Madras High Court
S.Vallinayagam vs The Commissioner on 19 April, 2022
WP (MD) No.11181 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.04.2022
CORAM
THE HONOURABLE MR. JUSTICE C.SARAVANAN
Writ Petition (MD) No.11181 of 2017
and
W.M.P.(MD)Nos.8567 and 9344 of 2017
S.Vallinayagam .. Petitioner
Versus
1.The Commissioner,
Hindu Religious and Charitable Endowment Department,
Chennai.
2.The Joint Commissioner,
Hindu Religious and Charitable Endowment Department,
Madurai – 1.
3.The Executive Officer,
A/m.Meenakshi Sundareshwarar Temple,
Madurai Town. .. Respondents
Petition filed under Article 226 of the Constitution of India praying for
issuance of a Writ of Certiorarified Mandamus, to call for records in pursuant
to the impugned order passed by the second respondent vide Na.Ka.No.
1274/2017/E2, dated 14.04.2017, quash the same as illegal and consequently,
direct the third respondent from in any way obstructing the entrance installing
Hundial and providing hindrance in the administration of the petitioner's
Temple namely, Sri Mottaigopuram Muneeswarar Temple, situated at North
Chitrai Street, Madurai.
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WP (MD) No.11181 of 2017
For Petitioner : Mr.S.Madhavan
For R1 and R2 : Mr.P.Subbaraj
Special Government Pleader
For R3 : Mr.VR.Shanmuganathan
ORDER
The petitioner has challenged the impugned order of the second
respondent – Joint Commissioner, Madurai, directing the petitioner to work
out remedy under Section 63(a) of the Tamil Nadu Hindu Religious and
Charitable Endowments Act, 1959 [hereinafter referred to as the ''H.R. & C.E.
Act'']. The dispute in the present case pertains to a small Temple called ''Sri
Mottagopuram Muneeswarar Temple''.
2.The case of the petitioner is that he is administering Sri Mottagopuram
Muneeswarar Temple, which is under the Northern Tower of the third
respondent Temple called ''Arulmigu Meenakshi Amman Temple, Madurai''
and partly on the public space abetting the Northern Tower of the said
Arulmigu Meenakshi Amman Temple. Earlier, there were disputes between
the Temple and the petitioner's ancestors in O.S.No.11 of 1909, on the file of
the District Munsif of Madura (Additional). The suit was filed for injunction
to restrain the third respondent Temple from interfering with the Temple
managed by the petitioner's ancestors. The suit came to be decreed by the said
Court by its judgment and decree dated 18.02.1910. Further appeal before the
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WP (MD) No.11181 of 2017
District Court, Madura, in A.S.No.172 of 1910 was also dismissed by the
learned District Judge, Madura, on 31.12.1910. It is therefore submitted that
the judgment and decree of the trial Court and the first appellate Court had
attained finality. It stands concluded that the third respondent Temple had
failed to prove any sort of title to the suit property and therefore, the appeal
filed by the third respondent Temple was dismissed. That apart, it is submitted
that a petition under Section 84(2) of the Madras Hindu Religious
Endowments Act, 1927 was also filed before the learned District Judge,
Madura, in O.P.No.33 of 1939. The learned District Judge, Madura, framed
the following issues:-
''(i) Whether the Mottagopuram Muneeswarar Temple, Madura,
is a private Temple?
(ii) To what relief is the petitioner entitled?''
3.It is submitted that the said proceeding filed by the ancestors of the
petitioner was also allowed and no further appeal was filed by the third
respondent Temple. It is submitted that the learned District Judge, Madura, in
O.P.No.33 of 1939 categorically held that Sri Mottagopuram Muneeswarar
Temple was a ''private temple'' and was outside the purview of the Madras
Hindu Religious Endowments Act, 1927.
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WP (MD) No.11181 of 2017
4.It is therefore submitted that on 23.12.2016, the third respondent
Temple installed a Hundial in front of Sri Mottagopuram Muneeswarar
Temple without any authority of law. Therefore, the petitioner was constrained
to send representations, dated 23.12.2016 and 27.12.2016, to the official
respondents to take steps to remove the Hundial and restrain the third
respondent Temple from interfering with the day-to-day administration of the
said Temple. Since no action was taken, the petitioner was constrained to file
W.P.(MD)No.244 of 2017, which came to be disposed of 06.01.2017, by
directing the second respondent namely, the Joint Commissioner, Madurai, to
consider and pass appropriate orders on merits on the respective
representations dated 23.12.2016 and 27.12.2016 of the petitioner.
5.The learned counsel for the petitioner submits that while the scope of
enquiry before the second respondent – Joint Commissioner was only relating
to removal of Hundial placed on 23.12.2016 and to restrain the third
respondent from interfering with the day-to-day management and affairs of the
Temple, the second respondent without notice to the petitioner, enlarged the
scope of enquiry, by concluding that prima facie it appeared that the subject
Temple called ''Sri Mottaigopuram Muneeswarar Temple'' situated below the
Northern Tower of the third respondent Temple was a public temple and
therefore, the petitioner should work out the remedy under Section 63(a) of the
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WP (MD) No.11181 of 2017
H.R. & C.E. Act to establish that it is a private temple. It is submitted that the
petitioner was not put on notice and therefore, the directions contained in the
impugned order of the second respondent asking the petitioner to work out the
remedy under Section 63(a) of the H.R. & C.E. Act was beyond jurisdiction
and was therefore liable to be quashed.
6.Opposing the prayer, the learned counsel for the third respondent
submits that the construction of North Tower of Arulmigu Meenakshi Amman
Temple was started in the year 1564 and completed in the year 1878 and the
Temple viz., Sri Mottaigopuram Muneeswarar Temple was constructed by
encroaching upon the property of the third respondent Temple by putting up
temporary structure. It is submitted that the Sanctum and Sanctorum of Sri
Mottaigopuram Muneeswarar Temple is situated right below the Northern
Tower of Arulmigu Meenakshi Amman Temple and that over a period of time,
the devotees visiting the Arulmigu Meenakshi Amman Temple also offering
their prayers at Sri Mottaigopuram Muneeswarar Temple.
7.It is submitted that the petitioner cannot claim that the said Temple is
a private Temple. In this connection, the learned counsel for the third
respondent has drawn the attention of this Court to the definition of the word
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WP (MD) No.11181 of 2017
''Temple'' in Section 6(20) of the H.R. & C.E. Act and the definition of the
words ''Religious Institution'' in Section 6(18) of the H.R. & C.E. Act.
8.It is submitted that the public has also donated funds for the
maintenance of Sri Mottaigopuram Muneeswarar Temple and therefore, it is
no longer open for the petitioner to claim it to be a private temple of the
petitioner. It is further submitted that Sri Mottaigopuram Muneeswarar
Temple has been built within the third respondent Temple Complex i.e., under
the Northern Tower of the third respondent Temple and partly on the public
space abetting the Northern Tower of the third respondent Temple. It is
therefore submitted that the third respondent is entitled to put up a Hundial.
That apart, it is submitted that Sri Mottaigopuram Muneeswarar Temple
attracts devotees from public and therefore, it is a ''public temple'' and if it is
the case of the petitioner that the said Sri Mottaigopuram Muneeswarar
Temple is a ''private temple'', it is for him to file an appropriate petition under
Section 63(a) of the H.R. & C.E. Act.
9.It is further submitted that the petitioner was also put to notice in the
proceedings before the Joint Commissioner inasmuch as the defence of the
third respondent Temple was that the said Temple is a part of Arulmigu
Meenakshi Amman Temple and was a public Temple and therefore, the
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WP (MD) No.11181 of 2017
petitioner cannot state there was any violation of principles of natural justice.
It is further submitted that in the said proceedings, not only the third
respondent filed a counter affidavit to this effect, but the petitioner has also
given a written submission to distant itself from the allegations in the counter
filed by the third respondent.
10.It is further submitted that the third respondent had also filed a
written submission and it is pursuant to the above said, a decision has been
taken asking the petitioner to work out his remedy under Section 63(a) of the
H.R. & C.E. Act.
11.The learned counsel for the third respondent has also drawn the
attention of this Court to the following decisions of this Court as well as the
decisions of the Hon'ble Apex Court and submitted that the Writ Petition is
devoid of merits and is liable to be dismissed.
(i) Sri Chidambareswara Sivagami Ambigai Temple, by their Managing
Trustee, S.V.R.A.Nallakaruppan Chettiar vs. Commissioner, Hindu Religious
and Charitable Endowments, Madras [AIR 1966 Madras 99]
(ii) Goswami Shri Mahalaxmi Vahuji vs. Ranchhoddas Kalidas and
others [1970 AIR (SC) 2025]
(iii) M.Lakshmiammal and others vs. K.T.T.Ramalingam Chettiar and
another [1992 (II) MLJ 93]
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WP (MD) No.11181 of 2017
(iv) S.Pitchai Ganapathy and others vs. Commissioner, Hindu Religious
and Charitable Endowments Department and others [2001 (8) SCC 460]
(v) Teki Venkata Ratnam and others vs. Dy. Commissioner, Endowment
and others [2001 AIR (SC) 2436]
(vi) A.A.Gopalakrishnan vs. Cochin Devaswom Board and others [2007
(7) SCC 482]
(vii) C.R. Jayaraman and others vs. M.Palaniappan and others [2009 (3)
SCC 425]
(viii) The Principal Secretary, HR & CE Department, Chennai-34 and
others vs. G.Paramasivam and others [2015 Writ L.R. 1086].
12.The learned counsel for the third respondent has also shown
Photographs and Newspaper clippings showing the public devotees
worshipping in Sri Mottaigopuram Muneeswarar Temple and receipt of
contribution from the public for putting up a silver door for locking the
Sanctum Sanctorum of Sri Mottaigopuram Muneeswarar Temple situated right
below the Northern Tower of Arulmigu Meenakshi Amman Temple. That
apart, the third respondent has also shown Photographs to show that additional
renovation is being made by the petitioner without any authorisation. It is
submitted that but for contribution from Public, it is not possible for the
petitioner to put up construction.
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WP (MD) No.11181 of 2017
13.I have considered the arguments advanced by the learned counsel for
the petitioner and the learned counsel for the third respondent Temple and
perused the impugned order passed by the third respondent and the orders that
came to be passed in A.S.No.172 of 1910 on 31.12.1910 and the judgment
dated 21.03.1940 in O.P.No.33 of 1939 and the provisions of the H.R. & C.E.
Act and the Photographs produced by the learned counsel for the third
respondent.
14.The issue as to whether the petitioner had a right over portion of the
Temple property where they have put up Sri Mottaigopuram Muneeswarar
Temple now stands concluded by the judgment and decree of the learned
District Judge, Madura, in A.S.No.172 of 1910. A reading of the above said
judgment and decree of the first appellate Court in A.S.No.172 of 1910
indicates that the Poojaris had clearly a good title by adverse possession in
their individual capacity and not in their capacity as Poojaris of Sri
Mottaigopuram Muneeswarar Temple and therefore, it was concluded that
there was nothing compatible with the petitioner's ancestors' claim that they
are the trustees and owners of the Temple. The said decision has not been
disturbed till date.
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WP (MD) No.11181 of 2017
15.Similarly, in the petition filed under Section 84(2) of the Madras
Hindu Religious Endowments Act, 1927 by the petitioner's ancestors also
indicate that Sri Mottaigopuram Muneeswarar Temple is a private temple.
However, the case laws submitted by the learned counsel for the third
respondent also indicate that a private temple may also become a public temple
over a period of time. The fact of the matter is that the Temple was not built
on a private land belonging to the petitioner's ancestors. It was by way of
adverse possession certain rights have conferred as is evident from the reading
of the judgment and decree in A.S.No.172 of 1910, dated 31.12.1910. Having
established adverse possession and having established that it is a private
Temple, the Temple is being renovated. However, the fact also remains that
the Temple is situated both within and outside the precincts of the third
respondent Temple. It is not being worshipped exclusively by the members of
the petitioner's family. It appears that it is also being worshipped by the
members of the public. Therefore, if the petitioner wants to establish that
Temple is still a private temple at this distant point of time, the petitioner will
have to necessarily file an application under Section 63(a) of the H.R. & C.E.
Act. Though the placing of Hundial on 23.12.2016 by the third respondent
prima facie appears to be an indirect attempt of the third respondent Temple to
garner the collection, which the petitioner expects to pocket.
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WP (MD) No.11181 of 2017
16.I do not find anything offensive in the impugned direction of the
second respondent, directing the petitioner to file an appropriate application
under Section 63(a) of the H.R. & C.E. Act. I am therefore unable to take a
different view. Therefore, I am inclined to dispose this Writ Petition, by
directing the petitioner to file an application within a period of 30 days from
the date of receipt of a copy of this order under the above said provision before
the second respondent herein, who shall consider the petitioner's case and the
third respondent's case and pass appropriate orders on merits. The second
respondent shall endeavour to pass final orders preferably within a period of
six months from the date of receipt of a copy of this order. It is made clear
that this order shall stand automatically vacated, in case, the petitioner fails to
file such an application before the second respondent – Joint Commissioner,
Madurai, within the above stipulated time limit. Pending resolution of the
proposed application by the second respondent, the third respondent Temple is
directed to furnish proper accounts of the Hundial receipts and collection
before the second respondent – Joint Commissioner, Madurai. The amounts
collected shall be appropriated in accordance with law. In case, it is concluded
that Sri Mottaigopuram Muneeswarar Temple is a public Temple, the
authorities acting under the H.R. & C.E. Act are empowered to take
appropriate steps to bring the above said Temple under the purview of the
H.R. & C.E. Act.
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WP (MD) No.11181 of 2017
17.This Writ Petition stands disposed of in terms of the above
observations. No costs. Consequently, connected Miscellaneous Petitions are
closed.
19.04.2022
Index : Yes/No
Internet : Yes/No
smn2
To
1.The Commissioner,
Hindu Religious and Charitable Endowment Department,
Chennai.
2.The Joint Commissioner,
Hindu Religious and Charitable Endowment Department,
Madurai – 1.
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WP (MD) No.11181 of 2017
C.SARAVANAN, J.
smn2
WP (MD) No.11181 of 2017
19.04.2022
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