TaxTMI 
TaxTMI 
2003 (8) TMI 470
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....9;). 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 sub- section (1) the Government shall communicate to the Committee the grounds on which they propose to do so, fix a reasonable time for the Committee to show cause against the proposal and consider its explanations and objections, if any. 3) Any member of the Committee may, within a period of one month from the date of publication of the notification under sub-section (1), institute a suit in the court to set aside the notification. 4) Where the Committee is superseded under this section the Commissioner shall....
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....: 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. 33. Power of Government to call for records and pass orders: 1) The Government may call for and examine the record of the Commissioner or of the Committee in respect of any proceeding, not being a proceeding in respect of which a suit or application to the court is provided by this Act, to satisfy themselves that the provisions of this Act have not been violated or the interests of the Devaswom have been safeguarded and if, in any case, it appears to the Government that any decision or order passed in such proceeding has viola....
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....it 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 the year, (vii) financial position, (viii) working of subordinate temples and other institutions under the management of the Devaswom and (ix) such other matters of public interest. 4) The report shall be published on the notice board of the Devaswom and in the Kerala Gazette. 5) Abstract of the report shall be published at least in one Malayalam daily having wide circulation in the area." The statutory provisions contained in the said Act and the rules framed thereunder are of wide amplitude as would appear from the following: (a) ....
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....vailing 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 the High Court seized all the records of the temple, examined 85 witnesses and submitted as many as 15 interim reports on 15.2.1993, 10.3.1993, 30.3.1993, 3.4.1993, 16.4.1993, 12.5.1993, 9.6.1993, 26.6.1993, 20.7.1993, 21.7.1993, 4.8.1993, 11.8.1993, 13.8.1993, 2.9.1993, 2.9.1993. It submitted its final report on 25.9.1993. An order passed by the High Court on 12.2.1993 was the subject matter of a Special Leave Petition before this Court being SLP (Civil).../93 CC 20040 wherein this Court suggested in its order dated 26.3.1993 the following guidelines for consid....
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....atements 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 9 17.10.1993 10 17.10.1993 11 17.10.1993 12 17.10.1993 13 17.10.1993 14 18.9.1993 15 17.10.1993 The first respondent - State of Kerala had filed the following statements in relation to the following interim reports : "1. Statement filed by the Commissioner and Secretary (Finance) dated 15.10.1993 2. Statement filed by the Government Pleader dated 2.12.1993 3. Preliminary objections dated 29.5.1993" As noticed hereinbefore, the Commissioner filed his final report on 25.9.1993. The State of Kerala prayed for time for filing objections to the Commissioner's final report and was granted time thrice but it ultimately failed to respond thereto. No affidavit by way of an objection to the said reports was filed b....
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....sly 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 regard to the fact that 10 interim reports have been submitted by the Enquiry Commissioner and the work of the Commissioner was practically nearing completion. Mr. Venugopal would urge that the High Court misdirected itself in not only entertaining the letter of the Fifth Respondent as a public interest litigation but also by appointing a commissioner and directing seizure of all the documents resulting in serious adverse publicity against the appellant-committee, purported to be relying on or on the basis of the statement of Respondent No.1 that some of the allegations made by him would be borne out from the records maintained by the temple. Drawing our attention to the provisions of Commission of Enquiry Act, 1952 and the Kerala Public Men's Corruption (Investigations and Inquiries) Act, 1987 (Act 24 of 1988), the learned counsel would submit that for all intent and purport the High Court exercised its jurisdiction in terms thereof and, thus, assumed a jurisdiction which it did not have.....
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....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. Venugopal would further submit that when the management of a temple is governed by a statutory enactment wherein power has been conferred upon the Government to look into the grievances and pass an appropriate orders thereupon, the High Court must be held to have exceeded its jurisdiction in issuing the impugned directions inasmuch as before embarking thereupon it was obligatory on its part to ask the Government to remedy the defects. It is not a case, the learned counsel would contend, where the complainant belonged to a weaker section or was not in a position to take recourse of the said Act or initiate a proceeding in terms of Section 92 of the Code of Civil Procedure. Mr. Venugopal would contend that indisputably the High Court has inherent powers but such inherent powers cannot be exercised in defiance of law. Once such a power is exercised by an organ of the State, the same would be against the rule of law. Mr. Reddy appearing on behalf of the State of Kerala drew our attention to the aff....
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....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 the High Court has merely followed the procedure laid down by this Court in Bandhua Mukti Morcha (supra) and, thus, the question of giving an opportunity to cross-examine the witnesses or their particulars be disclosed does not arise. Only when a report is submitted, the concerned parties were entitled to file affidavits thereagainst. But in this case, even no such affidavit has been filed. Mr. Subba Rao has drawn our pointed attention to the following orders: (i) Order dated 25.8.1993 of the High Court in C.M.P. No. 10669 of 1993 filed by Guruvayur Devasom Managing Committee; (ii) Judgment dated 10.1.1994 (iii) Order dated 25th August, 1993 in C.M.P. No. 10699/93 in O.P. No. 2071 of 1993. The learned counsel would submit, in view of the aforesaid it does not lie in the mouth of any of the learned counsels to contend that the High Court had no jurisdiction to initiate the proceedings. Reliance in this connection has also been placed on State of Maharashtra Vs. Ramdas....
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....oceedings 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 in course of time. The Courts in pro bono publico granted relief to the inmates of the prisons, provided legal aid, directed speedy trial, maintenance of human dignity and covered several other areas. Representative actions, pro bono publico and test litigations were entertained in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by pass the real issues on the merits by suspect reliance on peripheral procedural shortcomings. (See Mumbai Kamgar Sabha, Bombay Vs. M/s. Abdulbhai Faizullabhai & Others (1976) 3 SCR 591). The Court in pro bono publico proceedings intervened when there had been callous neglect as a policy of State, a lack of probity in public life, abuse of power in control and destruction of environment. It also protected the inmates of persons and homes. It sought to restrain exploitation of labour practices. The court expanded the meaning of life and liberty as envisaged in Ar....
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.... 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 constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfill its constitutional promises. (See S.P. Gupta Vs. Union of India [1981 (supp) SCC 87], People's Union for Democratic Rights and Others Vs. Union of India (1982) 2 SCC 494, Bandhua Mukti Morcha Vs. Union of India and Others (1984) 3 SCC 161 and Janata Dal Vs. H.S. Chowdhary and Others (1992) 4 SCC 305) (ii) Issues of public importance, enforcement of fundamental rights of large number of public vis-à-vis the constitutional duties and functions of the State, if raised, the Court treat a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. (See Charles Sobraj Vs. Supdt. Central Jail, Tihar, New Delhi (1978) 4 SCC 104 and Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar (1980) 1 SCC 81). (iii) Whenever injustice is meted out to a....
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....s 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. and Others Vs. Prabhat Mandal (Regd.), Andheri and others (1986) 1 SCC 100). (vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (See Ramsharan Autyanuprasi and Another Vs. Union of India and Others 1989 Supp (1) SCC 251). (viii) However, in an appropriate case, although the petitioner might have moved a Court in his private interest and for redressal of the personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil Vs. Dr. Mahesh Madhav Gosavi and Others (1987) 1 SCC 227). (ix) The Court in special situations may appoint Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a ....
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.... 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 is undertaken. Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of latches if the petitioner had the knowledge of such a decision and could have approached the court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Latches is one of them. 232. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the court does not transgress its jurisdiction. There is, in our constitutional framework a fairly clear demarcation of powers. The court has come down heavily whenever the executive has sought to impinge upon the court's jurisdiction." (x) The Court would ordinarily not step out of the known areas of j....
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....e 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. "litigation in the interest of the public". While PIL initially was invoked mostly in cases connected with the relief to the people and the weaker sections of the society and in areas where there was violation of human rights under Article 21, but with the passage of time, petitions have been entertained in other spheres. Prof. S. B. Sathe has summarised the extent of the jurisdiction which has now been exercised in the following words: "PIL may, therefore, be described as satisfying one or more of the following parameters. These are not exclusive but merely descriptive : - Where the concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded labour, undertrial prisoners, prison inmates). - Where the affected persons belong to the disadvantaged sections of society (women, children, bonded labour, unorganised labour etc.). - Where judi....
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.... 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 of Articles 25 and 26 of the Constitution of India. Only whence the fundamental right of a person is infringed by the State an action in relation thereto may be justified. Any right other than the fundamental rights contained in Articles 25 and 26 of the Constitution of India may either flow from a statute or from the customary laws. Indisputably a devotee will have a cause of action to initiate an action before the High Court when his right under statutory law is violated. He may also have a cause of action by reason of action or inaction on the part of the State or a statutory authority; an appropriate order is required to be passed or a direction is required to be issued by the High Court. In some cases, a person may feel aggrieved in his individual capacity, but the public at large may not. It is trite, where a segment of public is not interested in the cause, public interest litigation would ....
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....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 an Administrator to continue in an office even after expiry of his tenure. It appears from the orders dated 7th February, 1993 that the High Court without cogent and sufficient reason allowed Administrator to continue in office although his term was over and he was posted elsewhere. He also could not have been conferred powers wider than Section 17 of the Act. The High Court took over the power of appointment of the Commissioner bypassing the procedure set out in the Act by calling upon the Government to furnish the names of 5 IAS Officers to the Court so that it could exercise the power of appointment of the Commissioner. The Court should be circumspect in entertaining such public interest litigation for another reason. There may be dispute amongst the devotees as to what practices should be followed by the temple authorities. There may be dispute as regard the rites and rituals to be performe....
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....cedure, 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 provided and the validity thereof, however, will have to be examined in the light of the specific submissions advanced in this case." Mr. Subba Rao referred to N.M. Thomas (supra) for the proposition that court is also a 'State' within the meaning of Article 12 but that would not mean that in a given case the court shall assume the role of the Executive Government of the State. Statutory functions are assigned to the State by the Legislature and not by the Court. The Courts while exercising its jurisdiction ordinarily must remind itself about the doctrine of separation of powers which, however, although does not mean that the Court shall not step-in in any circumstance whatsoever but the Court while exercising its power must also remind itself about the rule of self-restraint. The Courts, as indicated hereinbefore, ordinarily is reluctant to assume the functions of the statutory ....
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....orting 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 expression "public men" has been defined in Kerala Public Men's Corruption (Investigations and Inquiries) Act, 1987. The said definition includes the Chairman and members of the Appellant Management Committee. Their alleged acts of omission or commission could, therefore, be a subject matter of inquiry under the said Act. The High Court further assumed the jurisdiction akin to the Commission of Enquiry Act by appointing a Commissioner to engage in a wide range inquiry into the affairs of an institution. Such a course of action was also uncalled for in absence of any allegation that the persons in charge of the documents would destroy or tamper with the evidence. No reason was assigned by the High Court as to why such an extreme step was necessary. No emergent situation has been pointed out by the Fifth Respondent to act in such a hurry. The very fact that our attention has been drawn that the ....
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....e 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 the State in exercise of its power under the Statute, it will examine the correctness or legality thereof by way of judicial review. Keeping these principles in mind, we do not also think that the High Court rightly exercised its jurisdiction in appointing a police officer to help the Commissioner, asking the State not to transfer the administrator against whom allegedly there were serious allegations or whose term was over or appoint a administrator from the panel of names furnished by the State. The question has been raised as to whether having regard to the fact that Sree Krishna temple can be visited by any devotee who has a right to worship Lord Vishnu can enjoy any denominational right to manage temple. We may, however, notice that this Court in Sri Adi Visheshwara Kashi Vishwanath Temple Vs. State of U.P. (1997) 4 SCC 606 at 633, held: "...Every Hindu....has a right of entry into the....
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....er 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 been framed by the Devaswom. Z Part I Chapter 8 of the Final report Recommendations regarding movable & immovable properties Devaswom has implemented this. Z(1) Recommendation regarding management of finance. This has been implemented. A senior officer from the Accountant General's Office has been appointed as Chief Finance & Accounts Officer on deputation basis and two Assistant Audit Officers from the Accountant General's Office have also been on deputation basis. Depositing the funds in Guruvayoor Branches of the Banks. This has been implemented. But there have been practical difficulties due to lack of competitive demands for deposits. Comments regarding the performance of Devaswom Commissioner Government consider the observation as totally unfortunate and not justifiable. The Commissioner who is the Secretary to Government was holding additional charge of the C....
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....cordance 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 accommodation facilities to pilgrims and acquisition of land (para 57 of the judgment) The question regarding politicisation is now being considered by the Hon'ble Supreme Court in another Civil Appeal No. 6675/99. However, at present, persons who are not members of any political party alone are appointed as members of the Committee. Regarding the suggestion to make the term of the Managing Committee as four years, the Legislature, after considering the entire matter had decided that the term of nominated members shall be two years only. However, they can be renominated after the period, if the Government desire so. Regarding direction to construct cheap lodging houses for devotees, Devaswom has already initiated action on this. As regards the direction to acquire lands within a radius of 100 mts. from the outer wall of the temple, action has been initiated for acquisition of land as a phased ....
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....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 clear even from the beginning of the arguments, it is not our function to adjudicate the above pleas at this stage. We make that position clear and leave the point there." For the reasons stated therein, the High Court has proceeded in the matter on merit. We do not find any illegality therein. Furthermore, in this case the appellant and the State took part in the proceedings. The State advisedly did so having regard to the fact that before the question of maintainability of the writ petition could be decided, the enquiry had reached almost a closing point. We are not impressed with the submission of Mr. Reddy that he while conceding that the Court may proceed with the matter represented before the High Court that the suggestions and observations made by the Commissioner in the said interim reports could be considered by the State. This Court would only go by the records of the High Cour....
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.... 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 facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges, who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fac....
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....rate 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 decided that if the Managing Committee members so choose can approach the Advocate separately. DECISION No. 2 XXXXX DECISION No. 3 Mr. M.N. Sukumaran Nayar, Senior Advocate, has been appearing for Shri A.P. Mohandas and Shri P.N. Narendranathan Nair, Members of the Managing Committee in the case O.P. No. 2071 of 1993 of the Hon'ble High Court of Kerala in which Krishnan Unni Commission is appointed to enquire into allegations of corruption in Guruvayur Devaswom. It was decided to pass bills of Advocates fee as and when received." Nothing stated in the said minutes run counter to the observations made by the High Court in its order dated 25.8.1993. The High Court itself invited objections to the reports, as would appear from its impugned judgment. The impugned judgment of the High Court shows that the appellant did file its objections in relation to certain repor....