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TMI Blog2003 (8) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... raws millions of people all over the country. This ancient temple of unique importance is worshipped and held in great reverence by lakhs of devotees. The temple owns extensive movable and immovable properties and endowments. It has its own heritages and traditions. The State of Kerala having regard to importance of the said temple with a view to make suitable provision for the proper administration of the Guruvayoor Devaswom enacted the Guruvayoor Devaswom Act, 1978 (Act 14 of 1978) (for short 'the Act'). The management of the temple is carried out in terms of the provisions of the said Act. RELEVANT PROVISIONS OF THE STATUTE: Some of the relevant provisions of the said Act inter alia are: 6. Dissolution and supersession of Committee: 1) If, in the opinion of the Government, the Committee is not competent to perform or makes default in performing the duties imposed on it under this Act or abuses or exceeds its powers; the Government may after such inquiry as may be necessary, by notification in the Gazette, supersede the Committee for such period, not exceeding six months, as the Government may deem fit. 2) Before issuing a notification under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such exceptions as the Committee may by general or special order direct, the officers and employees of the Devaswom in the service of the Devaswom immediately before the commencement of this Act shall continue as such, and the conditions of their service shall be such as may be prescribed by regulations made under this Act. 6) A person who does not profess the Hindu Religion or believe in Temple worship shall be disqualified for being appointed as, or for being, an officer or employee of the Devaswom. 23. Accounts and Audit: 1) The Committee shall keep regular accounts of all receipts and disbursements. 2) The accounts of the Devaswom shall be subject to concurrent audit, that is to say, the audit shall take place as and when expenditure is incurred. 3) The audit shall be made by auditors appointed in the prescribed manner, who shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (Central Act 45 of 1860). 24. Authority to whom audit report is to be submitted: After completing the audit for any year or shorter period or for any transactions as he deems fit, the auditor shall send a report to the Commissioner. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l thereafter have effect only in such modified form or be of no effect, as the case may be so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. The State of Kerala in exercise of its power conferred under Section 38 of the Act made rules known as The Guruvayoor Devaswom Rules, 1980 (for short 'the Rules'). Rule 10 of the Rules provides for publication of Administration Report and is in the following terms: 10. Committee to submit Administration Report: The Committee shall prepare and submit to the Commissioner, a report on the administration of the affairs of the Devaswom relating to each calendar year within three months of the completion of the year. 2) The Commissioner shall forward such report with his comments to Government within 30 days of its receipt by him. 3) The Administration report shall among other things contain details about, (i) the working of the Act, (ii) the income and expenditure, (iii) the amenities provided to the worshippers, (iv) the works undertaken, (v) the festivals conducted, (vi) special features or incidents during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging Committee after calling for and examining the record if the government is satisfied that the decision has violated the provisions of the Act or is not in the interest of the temple after giving a reasonable opportunity to any party that may be prejudiced by such order. GENESIS OF THE PUBLIC INTEREST LITIGATION: One Shri C.K. Rajan addressed a letter dated 3.2.1993 to one of the Hon'ble Judges of the High Court of Kerala and thereby bringing to his notice purported serious irregularities, corrupt practices, mal- administration and mismanagement prevailing in the temple. He was called by the High Court and its Registrar recorded his statement on 11.2.1993. The said letter was treated as an original petition under Article 226 of the Constitution of India. The High Court in its order dated 12.2.1993 highlighted 23 aspects of the matter which had been brought to its notice and appointed one Shri S. Krishnan Unni, District Judge Officiating as the Director of Training, High Court of Kerala as the Commissioner to make a general enquiry and in particular make a study on the various aspects highlighted in the said complaint. The Commissioner pursuant to the order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of the matter as a preliminary issue. However, in the meantime, the Commissioner had submitted 10 interims reports, examined a number of persons and a large number of persons were also impleaded as parties in the writ petition. Mr. V.R. Reddy appearing for the State of Kerala allegedly conceded that the plea regarding want of jurisdiction raised did not merit consideration at that stage and the same had become infructuous. The Bench noticed that the reports contained various observations and recommendations as regard the interim reports. Some statements were filed in respect of some of the reports by some of the respondents only. Correctness or otherwise of various reports and suggestions made therein were, however, not questioned. The third respondent had filed the following statements to the following interim reports: No. of the interim reports Date of the statement 3 5.4.1993 4 17.10.1993 6 17.10.1993 7 17.10.1993 8 17.10.1993 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administration of the Devaswom. SUBMISSIONS: Mr. K.K. Venugopal and Mr. V.R. Reddy, the learned senior counsels appearing on behalf of the appellant and the State of Kerala respectively, at the outset invited our attention to the orders of this Court dated 26.3.1993 passed in SLP (C) No..../93 CC 20040, and orders dated 26.4.1993 as well as 10.5.1993 passed in SLP (C) No. 3231/93 and submitted that keeping in view of the fact that this Court was approached at least on three different occasions wherein the jurisdiction of the Court to initiate a public interest litigation was questioned, the High Court committed a manifest error in not deciding the same as a preliminary issue. The learned counsels further drew our attention to the order passed in CMP No. 10669 of 1993 requesting the High Court to consider the maintainability as a preliminary issue. It was submitted that a wrong statement has further been recorded in the said order to the effect that the Managing Committee has unanimously resolved welcoming the enquiry and they would not take steps assailing the same. The High Court was further wrongly opined that the said CMP has become infructuous having rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urge that the said Act contains provisions for effective management of the temple and the purported assumption of jurisdiction by the High Court must be held to be bad in law. Further contention of the learned counsel was that the Commissioner examined 85 witnesses but their names and particulars, although asked for, were not supplied nor were they allowed to be cross-examined. It was pointed out that the names of the witnesses and the documents which were marked as Exhibits were indicated only in the Final Report and despite the fact that no opportunity was given to the affected parties to cross- examine the witnesses, strictures were passed against them relying on or on the basis of their unsworn testimony. The learned counsel would urge that the High Court acted illegally and without jurisdiction in passing the impugned directions purported to be acting as a parens patriae inasmuch as the statutory acts governed the field. There is no reason, the learned counsel would contend, to by-pass the provisions of the Act as also the Code of Civil Procedure. The learned counsel would argue that a roving enquiry is not contemplated in a public interest litigation. Mr. Venugo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.P. and Others [(1996) 8 SCC 705]. Mr. Subba Rao would argue that devotees who are mostly conservatives would expect that the management of the temple is carried out strictly in terms of the heritage and tradition of the temple and tenets and practices relating to offering of puja and matters ancillary thereto and connected therewith should scrupulously be followed. Any deviation or departure from the established practices and tenets would hurt the sentiments of the devotees and as such they would be entitled to bring the same to the notice of the High Court which is conferred with the jurisdiction to investigate into the matter not only in exercise of its power under Article 226 of the Constitution but also in terms of various statutes as also under the Code of Civil Procedure, 1908. Referring to the decision of this Court in Bandhua Mukthi Morcha Vs. Union of India and Others [(1984) 2 SCR 67], Mr. Subba Rao would submit that therein this Court has laid down the procedure for making enquiry into the allegations or causing the same to be made for the purpose of gathering necessary facts so as to grant appropriate reliefs to the needy and poor. Mr. Subba Rao would urge that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory provisions the State or the other statutory functionaries were not taking recourse to the provisions thereof for remedying the grievances of the devotees. In any event, as a Hindu temple is a juristic person the very fact that Section 92 of the Code of Civil Procedure seeks to protect the same, for the self-same purpose Articles 226 and 32 could also be taken recourse to. Our attention in this behalf has been drawn on Yogendra Nath Naskar Vs. Commissioner of Income-Tax, Calcutta [(1969) 1 SCC 555] and Manohar Ganesh Tambekar Vs. Lakhmiram Govindram [ILR (1888) 12 Bom 247]. SCOPE OF PUBLIC INTEREST LITIGATION: The Courts exercising their power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour sector, women, children, handicapped by 'ignorance, indigence and illiteracy' and other down trodden have either no access to justice or had been denied justice. A new branch of proceedings known as 'Social Interest Litigation' or 'Public Interest Litigation' was evolved with a view to render complete justice to the aforementioned classes of persons. It expanded its wings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But with the passage of time, things started taking different shapes. The process was sometimes abused. Proceedings were initiated in the name of public interest litigation for ventilating private disputes. Some petitions were publicity oriented. A balance was, therefore, required to be struck. The Courts started exercising greater care and caution in the matter of exercise of jurisdiction of public interest litigation. The Court insisted on furnishing of security before granting injunction and imposing very heavy costs when a petition was found to be bogus. It took strict action when it was found that the motive to file a public interest litigation was oblique. The decisions rendered by this Court in different types of public interest litigations are varied. The principles evolved by this Court in this behalf may be suitably summarized as under : (i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court. The Court is constitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to enable the Court to look into the grievances complained on behalf of the poor, depraved, illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. (See Fertilizer Corporation Kamagar Union Vs. Union of India, AIR 1981 SC 344, S.P. Gupta (supra), People's Union for Democratic Rights (supra), Dr. D.C. Wadhwa Vs. State of Bihar (1987) 1 SCC 378 and Balco Employees' Union (Regd.) Vs. Union of India and Others [(2002) 2 SCC 333]). (v) When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition. (See Bandhua Mukti Morcha (supra)). (vi) Although procedural laws apply on PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depend on the nature of the petition as also facts and circumstances of the case. (See Rural Litigation and Entitlement Kendra Vs. State of U.P. 1989 Supp (1) SCC 504 and Forward Construction Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olitical motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold. The Court will not ordinarily transgress into a policy. It shall also take utmost care not to transgress its jurisdiction while purporting to protect the rights of the people from being violated. In Narmada Bachao Andolan Vs. Union of India Others [(2000) 10 SCC 664], it was held: 229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xisted earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot be achieved directly. (See also Supreme Court Bar Association Vs. Union of India (1998) 4 SCC 409) This Court in Balco Employees' Union (Regd.) (supra) succinctly opined: Public interest litigation, or PIL as it is more commonly known, entered the Indian judicial process in 1970. It will not be incorrect to say that it is primarily the Judges who have innovated this type of litigation as there was a dire need for it. At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress were required to be espoused. PIL was not meant to be adversarial in nature and was to be a cooperative and collaborative effort of the parties and the court so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public interest litigation was intended to mean nothing more than what words themselves said viz. lit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta of this Court in Balco Employees Union (supra) contains the last words. But the same may be considered to be in the nature of guidelines for entertaining public interest litigation. Incidentally, on administrative side of this Court, certain guidelines have been issued to be followed for entertaining Letters/ Petitions received by this Court as Public Interest Litigation. We do not intend to lay down any strict rule as to the scope and extent of Public Interest Litigation, as each case has to be judged on its own merits. Furthermore, different problems may have to be dealt with differently. THE PRESENT CONTROVERSY: The case at hand does not fall in any of the aforementioned categories, where a PIL could be entertained. No reported decision has also been brought to our notice where a Public Interest Litigation was entertained in similar matter. We have also not come across any case so far where the functions required to be performed by statutory functionaries had been rendered redundant by a Court by issuing directions upon usurpation of statutory power. The right of a person belonging to a particular religious denominations may sometimes fall foul o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the long-standing issue. We have no hesitation to decline such a suggestion. The courts can either direct the statutory authorities, where it is not exercising its discretion, by mandamus to exercise its discretion, or when exercised, to see whether it has been validly exercised. It would be inappropriate for the Court to substitute itself for the statutory authorities to decide the matter. (Emphasis Supplied) Existence of certain gray areas may not be ruled out but such a case was required to be made out before the High Court which has not been done in the instant case. For any court of law including this Court, it is difficult to draw a strict line of demarcation as to which matters and to what extent a public interest litigation should be entertained but, as noticed hereinbefore, the decisions of this Court render broad guidelines. This Court and the High Court should, unless there exists strong reasons to deviate or depart therefrom, not undertake an unnecessary journey through the public interest litigation path. The High Court should not have proceeded simply to supplant, ignore or by-pass the statute. The High Court has not shown any strong and cogent reasons for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... traced. This Court stated: 36. Therefore, conceptually and from the jurisprudential point of view, especially in the background of the Preamble to the Constitution of India and the mandate of the Directive Principles, it was possible to authorise the Central Government to take over the claims of the victims to fight against the multinational corporation in respect of the claims. Because of the situation the victims were under disability in pursuing their claims in the circumstances of the situation fully and properly. On its plain terms the State has taken over the exclusive right to represent and act in place of every person who has made or is entitled to make a claim for all purposes connected with such claim in the same manner and to the same effect as such person. Whether such provision is valid or not in the background of the requirement of the Constitution and the Code of Civil Procedure, is another debate. But there is no prohibition or inhibition, in our opinion, conceptually or jurisprudentially for the Indian State taking over the claims of the victims or for the State acting for the victims as the Act has sought to provide. The actual meaning of what the Act has p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court may appoint a Commissioner or amicus for finding out the truth but what has been overlooked by the High Court was that it could take recourse thereto when truth cannot be found out otherwise. It should have at the outset called upon the State as also the Managing Committee to express their view points. Reliance placed by Mr. Subba Rao on Bandhua Mukthi Morcha (supra) is not apposite as therein the purpose was to activate the statutory machinery for protecting the basic fundamental right of any person under Article 21 and 23 of the Constitution of India. If the allegations are verifiable on records, the courts could have itself examined the same. Before doing so, it must give an opportunity to the parties to explain things. Only because the Court arrives at prima facie finding that all is not well , the same would not necessarily mean that it must appoint a Commissioner and thereby purporting to exercise jurisdiction akin to the provisions of the Commission of Enquiry Act, 1952 or Kerala Public Men's Corruption (Investigations and Inquiries) Act, 1987. The power under the said statute is to be exercised by the State if an exigency of situation arises therefor. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l persons who may be prejudicially affected by the inquiry, including the opportunity to cross-examine the witnesses. [See Tilkayat Shri Govindlalji Maharaj Vs. State of Rajasthan [1963] 1 SCR 561 and Pannalal Pitti Vs. State of A.P. (1996) 2 SCC 498]. When the administration of the temple is within its control and it exercises the said power in terms of a Statute, the State, it is expected, normally would itself probe into the alleged irregularities. If the State through its machinery as provided for in one Act can arrive at the requisite finding of fact for the purpose of remedying the defects, it may not find it necessary to take recourse to the remedies provided for in another statute. It is trite that recourse to a provision to another statute may be resorted to when the State finds that its powers under the Act governing the field is inadequate. The High Courts and the Supreme Court would not ordinarily issue a writ of mandamus directing the State to carry out its statutory functions in a particular manner. Normally, the Courts would ask the State to perform its statutory functions, if necessary within a time frame and undoubtedly as and when an order is passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ascertaining the actual loss. (iii) Follow up action regarding Ooottupura and Western Gopuram Devaswom has taken action (iv) Works at Vengad estate, Loss of 142 bags of cement Devaswom has taken action. (v) Obtaining 4 Kgs of Gold lying with the Reserve Bank of India. The gold has been received back by the Devaswom as Gold lockets of Guruvayoorappan V Part-I, Chapter 3 of final report (i) Politicisation in the nomination of the members of Guruvayoor Devaswom Managing Committee should be avoided. This issue is pending before the Supreme Court of India in another Civil Appeal No. 6675/99. At present persons who are not members of any political party alone are appointed as members of the Committee. (ii) Remedial measures in the 'Devaprasanam' to be performed. Devaswom is taking action in consultation with the 'Thanthri'. X Part-1 Chapter 4 of final report (i) Method for quality checking of goods Devaswom has already taken action (ii) Special arrangements for Darshan to sick, handicapped, disabled, etc. Devaswom is doing this regularly. Y Rules to be framed for free accommodation in the Guest Houses This has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge of the Commissioner. The Commissioner was in fact discharging his duty to the satisfaction of the Government and had taken all steps to rejuvenate and strengthen the Devaswom administration. The Hon'ble High Court did not appreciate these facts and in fact adversely commented on his performance. The High Court has also adversely commented on the performance of the Devaswom Commissioners since the inception of the Act. The Court has observed that the Devaswom Commissioner during the period of Judgment and his predecessors since the Act came into being in 1978 have been mere 'spectators, not involved, not concerned seriously with the administration. The observation cannot be justified in anyway. The Commissioner as well as the Government take interest in the matters relating to the Devaswom in order to ensure that the functioning of the Managing Committee and the Administrator is in accordance with the provisions of the Act and Rules. Proper directions are also given as and when needed, exercising the provisions of the Act. Z(6) Recommendation regarding politicisation and administrative disfunction (para 55 of the judgment) recommendations regarding accommod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT PETITION: The learned counsel for the parties have addressed us at great length on this issue. But in our opinion the question of examining the maintainability of the writ petition as a preliminary issue by the High Court has become academic. Parties addressed the High Court on the merit of the matter and upon considering the rival submissions, the impugned order has been passed. In its order disposing C.M.P. No. 10669 of 1993, the High Court recorded: As we stated earlier, our function herein is only to record and not to adjudicate. The rival submissions made before us pose interesting questions on varied matters which are of far reaching and wide consequences. We are of the view that the weighty submissions made by counsel to the extent they are relevant when the final report comes up for consideration may be considered in depth then. Some of the pleas raised by Mr. Kelu Nambiar have not so far been highlighted or adjucated in any decision of this Court. All that we want to say is that at least some of them will require very serious consideration in evaluating the final report and in moulding the final relief to be afforded in this litigation. As was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. Judgments cannot be treated as mere counters in the game of litigation . (Per Lord Atkinson in Somasundaran v. Subramanian, AIR 1926 PC 136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well- settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this Court to the contrary. The conduct of the appellant is also not wholly free from blemish. It did not take a firm stand. It passed different resolutions at different points of time. It evidently prevaricated its stand from stage to stage. Before us a purported minute of the meeting dated 27.10.1993 has been placed which is in the following terms: It was decided that objection/ submission are to be given before the Krishnaunni Commission appointed by the Hon'ble High Court of Kerala and it may be filed jointly or severally by the members of the Managing Committee after consulting with Devaswom Advocate Shri K.P. Dandapani of Ernakulam. If the Managing Committee members find it necessary, they may engage separate Advocate. DECISION NO. 1 It is decided that the members jointly or severally shall file objections/ submission against the final report submitted by Krishnan Unni Commission appointed by the Kerala High Court after consulting the Devaswom Advocate Mr. K.P. Dandapani, Ernakulam. It is also d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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