Madras High Court
Thiruvavaduthurai Adheenam vs The Secretary To Government on 1 October, 2021
W.P. No.16567 of 2010 and etc batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.10.2021
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P. Nos.16567 of 2010, 18826, 22436, 21024 of 2013 & 7409 of 2015
and
M.P. Nos. 1 & 2, 1, 1 of 2013, 2 of 2015 & WMP. No.3790 of 2016
W.P. No.16567 of 2010
1. Thiruvavaduthurai Adheenam,
Thiruvavaduthurai
Represented by its Adheenakarthar
Thiruvavaduthurai Adheenam,
Kuttalam Taluk, Nagai District.
2. Hereditary Trustee,
Smt. Papammal Chattram,
Thiruvavanaikaval, Trichy-5,
Rep. by Adheenakarathar,
Thiruvavaduthurai Adheenam,
Kuttalam Taluk, Nagai District. …Petitioners
Vs
1. The Secretary to Government,
Tamil Development Religious Endowment,
and News Department, Fort St. George,
Chennai -9.
2.The Commissioner,
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W.P. No.16567 of 2010 and etc batch
Hindu Religious and Charitable Endowments,
Mahatma Gandhi Road, Chennai – 34.
3.State Information Commission,
Tamil Nadu Information Commission,
The Kamadhenu Co-op. Supermarket,
Building, 1st Floor, Old No.273,
New No.378, Anna Salai, Chennai -18 … Respondents
W.P. No.18826 of 2013
Sri Ahobila Mutt,
Rep. By His Holiness The 46th Jeer Through
His General Power Of Attorney Agent,
E.V. Desikan No.8a, Aarthy Nagar,
East Tambaram, Chennai-49. …Petitioner
Vs
1 State Of Tamil Nadu,
Rep. By The Secretary To Government
Secretariat, Fort St. George, Chennai-9
2 Union Of India,
Rep. By The Secretary To Government
Ministry Of Law & Justice, New Delhi …Respondents
W.P. No.22436 of 2013
Sri Ahobila Mutt,
Rep. By His Holiness The 46th Jeer Through
His General Power Of Attorney Agent,
E.V. Desikan No.8a, Aarthy Nagar,
East Tambaram, Chennai-49 …Petitioner
Vs
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1 Tamilnadu Information Commission,
No.2 Theagaraya Salai Near
Aalai Amman Koil Teynampet Chennai-18
2 Dr.P.N.Sridharan
3 The Joint Commissioner
HR & CE Department Chennai-34
4 State Of Tamilnadu
Rep. By The Secretary To Government
Secretariat Fort St. George Chennai-9 … Respondents
W.P. No.21024 of 2013
Sri Dhana Koneriyappa Mudaliar Kattalai,
No.7. Thanappa Mudali St, Madurai
Rep. By Its Hereditary Trustee,
Athinakarthar Thiruvavaduthurai Adhinam,
Nagapattinam Dt. …Petitioner
Vs
1 State Of Tamilnadu Rep. By
Its Secretary Department of Tamil
Development and Religious Endowments,
Fort St. George Chennai-9.
2 The Commissioner,
Hindu Religious And Charitable Endowments,
Nungambakkam High Road, Chennai-34. … Respondents
W.P. No.7409 of 2015
Thiru Jeer Mutt,
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W.P. No.16567 of 2010 and etc batch
Thirukkurungudi Rep by its
Power of Attorney Agent,
Shri S.Sivasankaran,
Thirukkurungudi, Tirunelveli District. . . . Petitioner
Vs
1. State of Tamil Nadu
Rep by its Secretary Department of Tamil
Development and Religious Endowments,
Fort St. George Chennai 9.
2 The Commissioner,
Hindu Religious and Charitable Endowments,
Nungambakkam High Road, Chennai 34.
3 State Information Commission,
Tamil Nadu Information Commission,
The Kamadhenu Coop. Supermarket Building,
1st Floor, Old No.273, New No.378, Anna Salai ,
Chennai 18. … Respondents
PRAYER in W.P. No.16567 of 2010: Writ Petition filed under Article 226 of
the Constitution of India praying for the issuance of Writ of Declaration, to
declare that none of the provisions of the Right to Information Act 2005, is
applicable to the petitioner.
PRAYER in W.P. No.18826 of 2013: Writ Petition filed under Article 226 of
the Constitution of India praying for the issuance of Writ of Declaration,
declaration to the effect that the petitioner Mutt is not a Public Authority falling
within the purview of the Right to Information Act 2005.
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PRAYER in W.P. No.22436 of 2013: Writ Petition filed under Article 226 of
the Constitution of India praying for the issuance of Writ of Certiorarified
Mandamus calling for the records comprised in Case NO.7830/SCIC/ 2012
dated 2.7.2013 issued by the 1st respondent and quash the same and
consequently forebear the 1st & 2nd respondent from exercising any power
against the petitioner herein under the right to Information Act 2005.
PRAYER in W.P. No.21024 of 2013: Writ Petition filed under Article 226 of
the Constitution of India praying for the issuance of Writ of Declaration to the
effect that the petitioner-Mutt is not an Public Authority falling within the
purview of the Right to Information Act 2005.
PRAYER in W.P. No.7409 of 2015: Writ Petition filed under Article 226 of
the Constitution of India praying for the issuance of Writ of Certiorarified
Mandamus calling for the records of the 2nd respondent in Na. Ka. No.
27919/2013/S2 dt 28.5.2013 and quash the same and consequently forbear the
respondents from applying the provisions of the Right to Information Act 2005.
For Petitioners : Mr.K.K.Chandrasekaran,
W.P. Nos.16567 of 2010,
7409 of 2015, 21024 of 2013
Mr.Satish Parasaran, Senior Counsel
for Mr.R.Parthasarathy
in W.P. No.18826 & 22436 of 2013
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For Respondent : Mr.R.Venkatesh,
Government Advocate for R1 & R2
Mr.Niranjan Rajagopalan for R3
COMMON ORDER
This batch of Writ Petitions has been filed by and on behalf of Mutts and
raises an important question, as to whether Mutts are subject to the provisions of
the Right to Information Act 2005 (RTI Act). A snapshot of each of the
petitioner Mutts is first set out before going into the legal question.
2.The petitioner in W.P.No.7409 of 2015 is the Thiru Jeer Mutt based at
Thirukkurungudi, Tiruvelveli District. It is a Vaishnavite Mutt following the
philosophy of His Holiness Sri Ramanujar. The Mutt owns vast extent of
properties in Tirunelveli District and other parts of the Country. The Pontiff of
the Jeer Mutt is the Jeer Swamigal, who also holds the position of hereditary
trustee, of the Sri Azhagiya Nambirayar Thirukoil at Thirukkurungudi.
3.The prayer is for a Writ of Certiorarified Mandamus calling for and
quashing the records of the 2nd respondent in Na. Ka. No. 27919/2013/S2 dt
28.5.2013 and consequently forbear the respondents from applying the
provisions of the Right to Information Act 2005 to the Mutt. The impugned
order is extracted below in the interests of completion and clarity:
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Mizah; mYtyfk;.
,e;J rka mwepiyaj;Jiw.
brd;id/
Rw;wwpf;if e/f/ vz;/ 27919-2013-v!;2 ehs;/28/05/2013
Iah.
bghUs;;: jfty; bgWk; chpikr; rl;lk; 2005? jkpH;ehL jfty;
Miza cj;jut[ efy; mDg;g[jy; ? mUs;kpF thdkhkiy
klk; eh';Fndhp efh; kw;Wk; tl;lk; ? jpUbey;ntyp
khtl;lk; ? Fwpj;J
ghh;it: 1) ,t;tYtyf Rw;wwpf;if e/f/vz;/59104-2012-v!;2
ehs;/09/11/2012/
2) jkpH;ehL jfty; Miza tHf;F vz;/44013-
kh/j/j/M/2012 ehs;/17/04/2013/
jkpH;ehL jfty; Miza gjpthsh; fojk; vz;/45011-jkpH;ehL
Mizah;-2011 ehs;/27/02/2013 fojj;jpd; kPJ muR Jizr; brayh;
f/vz;/6995-mep 3?1-2012 ehs;/08/03/2012y; mwpt[Wj;jpajd; nghpy;
ghh;itf;Fwpg;g[ 1?y; kl';fs;. klj;ijr; rhh;e;j jpUf;nfhapy;fs; kw;Wk;
klj;ijr; rhh;e;j fl;lisfs; Mfpait bjhlh;ghf jfty; bgWk; chpikr;
rl;lj;jpd;go nfl;fg;gLk; jfty;fis klhjpgjpapdhy; epakdk; bra;ag;gl;l
gth; Vb$d;nlh. nkyhsnuh. fzf;fnuh ,th;fspy; xUtiu bghJ jfty;
tH';Fk; mYtyuhf epakdk; bra;J cj;jut[ Vw;fdnt mDg;gg;gl;Ls;sJ/
jw;nghJ ghh;itf; Fwpg;g[ 2?y; bgwg;gl;l jkpH;ehL jfty; Miza
tHf;F vz;/44013-kh/j/j/M/2012 ehs;/17/04/2013 cj;jutpy; Fwpg;ghf.
jpUbey;ntyp khtl;lk;. eh';Fndhp tl;lk; kw;Wk; efh;. mUs;kpF
thdkhkiy klk;. jfty; bgWk; chpikr; rl;lj;jpd; fPH; bghJ mjpfhu
mikg;g[jhd; vd bjspthf tiuaiw bra;ag;gl;Ls;sjhy; kDjhuh; nfhUk;
jfty;fis ,r;rl;lj;jpd; mog;gilapy; ghprPypj;J bfhLf;fg;glf;Toa
jfty;fis bfhLf;f ntz;oaJ ,k;klj;jpd; flik vd
bjhptpf;fg;gl;Ls;sJ/ nkw;fz;l cj;jut[ efy; ,j;Jld;
,izf;fg;gl;Ls;sJ/ ,t;t[j;jutpd;go ,dp tU';fhy';fspy; rl;l
tpjpfSf;F cl;gl;L bray;gl bjhptpf;fg;gLfpwJ/
xk;-g/jdghy;
Mizah;
-cz;ik efy;-cj;jut[g;go-
~~~~~
TLjy; Mizah; (bghJ)
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4.The trigger for the above order is a letter from the Registrar of the
Tamil Nadu Information Commission to the Hindu Religious and Charitable
Endowments Department (HR&CE Department) in Letter
No.45011/TNIC/2011, dated 27.02.2012. The aforesaid order states that the
Tamil Nadu Information Commission has noticed that hereditary trustees and
trustees appointed under temple schemes had not been cooperating with the
public information officers of the HR&CE Department in compliance with the
requirements of the Act.
5.This has caused some dislocation and the department has been
requested to take immediate action to nominate appropriate persons as public
information officers and comply with the provisions of the RTI Act. In response,
the HR&CE department has stated that mutts are covered under the provisions
of the RTI Act and have forwarded a list of Mutts including the names of the
petitioners.
6.The petitioner in W.P.No.16567 of 2010 is the Thiruvavaduthurai
Adheenam, represented by the Adheenakarthar situated in Kuttalam Taluk,
Nagai District and the hereditary trustee of Smt.Papammal Chattram at
Thiruvanaikaval, Trichy. The Adheenam is a Saivaite Mutt, whose origin goes
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so far back that it is lost in antiquity. Tentatively, its history has been traced to
some time between 1430 and 1475 AD. It is believed that the founder of the
Adheenam was an incarnation of Lord Shiva, a descendent of Thirukailaya
Parampari. The Madathipathi in office at the time of filing of the Writ Petition
was the 23rd in line of succession. The Mutt propagates Saivasiddhantha.
7.The second petitioner is a Public Trust and the Madathipathi of the
Thiruvavaduthural Adheenam is its hereditary trustee. The Trust originated in
the year 1875 as gathered through Silasasanam. Both the Adheenam and the
Trust own extensive properties including agricultural lands, buildings,
manaicuts, thoppu and others. The prayer in W.P.No.16567 of 2010 is for a
Writ of Declaration, that none of the provisions of the Right to Information Act
2005, would be applicable to the petitioner.
8.The petitioner in W.P.No.21024 of 2013 is the Sri Dhana
Koneriyappa Mudaliar Kattalai, a religious endowment attached to the
Thiruvavaduthurai Adheenam. The Kattalai is vested with numerous buildings
and properties at Madurai, managed by the Adheenarkartha of the
Thiruvavaduthurai Adheenam.
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9.The prayer in W.P.No.21024 of 2013 is for a Writ of Declaration to
the effect that the petitioner-Mutt is not a Public Authority falling within the
purview of the RTI Act. The Petitioners in the aforesaid writ petitions are
represented by Mr.K.K.Chandrasekaran, learned counsel.
10.The petitioner in W.P.Nos.22436 and 18826 of 2013 is the Sri
Ahobila Mutt, a Sri Vaishnava Mutt said to have been established over 600
years ago. The Mutt is managed by SriMath Azhagiya Singar, who is a
hereditary trustee. The Mutt is said to have been established by SriMath
Adivan Sadagopan, known originally as Kidambi Srinivasachar, meant to
propagate the tenets of SriVaishnavism, teachings of Acharyas in that sect and
sustain vedic culture, ancient temples and rituals.
11.The Peedathipathi of the Mutt is the hereditary trustee of several
important temples including the Ahobilam Devasthanam situated at Kurnool,
Andhra Pradesh. Mr.Satish Parasaran, learned senior counsel appears for
Mr.Parthasarathy, for the Sri Ahobila Mutt.
12.The prayer in WP.No.18826 of 2013 is for a Writ of Declaration to
the effect that the petitioner Mutt is not a Public Authority falling within the
purview of the RTI Act 2005 and the trigger for the filing of the present writ
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petition are proceedings dated 02.07.2013 issued by the 1 st respondent. The
aforesaid order has been challenged in W.P. No.22436 of 2013 and a
consequential direction sought to forebear the 1st & 2nd respondents from
exercising any power against the petitioner herein under the RTI Act.
13.Impugned order dated 02.07.2013 is extracted below in the interests
of clarity and completion:
TAMIL NADU INFORMATION COMMISSION
Case No. 7830/SCIC/2013
Date of Enquiry: 02-07-2013
…………..
1. The Petitioner Dr.P.N. Sridharan is present for today's enquiry.
The Public Authority is represented by Tmt.M.Kavitha, Joint
Commissioner (Hqrs), Hindu Religious & Charitable Endowments
Board, Chennal-34. There is no representation for the Ahobila Mutt,
Chennai.
2. The petitioner has sent a petition under Section 6(1) of the R.T.I.
Act, 2005, to the Public Information Officer of Sri Ahobila Mutt, on
22-01-2013 seeking certain information. The General Manager of the
Ahobila Mutt, sent a reply to the petitioner on 09-02-2013 stating that
the Mutt is not a Public Authority as defined under Section 2(h) of the
RTI Act and hence it is not bound to give any information. Aggrieved,
the petitioner/appellant, has preferred the second appeal to this
Commission under Section 19(3) on 20-02-2013 which is taken up for
enquiry today.
3. During the enquiry, to a specific question posed by this
Commission to the Joint Commissioner, HR&CE, as to whether Sri
Ahobila Mutt is coming under the purview of the RTI Act, the Joint
Commissioner has stated that the Ahobila Mutt is a Public Authority
coming under Section 2(h) of the RTI Act. She has also stated that a
list of Mutts coming under the Asst. Commissioners of the respective
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districts, was sent by the office of the HR&CE Commissioner,
Chennai, to the Joint Commissioners/Asst Commissioners of the
respective districts for implementation. She has submitted a copy of
the list to this Commission.
4. The Commission perused the list submitted by the Joint
Commissioner. Arulmighu Ahobila Mutt finds a place in SLNo.5 of
that list coming under the Asst. Commissioner, HR& CE,
Kanchipuram. The Commissioner, therefore, decides that Sri Ahobila
Mutt is a Public Authority as defined und Section 2(h) of the Act, and
pass the following orders:
(1) The Public Information Officer, Sri Ahobila Mutt, shall furnish the
information sought for by the petitioner in his petition dt.22-01-2013,
subject to the exempted categories as enunciated under the RTI Act,
within 15 days from the date of receipt of this order.
(2) Now that the Ahobila Mutt has been brought under the purview of
the RTI Act, it la incumbent on the Public Authority to ensure that
details mandatorily required to be published under Section 4 (1) (d) of
the RTI Act shall be published by the mode as mentioned in the Act.
Orders approved on this the 4th day of July 2013
Under the orders of the Commission
TAMIL NADU INFORMATION COMMISSION
Assistant Registrar
14.The question arising for consideration in this batch of Writ Petitions is
thus, as to whether the petitioner Mutts would constitute Public Authorities,
amenable to the application of the provisions of the RTI Act.
15.The petitioners state that they are not public authorities as defined
under Section 2(h) of the RTI Act which defines ‘public authority’, as they do
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not fall within any of its limbs, that is, an ‘authority’, ‘body’ or Institution of
self-government, established or constituted by or under the Constitution, by any
other Act of Parliament or State Legislature or by a Notification or Order by the
appropriate Government.
16.The definition includes any body owned, controlled or substantially
financed, either directly or indirectly by funds provided by the appropriate
Government. The petitioner mutts are neither owned, controlled or financed in
any way, let alone substantially, by a Government, be it Centre or State. The
petitioner not being a ‘public authority’ thus would not come within the sweep
of the RTI Act.
17.Their next argument revolves around Section 8, that sets out
exclusions from the coverage of the Act, and reads thus:
8. (1) Notwithstanding anything contained in this Act, there shall
be no obligation to give any citizen,—
(a) . . . .
(b) . . . .
(c) . . . .
(d) . . . .
(e) information available to a person in his fiduciary
relationship, unless the competent authority is satisfied that
the larger public interest warrants the disclosure of such
information;
(f) . . . .
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(g) . . . .
(h) . . . .
(i) . . . .
(j) information which relates to personal information the
disclosure of which has no relationship to any public activity
or interest, or which would cause unwarranted invasion of the
privacy of the individual unless the Central Public
Information Officer or the State Public Information Officer or
the appellate authority, as the case may be, is satisfied that
the larger public interest justifies the disclosure of such
information:
Provided that the information which cannot be denied to the
Parliament or a State Legislature shall not be denied to any
person.
(2) Notwithstanding anything in the Official Secrets Act, 1923
nor any of the exemptions permissible in accordance with sub-
section (1), a public authority may allow access to
information, if public interest in disclosure outweighs the
harm to the protected interests.
18.The petitioners submit that a Mutt is a term used for a collective of
individuals headed by a leader, espousing a particular school of spirituality,
philosophy, religious learning or school of thought. The relationship inter se the
Madathipathi or the head of the Mutt and the individuals/followers, the term
indicating those individuals who subscribe to the philosophy espoused by that
Mutt, is one of trust.
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19.The Madathipathi, in his capacity as the head of the Mutt, is privy to
all information/details as relevant to the constitution, functioning and
management of the Mutt. He functions in two capacities, one, a spiritual head
and the second, a manager and administrator of the Mutt and its assets, both
movable and immovable.
20.The relationship between the Madathipathi and the Mutt being
fiduciary in nature, all information relating to a Mutt would fall within the ambit
of protection under Section 8(e) of the RTI Act. The only caveat to this
protection is the satisfaction of the competent authority that public interest
warrants the disclosure of such information, in which case, the entity can still be
compelled to disclose the information sought.
21.Petitioners, each constituting a denomination, claim the benefit offered
by Articles 25 and 26 of the Constitution of India, that protects the freedom of
conscience as well as the freedoms to profess, practice and propagate religion
and to manage religious affairs, subject to any regulations in this regard by the
existing State law. Thus, the extent of regulation imposed by the State must be
seen in the context of the larger freedom granted under the Constitution of
India.
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22.Mr.Niranjan Rajagopalan, appearing for the State Information
Commission and Mr.Venkatesh appearing for the HR&CE Department submit
that the petitioners are Public Authorities and fall squarely within the sweep of
the phrase, ‘body controlled by the State Government’, by operation of the
provisions of the Hindu Religious & Charitable Endowments Act 1959 (in short
‘HR&CE Act’). They take me through the provisions of the Act to illustrate this
position.
23.They also rely upon the listing of Mutts as prepared by the TN Hindu
Religious and Charitable Endowments Department, that includes the petitioner
Mutts, and that, according to the Department, fall within the control of the RTI
Act. This list has referred to by me at paragraph 5 supra where I note that it has
been prepared unilaterally by the TNHR&CE Department. It reads as follows:
“jpUklq;fspd; tptg;gl;oay;
jpUklq;fspd; bgah;
....
fhQ;rpg[uk; cjtp Mizah; gphpt[
mUs;kpF mnfhgpyklk;> kJuhe;jfk; efh; kw;Wk;
khtl;lk;> fhQ;rpg[uk; khtl;lk;
.....
Fk;gnfhzk; cjtp Mizah; gphpt[
.....
mUs;kpF jpUthtLJiw MjPdk;> jUkg[uk;> kapyhLJiw
tl;lk;> ehfg;gl;odk; khtl;lk;.
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jpUbey;ntyp cjtp Mizah; gphpt[
.....
mUs;kpF thdkhkiyklk;> ehq;Fndhp efh; kw;Wk;
tl;lk;> jpUbey;ntyp khtl;lk;
.....”
24.No opportunity has been afforded to the Mutts to put forth their views
in this regard and there is no discussion of the legal issues that arise. For these
reasons, I do not attribute any credence or weightage to the aforesaid list in
deciding these writ petitions.
25.They then draw attention to the preamble to the HR & CE Act that
states that it is intended to consolidate the law relating to administration and
governance of Hindu Religious and Charitable Institutions and Endowments in
the State of Tamil Nadu. A Mutt is defined in terms of Section 6(13) to mean a
Hindu Religious Institution.
26.Hence, according to them, it is apparent that the HR&CE Act
regulates the activities of a Mutt. Section 2(18) of the HR&CE Act which
defines ‘Religious Institution’ includes an Institution established or maintained
for a religious purpose and this definition, read with Section 2(13) makes the
aforesaid intention, doubly clear.
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27.In response, the petitioners would argue that the HR & CE Act has an
extremely limited application when it comes to Mutts. No doubt the Act is
intended to regulate all religious institutions and states as much in the preamble,
but the substantive provisions under the Act that touch upon the regulation of
the activities of the Mutt are limited. They support their submission with a
reading of the provisions of the HR & CE Act, pointing out that only the
provisions of Section 59 and 60 of the HR&CE Act provide for the regulation of
Mutts, and that too, only in very specific situations.
28.They point out that Section 21 deals with the power of revision of a
Commissioner under Section 21, and specifically excludes its application to a
Mutt or a specific endowment attached to a Mutt. Section 44 of the HR & CE
Act states that the provisions of Sections 45 to 58 do not apply to Mutts or
specific endowments attached to Mutts. Thus, the intention of the State to
refrain from intervention or regulation of the activities of a Mutt is clear.
29.Sections 59 and 60 are applicable only in specific and limited
circumstances and where the capacity of the Madathipathi to administer is
compromised. If the Trustee of the Mutt is incapacitated, Section 59 puts in
place a mechanism for its continued management.
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30.Section 60, likewise provides for the manner in which arrangements
may be made to fill in the position of Trustee in a Mutt when a vacancy arises.
This is the limited extent to which the HR & CE Act applies to a Mutt.
31.The petitioners have cited several cases in support of their submissions
and I have discussed some, where relevant. In addition thereto, they also cite the
following decisions:
(i) CBSE and another Vs. Aditya Bandopadhyay and others (2011 (8) SCC
497)
(ii) Institute of Chartered Accountants of India Vs. Shaunak H. Satya and
Others ((2011) (8) SCC 781)
(iii) Canara Bank Vs. C.S.Shyam and another (2018 (11) SCC 426)
(iv) D.A.V. College Trust and Management Society and others Vs. Director of
Public Instructions and others (2019 (9) SCC 185)
(v) The Registrar General, High Court of Madras, Chennai – 600 104 V.
K.Elango and others (2013 Writ L.R. 413)
(vi) Prem Anand Vs. The Commissioner (W.P. No.14692 of 2012 dated
11.06.2012)
(vii) Shri Maha Ganapathi Shankara Devasthana Sirsi, U.K. District,
Represented by its Sole Trustee, Shri Gajanan S Hegde and others Vs. State
of Karnataka Represented by Chief Secretary, Government of Karnataka,
Vidhana Soudha, Bangalore and others (Writ Petition Nos.64805-64868 of
2011 dated 17.11.2015).
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No decisions have been cited by the respondents.
32. The preamble to the RTI Act states thus:
An Act to provide for setting out the practical regime of right to
information for citizens to secure access to information under the control of
public authorities, in order to promote transparency and accountability in the
working of every public authority, the constitution of a Central Information
Commission and State Information Commissions and for matters connected
therewith or incidental thereto.
Section 2 of the RTI Act defines a Public Authority as follows:
2.Definitions.-
…….
(h) "public authority" means any authority or body or institution
of self- government established or constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate
Government,
and includes any—
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed, directly or
indirectly by funds provided by the appropriate Government;
33.Mutts are admittedly not constituted by any of the modes as
adumbrated under clauses (a) to (d) above. What remains, is to examine the
impact of the definition qua the limbs of ownership and control. For this
purpose, one must have regard to the provisions of the TNHR&CE Act and the
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extent of intervention provided thereunder in matters relating to the functioning
of a mutt.
34.Section 6 of the TN HR&CE Act defines a ‘Mutt’ and ‘Religious
Institution’ as follows:
(13) "math" means a Hindu religious institution with properties
attached thereto and presided over by a person, the succession to
whose office devolves in accordance with the direction of the
founder of the institution, or is regulated by usage and-
(i) whose duty it is to engage himself in imparting religious
instruction or rendering spiritual service; or
(ii) who exercises or claims to exercise spiritual headship over a
body of disciples;
and include places of religious worship or instruction which are
appurtenant to the institution;
Explanation.— Where the headquarters of a math are outside the
State but the math has properties situated within the State, control
shall be exercised over the math in accordance with the provisions
of this Act, in so far as the properties of the math situated within
the State are concerned;
(18) ‘Religious institution’ means a math, temple or specific
endowment and includes,: —
1. (i) a samadhi or brindhavan; or
2. (ii) any other institution established or maintained for a
religious purpose.
Explanation.- For the purpose of this clause-
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(1) “samadhi” means a place where the mortal remains of a guru,
sadhu or saint is interned and used as a place of public religious
worship;
(2)“brindhavan” means a place established or maintained in
memory of a guru, sadhu or saint and used as a place of public
religious worship, but does not include the samadhi;)
35.The Petitioners are, admittedly, covered under the definition of a
Religious Institution under the HR&CE Act. The application of some provisions
of the TN HR&CE Act are explicitly excluded in the case of Mutts such as
Section 21 dealing with the power of the Commissioner to call for records and
pass orders. Then again, the provisions of Section 44 exclude the application of
Section 45 to 58 to Mutts or specific endowments attached to them.
36.Section 45 deals with the appointment and duties of Executive officers
appointed for any religious institution barring a Mutt or a specific endowment
attached to a Mutt. Since the exercise of control by the State is through an
Executive Officer, the exclusion of the application of Section 45 to a Mutt, is
telling, and indicates the imposition of a restriction by the State upon itself, in
this regard.
37.Section 46 vests powers in the Commissioner to publish a list of
religious institutions based on the annual income received by them. Again, this
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provision is expressly made inapplicable to a Mutt. Even for this reason, in
addition to the reasons given earlier, the list referred to in impugned order dated
02.07.2013 has no sanction whatsoever, statutory or otherwise.
38.Section 46-A stands omitted and Section 47 deals with the
appointment of Trustees, their members and terms of office. Section 47-A
permits the Government by notification, to authorize the Commissioner to carry
out any of the functions enumerated out under Section 47 or under Section 49.
39.Section 48 provides for the appointment of a Chairman for a Board of
Trustees. Section 49 deals with the power of the Assistant Commissioner to
appoint Trustees and fit persons in the case of a religious institution not
included in a list published under Section 46 which is not a religious institution
notified or deemed to have been notified under Chapter VI of the Act.
40.Section 49 –A states that where a religious institution in respect of
which the Assistant Commissioner has appointed a trustee under Section 49, is
subsequently included in a list published under Section 46, such trustees shall
cease to hold his firm from the date of such inclusion of that institution in the
list.
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41.Section 49 –B enumerates the powers of the Executive Officer and the
Chairman of the Board of Trustees and imposes fetters upon their functions and
in implementation of an order or resolution of the Board of Trustees which is
not in accordance with law, constitutes abuse of the powers conferred not under
the HR&CE Act or is not beneficial to the institution or endowments.
42.Section 50 states that the powers under Sections 47, 49 and 49-A are
exercisable by the authorities notwithstanding any provision to the contrary
contained in a scheme framed or settled for the Management of the religious
institution. Section 51 stands deleted.
43.Section 52 states that non hereditary trustees holding such office on
the date of the commencement of the HR&CE Act shall be deemed to have been
validly appointed. Section 53 vests powers in the appropriate authority to
suspend, remove or dismiss trustees setting out the situations when such powers
may be exercised.
44.Section 54 provides for the methodology for filing up of vacancies in
the office of hereditary trustee. Section 55 provides for the appointment of office
bearers and servants in religious institutions and the method by which such
vacancies may be filled. Section 56 provides for their punishment for breach of
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trust, disobedience of orders, neglect of duty, misconduct or any other sufficient
cause.
45.The power to fix fees for services performed either by way of rituals or
ceremonies in a religious institution is granted to a trustee of a religious
institution under Section 57 and its power includes the rights to determine their
apportionment as well. It is under the aforesaid provision that a Trustee would
fix the fees of Archakas or office-holders or servants of a religious institution.
46.Section 58 provides for the fixation of standard scales of expenditure
which are to be submitted to the statutory authorities. It is based on the scale of
expenditure submitted by the institution that the statutory authorities allot
amounts for its various objects and also decide matters in regard to application
of its income.
47.The above provisions provide for substantive powers necessary for the
management of a religious institution. Sections 47, 49, 53, 54, 55, 56 & 58
specifically constitute substantive powers of the State to intervene in the
management of religious institution and such powers stand expressly excluded
in cases of Mutts.
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48.It is telling that vital and critical functions such as control over the
management, office bearers and funds of the religious institution as contained in
the aforesaid provisions of the Act are specifically excluded in the cases of
Mutts and in my considered view, this leads to the inference that the State never
intended to intervene and regulate fully, the functioning of a Mutt.
49.Only Chapter IV containing Sections 59 and 60 is devoted to the
regulation of Mutts. Section 59 provides for the institution of a Suit by the
Commissioner or any two or more persons having interest in the Mutt to obtain
a decree for removing the trustee of a Mutt or a specific endowment attached to
a Mutt for enumerated reasons, i.e., the trustee being of unsound mind,
suffering from physical or mental defect or infirmity rendering him unfit to be a
trustee, his having ceased to profess the Hindu religion or the tenets of the Mutt,
his conviction for any offence involving moral delinquency, breach of trust
created in respect of any of the properties of the Mutt, or wasteful or wrongful
application of use of the funds or properties of the mutt for purposes
unconnected with the Mutt.
50.A suit may also be filed if the Trustee adopts devices to divert the
income of the Mutt, if he leads an immoral life, or otherwise or persistent and
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willful default by him in discharging his duties under the HR & CE Act or any
other law in force.
51.Section 60 provides for action to be taken in the event of a vacancy
occurring in the office of the Trustee or the Mutt or specific endowment, such
vacancies being occasioned on account of a dispute in regard to the succession
to the office, where the Trustee is a minor and has no proper guardian, where
the trustee is found to be unsound or suffering from any other mental or
physical infirmity.
52.The scheme of the Act is evidently for the State to retain only
peripheral interest over the working of Mutts and specifically step in when the
functioning of the Mutt is threatened by reason of the Head of the Mutt being
unable to effectively discharge his functions and duties. The elimination of
critical control areas such as appointments and regulation of funds from the
purview of State control is in sharp contrast to the tight control exercised by the
State over other religious institutions, including temples.
53.The decentralised working of the Mutts coupled with the conscious
and self imposed restriction placed by the State upon itself lead to the inevitable
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conclusion that Maths are independent units, functioning solely under the
guidelines, control and direction provided by the Madathipathi.
54.The meaning to be attributed to the phrase ‘substantial control’ has
been discussed by the Hon’ble Supreme Court in the case of Thalapalam
Service Cooperative Bank Limited and Others V. State of Kerala ((2013) 16
SCC 82) as follows:
44. We are of the opinion that when we test the meaning of
expression “controlled” which figures in between the words
“body owned” and “substantially financed”, the control by the
appropriate government must be a control of a substantial
nature. The mere ‘supervision’ or ‘regulation’ as such by a
statute or otherwise of a body would not make that body a
“public authority” within the meaning of Section 2(h)(d)(i) of
the RTI Act. In other words just like a body owned or body
substantially financed by the appropriate government, the
control of the body by the appropriate government would also
be substantial and not merely supervisory or regulatory. Powers
exercised by the Registrar of Cooperative Societies and others
under the Cooperative Societies Act are only regulatory or
supervisory in nature, which will not amount to dominating or
interfering with the management or affairs of the society so as to
be controlled. Management and control are statutorily conferred
on the Management Committee or the Board of Directors of the
Society by the respective Cooperative Societies Act and not on
the authorities under the Co-operative Societies Act.
……
62. The Public authority also is not legally obliged to give or
provide information even if it is held, or under its control, if that
information falls under clause (j) of Sub-section (1) of Section
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8. Section 8(1)(j) is of considerable importance so far as this
case is concerned, hence given below, for ready reference:-
“8. Exemption from disclosure of information – (1)
Notwithstanding anything contained in this Act, there shall be no
obligation to give any citizen –
(a) to (i) xxx xxx xxx
(j) information which relates to personal information the
disclosure of which has no relationship to any public activity or
interest, or which would cause unwarranted invasion of the
privacy of the individual unless the Central Public Information
Officer or the State Public Information Officer or the appellate
authority, as the case may be, is satisfied that the larger public
interest justifies the disclosure of such information: Provided
that the information which cannot be denied to the Parliament or
a State Legislature shall not be denied to any person.”
55.I have in the preceding paragraphs set out in detail the statutory provi-
sions that would govern the management and administration of the mutts.
While Mutts satisfy the definition of religious institution in terms of Section
6(18), and the intention of the State to oversee some aspects of his functioning
cannot be disputed, the degree of control that is assumed is clearly limited in
application.
56.It is only in the event of either an interruption in leadership, or the in-
capacity of the Madathipathi to discharge functions in a proper manner, that the
State steps in, to ensure that the affairs of the Mutt continue seamlessly, all the
while simultaneously taking steps to fill the vacancy in, as appropriate. This is
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the only situation where control is exercised by an external agency, the State,
and in my considered view, this does not tart amount to ‘substantial control’ for
the purposes of the RTI Act. I hold so. As a consequence, Mutts are not ‘public
authorities’ for the purpose of the RTI Act.
57.I am supported in my conclusion by the following cases. In
A.C.Bhanunni @ Valluvanattukara Vs. The Commissioner and others (2011)
(2) KLT 312)/(2011 (2) KLJ 667), the Kerala High Court held that the Malabar
Devaswom Board (MDB) would not constitute a public authority for the
purposes of Right to Information. They held that the temples and their officers
are neither established nor constituted under the Constitution of India or any
other law either Central or State. The mere fact that they may be listed under the
respective HR&CE acts would not render them public institutions. They are also
not financed by any Government. Infact, it is the reverse as temples are
statutorily required to make a contribution to the State and not vice versa.
58. The Nagpur Bench of the Bombay High Court in the cases of Nagar
Yuwak Shikshan Sanstha, Wanadongri, Nagpur and Anr V. Maharashtra State
Information Commissioner, Nagpur and Another (AIR 2010 Bombay 1) and
Bhaskarrao Shankarrao Kulkarni V. State Information Commissioner, Nagpur
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and Others (AIR (2009) Bombay 163) have held, while considering the ambit
of control used in the definition of public authority held that the control
envisaged under the RTI Act is comprehensive control and not control in some
small part of decision making.
59. In G.Rajendranath Goud V. Government of Andhra Pradesh and
others ((2019) 2 ALT 140), a learned Single Judge of the AP High Court
accepts the case of the Sri Venkateswara Swamy Devasthanam, Chikkadpally,
that the religious institution is not a public authority as contemplated under the
provisions of the RTI Act.
60.In S.Suresh v. Central Public Information Officer (2020 SCC Online
CIC 214), the Central Information Commission considered and rejected the case
of an appellant who had sought information in regard to the Sri
Vedapureeswarar and Sri Varadarajaperumal Devasthanams, relying upon the
Judgment of the Hon’ble Supreme Court in the case of Thalappalam Service Co-
operative Bank and the High Court of Telungana in the G.Rajenderanath
Goud, and concluding that the institution did not satisfy the definition of ‘public
authority’ under the RTI Act.
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61.A contra view has been taken by a learned Single Judge of this Court
in the case of Hereditary Trustee, Sri Vengeeswarar Alagarperumal and
Nagathamman Koil Devasthanam vs. Commissioner, HR&CE, (WP.No.28960
of 2019 dated 20.12.2019). By way of a short order, this Court held that a
temple is a public institution and merely because it was administered by a
hereditary trustee the public aspect of a character will not disappear. The Court
noted that public conclusions were being made for conducting various activities
of the temple and the State Government also spends significant amount for
administration of the department to manage the temples. This decision relates to
a temple and is inapplicable to a Mutt. In any event, neither relevant cases nor
the schemes of the HR&CE and RTI Acts have been put forth and discussed in
that case.
62. In fact, in the common counter affidavit filed in W.P.No.18826 of
2013, on behalf of State as well as Union, the respondents concede that it may
be true that the nature of the Mutt does not fall under any one of the category
defined in 2(h) of the Right to Information Act. Yet, they say that as the Mutt is
created by an endowment which constitutes public property, it can be classified
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only as a public one. Thus, it would fall under the ambit of Right to Information
Act for transparency in management as far as the secular aspects are concerned.
63. In Sri Krishna Singh Vs. Mathura Ahir and others (AIR 1980 SC
707), the Hon’ble Supreme Court states the following:
“….A math is an institutional sanctum presided over by a
superior who combines in himself the dual office of being
the religious or spiritual head of the particular cult or
religious fraternity and of the manager of the secular
properties of the institution of the Math. [671 D-E]”
....
64.In Sri Sri Sri Lakshamana Vs. State of Andhra Pradesh and another
(AIR 1996 SC 1414), the Hon’ble Supreme Court deals with the dual roles of a
Madathipathi as temporal and spiritual head, in the following terms:
….As seen, Mahant being an aesthetic sanyasi, he renounces
mundane affairs and totally cuts off his ties with his natural
family. In H.H. Sudhundra Thirtha Swamiar v. Commissioner for
Hindu Religious & Charitable Endowments, Mysore [(1963)
Supp. 2 SCR 302], this Court had held at page 312 that
"generally a mathadhipati is a sanyasin who has renounced the
worldly affairs and severed his ties with his family". Therefore,
the question of hereditary succession to the office of
mathadhipati does not arise. He is, therefore, neither hereditary
trustee nor a trustee in the sense envisaged under Sections
2(29) and 2(16) of the Act respectively. But in juxtaposition, his
position as mathadhipati is of a trustee of the property of the
math or specific endowment attached to it of which he is the
head and holds the property as head of the institution as a
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trustee with beneficial enjoyment over the math properties for
the propagation of the religious tenets and the philosophy
applicable to the math or specific endowment and Hindu
Dharma. In Kakinada Annadana Samajan etc. v. Commissioner
of Hindu Religious & Charitable Endowments, Hyderabad &
Ors. [(1977) 2 SCR 878 at 886], this Court had held that
mathadhipati is entitled to maintain all the properties of the
math or the specific endowment and allowed power to manage
or administer the properties endowed to the math or specific
endowment. Since Chapter V specifically deals with maths and
Mahants, the general provisions in Chapter III relate to the
administration and management of Hindu charitable and
religious institutions and endowments to the extent of
inconsistency stand excluded by Section 48 from their operation
to maths and specific endowments attached to it.
65.The office of Madathipathi and hereditary trusteeship thus converge
into a single role and functionality. A Madathipathi is, in effect, a corporation
sole, an independent entity with a common ideal and with perpetual succession.
By its very nature, by virtue of the unique functions it discharges as well as the
duality of the roles played by the Madathipathi, a Mutt does not assume the
character of a public authority amenable to the provisions of the RTI Act. (See
Vidyapurna Thirtha Swami, Minor By Next Friend Vyasacharya Vs
Vidyanidhi Tirtha Swami (Died) (1904 (1) MLJ 105).
66. The expansive nature of activities engaged in by a Mutt today as well
as the substantial resources that many of them enjoy necessitates some form
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check upon the management and deployment of resources. Thus, though the
Mutts cannot be called upon to furnish information to any and all interested
persons, some amount of responsibility cannot be shied away from and the peti-
tioners, to this extent, fairly agree. Queries or clarifications sought for by statu-
tory and other public bodies and authorities in relation to secular aspects of the
functioning of the Mutt, have to be responded to, and the required particulars
must be furnished by the Mutt as and when called for. The line of distinction
between what constitutes secular/temporal on the one hand, and religious/spiri-
tual on the other, is fine, and is best left to the judgement of the respective
Mutts to decide and convey to the authorities, if and when queries/clarifications
are sought.
67.These writ petitions are allowed as above. Miscellaneous petitions are
closed and there is no order as to costs.
01.10.2021
Index : Yes/No
Speaking Order/Non speaking Order
Sl
To
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1. The Secretary to Government,
Tamil Development Religious Endowment,
and News Department, Fort St. George,
Chennai -9.
2.The Commissioner,
Hindu Religious and Charitable Endowments,
Mahatma Gandhi Road, Chennai – 34.
3.State Information Commission,
Tamil Nadu Information Commission,
The Kamadhenu Co-op. Supermarket,
Building, 1st Floor, Old No.273,
New No.378, Anna Salai, Chennai -18.
4. State Of Tamil Nadu,
Rep. By The Secretary To Government
Secretariat, Fort St. George, Chennai-9
5 Union Of India,
Rep. By The Secretary To Government
Ministry Of Law & Justice, New Delhi.
6 The Joint Commissioner
HR & CE Department Chennai-34.
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W.P. No.16567 of 2010 and etc batch
Dr.ANITA SUMANTH,J.
Sl
W.P. Nos.16567 of 2010, 18826,
22436, 21024 of 2013
& 7409 of 2015
and
M.P. Nos. 1 & 2, 1, 1 of 2013, 2 of 2015 &
WMP. No.3790 of 2016
01.10.2021
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