As per case facts, a Public Interest Litigation was initiated by a letter to the Kerala High Court, alleging serious irregularities, corruption, and mismanagement in the Sree Krishna Temple, Guruvayur, ...
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CASE NO.:
Appeal (civil) 2148 of 1994
PETITIONER:
Guruvayur Devaswom Managing Commit. & Anr.
RESPONDENT:
Vs.
C.K. Rajan & Others
DATE OF JUDGMENT: 14/08/2003
BENCH:
CJI, S.B. Sinha & G.P. Mathur.
JUDGMENT:
J U D G M E N T
With C.A. Nos. 2149/1994,
2150/1994, & 2151/1994
S.B. SINHA, J :
Scope and ambit of a Public Interest Litigation in the matter of
management of a temple governed by the provisions of a statutory
enactment is the primal question involved in these appeals.
INTRODUCTORY REMARKS:
Sree Krishna Temple, Guruvayur draws 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.
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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4) Where the Committee is superseded under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
exercise the powers and perform the
functions of the Committee until the
expiry of the period of supersession.
Provided that the period during which the
Committee remains superseded shall not have the
effect of extending the maximum term of office
of a member nominated under clause (d) or
clause (e) of sub-section (1) of section 4
beyond a period of two years.
17. Powers and duties of Administrator:
(1) The Administrator shall be the secretary
to the Committee and its chief executive
officer and shall, subject to the
control of the Committee, have powers to
carry out its decisions in accordance
with the provisions of this Act.
(2) The Administrator shall arrange for the
proper collection of offerings made in
the Temple.
(3) The Administrator shall have power to
incur expenditure not exceeding five
thousand rupees to meet unforeseen
contingencies during the interval
between two meetings of the Committee.
18. Establishment schedule:
1) The Administrator may, as soon as may be
after the commencement of this Act,
prepare and submit to the Committee a
schedule setting forth the duties,
designations and grades of the officers
and employees who may in his opinion
constitute the establishment of the
Temple and embodying his proposals with
regard to the salaries and allowances
payable to them.
2) The Committee shall forward the schedule
submitted to it under sub-section (1)
with its recommendations thereon to the
Commissioner for approval.
3) The Commissioner shall, after
considering the recommendations of the
Committee, approve such schedule either
without modification or with such
modifications as he deems necessary, and
there upon such schedule as approved by
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the Commissioner shall come into force.
4) No change shall be effected in the
schedule except with the approval of the
Commissioner.
5) Subject to 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.
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 violated
the provisions of this Act or is not in
the interest of the Devaswom, they may
modify, annual or reverse such decision
or order or remit such decision or
order for reconsideration:
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Provided that the Government shall not pass any
order prejudicial to any party unless he has
had a reasonable opportunity of making his
representations.
2) The Government may stay the execution
of any such decision or order pending
the exercise of their powers under sub-
section (1) in respect thereof.
36. Removal of difficulties:
If any difficulty arises in giving effect to
the provisions of this Act, the Government may,
as occasion may require, by order do anything
not inconsistent with this Act or the rules
made thereunder, which appears to them
necessary for the purpose of removing the
difficulty.
38. Rules:
1) The Government may, by notification in
the Gazette, make rules to carry out the
purposes of this Act.
2) In particular, and without prejudice to
the generality of the foregoing power,
such rules may provide for -
(a) the publication of the
administration report under
section 13;
(b) the custody of the records and
properties of the Devaswom;
(c) the payment of contributions
towards the leave allowances,
pension and provident fund of the
Administrator;
(d) any other matter which is
required to be, or may be,
prescribed under this Act.
3) Every rule made under this Act shall be
laid as soon as may be after it is made before
the Legislative Assembly while it is in session
for a total period of fourteen days which may
be comprised in one session or in two
successive sessions, and if, before the expiry
of the session in which it is so laid or the
session immediately following, the Legislative
Assembly makes any modification in the rule or
decides that the rule should not be made, the
rule shall 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
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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 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) Section 5C read with section 5(3)(c) of the Act read with section
5(4) permits the State Government to initiate proceedings against, and
remove, any member of the Managing Committee if they are satisfied that
he has been guilty of corruption or misconduct in the administration of
the temple;
(b) Section 6 permits the State Government to dissolve and supersede
the Managing Committee as a whole for incompetence or default in
performing its duties imposed on it under Section 10 of the Act after
giving it an opportunity to show cause;
(c) Section 13 read with rule 10 permits the monitoring of the
Managing Committees functioning by requiring it to submit and public a
report on the administration of the affairs of the temple;
(d) Section 23 read with rule 17 provides for the Committee keeping
regular accounts of receipts and disbursements and concurrence audit of
those accounts, i.e., an audit that takes as and when an expenditure is
incurred, by auditors appointed in the prescribed manner;
(e) Section 25 provides that the auditor shall specify in its report
all cases of irregular, illegal or improper expenditure or failure to
recover money or rather properties to the Devaswom or loss or waste of
money or other property thereof, caused by neglect or misconduct;
(f) Section 26(2) permits the Commissioner appointed under Section
2(b) of the Act to pass an order of surcharge against the Managing
Committee or any officer or employee if he is satisfied that they are
guilty of misappropriation or willful waste or of gross neglect
resulting in loss to the temple after giving them an opportunity to
show cause why an order of surcharge should not be passed; and
(g) Under Section 33, the State Government in turn is empowered to
call for and modify, annul or reverse decision of the Commissioner or
of the Managing Committee after calling for and examining the record if
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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 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 consideration of the Court:
"(i)It is not disputed that the management of
the Guruvayur temple is governed by the
Guruvayur Devaswom Act, 1978. There may
be other State legislations governing the
functioning of religious institution in
the State. The High Court shall take
into consideration the relevant
provisions of these enactments.
(ii) The Guruvayur Devaswom Managing Committee
and the State of Kerala are necessary
parties in this public interest
litigation. The High Court shall take
into consideration the objections
including of preliminary nature raised/
to be raised by these parties.
(iii)The appointment, tenure of office and
other conditions of service of the
Administrator and other officers
connected with the Guruvayur, as are
provided by law shall be kept in view
while passing any orders concerning these
officers.
The High Court is requested to
conclude the proceedings expeditiously
and if possible, within six months from
today."
Another Special Leave Petition was filed praying for an order
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restraining the Enquiry Commissioner from submitting his final report
being SLP (Civil) NO. 3231/93 but the same was dismissed vide this
Court's order dated 10.5.1993 observing:
"Learned counsel for the petitioner urged and
vehemently pleaded for restraining the Enquiry
Commissioner from submitting his final report
as in that case the High Court may not decide
the preliminary objection raised on their
behalf that there being a detailed procedure
provided in the Statute, the High Court should
not have exercised its extraordinary
jurisdiction. We do not find any justification
for such apprehension.
In the result, this petition fails and is
dismissed."
Pursuant to or in furtherance of the observations made by this
Court, an application was filed for determining the maintainability 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
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
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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
by any party. During hearing of the matter, the Chairman, The
Guruvayur Devaswom Managing Committee (for short 'the Committee'), and
the State agreed with many of the recommendations made by the
Commissioner. Appellant herein also substantially agreed with various
recommendations of the Commissioner.
The Court specifically asked for objections to the
recommendations of the Commissioner. The fifth respondent - M.P.
Gopalakrishnan and the third respondent - Chairman of the Committee
filed objections but at the argument stage only a few of the matters
stated in the statements were highlighted or pressed.
Upon considerations of the various matters the High Court in its
impugned judgment arrived at its findings on the recommendations of the
Commission, the summary whereof has been stated in para 64 thereof.
The High Court lamented:
"The temple and the idol of Guruvayur is the
very Brahman itself, so easily obtained, which
can, in the ordinary course, be obtained only
after undergoing all trials and tribulations.
That is the greatness of this Lord of Guruvayur
(Sree Krishna), the temple sought by millions
all over and about which every Hindu holds a
candle, but alas! Its administration has sunk
to low levels, to be ashamed of; we hope and
pray that this litigation will give a turning
point for the improvement and better
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.
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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 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. A full-fledged enquiry akin to the provisions of the
1952 Act and Kerala Public Men's Corruption (Investigations and
Inquiries) Act, 1987 is unknown in a public interest litigation and in
this behalf our attention has been drawn to the appointment of amicus
as also the appointment of lawyers for the Commissioner.
The learned counsel, in particular, drew our attention to the
order dated 17th February, 1993 passed in O.P. No. 2071 of 1993 and
submitted that a perusal thereof would show that the High Court even
directed the Director of Public Relations for wide publication of these
matters and invited complaints and suggestions from the public in
general.
By reason of the said order, the High Court also appointed M/s.
Menon & Menon, Chartered Accountants, Ernakulam as auditors. The
Enquiry Commissioner was given accommodation at the High Court as also
at Guruvayur. The Registrar of the High Court was directed to depute
appropriate and necessary staff to the Enquiry Commissioner. Even a
police officer was appointed to assist the Enquiry Commissioner in the
field work.
The High Court also, the learned counsel would submit, must be
held to have committed a manifest error in taking over the
administration of the temple for all intent and purport; even by going
to the extent of directing that the Administrator would not be
transferred.
Mr. Venugopal would 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.
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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. 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 affidavit filed by the State and submitted that the
High Court misunderstood his submissions to the effect that he had not
pressed the High Court to decide the maintainability of the petitioner
as a preliminary issue. According to the learned counsel, as by the
time the order of this Court dated 12.2.1993 was communicated; 10
interim reports had been submitted, a submission was made only to the
effect that the merit of those reports may be directed to be considered
by the State. The learned counsel would contend that the very fact
that the parties agitated the question of jurisdiction second time
before this Court is a clear pointer to show that the question as
regards jurisdiction of the High Court to entertain such application
was not given up.
Mr. Subba Rao, the learned counsel appearing on behalf of the
respondent No. 5, on the other hand, would submit that there are
precedents wherein enquiries were directed to be made through a
Commission for finding out the correctness or otherwise of the
allegations made in a writ petition. It was submitted that even
provisions of the Commission of Enquiry Act was resorted to for the
purpose of enquiry as regard management of temples. Reference in this
connection has been made on Tilkayat Shri Govindlalji Maharaj Vs. The
State of Rajasthan and Others [1964 (1) SCR 561] and Sri Sri Sri
Lakshmana Yatendrule and Others Vs. State of 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
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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 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 Shrinivas Nayak & Anr. [1983 (1) SCR 8].
Mr. Subba Rao would further urge that only because a floodgate of
litigation would be opened if a public interest litigation is
entertained, the same itself cannot be a ground for holding that public
interest litigation should be entertained. Our attention in this
connection has been drawn on Woolwich Building Society Vs. Inland
Revenue Commissioners (No.2) [(1992) 3 All ER 737] and Johnson Vs.
Unisys Ltd. [(2001) 2 All ER 801].
Mr. Subba Rao would urge that the High Court is a parens patriae
in relation to the devotees is neither in doubt nor in dispute.
Reliance in this behalf has been placed on State of Kerala & Anr. Vs.
N.M. Thomas & Others [(1976) 1 SCR 906 at 951] and Charan Lal Sahu etc.
etc. Vs. Union of India and Others [(1989) Supp. 2 SCR 597 at 638].
Power of the High Court and this Court under Articles 226 and 32
of the Constitution of India remain untrammeled despite existence of
statutory provisions controlling the power of executive and, thus, it
was argued that the High Court and this Court cannot be stripped of its
constitutional powers to look into the omissions and commissions on the
part of the administrators of the temple. A proceeding initiated as a
public interest litigation would lie before the High Court or this
Court, according to Mr. Subba Rao, when it is found that despite
existence of statutory 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
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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 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 Article 21 of the Constitution of India. It jealously enforced
Article 23 of the Constitution. Statutes were interpreted with human
rights angle in view. Statutes were interpreted in the light of
international treatises, protocols and conventions. Justice was made
available having regard to the concept of human right even in cases
where the State was not otherwise apparently liable. (See Kapila
Hingorani Vs. State of Bihar reported in JT 2003 (5) SC 1)
The people of India have turned to courts more and more for
justice whenever there had been a legitimate grievance against the
State's statutory authorities and other public organizations. People
come to courts as the final resort, to protect their rights and to
secure probity in public life.
Pro bono publico constituted a significant state in the present
day judicial system. They, however, provided the dockets with much
greater responsibility for rendering the concept of justice available
to the disadvantaged sections of the society. Public interest
litigation has come to stay and its necessity cannot be overemphasized.
The courts evolved a jurisprudence of compassion. Procedural propriety
was to move over giving place to substantive concerns of the
deprivation of rights. The rule of locus standi was diluted. The Court
in place of disinterested and dispassionate adjudicator became active
participant in the dispensation of justice.
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 :
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(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 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-Ã -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 large number of people, the
Court will not hesitate in stepping in. Articles 14 and 21 of the
Constitution of India as well as the International Conventions on Human
Rights provide for reasonable and fair trial.
In Mrs. Mankeka Sanjay Gandhi and Another Vs. Miss Rani
Jethmalani, AIR 1979 SC 468, it was held:
"2. Assurance of a fair trial is the first
imperative of the dispensation of justice and
the central criterion for the court to consider
when a motion for transfer is made is not the
hypersensitivity or relative convenience of a
party or easy availability of legal services or
like mini-grievances. Something more
substantial, more compelling, more imperiling,
from the point of view of public justice and
its attendant, environment, is necessitous if
the Court is to exercise its power of transfer.
This is the cardinal principle although the
circumstances may be myriad and vary from case
to case. We have to test the petitioner's
grounds on this touch-stone bearing in mind the
rule that normally the complainant has the
right to choose any court having jurisdiction
and the accused cannot dictate where the case
against him should be tried. Even so, the
process of justice should not harass the
parties and from that angle the court may weigh
the circumstances."
(See also Dwarka Prasad Agarwal (D) By LRs. and Anr. Vs. B.D.
Agarwal and Ors. 2003 (5) SCALE 138).
(iv) The common rule of locus standi is relaxed so as to enable the
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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. 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 public
institution taken over by such committee. (See Bandhua Mukti Morcha
(supra), Rakesh Chandra Narayan Vs. State of Bihar 1989 Supp (1) SCC
644 and A.P. Pollution Control Board Vs. M.V. Nayudu (1999) 2 SCC 718).
In Sachidanand Pandey and Another Vs. State of West Bengal and
Others [(1987) 2 SCC 295], this Court held:
"61. It is only when courts are apprised of
gross violation of fundamental rights by a
group or a class action on when basic human
rights are invaded or when there are complaints
of such acts as shock the judicial conscience
that the courts, especially this Court, should
leave aside procedural shackles and hear such
petitions and extend its jurisdiction under all
available provisions for remedying the
hardships and miseries of the needy, the
underdog and the neglected. I will be second to
none in extending help when such is required.
But this does mean that the doors of this Court
are always open for anyone to walk in. It is
necessary to have some self-imposed restraint
on public interest litigants."
In Janata Dal Vs. H.S. Chowdhary and Others (1992) 4 SCC 305,
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this Court opined :
"109. It is thus clear that only a person
acting bona fide and having sufficient interest
in the proceeding of PIL will along have a
locus standi and can approach the court to wipe
out the tears of the poor and needy, suffering
from violation of their fundamental rights, but
not a person for personal gain or private
profit or political 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 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
judicial review. The High Courts although may pass an order for doing
complete justice to the parties, it does not have a power akin to
Article 142 of the Constitution of India.
(xi) Ordinarily the High Court should not entertain a writ petition by
way of Public Interest Litigation questioning constitutionality or
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validity of a Statute or a Statutory Rule.
In M.C. Mehta Vs. Kamal Nath [(2000) 6 SCC 213, it was held:
"20. The scope of Article 142 was considered in
several decisions and recently in Supreme Court
Bar Association Vs. Union of India (1998) 4 SCC
409 by which the decision of this Court in
Vinay Chandra Mishra, Re (1995) 2 SCC 584 was
partly overruled, it was held that the plenary
powers of this Court under Article 142 of the
Constitution are inherent in the Court and are
"COMPLEMENTARY" to those powers which are
specifically conferred on the Court by various
statutes. This power exists as a separate and
independent basis of jurisdiction apart from
the statutes. The Court further observed that
though the powers conferred on the Court by
Article 142 are curative in nature, they cannot
be construed as powers which authorise the
Court to ignore the substantive rights of a
litigant. The Court further observed that this
power cannot be used to "supplant" substantive
law applicable to the case or cause under
consideration of the Court. Article 142, even
with the width of its amplitude, cannot be used
to build a new edifice where none existed
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. "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,
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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 judicial law making is necessary to
avoid exploitation (inter-country adoption, the
education of the children of the prostitutes).
- Where judicial intervention is necessary for
the protection of the sanctity of democratic
institutions (independence of the judiciary,
existence of grievances redressal forums).
- Where administrative decisions related to
development are harmful to the environment and
jeopardize people's right to natural resources
such as air or water."
There is, in recent years, a feeling which is
not without any foundation that public interest
litigation is now tending to become publicity
interest litigation or private interest
litigation and has a tendency to be
counterproductive.
PIL is not a pill or a panacea for all wrongs.
It was essentially meant to protect basic human
rights of the weak and the disadvantaged and
was a procedure which was innovated where a
public-spirited person files a petition in
effect on behalf of such persons who on account
of poverty, helplessness or economic and social
disabilities could not approach the court for
relief. There, have been, in recent times,
increasingly instances of abuse of PIL.
Therefore, there is a need to re-emphasize the
parameters within which PIL can be resorted to
by a petitioner and entertained by the court.
This aspect has come up for consideration
before this Court and all we need to do is to
recapitulate and re-emphasize the same."
We do not intend to say that the dicta 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.
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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 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 not ordinarily be entertained.
It is possible to contend that the Hindus in general and the
devotees visiting the temple in particular are interested in proper
management of the temple at the hands of the statutory functionaries.
That may be so but the Act is a self-contained Code. Duties and
functions are prescribed in the Act and the rules framed thereunder.
Forums have been created thereunder for ventilation of the grievances
of the affected persons. Ordinarily, therefore, such forums should be
moved at the first instance. The State should be asked to look into
the grievances of the aggrieved devotees, both as parens patriae as
also in discharge of its statutory duties.
In State of W.B. and Others Vs. Nuruddin Mallick and Others
[(1998) 8 SCC 143], it has been held:
"28. It is not in dispute in this case that
after the management sent its letter dated 6-8-
1992 for the approval of its 31 staff, viz.,
both teaching and non-teaching staff, both the
District Inspector of Schools and the Secretary
of the Board sought for certain information
through their letters dated 21-9-1992. Instead
of sending any reply, the management filed the
writ petition in the High Court, leading to
passing of the impugned orders. Thus, till this
date the appellant-authorities have not yet
exercised their discretion. Submission for the
respondents was that this Court itself should
examine and decide the question in issue based
on the material on record to set at rest 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
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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 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 performed in the temple or omission thereof. Any decision in favour
of one sector of the people may heart the sentiments of the other. The
Courts normally, thus, at the first instance would not enter into such
disputed arena, particularly, when by reason thereof the fundamental
right of a group of devotees under Articles 25 and 26 may be infringed.
Like any other wing of the State, the Courts also while passing an
order should ensure that the fundamental rights of a group of citizens
under Articles 25 and 26 are not infringed. Such care and caution on
the part of the High Court would be a welcome step.
Where access to justice poses a fundamental problem facing the
third world today, its importance in India has increased. Laws are
designed to improve the socio-economic conditions of the poor but
making the law is not enough, it must be implemented. The core issues
which have been highlighted by the learned counsels by the party must
be considered from that angle. Administration of temple by
entertaining complaints does not lead to a happy state of affairs.
Roving enquiry is not contemplated. Principles of natural justice and
fair play ought to be followed even in the pro bono public proceedings.
The Courts undoubtedly would be parens patriae in relation to idols,
but when the statute governs the field and the State takes over the
management, ordinarily the Courts would not step in.
In Charan Lal Sahu (supra) the history of the doctrine of parens
patriae was 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
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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
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 functionaries. It allows them to perform their duties at the
first instance.
The court steps in by Mandamus when the State fails to perform
its duty. It shall also step in when the discretion is exercised but
the same has not been done legally and validly. It steps in by way of
a judicial review over the orders passed. Existence of alternative
remedy albeit is no bar to exercise jurisdiction under Article 226 of
the Constitution of India but ordinarily it will not do so unless it is
found that an order has been passed wholly without jurisdiction or
contradictory to the constitutional or statutory provisions or where an
order has been passed without complying with the principles of natural
justice. (See Whirlpool Corporation Vs. Registrar of Trade Marks,
Mumbai and Others (1998) 8 SCC 1).
It is trite that only because floodgates of cases will be opened,
by itself may not be no ground to close the doors of courts of justice.
The doors of the courts must be kept open but the Court cannot shut its
eyes to the ground realities while entertaining a public interest
litigation.
Exercise of self-restraint, thus, should be adhered to, subject
of course to, just exceptions.
The High Court in this case adopted an unusual procedure. It
directed seizure of the records only on the premise that the writ
petitioner contended that the allegations can be verified with
reference to the records.
Concededly, in view of decision of this Court in Bandhua Mukthi
Morcha (supra) the Court may appoint a Commissioner or amicus for
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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 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 State in
a given situation can take recourse to the Commission of Enquiry Act,
1952 for the purpose of enquiring into the alleged irregularities in
the matter of management of temple is itself a pointer to the fact that
the State may take recourse thereto if such a course of action may be
found to be necessary by the State itself.
In this connection, it may be noticed:
(a) Under Section 3 of the Commission of Enquiry Act, where the
appropriate government is of the opinion that it is necessary so to do
and resolutions are passed by the concerned legislatures, it may
appoint a Commission of Inquiry for the purpose of making inquiry into
any definite matter of public importance.
(b) Under Section 3(4), the report of the Commission, along with the
action taken report of the Government, is laid before the concerned
legislature.
(c) Under Section 4, the powers of the Commission include summoning
and examining a witness, requiring production of any document,
requisitioning any public record and the like. Under Section 5, the
Commission may authorise a Gazetted Officer to enter any place or
building and seize documents, which in the opinion of the Commission
would be useful for the purposes of the enquiry.
(d) Under Sections 5A and 5B, the Commission may utilize the services
of officers, investigation agencies or assessors for the purposes of
the inquiry.
(e) Under Sections 8B and 8C, the Commission provides an opportunity
of hearing to all persons who may be prejudicially affected by the
inquiry, including the opportunity to cross-examine the witnesses.
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[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 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 Hindu temple and worship the deity.
Therefore, the Hindu believers of Shaiva form
of worship are not denominational worshippers.
They are part of the Hindu religious form of
worship.. They are not entitled to the
protection, in particular, of clauses (b) and
(d) of Article 26 as a religious denomination
in the matter of management, administration and
the governance of the temples."
(See also Sri Kanyaka Satram Committee Vs. Commissioner, H.R.C. &
Others (1997) 5 SCC 303 at 304).
We do not intend to say anything further, as at present advised.
We further do not intend to enter into the controversy as to
whether the complaint of the first respondent was actuated by any
person's ill-will or bias towards the appellant.
EFFECT OF THE IMPUGNED JUDGMENT:
Mr. Reddy submitted a status report on the action which has
already been taken or yet to be taken or not possible to be taken which
is reproduced below:
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 32
Para 65 of the judgment of the
High Court
Action taken/ reply
U(i)
Vigilance enquiry to be ordered
against Shri Rajan, former Member
of the Managing Committee to find
out whether he is holding income
disproportionate to his income.
Vigilance enquiry was
conducted and the allegation
was not substantiated in the
enquiry.
(ii)
"Production of film Guruvayoor
Mahathmyam" Action to be taken to
levy the loss.
Action is underway to make
use of the prints of the film
and to recover the loss, if
any, from the persons
responsible after
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
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'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 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
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observation as totally
unfortunate and not
justifiable. The
Commissioner who is the
Secretary to Government was
holding additional charge of
the Commissioner. The
Commissioner was in fact
discharging his duties to the
satisfaction of the
Government and taking steps
to strengthen the Devaswom
administration. The Hon'ble
High Court did not appreciate
these facts while commending
on his performance.
Z(2)
Construction of Sree Padmam
building
Explanation of the Devaswom
obtained and remedial action
taken.
Z(3)&
(4)
Appointment of District Judge as
Law Officer cum disciplinary
authority
Government are not agreeable
with this recommendation/
direction. As per the
Guruvayoor Devaswom Act and
the Regulations there-under,
Guruvayoor Devaswom Managing
Committee is the appointing
and disciplinary authority in
respect of the employees of
the Devaswom. Government do
not consider it necessary to
have a District Judge as
disciplinary authority. As
far as Law Officer is
concerned, there is a team of
Lawyers to attend the legal
matters of the Devaswom. In
view of these facts,
Government do not consider it
necessary to post a District
Judge as suggested by the
Hon'ble High Court.
Z(5)
Functioning of the Devaswom
Commissioner and the Government
While commenting on the
statutory powers of the
Commissioner, the Court has
adversely commented on the
performance of the
Commissioners, past and
present. It is submitted
that the specific comments of
the High Court against the
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Commissioner are totally
unfortunate and not
justified. The Commissioner
who is a Secretary to
Government was holding the
additional charge 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 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
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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 programme.
Z(7)
There should be a technical audit
in every five years (para 58 of
the judgment)
There is already an audit
conducted by the Local Fund
Audit Department. They take
care of the technical matters
also. Government do not
consider that a special
technical audit in every five
years is necessary.
Z(9)
Recommendation to conduct a study
by the Institute of Management in
Government on the administrative
reforms to be carried out in the
Devaswom.
A detailed study has been
conducted by the Centre for
Management Development.
Their report is under
consideration of the
Devaswom.
Z(10)
The post of Commissioner,
Guruvayoor Devaswom and the
Secretary to Government, Devaswom
Department should be held by two
persons.
These posts are now held by
two separate persons.
Z(11)
Direction to submit a panel of
five senior IAS Officers
(Secretaries to Government) to
the High Court to enable the
Court to select one person as
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Devaswom Commissioner.
Not implemented as the
Hon'ble Supreme Court has
stayed this direction.
Government cannot agree to
this direction, as the
direction is against the
statutory provision.
Appointing the Commissioner
for Guruvayoor Devaswom is as
per section 2(b) of the
Guruvayoor Devaswom Act,
1978. Furnishing a panel of
names and selection by the
Court are matters extraneous
to the provisions of the Act.
We will advert to this issue a little later.
RE: PRELIMINARY ISSUE ABOUT MAINTAINABILITY OF THE WRIT 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 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
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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 Court. It
will not ordinarily entertain any doubt as regards correctness or
otherwise of the proceedings of the High Court. This is the state of
law which is firmly established. (See Ramdas Shrinivas Nayak (supra).
In Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and
Others [(2003) 2 SCC 111] a three-judge Bench of this Court, of which
one of us (Sinha, J.) is a member held:
"Before parting with the case, we may notice
that Mr. Tanna appearing on behalf of the South
Gujarat University in C.A. No.1540 of 2002
submitted that various other contentions had
also been raised before the High Court. We are
not prepared to go into the said contentions
inasmuch assuming the same to be correct, the
remedy of the appellants would lie in filing
appropriate application for review before the
High Court. Incidentally, we may notice that
even in the special leave petition no
substantial question of law in this behalf has
been raised nor any affidavit has been affirmed
by the learned advocate who had appeared before
the High Court or by any officer of the
appellant who was present in court that certain
other submissions were made before the High
Court which were not taken into consideration.
In State of Maharashtra v. Ramdas Shrinivas
Nayak & Anr. [AIR 1982 SC 1249], this Court
observed :-
"When we drew the attention of the
learned Attorney General to the
concession made before the High Court,
Shri A.K. Sen, who appeared for the State
of Maharashtra before the High Court 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-
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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 fact of making the
concession as recorded in the judgment."
The said decision has been followed by this Court recently in
Roop Kumar Vs. Mohan Thedani [2003(3) Supreme 296]. It held:
"10. It would be logical to first deal with the
plea relating to absence of forum of appeal.
It is to be noted that the parties agreed
before the High Court that instead of remanding
the matter to trial Court, it should consider
materials on record and render a verdict.
After having done so, it is not open to the
appellant to turn round or take a plea that no
concession was given. This is clearly a case
of sitting on the fence, and is not to be
encouraged. If really there was no concession,
the only course open to the appellant was to
move the High Court in line with what has been
said in State of Maharashtra v. Ramdas
Shrinivas Nayak & Anr. (1982(2) SCC 463). In a
recent decision Bhavnagar University v.
Palitana Sugar Mill Pvt. Ltd. & Ors. (2002 AIR
SCW 4939) the view in the said case was
reiterated by observing 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. That 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."
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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
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
reports which have been considered.
CONCLUSION:
The curtain of this litigation must be drawn here and now. The
State admittedly implemented many of the suggestions of the high Court.
They would not be reopened. Some suggestions of the High Court are
pending consideration at the hands of the State. They may be
considered. The State shall, however, as regard the directions of the
High Court which according to it cannot be complied with, pass
appropriate orders recording sufficient and cogent reasons therefor as
expeditiously as possible and not beyond a period of three months from
the date of communication of this order. The High Court, if any
proceeding is initiated in relation thereto, may deal therewith in
accordance with law. The administration of the temple, it is stated,
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has been taken over by the State and the other statutory functionaries.
They shall, we have no doubt in our mind, having regard to the fact
that special treatment has been accorded to the temple by the State
Legislature, carry out its activities in true letter and spirit
thereof. The State and the statutory functionaries would be well
advised to give full credence to the tenets and practices subject of
course to the provisions of the statute. The State should furthermore
make all endeavours to see that the sentiments of the devotees are
respected. In view of our findings aforementioned, the adverse remarks
made in the impugned judgment against the appellant in C.A. No.
2151/1994 shall stand expunged.
Before parting with this case, however, we must complement the
High Court about the gigantic task undertaken by it leading to
discovery of a number of irregularities in the matter of management of
temple detected in the process. We hope and trust that the judgment of
the High Court would prove to be an eye-opener to the State and now
onwards it will be able to fulfill the hopes and aspirations of
millions of devotees of Lord Krishna.
These Appeals are disposed of on the aforementioned terms. No
order as to costs.
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