER NO.75/SPST DT.16.9.2008. R6(g): TRUE COPY OF ORDER DT.10.6.2009. R6(h): TRUE COPY OF LETTER ISSUED BY ME TO THE PETITIONERS AND RESPONDENTS HEREIN DT.17.8.09. R6(i): TRUE COPY OF THE SAID REPRESENTATION DT.22.12.2009. R6(j): TRUE COPY OF LETTER DT.24.3.08 ISSUED BY THE THEN 2ND PETITIONER. R6(k): TRUE COPY OF SAID APPLICATION DT.23.10.2009. R6(l): TRUE COPY OF SAID REPLY NO.95/SPST DT.23.11.2009. R6(m): TRUE COPY OF REPLY DT.1.1.2010. R6(n): TRUE COPY OF COMPLAINT DT.24.2.2010. R6(o): TRUE COPY OF RECEIPT EVIDENCING THE COMPLAINT DT.24.2.2010. TRUE COPY PS TO JUDGE C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. .................................................................... W.P.(C) Nos.36487 of 2009 & 4256 of 2010 .................................................................... Dated this the 31st day of January, 2011. JUDGMENT Ramachandran Nair, J. The central issue arising in these two connected W.P.(C)s is whether the younger brother of the last Ruler of Travancore could after the death of the last Ruler on 20.7.1991 claim to be the "Ruler of Travancore" within the meaning of that term contained in Section 18(2) of the Travancore-Cochin Hindu Religious Institutions Act, 1950 (hereinafter called "the TC Act") to claim ownership, control and management of the ancient and great Temple in Kerala namely, the Sree Padmanabha Swamy Temple located at Trivandrum. 2. Briefly stated, all the temples which were under the control and management of the erstwhile Princely States of Travancore and Cochin, after merger of the two Princely States went under the control of the Travancore and Cochin Devaswom Boards. However, under the Agreement of Accession signed between the two Princely States represented by the kings with the Government of India as a party, WPC 36487/09 & 4256/10 2 which came into force with effect from 1.8.1949, the administration of the Sree Padmanabha Swamy Temple was "vested in trust" in the Ruler of Travancore. Travancore-Cochin became a Part B State under the Constitution until the State was reorganised in 1956 to form Kerala State. The TC Act was enacted after the commencement of the Constitution and in the said Act, the provisions of the Accession Agreement relating to Padmanabha Swami Temple were incorporated in Chapter III. It is by virtue of the Covenant in the Accession Agreement and later by operation of Section 18(2) of the TC Act, the management of the Sree Padmanabha Swamy Temple continued to be vested in Trust in the last Ruler of Travancore. By the Constitution (Twenty Sixth) Amendment Act, 1971, the privy purses, privileges and other special rights of the erstwhile Rulers of Indian States were abolished by deleting Articles 291 and 362 and by incorporating a new provision namely, Article 366(22) in the Constitution. Even though the Twenty Sixth Amendment to the Constitution was made effective from 28.12.1971, the challenge against the validity of the Amendment was repelled and the Amendment was upheld by the Supreme Court WPC 36487/09 & 4256/10 3 vide judgment rendered by the Constitution Bench only on 4.2.1993 in RAGHUNATHRAO GANAPATRAO VS. UNION OF INDIA reported in 1994 Supp.(1) SCC 191. The last Ruler of Travancore died during pendency of the cases before the Supreme Court and until his death on 20.7.1991 he continued to manage the Sree Padmanabhaswamy Temple by virtue of powers conferred on him under Section 18(2) of the TC Act. Even though there is no "Ruler" in Travancore under the substituted definition of Article 366(22) after the death of the last Ruler and consequently the Ruler of Travancore referred to in Section 18(2) of the TC Act could be only the State, it allowed the management of the Padmanabha Swamy Temple to be taken over and retained by the brother of the last Ruler after the latter's death. The legality and propriety of the take over of control of the Great Temple by the brother of the deceased last Ruler and the future of the Temple are the issues to be decided herein. 3. Public resentment started when the last Ruler's brother, the first petitioner in W.P.(C) No.4256/2010, who after the last Ruler's death took over the control and management of the Temple, arranged to WPC 36487/09 & 4256/10 4 take photographs of the treasures of the Temple and made a claim which was published in the Malayalam Daily "Kerala Koumudi" on 15.9.2007 stating that the treasures of the Padmanabha Swamy Temple are the family properties of the erstwhile Royal Family of Travancore. Several devotees approached Civil Courts in Trivandrum filing Suits for declaration and for injunction against those who are in control and management of the Temple and in one of the cases the Sub Court after hearing all the parties including the Temple Employees' Union which also opposes the present management, granted injunction against opening of treasure rooms (Kallaras) of the Temple. Even though an appeal filed against the injunction order is pending before the District Court, the injunction is said to be still in force. While so, the deceased last Ruler's brother with the Executive Officer of the Temple appointed by him also as a petitioner filed W.P.(C) No.4256/2010 before this Court essentially under Article 228 of the Constitution of India for calling for all the cases pending before the Subordinate Civil Courts and for declaring that the Civil Courts have no jurisdiction to decide the matter or in the alternative, to issue appropriate orders declaring the WPC 36487/09 & 4256/10 5 entitlement of the petitioners to run the Temple. W.P.(C) No.36487/2009 is filed by an Advocate of the Supreme Court who is a devotee and a closeby resident of the Great Temple at Trivandrum, challenging the authority of the last Ruler's brother and the Executive Officer appointed by him to run the Temple and the main prayer in that W.P.(C) is for issue of a Writ of Quo Warranto against the Executive Officer, who according to the petitioner, was appointed by the last Ruler's brother without any authority whatsoever. We have heard Sri.M.Balagovindan, counsel appearing for the petitioner in W.P.(C) No.36487/2009, Sri.K.Ramachandran, counsel appearing for the last Ruler's brother, Senior Advocate Sri.S.V.Balakrishna Iyer appearing for the Executive Officer, the Government Pleader for the State which is also a party in these proceedings and also in the Suits pending before the lower Courts. Detailed argument notes are also filed by these parties. The Temple has over 200 permanent employees and the Temple Employees' Union is also impleaded as additional respondent in both the W.P.(C)s. The Union is supporting the case of the petitioner in W.P.(C) No.36487/2009 and they also contend that after WPC 36487/09 & 4256/10 6 the death of the last Ruler of Travancore, first petitioner in W.P.(C) No.4256/2010 has no legal right to claim the control or management of the Temple. The Employees' Union has also raised an allegation that the Temple is mismanaged. An additional respondent impleaded in W.P.(C) No.36487/2009 (I.A. No.15415/2010) supported the case of the other respondents by attributing motives on the petitioner. We have heard Senior Advocate Sri.K.Ramakumar appearing for the said respondent. 4. Before proceeding to consider the legal issues raised and the jurisdiction of the lower courts and that of this Court which are also issues raised before us based on Article 363 of the Constitution, we have to briefly state the history of the Sree Padmanabha Swamy Temple. Even though the origin of the Temple is shrouded in antiquity and different versions are stated by different Authors, the modern history of this Great Temple starts with Anizham Thirunal Marthandavarma who established the modern Travancore State which was previously known as Venad. For over 200 years prior to the re- establishment of the Princely State and taking over of management of WPC 36487/09 & 4256/10 7 the Temple and the State by Marthandavarma, the Temple was under the control of "Ettarayogam" (group of eight and a half) consisting of seven Pottis (Brahmins), one Nair chieftain and the King who had only half a vote, whereas all others had one vote each. While the committee of Potties controlled the Temple, the properties of the Temple were managed by Ettuveettil Pillamars, the 8 Nair chieftains belonging to eight big families spread over in different villages of the State. The King was a low key functionary in the Committee managing the Temple and he had only a very limited authority with half a vote. History proves that the Temple even remained closed for five years on account of dispute between the King and the Potties and for over two centuries prior to Marthandavarma's Rule, the Brahmins constituting the Ettarayogam and the Nair chieftains virtually ruled the Temple and even in matters of the State, the King's authority steadily eroded making him thoroughly ineffective. In fact the Kings used to be even fined by the Ettarayogam Potties who were in control of the management of the Temple, if they considered the King's interference or involvement in the management of the Temple was excessive or WPC 36487/09 & 4256/10 8 unwanted. The Ettuveettil Pillamars with the help of Brahmins in management of the Temple plotted against Marthandavarma becoming the King and they tried to instal the previous King's son as the new King in deviation of the practice of the nephew of the King namely, Marthandavarma becoming the King. However, in the protracted battle that followed between the heir to the throne namely, Marthandavarma and his loyalists on the one side and the Ettuveettil Pillamars, the Brahmins, and the King's son's loyalists on the other side, Marthandavarma succeeded and he executed all the Ettuveettil Pillamars, razed their houses to the ground and distributed their females to the fishermen. The Potties who were in charge of the Temple were also ousted from the management of the Temple, and most of them were banished and sent out of the State. Marthandavarma took over full control of the State and the Padmanabha Swamy Temple and it is he who reconstructed the Temple which was in bad shape after a major fire that took place years back and installed a new idol. In fact, the King surrendered his Kingdom to the presiding Deity namely, Padmanabha Swamy and declared himself the Dasa or servant of the WPC 36487/09 & 4256/10 9 Lord and assumed the name "Padmanabhadasa". Marthandavarma ruled Travancore from 1729 to 1758 and after him also the Temple continued to be under the direct management and control of the King. While the Great Sree Padmanabhaswamy Temple was directly under the control of the Travancore King, all the major temples in Travancore were under private ownerships. Every temple had large extent of properties, but all such properties were in the hands of tenants who were not properly paying rent or revenue. During the reign of Travancore by the two Ranis successively namely, Gouri Lakshmi Bhai (1810-15) and Gouri Parvathy Bhai (1815-29), Colonel Monroe was the British resident in Travancore. He virtually usurped the powers of the Diwan and the weak Ranis were not able to resist him. Colonel Monroe found that the only way to augment the revenue of Travancore State is to bring the entire temples under the State's control and in turn, restore the properties that belong to the temples to the control of the State. It is under his advice Gouri Lakshmi Bhai issued the Proclamation on 17.9.1811 whereby all the major Hindu temples in Travancore were brought under the King. Thereafter the temple WPC 36487/09 & 4256/10 10 properties were also restored to the State and the temples and the lands were brought under the Land Revenue Department. This resulted in improved collection of revenue from the lands and there was considerable augmentation and stability of the State finances. In fact, vast extent of properties of the Sree Padmanabhaswamy Temple were also restored to it and the financial position of this temple also improved. The temple had such surplus that in the 19th century for the needs of the State, Travancore Kings used to steadily borrow funds from the Sree Padmanabhaswamy Temple on repayment basis and the loans were repaid with interest. Ever since the major temples and their lands were brought under the control of the Queen through the Proclamation above referred issued in September 1811, the arrangement continued until the taking over of the Government temples by the Travancore Devaswom Board under the TC Act of 1950. The only change that happened in between was during the rule of Sree Moolam Thirunal Ramavarma who handed over the temples and the properties from Revenue Department of the State to the Devaswom Department of the Government, from which it was taken over by the WPC 36487/09 & 4256/10 11 Travancore Devaswom Board on it's constitution. From the history of the temples in Travancore which we have taken from the book written by Dr.R.Madhu Devan Nair and published by the Travancore Devaswom Board, what is clear is that for over one and a half centuries the temples were under the Government Departments and thereafter under the Devaswom Board constituted under the TC Act. So far as the Sree Padmanabhaswamy Temple is concerned, the only difference is that the temple was under the direct control of the Travancore King. However, this temple was also treated as a State/public temple and was never regarded as private property of the Travancore King or as his family property. The system of the Travancore King running the Temple continued during the period of the last Ruler who was the King from 1931 to 1949 when the Agreement of Accession was signed integrating the Princely States of Travancore and Cochin as one and bringing the Travancore-Cochin as Part B State under the Constitution. Government of India was also a signatory to the Agreement of Accession signed between the Kings of Travancore and Cochin constituting the Travancore Cochin State. An WPC 36487/09 & 4256/10 12 authentic statement about the history, status and position of this Temple available in the book "Integration of Indian States" written by Sri.V.P.Menon who played an important role in the integration of Indian States and who represented Union Government as a signatory to the Travancore-Cochin Accession Agreement, is as follows (page 283): "Travancore had been ruled by an unbroken line of Hindu Kings from the earliest times and had retained throughout the centuries its essential character of a Hindu State. The most important temple in the State has always been, and still is, the Sree Padmanabha Temple richly endowed and possessing very extensive landed properties. These were originally managed by a Yogam of eight hereditary trustees and the ruler, but at the beginning of the eighteenth century the Yogam was ousted and the administration of the temple together with its properties was taken over entirely by the ruler and the temple properties became inter mixed with the property of the State. The State continued however to contribute to the maintenance of the Temple and the religious ceremonies. This state of affairs continued until the time of the integration of the two States." (emphasis supplied) Even though all the temples under the control of the Princely States were brought under the control of the two Devaswom Boards of Travancore and Cochin, and State funds were also provided to the Devaswom Boards to supplement the resources of the temples, the Travancore King wanted to retain control of the Sree WPC 36487/09 & 4256/10 13 Padmanabhaswamy Temple. Article VIII(b) of the Covenant is as follows: "The administration of Sri.Padmanabhaswamy Temple, the Sree Pandaravaga properties and all other properties and funds of the said temple now vested in trust in the Ruler of the covenanting State of Travancore and the sum of Rs.1 lakh transferred from year to year under the provisions of clause (a) of this article and the sum of five lakhs of Rupees contributed from year to year towards the expenditure in the Sree Padmanabhaswamy Temple under sub-clause (c) of this article, shall, with effect from the first day of August 1949, be conducted, subject to the control and supervision of the Ruler of Travancore, by an Executive Officer appointed by him. There shall be a Committee known by the name of the Sree Padmanabhaswamy Temple Committee composed of three Hindu Members, to be nominated by the Ruler of Travancore to advise him in the discharge of his functions. Suits by or against the Sree Padmanabhaswamy Temple or in respect of its properties shall be instituted in the name of the said Executive Officer." (emphasis supplied) In fact, after the commencement of the Constitution, the TC Act was enacted, which specifically incorporates the above provision in the Covenant vesting the management of the Temple with the Ruler of Travancore. Section 18 of the TC Act vesting in Trust the management of Sree Padmanabhaswamy Temple with the Ruler of Travancore is as under: "18. Administration by Executive Officer:- (1) Out of the amount of forty-six lakhs and fifty thousand rupees WPC 36487/09 & 4256/10 14 provided for payment of the Devaswom Fund in Article 290-A of the Constitution of India, a contribution of six lakhs of rupees shall be made annually towards the expenditure in the Sree Padmanabhaswamy Temple. (2) The administration of the Sree Padmanabhaswamy Temple, the Sree Pandaravaga properties and all other properties and funds of the said temple vested in trust in the Ruler of Travancore and the sum of six lakhs of rupees mentioned in sub-section (1) shall be conducted, subject to the control and supervision of the Ruler of Travancore, by an Executive Officer appointed by him." (emphasis supplied) 5. It is the admitted position and the petitioners in W.P.(C) No.4256/2010 who are presently in control of the Temple, do agree that the provisions contained in the Covenant are incorporated in the TC Act and so much so, rights, if any they have over the Temple, have to be derived from the statutory provisions. The sole question, therefore, to be considered is whether the "Ruler of Travancore" under sub- section (2) above would take in the brother of the last Ruler of Travancore who died on 20.7.1991 namely, the first petitioner in WPC No.4256/2010 and after his death, the successive senior members of the Royal Family that ruled the Princely State of Travancore as claimed by him. The claim of the last Ruler's brother therefore is that the Great Temple will be perpetually under the control of his family. Since WPC 36487/09 & 4256/10 15 "Ruler" is not defined in the TC Act, and since this is a post- Constitution Act, we have to necessarily refer to the definition of Ruler as substituted in Article 366(22) of the Constitution with effect from 28.12.1971 which is as follows: "Ruler" means the Prince, Chief or other person who, at any time before the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, was recognised by the President as the Ruler of an Indian State or any person who, at any time before such commencement, was recognised by the President as the successor of such Ruler." Admittedly the Ruler of Travancore i.e. the late Sri.Chithira Thirunal Balarama Varama who ruled Travancore as King for 18 years (1931 to 1949) and who was the Rajapramukh of Travancore-Cochin for six years thereafter and who managed the Padmanabhaswamy Temple until his death on 20.7.1991, never claimed that the Sree Padmanabhaswamy Temple was the family Temple of the Royal Family or as individual property of himself. In fact, he succeeded in a Suit filed by one of the family members during his life time seeking partition of the assets of the Royal Family as properties of the joint family. The last Ruler's contention that he was not a Karanavan of the family and the Royal WPC 36487/09 & 4256/10 16 Family was not a joint family were accepted at all levels of litigation including the Supreme Court. Even though the last Ruler executed a detailed Will bequeathing his personal properties, he had not included the Sree Padmanabhaswamy Temple as his personal property or dealt with the same in the Will. Admittedly the Great Temple was althrough in history recognised as a public Temple run with it's own income, contributions from the State and offerings from devotees. The King ruled the State and managed the temple as a State temple and he was also a traditional participant in the rituals and ceremonies of the temple; mainly in the Arattu festival. Both in the Covenant namely Article VIII(b) of the Accession Agreement and in Section 18(2) of the TC Act what is stated is that the "Temple is vested in trust in the Ruler of Travancore". Obviously if Temple was the family property of the Royal Family or the private property of the King, then there was no need for specific provision in the Accession Agreement or in the TC Act providing for vesting of