Partly allowed

Suo Motu v. the Travancore Devaswom Board

Kerala HC15 Oct 2020SSCR/9/2020

Case brief

AI extract

What is this about?

In a Suo Motu, the High Court reviewed safety protocols for Sabarimala's Mandala Makaravilakku during the COVID-19 pandemic. While affirming most administrative decisions, it directed that pilgrims must have facilities to stay at Nilakkal, permitted private vehicles up to 15-seaters to approach Pamba, and allowed the Devaswom Board to propose numerical limits on darshan.

What did the court decide?

Allowed facilities for pilgrims to stay at Nilakkal; permitted private vehicles up to 15-seats to ply between Nilakkal and Pamba; directed Board to revisit numerical limits on darshan considering all

Suo Motu Vs the Travancore Devaswom Board — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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THE HONOURABLE MR. JUSTICE K.HARIPAL

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THURSDAY, THE 15TH DAY OF OCTOBER 2020 / 23RD ASWINA, 1942

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SSCR.No.9 OF 2020

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(IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - SABARIMALA SPECIAL COMMISSIONER REPORT - SM NO.9/2020 - REGARDING THE FORMULATION OF SAFETY PROTOCOL (SOCIAL DISTANCING, CROWD MANAGEMENT AND SANITISATION PROTOCOL), IN VIEW OF COVID-19 PANDEMIC SITUATION FOR SABARIMALA TO ENSURE A SAFE AND SECURE MANDALA MAKARAVILAKKU SEASON 1196 ME WHICH COMMENCES ON 15/11/2020 - SUO MOTU PROCEEDINGS - INITIATED - REG.)

PETITIONER:

SUO MOTU

RESPONDENTS:

1 THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY THIRUVANANTHAPURAM.

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2 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY THIRUVANANTHAPURAM.

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R1 BY SRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD R2 BY GOVERNMENT PLEADER T.K.ANANDHAKRISHNAN

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THIS SABARIMALA SPECIAL COMMISSIONER REPORT HAVING COME UP FOR ADMISSION ON 15.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

SSCR.No.9 of 2020

ORDER

Ravikumar, J.

The captioned SSCR is registered based on Report (SM) No.9/2020 of the Sabarimala Special Commissioner. It pertains to formulation of safety protocol (social distancing, crowd management and sanitization protocol) in view of COVID-19 pandemic situation, for Sabarimala for the Mandala-Makaravilakku season 1196 M.E. When COVID-19 pandemic case graph is taking leap none can have a second opinion as to the necessity for taking effective disease containment measures, be it in relation to any pilgrim centre or elsewhere. Evidently, in relation to the ensuing Sabarimala Pilgrimage season the Travancore Devaswom Board (for brevity 'TDB') requested permission for allowing pilgrims and the State Government gave a positive nod. The Special Commissioner submitted the aforementioned report in the said circumstances. Various very relevant aspects which should gather attention of the State, various authorities under it as also TDB in the matter of regulating the pilgrimage during this Mandala-Makaravilakku season have been specifically highlighted in the report. On 23.09.2020 the learned Standing Counsel for TDB as also the learned Government Pleader took time to file responses of the respective respondents in

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SSCR.No.9 of 2020

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regard to the issues involved and highlighted in the report. A statement dated 28.09.2020 was filed by the Standing Counsel for TDB on its behalf and a statement dated 6.10.2020 was filed by the Senior Government Pleader based on the instructions of the 2^nd respondent. Subsequently, another statement dated 14.10.2020 was also filed by the learned Senior Government Pleader, based on the instructions received from the Principal Secretary, Revenue (Devaswom). The two statements filed by the learned Senior Government Pleader based on instructions, virtually vary only in certain points.

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Heard the learned Senior Government Pleader as also the learned Standing Counsel for TDB.

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The two statements filed by the learned Senior Government Pleader based on the instructions and the submissions made by the learned Senior Government Pleader would reveal that pending consideration of the SSCR, on the representation of TDB, the issue was considered by the Government, in a meeting held on 10.8.2020, which is virtually a review meeting of the one conducted earlier. Later, the Hon'ble Chief Minister, Kerala convened a meeting on 28.09.2020 through video conferencing. The Hon'ble Ministers for Devaswom Department, for Health Department, for Transport Department, for Electricity Department, for Irrigation Department,

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SSCR.No.9 of 2020

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MLAs of certain Constituencies, Devaswom Board President, Principal Secretary, Devaswom Department, Principal Secretary, Forest Department, District Collector, Pathanamthitta, District Police Chief, Pathanamthitta and other officials of various departments had participated in the meeting. Going by the second statement filed by the learned Senior Government Pleader, as per G.O. (Rt)No.2964/2020/RD dated 29.09.2020, based on the decision in the said meeting, a committee was constituted under the Chairmanship of the Chief Secretary with the following members, for taking measures for crowd management in Sabarimala and other locations in the State in connection with Sabarimala Pilgrimage:-

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Sri.Dr. Viswas Mehta - Chief Secretary - Chairman

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1. Sri.T.K.Jose - Additional Chief Secretary, Home Department - Member

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Sri.Dr.Rajan N Khobragade - Principal Secretary, Health & FW Department - Member 4) Sri.K.R.Jyothy Lal - Principal Secretary, Revenue (Devaswom) Department - Member 5) Sri.Lok Nath Behra - State Police Chief- Member

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The copy of the G.O. Dated 29.09.2020 whereby the

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said Committee was constituted as also its report carrying the decisions are not produced along with the statement dated 14.10.2020. Nonetheless, the decisions taken by the said Committee have been extracted in the second statement dated 14.10.2020. Before referring

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SSCR.No.9 of 2020

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to those decisions said to have been taken by the said Committee it is only appropriate to refer to the decisions taken in the meeting conducted on 28.09.2020 through video conferencing, which is incidental to the constitution of the said Committee. Going by the first statement dated 6.10.2020 filed by the learned Senior Government Pleader the following decisions were taken in the said meeting held on 28.09.2020:-

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It was decided to allow devotees to participate in the festival in limited number.

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Chief Secretary, State Police Chief, Principal Secretary of Devaswom Department and Principal Secretary of Forest Department were entrusted with the task of deciding the number of pilgrims from each State to participate in the festival.

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'Annadhanam' will be served in limited quantity to devotees in a particular time and also decided to distribute it in paper plate.

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The Committee of Chief Secretary will decide the number of sanitisation workers to be employed in Sabarimala and the surrounding area.

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It is decided to start shops of Consumer Fed, Supplyco and other Governmental agencies for selling the essential commodities.

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It is decided to operate KSRTC Bus by paying attention to social distancing.

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The Health Department will decide whether mask is to be made mandatory for the devotees.

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It is decided to collect the ghee either at Pamba or at Sannidhanam and do the Abhisheka and to distribute Prasadham thereafter.

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The procession of carrying Thiruvabharanam will be conducted strictly obeying the COVID Protocol.

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During Mandala-Makara vilakku season, the number of devotees will be restricted and also virtual queue system will be implemented, after intimating the date and time of each devotee.

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It is decided to conduct virtual meeting with the Ministers and Officials of neighbouring State of Andhra Pradesh, Thelungana, Karnataka, Tamil Nadu and Pondicherry.

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It is decided to assure that anybody infected with COVID-19 will not be permitted to visit Sabarimala. For the above purpose Antigen test will be conducted by the Health Department at different places.

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The devotees can never put up temporary sheds (viri) at Nilakkal. They will not be allowed to put up viri at Sabarimala and Pamba.

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The distribution of drinking water is in the steel utensil and for which Rs.100/- is to be paid as deposit and the said amount will be returned as and when the vessel is returned back.

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In the bathing point at Pamba and Erumely sprinkler/shower system will be implemented so as to avoid contamination of river.

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The road near Pamba which is damaged due to showers, will be repaired immediately.

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Children aged below 10 and devotees aged above 65 will not be permitted pilgrimage at Sabarimala.”

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SSCR.No.9 of 2020

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Thus, it is obvious from the seventeen items of decisions extracted above that only in a very few matters the Committee was called upon to take decisions. Pursuant to decision No.1 the Committee is entrusted with the task of deciding the number of pilgrims from each State to participate in the festival. So also the Committee was to decide the number of Sanitation workers to be employed in Sabarimala and the surrounding area. Going by the second statement dated 14.10.2020 filed by the learned Senior Government Pleader the said Committee, constituted as per the aforementioned G.O. dated 29.09.2020, held a meeting on 5.10.2020 and took the following

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decisions:-

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“5. The above high level Committee meeting held on 05.10.2020, and the following decisions were taken.

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a) The number of devotees permitted to visit may be fixed as 1000 on weekdays and 2000 on weekends. Maximum devotees can be allowed on Mandalapooja and Makaravilakku days may be fixed as 5000.

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b) For effectively carrying out pilgrim's digital queue virtual queue management system will be implemented by the Police department.

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c) All devotees should provide Covid negative certificate from an authorized lab.

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d) The devotees or others will not be permitted to bath at Pamba River. Instead of bathing at Pamba river, showers will be provided to the devotees for their

SSCR.No.9 of 2020

bathing.

e) Devotees will not be permitted to stay at Sannidhanam and Pampa Ganapathi Kovil during night.

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f) For Ghee abhishekam, the ghee given by the devotees will be collected at a point prescribed by the Devaswom and after performing Abhishek, Prasadam will be distributed to the devotees. The devotees should not be permitted to be present during the Ghee Abhisheka.

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g) The Health department will establish Corona testing points at entry points and will collect the cost of testing from the Devotees.

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h) The devotees with Ayushman bharath card will be encouraged to carry them.

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i) The pilgrimage route is to be restricted as two routes. i.e., Erumely and Vadasserikkara routes. The use of other traditional and forest routes are to be prohibited.

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j) The pilgrims below the age limit of 10 years and above the age limit of 65 years may not be permitted. But those within the age bracket of 6065 years must carry a medical certificate stating that they do not have co-morbidity.

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The health department may fix the locations for setting up convenient testing centres on route of Sabarimala. Principal Secretary (Health and F & W Department) may convene a separate meeting regarding the human resources.

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During the season the State Police Chief may work out a detailed Police arrangements required during the season.

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SSCR.No.9 of 2020

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There will be no darshan during pooja times to safe guard the priests from Covid pandemic.

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The recommendations and suggestions of Thanthri with respect to arrangement of crowd etc., have been fully approved.”

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In the statement filed by the Standing Counsel for TDB,

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based on the instruction of the first respondent, certain suggestions/measures to be taken to streamline the pilgrimage for the present season are mentioned as hereunder:-

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“(a) Entry of pilgrims has to be regulated through virtual queue system presently being controlled by the Police Department. While doing so, the movement of Travancore Devaswom Board officials, Travancore Devaswom Board employees and other employees on duty should be ensured without being registered through the virtual queue system. The State Guests and Guests of the Board are to be permitted on authorization from the Board, ensuring the safety protocols prescribed.

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(b) Maintenance and implementation of Health Protocol. In order to ensure restriction of COVID-19 carriers/patients from proceeding after Nilakkal, it is ideal to have an Antigen Testing Center at Nilakkal and Pampa Hospital for screening of the devotees.

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(d) No parking facility will be provided at Pampa.

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(e) Accommodation facilities will not be permitted to the devotees at Sannidhanam and Pampa.

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(f) No trekking will be permitted after 7.30 p.m. from

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SSCR.No.9 of 2020

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Pamba to Sabarimala and Nada closes at 9.30 p.m. so that the devotees can reach back at Pamba by 11 p.m. and K.S.R.T.C. transportation facilities have to be provided from Pamba to Nilakkal till 12 p.m. and ensure that all the pilgrims reach Nilakkal and nobody stays at Sabarimala/Pamba during night. For ensuring social distancing, the maximum number of travelers to be allowed in a bus has to be fixed and sufficient service has to be ensured as per need.

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(g) The present system of Ghee Abhishekam may not be allowed. Instead devotees can handover ghee at a particular point and receive adiyasishtam from another point. The ghee collected should be used for Abishekam only after a prescribed time.

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(h) Prasadam Distribution from Sreekovil may be avoided.

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(i) Devotees should not be allowed to meet Thantri and melsanthi.

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(j) Entry through flyover may be dispensed with and devotees be permitted to enter the Sopanam through the 'Balikkalpura'.

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(k) Not more than 10 devotees may be allowed in front of Sreekovil at a time.

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(l) Common plates and glass may not be used for Annadhanam. Considering the present circumstances, paper plates and paper cups have to be allowed.

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(m) Devotees above 65 and below 10 years of age may not be allowed.

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(n) Medical facilities have to be enhanced at Nilakkal. Pamba and Sannidhanam.

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(o) Sufficient Sanitisation facility has to be provided at Nilakkal, Pamba, Sannidhanam and at different points in trekking path.

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SSCR.No.9 of 2020

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(p) The cleaning work during season was normally being undertaken by sanitization workers from Tamil Nadu. In the present situation, only workers who have undergone Covid-19 test may be deployed for the cleaning work.

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(q) In the present circumstances, there will not be much bidders for the stalls in auction. In such situation, a few stalls may be opened through Civil Supplies Corporation, Consumerfed, Indian Coffee House etc.

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(r) Bathing and dipping in Pamba river may not be allowed.”

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The Irrigation Department may be asked to explore the possibility of arranging showers at Pampa and a treatment facility for waste water.”

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A perusal of the decision taken in the Chief Minister's

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meeting through video conferencing and the decisions taken by the Committee of the Chief Secretary, as extracted above, with reference to the suggestions/measures to be taken to streamline the pilgrimage and Report-S.M.No.9/2020 filed by the Special Commissioner, Sabarimala, would reveal that in most of the issues relating to COVID-19 protocol to be adhered to by the pilgrims during this pilgrimage season as also on the security aspects decisions have been taken either in the Chief Minister's meeting or in the meeting of the Committee of the Chief Secretary. We put pointed questions to both the learned Senior Government Pleader as also to the learned Standing Counsel for TDB as

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SSCR.No.9 of 2020

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to whether the TDB's view was called for and considered in these matters. We put such questions noting the absence of anyone representing the TDB in the Committee constituted pursuant to the decision in the Chief Minister's meeting and taking into account the fact the entire issues considered and decided were pertaining to the conduct of Sabarimala pilgrimage during the Mandala-Makaravilakku season 1196 M.E. in view of COVID-19 pandemic. True that the statement filed subsequently by the learned Senior Government Pleader dated 14.10.2020 would reveal that the President of TDB had attended the said meeting. It is an indisputable position that in respect of steps and measures for effective containment of COVID-19 pandemic the directives of the State and through its officers of the Departments concerned have to be followed. The same should be the position with respect to security measures, as well. However, close scrutiny of the decisions taken in the aforesaid meetings, mentioned in the twin statements filed by the learned Senior Government Pleader and extracted hereinbefore, would reveal either failure on the part of TDB to bring relevant aspects in such meetings or lack of bestowal of proper attention to certain vital matters over which the TDB's view should have given paramount consideration.

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SSCR.No.9 of 2020

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As stated earlier, none representing the TDB was included in the Committee constituted pursuant to Chief Minister's meeting though the issue is regarding the conduct of Sabarimala Pilgrimage during Mandala-Makaravilakku season - 1196 M.E. It is not discernible from the statements filed by the learned Senior Government Pleader as to whether, after its constitution the Committee of the Chief Secretary visited Sabarimala to consider various issues relating the pilgrimage. So also, nothing is on record as to whether the Committee had actually taken into account the 'darsan hours' available before noon and also in the evening before taking decision in limiting the number of pilgrims during weekdays, holidays as also on Mandalapooja and Makaravilakku days, as per decision No.5(a) of the decisions of the said Committee. True that in view of surge in the rate of COVID-19 pandemic positive cases number of pilgrims has to be limited. But, it should not be and could not be done without giving due attention to all relevant aspects including the number of hours available for darshan, the number of devotees who could be permitted to be in front of Sreekovil at a time, et al. Though we are not interfering with the said decision in limiting the number of pilgrims in the manner decided under decision No.5(a), we give liberty to the TDB to place an appropriate proposal in this regard with all required details to enable the said Committee to revisit

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SSCR.No.9 of 2020

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its decision on the said aspect after giving due weight to all aspects. Needless to say that the Committee will be free to increase the number of pilgrims appropriately, taking into account all such aspects, without compromising COVID-19 pandemic protocol and the disease containment measures. There is nothing on record which would reveal as to whether the number of pilgrims has been decided to be limited in the manner set out in decision No.2 of the Committee's decision after obtaining the view of the TDB. Needless to say in the said matter a pragmatic approach taking into account all the aforesaid aspects, that too with proper discussion with TDB is required.

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On perusal of the decisions arrived at, in the Chief Minister's meeting and also taken by the Committee of the Chief Secretary we are of the considered view that TDB should give its wiseful suggestions on certain other matters as well, so as to enable the Government or the Committee of the Chief Secretary to review some of its decisions appropriately, on certain matters. TDB should realise that they are the only body which can imbibe the pain and passion of the devotees for the purpose of bringing all relevant aspects before the Government. At the same breath, we will say that in respect of matters not connected with COVID-19 protocol and security, the Board should have its own views and decisions.

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SSCR.No.9 of 2020

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Decision No.3, said to have been taken in the Chief Minister's meeting, going by the statement of the learned Senior Government Pleader dated 6.10.2020, pertains to 'Annadhanam'. The words 'in limited quantity' is the reason for concern. The pilgrims from far away places, after tiresome trekking should be given food to satisfy the appetite. The concept of giving Annadhanam 'in limited quantity' is alien to the concept of 'Annadhanam', especially in Sabarimala. The TDB has to take appropriate steps to ensure supply of Annadhanam to the pilgrims.

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The decision in the meeting held on 28.09.2020 would reveal that it was resolved to start shops of Consumerfed, Supplyco and other Governmental agencies for selling the essential commodities. Issuance of tender notifications for the purpose of leasing out the rights to vend various articles through shops and also other contracts vests with the TDB. As has been done during yesteryears this year also e-tender notification was issued on 9.10.2020 whereunder the last day for submission of tenders, in respect of various items, is fixed as 5 p.m. on 20.10.2020. It is submitted before us that such tenders would be opened only at 11 a.m. on 20.10.2020. True that TDB also sounded an apprehension regarding the possibility of various stalls remaining unauctioned. In the statement filed on behalf of TDB it is stated that in

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SSCR.No.9 of 2020

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the present circumstances there would not be much bidders for the stalls in auction and in such circumstances few stalls may have to be opened through Civil Supplies Corporation, Consumerfed, Indian Coffee House etc. In short, the need to start shops of Consumerfed, Supplyco and other Governmental agencies would depend upon the response to the tender notification issued by the TDB.

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The statement of the Standing Counsel for TDB would reveal that Nilakkal would remain as the base camp of Sabarimala. At the same time, the decision taken in the meeting of the Chief Minister dated 28.09.2020 would reveal that devotees would not be permitted to put up temporary shed (viri) at Nilakkal, Sabarimala and Pampa. The decision that the devotees would not be permitted to put up temporary sheds (viri) at Sabarimala and Pampa can be understood and accepted. However, when Nilakkal continues to be the base camp, facilities to stay at Nilakkal temporarily or overnight before proceeding to and also on their return after the darshan, should be available to those pilgrims who require such arrangement. This is essential because if pilgrims from far away places reach Nilakkal during night they may not be able to proceed to Sannidhanam straight away. So also there is no justification for virtually requiring the devotees who return from Sannidhanam after 9.30 p.m. and reach Nilakkal to leave Nilakkal during the late hours.

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SSCR.No.9 of 2020

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The COVID-19 safety protocol shall not ultimately affect a safe pilgrimage. The endeavour should be to avert inconveniences and difficulties and not for creating them. If the facility presently available at Nilakkal is not sufficient to accommodate the devotees who wanted

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to stay back for some hours before proceeding to Sabarimala or on their way back home after darshan such facilities should be provided and failure to make such arrangements would cause undue hardships to the pilgrims.

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Yet another aspect which invites a re-look is the decision appears to have been taken prohibiting private vehicles to be taken beyond Nilakkal. During last season an order was passed by this Court on the issue. This Court permitted light vehicles up to a seating capacity of 15 to ply beyond Nilakkal for the purpose of dropping devotees at Pampa and also for picking up the devotees on their return, from Pampa. A condition was imposed thereunder that after dropping the devotees the driver of the vehicle concerned should take back the vehicle and park at Nilakkal. Taking into account the fact that this year the number of pilgrims would be limited we see no reason as to why the same arrangement should not be permitted during this season, as well. According to us, to certain extent, it would act as an effective measure for containment of COVID-19 pandemic. Hence, it is ordered

SSCR.No.9 of 2020

accordingly.

In the statement filed by the Standing Counsel for TDB a suggestion has been made that while regulating the entry of pilgrims through virtual queue, being controlled by the Police Department it should be ensured that the movement of officials of TDB, its employees and employees of other departments, on duty, are not hampered by insisting registration through virtual queue system. The other suggestion is that entry of the State guests and the guests of the Board should be permitted, after ensuring the safety protocols. As relates the movement of the TDB officials, its employees and other employees of various departments on duty insistence of registration through virtual queue system may create undue difficulties. In such circumstances, the matter has to be discussed and appropriate decision on that issue has to be taken, ensuring adherence to the other safety protocols. Even in the case of State guests and guests of Board, according to us, taking into account the pandemic situation it cannot be allowed indiscreetly. In other words, permitting entry without limiting the number might ultimately defeat the very purpose of safety protocol. In short, in that regard also appropriate decision is required taking into account the peculiar circumstances prevailing due to the outbreak of COVID-19 pandemic.

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SSCR.No.9 of 2020

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Subject to the aforementioned issues, which according to us require a reconsideration at the appropriate level with the participation of TDB, we are of the view that the other decisions taken in the Chief Minister's meeting as also taken by the Chief Secretary's Committee can be implemented during this Mandala-Makaravilakku season as they were taken with the object of avoiding spread of COVID19 pandemic. Even while ordering thus we are of the view that as regards the rituals and liturgy to be performed during the MandalaMakaravilakku season, they shall be performed without any hindrance, due to the restrictions.

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The SSCR stands disposed of as above.

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Sd/-

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C.T.RAVIKUMAR Judge

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Sd/- K.HARIPAL Judge

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TKS

Suo Motu v. the Travancore Devaswom Board

Case brief

What is this about?

What did the court decide?

Suo Motu v. the Travancore Devaswom Board

Case brief

What is this about?

What did the court decide?

What the court decided

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