K.N. Sathyanathan & Ors. Vs. Dy. Examiner, Local Fund Accounts & Ors.
EmailAppeal: Civil Appeal No. 2793 of 1997
Petitioner: K.N. Sathyanathan & Ors.
Respondent: Dy. Examiner, Local Fund Accounts & Ors.
Apeal: Civil Appeal No. 2793 of 1997
Judges: S. RAJENDRA BABU & SHIVARAJ V. PATIL, JJ.
Date of Judgment: Mar 29, 2001
Head Note:
RELIGIOUS ENDOWMENTS
Constitution
Articles 226, 136 – Board of Devaswom deciding to have new ‘gold Golaka’ – Organisation of devotees contributing various items of gold including jewellery – Quotations being called, wastage of 10 grams per kilogram described – Commissioner allowing 332 grams – Auditor pointed in report that wastage beyond 10 grams cannot be allowed – Proceedings initiated for surcharge – No expert called – No evidence to show purity of items and jewellery – Nothing to show the wastage occurring in converting the gold items into ingots and sheets after melting, purifying etc. Held that High Court was not justified in initiating surcharge proceedings. Orders quashed. (Para 5)
JUDGEMENT:
ORDER
1. The Cochin Devaswom Board decided to have a new ‘gold Golaka’ to the deity in Chottanikara Temple. An organisation by name Sree Chottanikara Bhagavathy Seva Sangham (hereinafter referred to as Sangham) volunteered to meet the making charges. The devotees who are members of the said Sangham gave various items of gold, some, in the shape of jewellery also for the said purpose. Thereafter, quotations were called for and it was described thereof that there cannot be wastage beyond 10 gms. per kg. while the gold issued to the goldsmith in the present case was to the extent of 4.541 kgs. On the recommendation of the Commissioner the Board allowed the wastage of 332 gms. The Auditor made a report for the period 1989-1990 relating to the period of 1988-1989 in which it was pointed out that wastage beyond 10 gms per kg. of gold cannot be allowed. On that basis the appellants were surcharged with a sum of Rs. 93,141.75 towards the losses sustained to the extent of 286.5 gms. of gold. On the basis of the report the High Court initiated the proceedings for surcharge.
2. It was contended before the High Court that the Board allowed the wastage of 332 gms. per kg. on the basis of the recommenda-tion made by the Commissioner; that ornamental works were done on the gold Golaka; that the wastage could not be said to be too high; that there was also wastage in melting, purifying and converting ingots into the sheets. It was stated that the extent of wastage could not be determined.
3. Before the High Court three witnesses were examined and the High Court was of the view that when in the quotation beyond a particular percentage was not allowed to be a wastage, the ap-pellants should have taken proper care and found out as to what exactly would be the wastage in a case of this nature and taken a decision in the matter and should not have merely accepted the recommendation made by the Commissioner and on that basis found that the appellants were negligent in causing loss to the temple in question.
4. In this appeal, Mr. K. Sukumaran, learned senior Advocate appearing for the appellants submitted that the High Court had not dealt with the matter in a realistic manner when it was not established that the appellants themselves were responsible in any manner for causing the loss and all that happened was that the jewellery and other items which had been received through the Sangham and had been subjected to melting, purifying and convert-ing the ingots into the sheets and in that process there may have been wastage in addition to wastage that may have occurred in making the ornamental works thereupon.
5. The High Court proceeded on the basis that such wastage cannot be higher than what is stated in quotation. In the absence of any material on record of experts in the field like a goldsmith who could say as to what could be the extent of wastage, we do not think that the High Court could have interfered, one way or the other, on the extent of wastage that may have occurred. Further, there was no material to show the extent of purity of gold of-fered by devotees or the extent of wastage that may occur in converting such gold into ingots and then into sheets for the ‘Golaka’. In that view of the matter, we do not think the High Court should have initiated the proceedings for surcharge or imposed the same. We set aside the order made by the High Court and allow the appeal. In the circumstances of the case, there will be no order as to costs.
6. We may add that as we have not expressed any opinion on any question of law in this matter this decision cannot be treated as a precedent in any manner.
1. The Cochin Devaswom Board decided to have a new ‘gold Golaka’ to the deity in Chottanikara Temple. An organisation by name Sree Chottanikara Bhagavathy Seva Sangham (hereinafter referred to as Sangham) volunteered to meet the making charges. The devotees who are members of the said Sangham gave various items of gold, some, in the shape of jewellery also for the said purpose. Thereafter, quotations were called for and it was described thereof that there cannot be wastage beyond 10 gms. per kg. while the gold issued to the goldsmith in the present case was to the extent of 4.541 kgs. On the recommendation of the Commissioner the Board allowed the wastage of 332 gms. The Auditor made a report for the period 1989-1990 relating to the period of 1988-1989 in which it was pointed out that wastage beyond 10 gms per kg. of gold cannot be allowed. On that basis the appellants were surcharged with a sum of Rs. 93,141.75 towards the losses sustained to the extent of 286.5 gms. of gold. On the basis of the report the High Court initiated the proceedings for surcharge.
2. It was contended before the High Court that the Board allowed the wastage of 332 gms. per kg. on the basis of the recommenda-tion made by the Commissioner; that ornamental works were done on the gold Golaka; that the wastage could not be said to be too high; that there was also wastage in melting, purifying and converting ingots into the sheets. It was stated that the extent of wastage could not be determined.
3. Before the High Court three witnesses were examined and the High Court was of the view that when in the quotation beyond a particular percentage was not allowed to be a wastage, the ap-pellants should have taken proper care and found out as to what exactly would be the wastage in a case of this nature and taken a decision in the matter and should not have merely accepted the recommendation made by the Commissioner and on that basis found that the appellants were negligent in causing loss to the temple in question.
4. In this appeal, Mr. K. Sukumaran, learned senior Advocate appearing for the appellants submitted that the High Court had not dealt with the matter in a realistic manner when it was not established that the appellants themselves were responsible in any manner for causing the loss and all that happened was that the jewellery and other items which had been received through the Sangham and had been subjected to melting, purifying and convert-ing the ingots into the sheets and in that process there may have been wastage in addition to wastage that may have occurred in making the ornamental works thereupon.
5. The High Court proceeded on the basis that such wastage cannot be higher than what is stated in quotation. In the absence of any material on record of experts in the field like a goldsmith who could say as to what could be the extent of wastage, we do not think that the High Court could have interfered, one way or the other, on the extent of wastage that may have occurred. Further, there was no material to show the extent of purity of gold of-fered by devotees or the extent of wastage that may occur in converting such gold into ingots and then into sheets for the ‘Golaka’. In that view of the matter, we do not think the High Court should have initiated the proceedings for surcharge or imposed the same. We set aside the order made by the High Court and allow the appeal. In the circumstances of the case, there will be no order as to costs.
6. We may add that as we have not expressed any opinion on any question of law in this matter this decision cannot be treated as a precedent in any manner.
