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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under  sub-section (1), institute a suit in the  court to set aside the notification. 4)      Where the Committee is superseded under  this section the Commissioner shall  exercise the powers and perform the  functions of the Committee until the  expiry of the period of supersession.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:

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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.