Amal Muhammed Ali vs State Of Kerala

Anil K. Narendran, J.

The petitioner, who was the 5th respondent in W.P. (C)No.284 of 2022, has filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that he is entitled to get a copy of the order passed by the 3rd respondent Commissioner of Guruvayur Devaswom, affecting the rights of the petitioner. The petitioner has also sought for a writ of mandamus commanding the respondents to consider the Earnest Money Deposit already made by the petitioner pursuant to Ext.P1 auction notice dated 10.12.2021 in W.P. (C)No.284 of 2022, as valid for the re-auction of Mahindra Thar jeep bearing registration No.KL46/V-9454, which is scheduled to be held on 06.06.2022 at 11.00 a.m, as per Ext.P2 re-tender notice dated 16.05.2022 issued by the Administrator of Guruvayur Devaswom.

The petitioner had participated in the auction conducted by the 2nd respondent Guruvayur Devaswom Managing Committee on 18.12.2021 for the sale of a Mahindra Thar Jeep bearing registration No.KL-46/V-9454, which was an offering to Lord Guruvayurappan, the minor deity of Guruvayur Temple. The Hindu Seva Kendram filed W.P.(C)No.284 of 2022, seeking a writ of certiorari to quash the proceeding of the said tender notice dated 10.12.2021. That writ petition was disposed of by Ext.P1 judgment dated 23.03.2022, reported in Hindu Seva Kendram v. State of Kerala [2022 (3) KHC SN 8 : 2022 SCC OnLine Ker 1708]. Paragraphs 28 to 31 and also the last paragraph of that judgment read thus;

“28. In view of the provisions under Guruvayur Devaswom Act, the authorities constituted under the said Act, namely, the Managing Committee and the Administrator are enjoined with duty to administer, control and manage the affairs of Guruvayur Devaswom, its properties and endowments. The role assigned to the Managing Committee is that of a trustee in management of the properties vested in the deity. In view of the law laid down by the Apex Court in M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65], considering the fiduciary position as the trustee, it is the duty and obligation of the Managing Committee to be faithful to the Devaswom and deal with its properties, both movable and immovable, with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. The Commissioner and the Administrator shall also function within the frame work of the Statute.

In the matter of alienation of Devaswom properties, the Managing Committee and the Commissioner have to scrupulously follow the statutory mandate of Section 11 of Guruvayur Devaswom Act. Before according sanction for alienation of the properties, the Commissioner has to record his satisfaction that such alienation is necessary or beneficial to the Devaswom, as provided under sub-section (1) or sub-section (2) of Section 11 of the Act. Before according such sanction, the Commissioner has to follow the procedure prescribed under sub-section (3) of Section 11 of the Act, by inviting objections and suggestions from the Managing Committee or persons having interest in Guruvayur Temple. It is also the duty of the Commissioner to consider all such objections and suggestions before according sanction for such alienation. As per the mandate of sub-section (4) of Section 11, while according sanction for alienation, the Commissioner may impose such conditions and such directions as he may deem necessary regarding utilisation of the amount raised by such transaction, the investment thereof, etc. On a copy of the order made by the Commissioner communicated to the competent authorities and published in the manner prescribed, the Managing Committee or any persons having interest in Guruvayur Temple can institute a suit in the court to modify the order or set aside the same, as provided under sub-section (6) of Section 11 of the Act. Sub-rule (4) of Rule 12 of Guruvayur Devaswom Rules prescribes the procedure that has to be followed by the Commissioner before according sanction for alienation of any movable or immovable properties.

The specific stand taken in the counter affidavit filed by the 3rd respondent Commissioner is that, in view of the provisions under sub-section (3) of Section 11 of the Act, the Commissioner intends to publish a notice inviting objections and suggestions from persons having interest in Guruvayur Temple on the sale of Mahindra Thar jeep. Thereafter, he will take a decision in that matter, after considering the objections and suggestions from such persons, observing all procedural formalities. The learned Senior Government Pleader would submit that the legal and factual contentions raised by the petitioner, the 2nd respondent and also the 5th respondent can be raised before the 3rd respondent Commissioner, which shall be dealt with appropriately, before taking a decision in the matter.

Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the 3rd respondent Commissioner to consider the request made by the 2nd respondent Guruvayur Devaswom Managing Committee seeking sanction for the sale of Mahindra Thar jeep bearing registration No.KL-46/V-9454, and take an appropriate decision, strictly in accordance with the provisions under Section 11 of Guruvayur Devaswom Act read with Rule 12 of Guruvayur Devaswom Rules, after adverting to the legal and factual contentions raised by the petitioner, the 2nd respondent, the 5th respondent or any other person having interest in Guruvayur Temple, who submits objections or suggestions on publication of notice as contemplated under sub-section (3) of Section 11 of the Act. While taking such a decision, the 3rd respondent Commissioner shall consider whether the procedure adopted by the Managing Committee while conducting the auction sale is in accordance with the provisions under Section 11 of the Act, whether such alienation is necessary or beneficial to the Devaswom, and if so, the manner in which such amount has to be utilised for the benefit of the Devaswom, namely, Guruvayur Devaswom.

Considering the urgency of the matter, we deem it appropriate to direct the 3rd respondent Commissioner to conduct a personal hearing for considering the objections or suggestions, as provided under sub-section (3) of Section 11 of the Act, within a period of three weeks from the date of receipt of a certified copy of this judgment, and take a decision on the request made by the 2nd  respondent, within a further period of three weeks.”

Pursuant to the directions contained in Ext.P1 judgment, the 3rd respondent Commissioner conducted a personal hearing in which the petitioner and others were heard. The 3rd respondent by order No.GDC.2/5/2022-GDC dated 09.05.2022 set aside the auction conducted on 18.12.2021 and Guruvayur Devaswom Managing Committee is permitted to conduct a re-auction, subject to the conditions stipulated in that order. The last paragraph of the said order reads thus;

“എന   ഗരവ യ  ദ വസ   മ ദ ജ  ഗ  കമ റ   ടത യ18/12/2021-ല  ദ    ആക ല ലസക  11(1)-   ഷ ഷ കന ര'ത യ ലളള അനവ    മ ക  വ ങ ലത  ടത യത   ല  അതരത    ടത യ ദ  ത   ദകവ   ഒര   മ തദമ പല4ടതള (Single Tender) എന ക രണത ല  ഥ   വ ഹ ത ല 18/12/2021-ല  ദ    ടപട  ഇത  അസ രല=ടത  ഉതരവ കന. ഗരവ യ  ദ വസ   ക ണ കയ യ   ഭ ച മഹ'ന 2020 ദമ ഡ  ഥ   ജ'= , 15  കവ  അത ല ജ .എസ .ട യ  അട സ   വ   കണക ക  പരസHമ യ  വ'ണ  ലട ഡ  -ക ദ    ലJയനത    ഗരവ യ  ദ വസ   മ ദ ജ  ങ  കമറ ക  ഇത     ത ലM=റയന വHവസക  പക ര  അനമത    കന.

1) ദ  ത    ആവശHമ യ പരസH  രണ പമഖ പതങള ല ( തശ  എഡ ഷ ), വ ജ പ   ദ വസ   ലവബ  സസറ ല  ദ  ത    കറഞത 15   വസ  മ ലപ4 ല    ക യ ര ദകണത ണ .

2) ബഹ ദകരള  സഹദക ടത  Kiran Global Chemicals v/s State of Kerala & others എന ദകസ ല  ഉതരവ ല അട സ  ത ല  മറ  ഒര   മ ത  പല4ടകന ദ   രത ഹല=ടദതണത ണ  എന വ ധ  പസ വ ച ടണ .ഇത ല അട സ  ത   ഇ   ടതന ലട ഡ  -ക  - ദ  ത   ഏറവ  കടത  ആ ക   ദ  ത   പല4ടകന എന ഏറവ  കടത  തക ദ    വM  സമ ഹര ക   കM യലമന  ദ വസ   മ ദ ജ ങ  കമ റ ഉറപവരദതണത ണ .

3) ഇ    ടതന ലട ഡ  -ക - ദ  ത    ഭ കന തക ഭരണസമ ത  ത'രമ   കന ക രHങ ക യ  ഉപദയ ഗ ക വനത ണ  അലc4   ഗരവ യ  ദ വസ   ദഗ ശ, ആ ലക ട   എന വയലട  വ'കരണങ ക  ഭകജ ങ ക  അന   ത ന  വ   ദയ ഗ ദകണത ണ .

ദമ  ത'രമ    സകലക ണലക ണ WP(C) No.284/2022  മ  ദകസ   പറല=ടവ ച 23.03.2022 ത'യത യ ല  വ ധ  H യ   ട=   ക ലക ണ  ഉതരവ  പറല=ടവ കന.”

Pursuant to the directions contained in the said order dated 09.05.2022, the 2nd respondent has issued Ext.P2 re-tender notice, whereby the re-auction of Mahindra Thar Jeep is scheduled to be held on 06.06.2022 at 11.00 a.m. As per Ext.P2 re-tender notice, EMD of Rs.40,000/- can be remitted upto 10.30 a.m. on 06.06.2022.

During the course of arguments, the submission made by the learned counsel for the petitioner is that the petitioner is yet to be served with a copy of the order dated 09.05.2022 of the 3rd respondent Commissioner. Another contention raised by the learned counsel for the petitioner is that the petitioner has not been issued with individual notice regarding the re-auction scheduled to be held on 06.06.2022.

When this writ petition moved as 'today motion' was taken up for consideration at 3.45 p.m., the learned Senior Government Pleader was directed to get instructions as to whether the order dated 09.05.2022 of the 3rd respondent has already been communicated to the petitioner. The learned Standing Counsel for Guruvayur Devaswom Managing Committee was directed to get instructions as to whether the said order was published, as provided under sub-section (5) of Section 11 of the Guruvayur Devaswom Act, 1978.

When this writ petition is taken up again at 4.45 a.m., the learned Senior Government Pleader, on instructions, would submit that a copy of the order dated 09.05.2022 of the 3rd respondent has already been sent through IGS to the address of the petitioner at Ernakulam, on 27.05.2022. Even prior to that, a copy of the order was communicated to the Government and also to Guruvayur Devaswom Managing Committee, as provided under sub-section (5) of Section 11 of the Act, for publication in the prescribed manner.

The learned Standing Counsel for Guruvayur Devaswom Managing Committee would submit that, on receipt of a copy of the order dated 09.05.2022 of the 3rd respondent Commissioner, the same was published in the notice board in the administrative block. Thereafter, as directed in the said order, the re-tender notice was published in Mathrubhoomi daily and also in Malayala Manoramma daily dated 17.05.2022. A copy of the re-tender notice has also been issued to the Public Relations Officer, Guruvayur Devaswom, for giving wide publicity through print and visual media. The said notice was also published in the official website of Guruvayur Devaswom.

The learned counsel for the petitioner would submit that the respondent ought to have issued individual notice to the petitioner regarding the re-auction scheduled on 06.06.2022. The learned counsel would also submit that, in case this Court is not interfering with Ext.P2 re-tender notice, the petitioner or his authorised representative may be permitted to participate in the re-auction with the EMD already deposited pursuant to the auction notice dated 10.12.2021.

In Bijesh Kumar M. v. State of Kerala [2021 (1) KHC 51] a Full Bench of this Court held that the role assigned to Guruvayur Devaswom Managing Committee constituted under Section 3 of the Guruvayur Devaswom Act, 1978, is that of a trustee in management of the properties vested in the deity. Guruvayur Devaswom Managing Committee, which functions as a trustee, is bound to administer, control and manage the properties belonging to Guruvayur Devaswom in accordance with public interest and in the interest of the worshippers. As provided in Section 17, the Administrator shall function as the Secretary to Guruvayur Devaswom Managing Committee and he shall be the Chief Executive Officer functioning subject to the control of the Committee. He is bound to carry out the decisions taken by Guruvayur Devaswom Managing Committee in accordance with the provisions of the Act.

In M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65], in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court explained the nature of the fiduciary position of the trustee and his duties and obligations. It is duty of the trustees of the property to be faithful to the Trust and execute any document with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. A trustee could not therefore occasion any loss to the Trust and it is his duty to sell the property, if at all that was necessary, to best advantage.

In Bijesh Kumar M. [2021 (1) KHC 51] the Full Bench held that Guruvayur Devaswom Managing Committee constituted under Section 3 of the Guruvayur Devaswom Act is legally bound to administer, control and manage all the properties belonging to Guruvayur Devaswom in accordance with the provisions of the said Act. The Administrator and the Commissioner shall also function within the frame work of the statute. The legal status of Guruvayur Devaswom Managing Committee constituted under Section 3 of the Act is that of a trustee in management of the Devaswom properties and the Committee is duty bound to scrupulously follow the stipulations contained in the Act of 1978.

Having considered the submissions made by the learned counsel on both sides, we find that, Ext.P2 re-tender notice is one issued by the Administrator of Guruvayur Devaswom in terms of the directions contained in the order dated 09.05.2022 of the 3rd respondent Commissioner. In the said order, the 3rd respondent found procedural irregularities in the auction conducted on 18.12.2021. The re-tender notice has already been published in two malayalam dailies on 17.05.2022 and also in the notice board.

In such circumstances, we find no reasons to interfere with the re-auction scheduled to be held on 06.06.2022 in terms of Ext.P2 re-tender notice dated 16.05.2022. The grievance of the petitioner can be redressed by permitting him or his authorised representative to participate in that auction with the Earnest Money Deposit, which he had already made in terms of tender notice dated 10.12.2021.

With the above direction, this writ petition is disposed of.