Thiruchendur temple case full order ofTHE HON’BLE MR.JUSTICE P.N.PRAKASH, THE HON’BLE MR.JUSTICE G.R.SWAMINATHAN AND THE HON’BLE MR.JUSTICE M.NIRMAL KUMAR (MD)Nos.11817 of 2018 & 6446 of 2022 & W.M.P.(MD)Nos.5010 & 5011 of 2022 in WP(MD)No.11817 of 2018 : – R.S.Kalyanasundaram Mr.G.Prabhurajadurai for Mr.M.Thirunavukkarasu For Respondents Mr.R.Shanmugasundaram, Advocate General assisted by Ms.A.G.Shakeena for R1 Mr.Veera Kathiravan Additional Advocate General assisted by Mr.M.Lingadurai Special Government Pleader for R2 Mr.V.Meenakshi Sundaram for R3 Mr.R.Singaravelan, Senior Counsel for Mr.D.Selvanayagam for R4 to R34 Mr.R.Venkatramani, Senior Counsel for Mr.G.Chandrasekar for R35 In WP(MD)No.6446 of 2022 : For petitioner Mr.V.Meenakshi Sundaram
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 27.07.2022
PRONOUNCED ON: 30.08.2022
CORAM
THE HON’BLE MR.JUSTICE P.N.PRAKASH,
THE HON’BLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON’BLE MR.JUSTICE M.NIRMAL KUMAR
- (MD)Nos.11817 of 2018 & 6446 of 2022
&
W.M.P.(MD)Nos.5010 & 5011 of 2022
in WP(MD)No.11817 of 2018 : –
R.S.Kalyanasundaram … Petitioner
Vs.
- The Commissioner,
Hindu Religious and Charitable
Endowment Department, Nungampakkam, Chennai.
- The Executive Officer / Joint Commissioner, Arulmigu Sree Subramanya Swamy Temple, Thiruchendur, Tuticorin District.
3.Thiruchendur Shri Jeyanthinathar
Thirisuthanthirars Kaariyasthar Sthaanigar Sabha (Sl.No.39 of 2018), Through its Secretary A.Narayanan.
(R-3 is impleaded vide order dated 07.04.2022 in W.M.P.(MD)No.20141 of 2018)
- Chellappa Iyer
- Ravi Sanmugam
- P.Jeyanthinathan
- Shanmuganathan
- Saravanan Sankaran
- Narayanan
10.Lakshmanan
11.Kulathumani Thanapathi
- Subramanian
- Muthu Rama Subramanian
- Muthukrishnan Seshadri
- Chinna Subramaniyan Sivaraman
- Sivaramakrishnan Ganeshan
- Ganeshan Venkatakrishnan
- Harihara Subramanian Ramakrishnan
- Ragu Subramanian
- Ramasubramanian
- Jagadeeswaran Sethuraman
- Devarajan (Alias) Anand Swaminathan
- Balasubramaniyan
- Harihara Subramanian
- Muthuraman
- Ayyappan
- Sankara Narayanan Ramayar
- Eswran
- Dhanabathy Narayanan
- Sriram
- Muthusubramaniyan
- Anandraj Ganesh
- Jaya Anand Kannan
- Ratha Sabapathi
(R4 to R34 were impleaded vide Order dated
18.04.2022 in WMP(MD)No.11798 of 2021)
35.Sri Subramaniya Swamy Thirukovil
Swathanthira Parabalana Sthalathar Sabha,
Rep. By its President D.Kumar Ayyar (R35 was impleaded vide Order dated 18.04.2022 in
W.M.P.(MD)No.18242 of 2021) … Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the respondents to introduce biometric device to mark and record the entry of the staffs appointed by the department alone and consequently order to reform the administration of the temple by forming a committee consisting the first respondent and the District Collector of Tuticorin District to streamline the administration of Sri Subramaniya Swamy Temple, Tiruchendur,
Tuticorin District.
in W.P.(MD)No.6446 of 2022 : –
Thiruchendur Shri Jeyanthinathar
Thirisuthanthirars Kaariyasthar
Sthaanigar Sabha (Sl.No.39 of 2018),
Through its Secretary,
A.Narayanan, S/o. Aandi Ayya,
No.1, Mudhal Santhi Cross Street,
Thiruchendur,
Tuticorin District. … Petitioner
vs.
- The Commissioner,
Hindu Religious and Charitable
Endowment Department, Nungampakkam, Chennai.
- The Executive Officer / Joint Commissioner, Arulmigu Sree Subramaniya Swamy temple, Thiruchendur, Tuticorin District.
- Arulmigu Sree Subramaniya Swamy Temple, through Fit Person, Trustee Office,
Arulmigu Sree Subramaniya Swamy Temple,
Thiruchendur, Tuticorin District. … Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, calling for the records pertaining to the impugned order passed by the first respondent in Na.Ka.No.
30738/2018/Z3 dated 01.04.2022 and quash the same as illegal.
| In WP(MD)No.11817 of 2018 : For petitioner | Mr.G.Prabhurajadurai for Mr.M.Thirunavukkarasu |
| For Respondents | Mr.R.Shanmugasundaram,
Advocate General assisted by Ms.A.G.Shakeena for R1 Mr.Veera Kathiravan Additional Advocate General assisted by Mr.M.Lingadurai Special Government Pleader for R2 Mr.V.Meenakshi Sundaram for R3 Mr.R.Singaravelan, Senior Counsel for Mr.D.Selvanayagam for R4 to R34 Mr.R.Venkatramani, Senior Counsel for Mr.G.Chandrasekar for R35 |
| In WP(MD)No.6446 of 2022 : For petitioner | Mr.V.Meenakshi Sundaram |
| For Respondents | Mr.R.Shanmugasundaram,
Advocate General assisted by Ms.A.G.Shakeena for R1 Mr.Veera Kathiravan Additional Advocate General assisted by Mr.M.Lingadurai Special Government Pleader for R2 Mr.M.Muthu Geethaiyan, Standing counsel for R3 |
COMMON ORDER G.R.SWAMINATHAN, J.
The shore-town of Tiruchendur is one of the important pilgrim
centres of India. Lord Subrahmanya, popularly known as Muruga, is its presiding deity. The temple is one of the six abodes of Lord Muruga. It has been celebrated in Sangam literature. Since it is a public temple, it has been brought under the purview of the Tamil Nadu Hindu Religious and Charitable Endowments Department. The Executive Officer of the
temple is in the rank of a Joint Commissioner.
2.A set of persons known as Thirisuthanthirars have been
associated with the temple from time immemorial. Tirunelveli District Gazetteer of the year 1911 refers to them in the following terms :
“The Mukkani Brahmans, of whom there are probably not less than a thousand in Tiruchendur, stand in a peculiar relationship to the Subramanya temple. When founding the place, the God Subramanya set up 2,000 families of this case to attend to the services of the temple, a duty which they have ever since faithfully performed. Their functions consist mainly in making offerings and performing religious ceremonies-kattalais such services are called on behalf of absentee worshipers. Distinguishable by their topknots of hair, which, very much like the malayalis, they train to fall above their foreheads, they may be seen journeying in almost any part of the country, either to collect subscriptions for the temple festivals or fees from their tardy patrons. There is no doubt that the business is remunerative; they are generally well to do and lead a comfortable existence.”
Cases were filed by individual Thirisuthanthirars for enforcing their claims before the authorities constituted under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as “the Act”). On more than one occasion, matters were taken right up to the Hon’ble Supreme Court of India. Registered societies have been formed to espouse their collective interest. One such body has filed
O.S No.157 of 2017 on the file of the Sub-Court, Tiruchendur (earlier O.S No.23 of 2013 on the file of the Sub-Court, Tuticorin) for declaring that they are a denominational community and that they are entitled to perform the schedule mentioned religious services in the temple and that they should not be restrained from carrying them out. Written
statement has been filed and the suit is still pending.
3.One Thiru.R.S.Kalyanasundaram, the petitioner in WP(MD)No.11817 of 2018 claiming to be a devotee and a regular visitor to this temple alleged that the Thirisuthanthirars (though he does not specifically name them) are illegally interfering with the rights of the worshipers. He sent a complaint dated 29.05.2018 through registered post to the Commissioner, HR&CE, Chennai and the Executive Officer of the temple calling for streamlining the administration. On the very next day, he filed a writ petition for directing the respondents to introduce biometric device to mark and record the entry of the staff appointed by
the department and to reform the temple administration.
4.The writ petition was listed for admission on 01.06.2018
before the Hon’ble Division Bench comprising the Hon’ble Mr.Justice M.V.Muralidaran and the Hon’ble Mrs.Justice T.Krishnavalli. After hearing the learned counsel on either side, the Court came to the conclusion that the contention of the writ petitioner was justified. The Bench issued a series of directions and the writ petition itself was allowed. Registry was directed to list the case again on 05.07.2018 at 3.00 p.m. for reporting compliance.
5.When the case was listed again before the said Bench on 30.07.2018, many more directions came to be issued purportedly for the better administration of the temple and for the welfare of the devotees. Feeling aggrieved, a registered body representing a section of the Thirisuthanthirars filed SLP(Civil) Diary No.24998 of 2018 before the Hon’ble Supreme Court of India. While leave to file was granted,
the SLP itself came to be dismissed on 13.08.2018.
6.WP(MD)No.11817 of 2018 was listed again on 22.10.2018 and 30.01.2019 before the said Bench and more directions followed. The Commissioner, HR&CE was called upon to file a detailed report as to the steps taken by the department to comply with the directions issued by the Court. Pursuant to the said direction, the Commissioner of HR&CE issued circular bearing Na.Ka.No.30738/2018/Z3 01.04.2022 touching upon various aspects including the activities of the Thirisuthanthirars. Questioning the same, an association of Thirisuthanthirars filed WP(MD)No.6446 of 2022. The said writ petition was listed along with W.P.(MD)No.11817 of 2018 before the Hon’ble Division Bench comprising The Hon’ble Mr.Justice Paresh Upadhyay and the Hon’ble Mr.Justice R.Vijayakumar. After hearing the learned counsel appearing for the parties, the Hon’ble Division Bench framed the
following questions to be answered by a Larger Bench :
“1.Whether the judgment/order dated 01.06.2018 recorded by the Division Bench of this Court on W.P.(MD)No. 11817 of 2018 can at all be said to be ‘a law’, and if yes, whether it is a ‘good law’.
2.Whether the directions contained in the orders subsequent to 01.06.2018 – recorded by the Division Bench of this Court on W.P.(MD)No.11817 of 2018 can be said to be legally sustainable, in view of the fact that the said petition was already treated to have been disposed of on 01.06.2018.
3.Whether the directions contained in the order dated 01.06.2018 recorded by this Court on W.P.(MD)No. 11817 of 2018 would bind the petitioners of W.P.(MD) No.
6446 of 2022.
4.Whether the directions contained in the order dated 01.06.2018 and the subsequent orders recorded by this Court on W.P.(MD)No.11817 of 2018 can be said to be the sole guiding factor for adjudicating the legality and sustainability of the G.O. Dated 01.04.2022, which is claimed by the State, to have been issued in due compliance of those directions of this Court.
5.Whether the impugned G.O. dated 01.04.2022, which is challenged in W.P.(MD)No.6446 of 2022 and which is claimed by the State, to have been issued in due compliance of the directions of this Court contained in various orders recorded on W.P.(MD)No.11817 of 2018 is legally sustainable, without the aid of those directions of this Court.
6.Whether the impugned G.O. Dated 01.04.2022 is legally sustainable, even with the aid of any of the orders passed by this Court on W.P.(MD)No.11817 of 2018.”
The Hon’ble Chief Justice constituted this Full Bench comprising us. We heard the learned Advocate General for the Commissioner, HR&CE, the counsel for the writ petitioners, the learned Additional Advocate General for the Executive Officer, the learned counsel for the Fit Person, the learned Senior Counsel for the impleaded Thirisuthanthirars and the learned Senior Counsel for the registered body representing a section of
the Thirisuthanthirars.
7.The primary contention of the learned counsel and the
learned Senior Counsel appearing for the Thirisuthanthirars is that the Hon’ble Division Bench seriously erred in allowing the writ petition on 01.06.2018 even without hearing the Thirisuthanthirars who were directly affected by some of the directions. They also contended that since the prayer in WP(MD)No.11817 of 2018 on the face of it pertains to service matter, it should not have been entertained at all. In any event, having given a disposal on 01.06.2018, no further directions could have been issued on the subsequent dates, when it was posted “for reporting compliance”. Only in view of the directions issued on 01.06.2018, the impugned circular dated 01.04.2022 came to be issued by the Commissioner, HR&CE. The said circular of course invokes
Section 23 of the Act. Section 23 of the Act which confers powers of general superintendence on the Commissioner clearly states that before passing any order prejudicial to the institution, the trustee must be heard. The proviso to the said provision incorporates the principles of natural justice. This Court should not narrowly construe the said proviso. The provision must be purposively read as contemplating that any person who may be affected by such direction is entitled to predecisional hearing. The learned Senior Counsel would strongly urge
that the fundamental rights as well as the civil rights of Thirisuthanthirars are involved and that therefore no decision adverse
to their interest could have been taken behind their back.
8.On the other hand, the learned Advocate General as well as the learned counsel appearing for the temple and also the learned counsel appearing for the petitioner in W.P.(MD)No.11817 of 2018 contended that the proceedings on hand should not be construed as adversarial in character. When an issue concerning public interest comes to the notice of this Court, technical rules of procedure should give way. They pointed out that the direction given on 01.06.2018 as well as on 30.07.2018 were put to challenge before the Hon’ble Supreme Court and that the grounds now canvassed before this Full
Bench were also projected before the Hon’ble Supreme Court. The Hon’ble Supreme Court declined to interfere with the directions issued by this Court. In these circumstances, it is not proper for this Court to take a different view. They alleged that the Thirisuthanthirars are a law unto themselves and since their activities are seriously interfering with the administration of the temple and also affecting the rights of the worshipers, the circular dated 01.04.2022 came to be issued by the Commissioner, HR&CE. It is true that in the said circular, reference has
been made to the judicial directions issued on 01.06.2018.
Even de-hors the said direction, the impugned circular can stand as it is
anchored on Section 23 of the Act. Before issuing the impugned circular, the Commissioner took into account the reports submitted by the other authorities of the department and also the Executive Officer of the temple. There is no requirement that Thirisuthanthirars should be put on notice. In any event, the impugned circular cannot be said to be prejudicial to the interests of the temple and therefore, the proviso to Section 23 of the Act will not kick in. They pressed for dismissal of WP(MD)No.6446 of 2022.
9.We carefully considered the rival contentions and went
through the materials on record. This Full Bench was constituted by the
Hon’ble Chief Justice to answer the six questions framed by the Hon’ble Division Bench on 28.04.2022 while making the reference. It is therefore our bounden duty to answer them. They can be categorized under two heads. The first is whether the directions issued by the Hon’ble Division Bench on 01.06.2018 and 30.07.2018 are legally sustainable. The second is whether the circular issued by the Commissioner, HR&CE on 01.04.2022 is valid.
10.We shall deal with the initial objection raised by the
learned Advocate General that in view of the dismissal of the SLP filed by the Thirisuthanthirars, this Court is barred from considering the questions framed in the order of reference. We find no merit in this contention. When an SLP is dismissed summarily, the order of the High Court does not get merged with the order of the Hon’ble Supreme Court. Even after such dismissal, a petition for review of the order
which was put to challenge before the Supreme Court can be
entertained by the High Court. This debate has been finally settled by the Hon’ble Supreme Court in the decision reported in (2019) 4 SCC 376 (Khoday Distilleries Ltd. and Ors. vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd.) in the following terms :
“(a)The conclusions rendered by the three Judge Bench of this Court in Kunhayammed and summed up in paragraph 44 are affirmed and reiterated.
(b) We reiterate the conclusions relevant for these cases as under:
“(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by Sub-rule (1) of Rule 1 of Order 47 Code of Civil Procedure.
(c) Once we hold that law laid down in Kunhayammed is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition. Such a situation is covered in para 37 of Kunhayammed case.”
The SLP filed by the Thirisuthanthirars was dismissed by a non-speaking order. Since they were not parties to the order of the High Court, leave to file SLP was granted. Their SLP was never converted into a Civil Appeal. In other words, leave to appeal was not granted. Directions continued to be issued in WP(MD)No.11817 of 2018 even after the dismissal of the SLP. In these circumstances, there is no legal or procedural impediment for this Full Bench to revisit the issue and consider the validity of the directions issued on 01.06.2018 and
30.07.2018.
11.As noted at the very outset, the petitioner in W.P.(MD)No. 11817 of 2018 filed the writ petition on the very next day after sending a postal representation to the authorities constituted under the Act. The writ petition was filed in the nature of Writ of Mandamus. It is well settled that before filing a Writ of Mandamus, there must be a demand and refusal. If there is inaction on the part of the authorities also, the Writ will lie even if there is no formal refusal. It has been consistently held that the Writ can be filed only after giving a reasonable time to the authority to consider the petitioner’s representation. Of course, if the circumstances so demand, then, even without a representation, the writ petition can be filed straightaway. But in this case, there was nothing so emergent as to warrant the Vacation Court to take up the matter. We take judicial notice of the fact that only urgent cases are listed for admission or disposal during vacation sitting. The case on hand clearly
did not fall under the said category. Even before the postal
representation reached the authorities, the writ petition was filed. It was not only entertained but also allowed on the very same date i.e., on 01.06.2018 when it was listed for admission.
12.Of course, nothing can stop the Court from giving a
speedy and expeditious disposal, if the situation demands. But the case on hand was not a matter exclusively between R.S.Kalyanasundaram and the authorities. A mere reading of his representation would show that he was targeting the Thirisuthanthirars. In the affidavit filed in support of the writ petition also, there are specific sentences adversely commenting on their conduct. In the order dated 01.06.2018 allowing the writ petition, there are lines censuring them. The outcome of the directions issued by the Court seriously curtailed and restricted their activities and functioning. Thirisuthanthirars were necessary parties.
The Constitution Bench of the Supreme Court in the decision reported in
AIR 1963 SC 786 (Udit Narain Singh Malpaharia Vs Additional Member, Board of Revenue) held that any person whose interest is affected will be a necessary party. Therefore, in all fairness, Thirisuthanthirars should have been impleaded in a representative capacity in W.P.(MD)No.11817 of 2018. An order passed in a Public Interest Litigation operates in rem. It is therefore imperative that without hearing the stakeholders, orders prejudicial to their interests should not be passed. The petitioner in WP(MD)No.11817 of 2018 ought to have impleaded the affected parties at least in a representative capacity when he filed the writ petition. The failure to
do so goes to the root of the matter.
13.The record shows that the writ petition was allowed on 01.06.2018. Of course, it is the duty of every Court to ensure that the order or direction issued by it is complied with in letter and spirit. Therefore, there was nothing amiss in directing listing of the matter ‘for reporting compliance’. But when the matter was listed again, the scope of the writ petition was expanded. The Hon’ble Division Bench noticed that the Executive Officer of the temple had sent a proposal on 20.07.2018 for giving license to some of the Thirisuthanthirars. Vide order dated 30.07.2018, the Commissioner, HR&CE was directed to accept the said proposal and also issue licenses. When proposals are submitted before the competent authority, it is for the authority concerned to apply his mind and take a call in the matter. The court could have only directed the authority to consider the proposal. But in this case, the Commissioner was directed to accept the proposal. It is relevant to note that even this proposal was submitted subsequent to the allowing of the writ petition on 01.06.2018. When the matter was posted for reporting compliance, such extraordinary directions came to be issued. The matter was again taken up on few more occasions and many more directions were issued.
14.There was nothing to indicate in the first instance that the case was to be treated as one of continuing mandamus. Continuing mandamus is a device crafted by the Hon’ble Supreme Court of India to ensure that certain laws meant for the disadvantaged classes are enforced. There are occasions when directions are issued in the
interest of justice and it is necessary to monitor their compliance. We are of the view that the Vacation Bench could not have converted WP(MD)No.11817 of 2018 into one of a writ of continuing mandamus. The Hon’ble Chief Justice is the master of the roster and listing of this case on successive occasions before the same Bench in violation of the
roster was clearly inappropriate.
15.A cursory look at the prayer in WP(MD)No.11817 of 2018
would show that it pertained to a service matter. The Hon’ble Supreme Court had held time and again that PIL will not lie in service matters [(2013) 4 SCC 465) Ayaaubkhan Noorkhan Pathan v. State of Maharashtra].
16.The directions issued by the Hon’ble Division Bench are
unsustainable for the following reasons:-
a)The main prayer in WP(MD)No.11817 of 2018 is for introduction of biometric device to mark and record the entry of the staff appointed by the department. This is a service matter.
b)Notwithstanding the couching of the writ prayer, Thirisuthanthirars were to be directly affected by the outcome. However, they were not impleaded as parties. They were not heard before the directions were issued on 01.06.2018 and 30.07.2018. The violation of principles of natural justice is apparent. Any order that is violative of the principles of natural justice is a nullity in law.
c)Having disposed the writ petition on 01.06.2018, the Division Bench could not have listed it on subsequent occasions in violation of the roster. In any event, the scope of the writ petition could not have been enlarged and further directions issued.
d)The Vacation Court must hear only urgent matters. The case on hand did not fall under urgent category. Allowing the same at the admission stage itself was clearly improper.
e)The Writ of Mandamus could not have been entertained even before the representation of the writ petitioner reached the authorities concerned.
For the aforesaid reasons, we hold that all the directions made in W.P.
(MD)No.11817 of 2018 are unsustainable. They are set aside.
WP(MD)11817 of 2018 is dismissed as not maintainable.
17.Let us next examine the scope and validity of the impugned circular dated 01.04.2022 issued by the Commissioner, HR&CE. It not only refers to the direction dated 01.06.2018 made in WP(MD)No.11817 of 2018 as a starting point but also copiously quotes it. This was perhaps done in order to ensure that if the circular dated 01.04.2022 is challenged, the authorities could safely take umbrage under the orders passed by the Division Bench. We have no doubt in our minds that but for the said directions, the circular would not have sprung forth. The said writ petition has now been dismissed as not maintainable. The directions have been nullified. When the foundation itself has been undermined, the superstructure cannot independently stand. Of course, the learned Advocate General would valiantly urge
that the circular can rest independently on Section 23 of the Act.
18.Before testing the proposition advanced by the learned Advocate General, it is necessary to understand the ambit of the
aforesaid statutory provision. It reads as under:-
“23.Powers and duties of the Commissioner in respect of temples and religions endowments.—Subject to the provisions of this Act, the administration of all temples (including specific endowments attached thereto) and all religious endowments shall be subject to the general superintendence and control of the Commissioner and such superintendence and control shall include the power to pass any orders which may be deemed necessary to ensure that such temples and endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist :
Provided that the Commissioner shall not pass any order prejudicial to any temple or endowment unless the trustees concerned have had a reasonable opportunity of making their representations.”
Section 20 of the 1951 Act is the corresponding provision. While considering the same, the Hon’ble Supreme Court in Commissioner, H.R.E v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282) held that the provision invested the Commissioner with powers to pass orders; but orders can be passed only for the
purposes specified in the Section and not for interference with the rights
sanctioned by usage. It was held that freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under Article 26(b), a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. We have
made a reference to Shirur Mutt only because the learned Senior counsel appearing for the Thirisuthanthirars submitted that the
impugned circular constitutes an intrusion into the essential religious practices also. We however consciously refrain from considering the
said contention on merits.
19.The Madras High Court held in R.Vijayakumar v.
Commissioner, HR&CE (2001) 2 L.W 667 that the proviso to
Section 23 imposes a restriction on the Commissioner from passing any order prejudicial to any temple or endowment unless the trustees concerned have had a reasonable opportunity of making their
representations. Even without the said proviso, one can come to the conclusion that without putting the affected parties on notice, no direction adverse to their interests can be passed. The principles of natural justice now occupy a central position in our jurisprudence. We therefore read the proviso as envisaging that the Commissioner was obliged to hear the stakeholders and affected parties before passing any adverse order. The impugned circular clearly proposes to regulate the activities of Thirisuthanthirars. Thirisuthanthirars are an identifiable group. They have formed societies under the provisions of the Tamil
Nadu Societies Registration Act, 1975. Nothing stopped the Commissioner of HR&CE from issuing notices to them before passing the impugned circular (miscalled G.O in the order of reference). Passing the impugned circular without putting Thirisuthanthirars on notice at least in a representative capacity is clearly bad on the ground of violation of principles of natural justice. In State of Orissa v. Binapani Dei AIR 1967 SC 1269, it was held that a decision which
contravenes the rules of natural justice is a nullity. The learned Senior counsel appearing for Thirisuthanthirars would strongly contend that
they constitute a denomination by themselves and that their
fundamental rights are at stake. We refrain from going into the said contention. However, we hold that since their rights are involved, they should have been heard before issuing the impugned circular. In Udit Narain Singh Malpaharia Vs Additional Member, Board of Revenue (AIR 1963 SC 786), it was held that any order made
without hearing the affected parties would be void.
20.We hold that the directions issued in W.P.(MD)No.11817
of 2018 are unsustainable and that the impugned circular issued by the Commissioner, HR&CE is also invalid. We answer the questions framed by the Hon’ble Division Bench as follows :
- The order/judgment dated 01.06.2018 recorded by the Division Bench of this Court in WP(MD)No.11817 of 2018 is legally unsustainable.
- Since WP(MD)No.11817 of 2018 had been disposed of on 01.06.2018 itself and the matter was posted only “for reporting compliance”, the directions subsequently issued by the said Bench are not legally sustainable.
- The directions contained in the order dated 01.06.2018 apart from not being legally sustainable would not bind the petitioners in WP(MD)No.6446 of 2022.
- The orders and directions made in WP(MD)No.11817 of 2018 cannot be the sole guiding factor for adjudicating the legality and sustainability of the circular in Na.Ka.No.30738/2018/Z3 dated 01.04.2022 issued by the Commissioner, HR&CE.
- Circular bearing Na.Ka.No.30738/2018/Z3 dated 01.04.2022 issued by the Commissioner, HR&CE is legally unsustainable without the aid of the directions set out in WP(MD)No.11817 of 2018.
- Even with the aid of the orders passed in WP(MD)No.11817 of 2018, the circular dated 01.04.2022 would be legally unsustainable for the non-compliance with the proviso to Section 23 of the HR&CE Act.
21.We however make it clear that we are not giving any
clean chit to the Thirisuthanthirars. Nor have we gone into the merits of the matter. We have interfered with the impugned circular only for the technical reasons aforementioned. It is open to the Commissioner, HR&CE to pass an order afresh in accordance with law. With this liberty to the Commissioner, HR&CE, WP(MD)No.6446 of 2022 is allowed. No
costs. Connected miscellaneous petitions are closed.
(P.N.P, J.), (G.R.S, J.) & M.N.K, J)
30.08.2022
M.NIRMAL KUMAR, J.
While concurring with the ultimate conclusions arrived at by
my Learned Brother Judges on the aforesaid issue, in an endeavour to record my own reasons and reiterate certain core aspects, I deem it apt
to add the following:-
(i) The petitioner in W.P.(MD)No.6446 of 2022 is a Sabha registered as Society recently with Registration No.39/2018, on
19.04.2018, few months before the orders passed in W.P.(MD)No.
11817 of 2018.
(ii) The issue got accelerated when one M.Seetharaman filed
W.P.(MD)No.1700 of 2022 for quashing the proceedings of the Joint Commissioner/Executive Officer of the Temple on the service subject.
The Writ Petition got enlarged, several orders have been passed thereafter, and finally, got culminated and disposed of in W.A.(MD)No. 307 of 2022. During these proceedings, reference was made to W.P. (MD)No.11817 of 2018 and thereafter, W.P.(MD)No.6446 of 2022 was
filed, which lead to this reference.
(iii) It is not in dispute that there are several litigations
between Triswatantras. There are three Sabhas namely, (i) Thiruchendur Shri Jeyanthi Nathar, Thirisuthanthirar Kaariyasthar
Sthaanigar Sabha; (ii) Sri Subramaniya Swamy Thirukoil Kainkarya
Thirisuthanthirargal Sabha; and (iii) Sri Subramaniya Swamy Thirukoil
Suthanthira Paripalana Sthalathargal Sabha. Arulmigu Subramania
Swamy Temple is one of the famous Temples in the State of Tamil Nadu. Devotees from all over the World are visiting the Temple for worshipping the Deity, seeking peace of mind. Due to interference by unauthorized persons, devotees/pilgrims are not able to have a peaceful darshan in the Temple and mental agony is caused to them. Hence, it is the bounden duty of the H.R. & C.E. Department and Temple administration to create a trouble free atmosphere, conducive for peaceful darshan of all worshippers. In order to create peace ambience and orderliness, system should be streamlined, put in place. In view of the same, the Commissioner, H.R. & C.E. Department had issued
certain directions. I am reminded that this Court quashed the Circular bearing No.30738/2018/Z3, dated 01.04.2022, giving liberty to the Commissioner, H.R. & C.E. Department, to pass order afresh under Section 23 of the H.R. & C.E. Act.
(iv) In the case of the Commissioner, Hindu Religious
Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt reported in AIR 1954 SC 282, the Hon’ble Apex Court held that Section 20 of the Madras Hindu Religious Endowments
Act [Act 2 of 1927], corresponding to Section 23 of the H.R. & C.E. Act,
1959, does not offend any fundamental right of the Mahant. Under
Section 20 of the Madras Hindu Religious Endowments Act [Act 2 of 1927], the administration of religious endowments is placed under the general superintendence and control of the Commissioner and he is empowered to pass any orders, which may be deemed necessary to ensure that such endowments are properly administered and their income is duly appropriated for the purposes, for which, they were
founded or exist. Further, in paragraph 24, it is observed as follows:-
”24. Section 20 of the Act describes the powers of the Commissioner in respect to religious endowments and they include power to pass any orders that may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded. Having regard to the fact that the Mathadhipati occupies the position of a trustee with regard to the Math, which is a public institution, some amount of control or supervision over the due administration of the endowments and due appropriation of their funds is certainly necessary in the interest of the public and we do not think that the provision of this section by itself offends any fundamental right of the Mahant.
We do not agree with the High Court that the result of this provision would be to reduce the Mahant to the position of a servant. No doubt the Commissioner is invested with powers to pass orders, but orders can be passed only for the purposes specified in the section and not for interference with the rights of the Mahant as are sanctioned by usage or for lowering his position as the spiritual head of the institution. The saving provision contained in Section 91 of the Act makes the position quite clear. An apprehension that the powers conferred by this section may be abused in individual cases does not make the provision itself bad or invalid in law.”
Thus, the power of Commissioner to issue Circular and pass appropriate orders not in dispute. The Commissioner earlier given administrative instructions to the Joint Commissioner/Executive Officer of the Temple to streamline the administration and to maintain orderliness in the Temple to implement the suggestions given by the Committee in R.C.No.30738/2018/Z2.
(v) In this case, the Committee constituted by the
Commissioner, consisting of (1) P.Baskaran, Additional Commissioner
(Retired), H.R. & C.E. Department; (2) S.Ganapathy, Assistant
Commissioner (Retired), H.R. & C.E. Department; (3) R.Manickam,
Deputy Superintendent of Police (Retired); (4) S.Thangaraj, Deputy Chief Auditing Officer (Retired), H.R. & C.E. Department; (5)
K.Kasilingam, Deputy Collector (Retired), Revenue Department;
(6)K.Chandrasekar Pattar, Archagar, A/m.Subramania Swamy Temple,
Thiruparankundram, as Members; and (7) A.T.Paranjothi, Joint Commissioner, H.R. & C.E. Department, Tirunelveli, as Coordinator.
They conducted enquiry, examined all the stakeholders, including the Thirisuthanthirars and thereafter, given their recommendations.
- It is an admitted fact that Poojas for the main deity are
performed by Pothimars and in the sub-temples, the Poojas are performed by Adi Saiva Sivachariyargal and for the Venkatachalapathy deity, it is performed by Vaishnava Pattachariyargal. The rights and duties of the Thirisuthanthirars had also been examined. Various copper plate inscriptions, records and rock inscriptions studied and examined, after hearing all stakeholders, including Thirisuthanthirars, report submitted.
- The conflicts arose primarily during the period of oneKottai Manikandan [fit person], wherein several of the resolutions have been passed without prior or post-approval from the Commissioner, H.R. & C.E. Department. Further, there have been instances of
unauthorized acts, including the removal of Vikragams. Several police complaints lodged by the public and Temple officials. Apart from the above, litigations for various rights and reliefs instituted, decided, disposed by the Joint Commissioner/Board, reached upto the Hon’ble Apex Court. Thus, their rights, service conditions have been defended
and agitated before various forums.
- Now, admittedly, a civil suit in O.S.No.151 of 2017 is
pending before the Sub-Court, Thiruchendur. In view of the same, I refrain from delving into the matter further. In any event, since larger public interest is involved, there should be some systems put in place
for better administration of the Temple de hors the impugned Circular.
- To regulate the administration and also to have a general
superintendence control over the property of the Temple, it is made clear that there should be no interference in the rules, customary practice and Agamas followed in the Temple. After all, the pilgrims and devotees come to the Temple to pray God for their pain and sufferings
or to thank the God for the kindness and peace.
- The H.R. & C.E. Act is a self contained Act. The purpose
of the Act is to see that the religious trusts and institutions, wherever
they exist, are properly administered and their income is duly appropriated for the purposes, for which, they were founded or exist. To ensure the religious institutions are properly administered and its income is duly appropriated, instructions/Circulars are required to be issued by the Commissioner under Section 23 of the Act. Of course, the Commissioner, H.R. & C.E. Department, to take into consideration all the attending facts and circumstances, thereafter, in the best interest of
the Institution, to pass appropriate orders and issue Circulars.
(M.N.K.,J)
30.08.2022
Index : Yes / No Internet : Yes/ No skm/smn2
To:
- The Commissioner,
Hindu Religious and Charitable Endowment Department, Nungampakkam, Chennai.
- The Executive Officer / Joint Commissioner, Arulmigu Sree Subramaniya Swamy temple, Thiruchendur, Tuticorin District.
P.N.PRAKASH, J. G.R.SWAMINATHAN, J.
AND M.NIRMAL KUMAR, J. skm/smn2
Pre-delivery order in
W.P.(MD)Nos.11817 of 2018 &
6446 of 2022
30.08.2022
