IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved On	03.08.2022
Pronounced On	05.09.2022

CORAM

 

THE HON’BLE MR.JUSTICE C.SARAVANAN

W.P.No.26871 of 2021

Kandasami Pillai                      … Petitioner

vs.

1. The Commissioner,

Hindu Religious and Charitable Endowments,     Nungambakkam, Chennai 600 034.

2.The District Collector,

Collectorate, Salem District 636 001.

3. The Deputy Commissioner, Kottai Mariamman Temple, Salem 636 001.

4.The Assistant Commissioner,    Kottai Mariamman Temple,    Salem 636 001.

5.The Executive Officer,

Vadasennimalai Balasubramaniam Temple,

Vadasennimamali, Thalaivasal Taluk 636 121.            … Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of  Certiorarified Mandamus calling for the records relating to the impugned order dated 13.10.2021 in

Na.Ka.No.6086/2021/A2 and quash the same and consequently direct the respondent authorities to conduct appropriate enquiry before taking possession in pursuant to the above impugned order.

For Petitioner         :   Mr.M.Ramamoorthy

for M/s.V.Ranjitha

For R1,R3 to R5    :   Mr.NN.R.R.Arun Natarajan

Spl.Govt. Pleader.

 

For R2                  :    Mr.Naveen Kumar                                                         Govt.Advocate.

O R D E R

This writ petition has been filed by the petitioner against the impugned communication dated 13.10.2021 of the third respondent disposing the representation of the petitioner.   The communication order reads as under:

e/f/vz;/6086/2021/M/ehs;/13.10.2021

bghUs;  kD mUsk;pF fhsf!;jP!;tuh; jpUf;nfhapy; kw;Wk; mUs;kpF tujuh$g;bgUkhs; jpUf;nfhapy;. tlFkiu. jiythry; tl;lk.; nryk; khtl;lk; jpUf;nfhapy; eph;thfk; bjhlh;ghf tug;bgw;w kD epuhfhpj;jy; bjhlh;ghf/

ghh;it jpU/fe;jrhkpgps;is. tlFkiu fpuhkk.; jiythry; (t). nryk.; foj ehs/; 08/10/2021/

bghUspy; fhZk; jpUf;nfhapy;. midj;J rKfj;jpdUk; tHpghL bra;aa xU bghJthd jpUfn;fhapyhFk.; nkwg;o jpUfn;fhapy; 1974k; Mz;L ,j;Jiw fl;Lgg;hl;od; fPH; bfhz;Ltug;gl;Ls;sJ/ nkw;go jpUfn;fhapy; xU Fwpg;gpl;l rKfj;jpdh; tHpghL bra;af;Toa jpUf;nfhapy; my;y vd;Wk;. nkwg;o jpUf;nfhapYf;F jf;fhuhf epakdk; bra;ag;gl;l tlbrd;dpkiy. mUs;kpF ghyRg;ukzpRthkp jpUf;nfhapypd; bray; mYtyh; trk; j’;fsplk; cs;s nkwg;o jpUfn;fhapypd; epht;hfk;. mirak[; kw;Wk; mirah brhj;Jf;fs; cs;spl;l midj;J bghWgg;[fisa[k; xg;gilf;FkhW bjhptpf;fgg;LfpwJ/

(xk;/)jh/ckhnjtp

cjtp Mizah;

-cz;ik efy;-cj;jut[g;go-

jiyik vGj;jh/;

2. By the impugned order, the third respondent has informed the temples viz., Varadaraja Perumal Temple and Kalahastheeswarar Temples do not belong to a particular community and that the said temple came under the control of the Hindu Religious and Charitable Endowments Act, 1959 way back in 1974 and therefore the petitioner should handover the control of assets (both movable and immovable) to the 5^th respondent herein who has been appointed as the fit person.
3. The impugned order precedes two orders of the fourth respondent dated 03.02.2021 bearing reference br/K/e/f/vz;/3463/202029/M2 and br/K/e/f/vz;/3463/2020-30/M   By the aforesaid order, the fifth respondent, the Executive Officer of the Vadasennimalai Balasubramaniam Temple was appointed as a “Fit Person” for two temple namely, Varadaraja Perumal Temple and Kalahastheeswarar Temple. Therefore, by another letter dated 13.10.2021 bearing reference e.f.vz;.6086/2021/M2, the fourth respondent called upon the petitioner to handover the control of both the temples to the fifth respondent herein who was appointed as the fit person for the two temples.
4. The reasons for appointing fourth respondent as a “Fit Person” vide order dated 03.02.2021 referred to supra are identical and are as under:

“nryk; cjtp Mizah; gphptpy; css; glo;aypy; nruhj jpUf;nfhapy;fspy; guk;giu my;yhj mw’;fhtyh;fspd; gjtpf;fhyk; Kotile;j gpd;g[ epakdk; bra;agg;ll; jf;fhh;fs; bghWg;ngw;fhikahy;. gy;ntW tifahd epht;hfr; rpf;fy;fs; Vw;glL; . jpUf;nfhapy; Fwpj;j midj;J epht;hf eltof;iffspYk; kpFe;j bjha;t[ Vw;glL; . Mizah; mYtyfj;jpw;F chpa neuj;jpy; mwpfi;f rkh;gg;pff;g;glhj NHy; Vwg;lL;ss;J/”

vdnt. jpUf;nfhapy; epht;hf eyd; fUjp. ITMS Fwpj;j gzpfs.; Mjhug; gjpntLfs; jahhpj;jy;. jpUfn; fhapy;fSf;Fr; brhej;khd epy’f;s; Kiwg;gLj;Jjy;. Mf;fpukpg;g[ mfw;Wjy;. tpiya[ah;e;jitfspd; ghJfhg;g[. jpUf;nfhapy; bjhlh;ghd tHf;Ffs; css;pll; eph;thfg; gzpfs; midj;Jk; nkw;bfhs;Sk; bghUlL; . guk;giu my;yhj mw’;fhtyh;fs; epakdk; bra;ag;gLk; tiu. jw;fhypf Vw;ghlhf epht;hf eyd; fUjpa[k; jpUf;nfhapy; brhj;Jf;fs; ghJfhf;ft[k;. jkpH;ehL ,e;J rka mwepiyaj;Jiw rll;k; 1959(jkpHe;hL rll;k; 22/1959) kw;Wk; jpU;jjg;gll; rll;k; 39/1996 y; tiuaWf;fg;gll; gphpt[ 47 kw;Wk; 49 Mfpatw;wpy; tH’;fg;glL;ss; mjpfhu’;fspd;go gpd;tUk; tpgug;goahd jpUf;nfhapYf;F mjd; vjpnu Fwpg;gplL;ss; ,yhfh mYtyiu jff;huhf epakdk; braJ; cj;jutplg;gLfpwJ/”

5. The above order states that afte the temporary of the nonhereditary earlier from the list available with the Assistant Commissioner Division, expired various lands of administrative problems have arisen and that no report were being filed before the Commissioner in time. Therefore, in the interest of the temple administration and in order to carry out all the administrative tasks including ITMS, preparation of registers, regularization of lands belonging to the temples, removal of encroachments, protection of valuables, cases related to the temple, till the appointment of non-hereditary trustees, to protect the interest of the temple, fit person was being appointed as a temporary arrangement in the exercise of the powers conferred by Sections 47 and 49 of the Hindu Temple Charitable Trusts Act 1359 (Tamil Nadu Act 22/1959) and the amended Act 39/1996.
6. The averments in the affidavit filed in support of the present writ petition indicates that the land comprised in Old Survey No.56 and New Survey No.41/3 is said to have belonged to the great grand father of the petitioner and in the aforesaid land the petitioner’s family had constructed Kalahasthreeswaran Swami Temple and Varadaraja Perumal Temple by investing their money out of their pocket and out of donations received from the members of the petitioner’s Pillai community and other few community members namely Konar, Udayar, Gounder and Jangamar.
7. It is submitted that the temple is maintained by the petitioner’s family members using the contributions from these communities. The salaries to the temple staffs including the priest, sweepers and others are paid out of the contributions and collections from the temple.
8. It is further case of the petitioner that the electricity bill and other statutory charges are also paid in the individual name of the petitioner Kandasami Pillai and that the petitioner has spent around 80 lakh which includes donations received from the members of these communities.
9. It is a specific case of the petitioner that their temple is a private temple which was built out of the donations received from donors of the temple and was intended only for members of the petitioner’s community and few other communities viz., Konar, Udayar, Gounder and Jangamar.
10. It is submitted that in view of the above, the worship being peculiar to these communities, the petitioner is entitled to exercise right under Article 26 the Constitution of India as a denomination temple.
11. A reference was made to the decision of the Hon’ble Supreme

Court in S.P.Mittal Etc. Etc Vs. Union of India and Ors, 1983 AIR, 1 1983 SCR (1) 729, wherein the Hon’ble Supreme Court has expatiated the test to be followed for determining whether the temple falls within the meaning of the expression upon courts Religious Denomination in Article

26 of the Constitution of India.

12. It is further submitted that the powers of the HR & CE Department are limited and therefore appointment of the fifth respondent as a Fit Person under Section 49 of the HR & CE, Act 1959 was unwarranted.
13. It is further submitted that from time in memorial the temple has been under the control of the members of the petitioner’s family and it is the petitioner’s family who have been controlling and managing the affairs of the temple.
14. It is therefore submitted that the interference at the behest of the respondents for appointing a “Fit Person” particularly the fifth respondent is liable to be interfered.
15. In the alternative, the learned counsel for the petitioner submits that  any  other  person  other  than  the  fifth  respondent  who  is a Government Servant, may be appointed as a Fit Person from and out of the petitioner’s community.
16. The learned counsel for the petitioner has drawn attention to the patta granted in favour of the temple to substantiate that the land in question was constructed by the petitioner’s grand father and during his life time and that is how these temples have developed.
17. Opposing the prayer, the learned Special Government Pleader and the learned Government Advocate for the respondents submits that the writ petition is devoid of merits. It is submitted that order appointing the fifth respondent as a “Fit Person” vide orders dated 03.02.2021

bearing               reference    br/K/e/f/vz;/3463/2020-29/M2          and

br/K/e/f/vz;/3463/2020-30/M2 have not been challenged.  It is submitted that even, if the application filed for amending the prayer, challenging the order appointing the fifth respondent as a “Fit Person” vide orders dated 03.02.2021 bearing reference br/K/e/f/vz;/3463/202029/M2 and br/K/e/f/vz;/3463/2020-30/M2; is allowed, the writ petition is liable to be dismissed.

 

18. That apart, it is submitted that one of the member belonging tothe petitioner’s family namely A.Sambath Kumar had also filed Crl.O.P.No.18302 of 2021 for the following relief:

“This petition has been filed seeking for a direction to the respondents 1 to 3 to lock and seal the temples namely Kalahatheswara Swamy Temple and Varatharaja Perumal Temple which is situated in Vadakumarai Village, Thalaivasal Taluk Salem District and not permit any public to worship the temple until disposal of the peace committee proceedings dated 17.09.2021 made in Na.Ka.No.917/2021/A1 on the file of the third respondent.

2. The learned Government Advocate

(Crl.side) submitted that there is a dispute with regard to worship between various community people and therefore the matter has been referred to Revenue Divisional Officer for conducting enquiry and the same is pending. He further submitted that the above temples are listed temples, which comes under Hindu Religious & Charitable Endowment Department.

3. In view of the same, the petitioner is directed to approach the Assistant Commissioner of HR & CE, Salem for appropriate remedy.
4. Accordingly, this Criminal Original Petition is disposed of.”

19. It is submitted that the petitioner’s temple is under lock andseal since November 2021 and the devotees are being of offering their prayers in the Kalahasthreeswaran Swami Temple. It is submitted that caste discrimination is being exercised by the members of the petitioner’s family and the said practice offends several provisions of the Constitution has also the Provisions of the Tamil Nadu Temple Entry Authorization, Act, 1947.
20. It is further submitted that the averments filed in support of the present writ petition itself indicates that the attempt is to corner the lands of the temples as a private temple. It is submitted that the practice of the petitioner and few others are contrary to the provisions of the Tamil Nadu Temple Entry Authorization, Act, 1947.
21. The learned Special Government Pleader for the respondents further submits that the petitioner has not produced an iota of evidence to substantiate that the temple is a “denomination temple” within the meaning of Article 26 of the Constitution of India.
22. In any event, the petitioner should have filed a suit, if it is thecase of the petitioner that the temple was a “denomination temple”. It is submitted that the above argument advanced by the petitioner is to merely stave off of authorities under HR & CE Act from exercising their power under the  HR & CE, Act, 1959.
23. That apart, the learned Special Government Pleader for the respondents has also produced documents dating back from 1974 to indicate that the temple in question came within the purview of the HR & CE, Act, 1959 and therefore, it is too late in the day for the petitioner to turn around and state that HR & CE Department cannot have any say in the administration of the temple, particularly when evil of caste discrimination is being practiced by the petitioner and his family members.
24. By way of rejoinder, the learned counsel for the petitioner has placed reliance on the decision of the Hon’ble Supreme Court in Ratilal Panachand Gandhi State of Bombay and Ors, 1954 SCR 1055 :

AIR 1954 SC 388 rendered in the context by Section 47 of the Bombay Public Trusts Act, 1950. A Reference was made to paragraph 17 of the said order is extracted below:

“17. Section 37 has been objected to on the ground that an unrestricted right of entry in any religious premises might offend the sentiments of the followers of that religion; but the section has expressly provided that the officers making the entry shall give reasonable notice of their intended entry to the trustees and shall have due regard to the religious practice and usages of the trust. Objection has next been taken to Section 44 and 47 of the Act. Section 44 lays down that the Charity Commissioner can be appointed to act as trustee of a public trust by a court of competent jurisdiction or by the author of the trust. If the author of the trust chooses to appoint the Charity Commissioner a trustee, no objection can possibly be taken to such action; but if the court is authorised to make such appointment, the provisions of this Section in the general form as it stands appear t us to be open to serious objection. If we take for example the case of a religious institution like a math at the head of which stands the Mathadhipati or spiritual superior. The Mathadhipati is a trustee according to the provisions of the Act and if the Court is competent to appoint the Charity Commissioner as a superior of a math, the result would be disastrous and it would amount to a flagrant violation of the constitutional guarantee which religions institutions’ have under the constitution in regard to the management of its religious affairs. This is not a secular affair at all relating to the administration of the trust property. The very object of a math is to maintain a competent line of religious teachers for propagating and strengthening the religious doctrines of a particular order or sect and as there could be no math without a mathadhipati as its spiritual head, the substitution of the Charity Commissioner for the superior would mean a destruction of the institution altogether. The evil is further aggravated by the provision of clause (4) of the Section which says that the Charity Commissioner shall be the sole trustee and it shall not be lawful to appoint him him as a trustee along with other persons. In our opinion, the provision of Section 44 relating to the appointment of the Charity Commissioner as a trustee of any public trust by the court without any reservation in regard to religious institutions like temples and maths is unconstitutional and must be held to be void. The very same objections will apply to the provisions of clauses (3) to (6) of Section 47. The court can certainly be empowered to appoint a trustee to fill up a vacancy caused by any of the reasons mentioned in Section 47(1), and it is quite a salutary principle that in making the appointment the court should have regard to matters specified in clause (4) of Section 47; but the provision of clause (3) to the extent that it authorises the court to appoint the Charity Commissioner as the trustee and who according to the provisions of clause (5) is to be the sole trustee – cannot be regarded as valid in regard to religious institutions of the type we have just indicated. To allow the Charity Commissioner to function as the Shebait of a temple or the superior of a math would certainly amount to interference with the religious affairs of this institution. We hold accordingly that the provisions of clauses (3) to (6) of Section 47 to the extent that they relate to the appointment of the Charity Commissioner as a trustee of a religious trust like temple and Math are invalid. If these provisions of Section 47 are eliminated, no objection can be taken to the provision of Section 48 as it stands. This section will in that event be confined only to cases where the Charity Commissioner has been appointed a trustee by the author of the trust himself and the administrative charges provided by this section can certainly be

levied on the trust.”

25. The learned counsel for the petitioner drew a parallel between

Section 37 of the Bombay Public Trusts Act, 1950  and  Section 49  of the

HR & CE, Act and therefore, submits the reasoning of the Hon’ble Supreme Court in para 17 from the said decision would apply mutatis mutandis.

26. The learned Special Government Pleader has also placed reliance on the decision of this Court in the case of Krishnan Vs. The Commissioner, HR & CE in W.P.(MD).No.8193 of 2018 vide order

dated 21.04.2022, wherein while dealing with the identical situation this Court had concluded that character of a temple may change over a period of time in terms of the decision of the Hon’ble Supreme Court and therefore under Section 23 of the HR & CE Act 1959, the Commissioner was entitled to exercise powers for administration of Religious

Endowments, Institutions etc.,

27. It is submitted that in the present case there was a decree passed under the provisions of the erstwhile Madras Hindu Religious Endowment Act, 1927. It was held that after the passing of the HR & CE,

Act, 1959, the decrees of the Courts passed prior to the enactment of 1959 will have to be in compliance with the provisions of the Act and therefore, liberty was given to the petitioner therein to file an application under Section 63(a) of the HR & CE, Act within a period of two weeks.

28. It is submitted that in the present case admittedly there is not even a decree in favour of the petitioner. That apart, the records filed by the petitioner as also by the respondent would indicate that this is a fit case for appointing a “Fit Person”.
29. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Special Government Pleader and the learned Government Advocate for the respondents. I have also Perused the materials available on records.
30. After the case was listed for final hearing, the petitioner informed that an application has been filed for amending prayer.

However,  the said application is not before this Court.

31. There is no merits in the present writ petition. The petitioner has not challenged the appointment of the fifth respondent as the “fit

person” vide order dated 03.02.2021 bearing Reference

br/K/e/f/vz;/3463/2020-29/M2 and br/K/e/f/vz;/3463/2020-30/M2; of the fourth respondent.

32. The stand of the petitioner that the subject temple is a

“denomination temple” within the meaning of Article 26 of the Constitution of India cannot be countenanced.    The issue as to whether the subject temple is a “denomination temple” within the meaning of Article 26 also cannot be decided in a summary proceedings under Article 26 of the Constitution of India.  The petitioner should file a suit to declare that the subject temple as “denomination temples” in accordance with the law of limitation.

33. That apart, there are sufficient indications that the subject temples have been under the purview of the Tamil Nadu H.R & C.E.from 1974 and after non-hereditary trustees were appointed and there were several lapses on their part on account of large scale misappropriation of funds and alienation of assets and that taking into consideration of these factors, a decision was taken to appoint before the fifth respondent as a “fit person”.
34. In any event, if it is a case of the petitioner that the petitioner is entitled to any independent rights, it is open for the petitioner either to approach the Joint Commissioner under Section 63 (a) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 for appropriate relief or file a suit to establish that the subject temple was a religious denomination temple.
35. Further, facts on record prima facie indicates that the action of the petitioner and his family members have been abusive and in violation of provisions of Tamil Nadu Temple Entry Authorization Act, 1947 and that discrimination are being practised by the petitioner.  Therefore,  I do not find any merits in the present writ petition.
36. After, the order was pronounced in the open Court, the learnedcounsel for the petitioner also submitted that the petitioner has already initiated proceedings under Section 63(a) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 before the Joint Commissioner for declaring the temple as denomination temple. It is open for the petitioner to pursue  with the same.  On this count also, this Writ Petition is liable to be dismissed.
37. I however, leave open to the petitioner to work out remedy in accordance with law to establish that the subject temple is a “denomination temple” within the meaning of Article 26 of the Constitution of India. The Joint Commissioner before whom purportedly a petition has been filed under Section 63(a) of the Act, by the petitioner, may also endeavour to pass an order on merits, preferably, within a period of nine (9) months from the date of receipt of a copy of this order, if the petitioner is so advised.
38. During the interregnum, the fourth respondent shall take steps within a period of three months from the date of receipt of a copy of this order to appoint non-hereditary trustee under Chapter III in terms of Section 47 of the H.R. & C.E. Act, 1959. This exercise shall be carried out by the respondents strictly in accordance with H.R.& C.E. Act and Rule.
39. Considering the fact that Kalahasthreeswaran Swami Temple has been under lock and seal, the fifth respondent is permitted to open the temple with the help of local police for the public to offer their prayer regularly. If required, the fifth respondent may take assistance of local police to ensure that there is no untoward incident or breakdown of the law and order within the temple precinct and if required may also install CCTV to monitor  the movements within the temple precinct.
40. This writ petition stands dismissed with the above observation and     No costs.

05.09.2022

Index    :   Yes/No

Internet :   Yes/No

Speaking   : Non Speaking Order kkd

To

1. The Commissioner,

Hindu Religious and Charitable Endowments,     Nungambakkam, Chennai 600 034.

2.The District Collector,

Collectorate, Salem District 636 001.

3. The Deputy Commissioner, Kottai Mariamman Temple, Salem 636 001.

4.The Assistant Commissioner,    Kottai Mariamman Temple,    Salem 636 001.

5.The Executive Officer,

Vadasennimalai Balasubramaniam Temple,

Vadasennimamali, Thalaivasal Taluk 636 121.

C.SARAVANAN,J. kkd

Pre-delivery Order in

W.P.No.26871 of 2021

05.09.2022