In a batch of cases viz., WP No.574 of 2015 etc., the Bench consisting of the Hon’ble Mr. Justice R.Mahadevan and the Hon’ble Mr. Justice P.D. Audikesavalu, upon considering various reports received from the UNESCO and the Committees constituted by the court, and after hearing the arguments made by all the parties including the stakeholders, passed the final order on 07.06.2021 with 75 directions, to protect the archaeological and cultural heritage of this State, which includes the temples, monuments and other places of historical importance. The need and necessity to preserve the culture, temple lands, folklore, arts, murals and all the activities related to the temples, have been deliberated and expressed by the Bench in the said order,

In a batch of cases viz., WP No.574 of 2015 etc., the Bench consisting of the Hon’ble Mr. Justice R.Mahadevan and the Hon’ble Mr. Justice P.D. Audikesavalu, upon considering various reports received from the UNESCO and the Committees constituted by the court, and after hearing the arguments made by all the parties including the stakeholders, passed the final order on 07.06.2021 with 75 directions, to protect the archaeological and cultural heritage of this State, which includes the temples, monuments and other places of historical importance. The need and necessity to preserve the culture, temple lands, folklore, arts, murals and all the activities related to the temples, have been deliberated and expressed by the Bench in the said order, besides pointing out that the rights, directions and duties guaranteed by the Constitution under Part III, IV and IVA cannot be curtailed by any party including the State. Therefore, the directions issued is a step towards protection of not only the places of archaeological importance, but also the culture, tradition, properties and the activities associated with such sites including temples.
Seeking suitable modification / clarifications in respect of the direction Nos.3, 4, 5, 15, 33, 51, 53 and 63, the Government and the HR&CE Department have preferred clarification petition dated 21.07.2022 in the review applications, stating that they will not raise any issue in respect of the other directions and they are taking earnest steps to comply with the same.

The Government wanted to modify the directions relating to constitution of heritage commission and its powers, by permitting them to reconstitute ‘state level committee’ as ‘state heritage commission’ and to amend Rule 4 by substituting ‘state heritage commission’ instead of ‘appropriate authority’. Denying the said request, the Bench clarified that WP.No.574/2015 is a suo motu Public interest litigation, emanated from the court for failure of the State to take steps to perform its duties entrusted under the Constitution for the protection of cultural, traditional and religious rights and for the preservation of the sites of archaeological importance, which will also include the temples. By declaration of temples as heritage sites, their status as a symbol of culture, will not be disturbed and the temples are protected under Articles 25 and 26 of the Constitution. Therefore, along with the existing 16 members, another member can be included from the HR&CE Department. Further, the definition of ‘local authority’ in the Tamil Nadu Heritage Commission Act, 2012, is to be amended to include “any other authority under whom any site, building, monument or any other place of historical, architectural or cultural importance rests or to whom such functions or responsibility is entrusted by the State”. The authorities shall act in accordance with the provisions of the HR&CE Act and Rules framed thereunder with respect to the sanction for works. The advice of the Heritage commission is not directory, but mandatory, and hence, there is no impediment for the State to implement the direction of this court by making suitable amendments. The Heritage commission is not only for the temples, but also for all other structures, which have cultural and heritage value and hence, the state level committee is to function as per direction no.6.
With respect of audit of accounts by CAG, the stand of the applicants that a committee comprising of audit officials has already been constituted and it prepared a draft audit manual, based on the Hindu Religious Local Fund Audit Department Audit Manual Volume 5, and as per the HR&CE Act and the Rules framed; and that, a scrutiny committee comprising of senior officials of the audit wing, has been set up to scrutinize the said draft audit manual. Therefore, they wanted that state audit department alone be permitted to audit the accounts. The Bench clarified that the conduct of audit at the request of the State, by Comptroller and Auditor General, will not take away any right of the State government’s administration. The State can also follow its own mechanism of audit. The audit to be conducted by the office of the CAG is only an addition to the existing system.
With respect to alienation of temple properties, the stand of the applicants was that the lands belonging to religious institutions were alienated for public purposes following the procedures prescribed under section 34 of the HR&CE Act and the HR&CE Department may be permitted to exchange or sale the landed properties if it is beneficial to the religious institutions. The Bench clarified that the exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property is generally null and void. Beneficial interest of the temple and religious institutions is paramount consideration. For alienation of the immovable properties belonging to the religious institutions, all the conditions stipulated in the proviso like publication, calling for public objections and previous sanction from the government and the explanation to Section 34 of the HR&CE Act have to be scrupulously followed and it has to be established that such alienation is beneficial to the interest of the temple or institution and that the alienation is the only option to ensure that the activities of temples including performance of rituals will be disturbed, if the property is not sold. As far as exchange of the temple properties is concerned, it was clarified that the land offered in exchange should be within the same jurisdiction of the property situated and utilised only for the temple activities.
Regarding the fixation of salary and service benefits of the temple employees, such as, archakas, oduvars, etc, as per the minimum wages Act, the stand of the Government was that the charges on schedule of establishment of temple employees should not exceed 40% of its annual income and the retired temple employees are being paid under the Departmental Pension Scheme and other terminal benefits are settled as per the Rules framed under section 116(2)(xxiii) of the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020 as framed in G.O.Ms.No.114, TC&RE Department, dated 03.09.2020. Thus, it is not possible to fix uniform salary to all the employees. The Bench clarified that the State is under constitutional obligation, to ensure a decent living for all the workers and their families. Right of life includes right to livelihood. Article 7 of the International Covenant on Economic, Social and Cultural Rights 1966, speaks about fair wages and equal remuneration for all workers for work of equal value. Indisputably, the employees of the Department are discharging public functions and are “public servants” under Section 12. The Minimum Wages Act and the notifications issued by the state are targeted towards guaranteeing a minimum standard of life, to all section of workers, skilled and un-skilled. Therefore, the State is bound to comply with the provisions of the Minimum Wages Act in respect of the temple employees.
With respect to payment of fixed salary to trustees of the temples, the stand of the Government was that the post of Trusteeship is purely an honorary post and a trustee is appointed for administering the religious institution without any remuneration and hence, awarding fixed salary to the trustees of the temple is not possible. Relating to prohibition of political influence in the appointment of trustees, the Government stated that the trustees of the temples are in the nature of private citizens and no restriction regarding the political background can be brought in similar to that of Rule 14 of the Tamil Nadu Government Servant Conduct Rules. It was clarified by the Bench that the constitutional validity of the Rule 17, which facilitates transfer, was upheld by this Court. It was further clarified that appointment of trustee cannot be based merely on political will. Opportunity must be given to all devotees. The process of selection must be transparent. If the person to be appointed, must be satisfied all the requirements as per the provisions of the HR&CE Act and the judicial pronouncements and does not suffer from the vice of disqualification under Section 26 and in such event, a mere political connection would not vitiate such appointment.
By these directions, the High Court has ensured that the ancient temples and its properties, monuments and buildings of historical importance would be protected at all times.