Madras High Court
A/M Kumbeswarar Koil vs The Commissioner on 20 October, 2022
W.P. No. 27971 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.10.2022
CORAM
THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU
W.P. No. 27971 of 2022
and
W.M.P. Nos. 27269 and 27270 of 2022
A/m Kumbeswarar Koil,
Kurinjipadi,
represented by its Managing Trustee,
S.Somasundaram,
S/p/ Sovagurunatha Mudaliar,
Kunrinjipadi Taluk,
Cuddalore District. … Petitioner
-vs-
1. The Commissioner,
Hindu Religious and Charitable Endowments Department,
No. 119, Uthamar Gandhi Salai,
Nungambakkam,
Chennai - 600 034.
2. The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
Villupuram.
3. The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
No. 8, River Side Street,
Pudupalayam,
Cuddalore - 607 001. ... Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of India,
1950, praying to issue a Writ of Certiorari, calling for the records and quash
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W.P. No. 27971 of 2022
entry No. 218 pertaining to the A/m Kumbeswarar Temple, Kurinjipadi,
Kurinjipadi Taluk, Cuddalore District from the list of notified temples
maintained by the First Respondent.
For Petitioner : Mr. R.Gururaj
For Respondents : Mr. N.R.R.Arun Natarajan,
Special Government Pleader
ORDER
Heard Mr. R.Gururaj, Learned Counsel for the Petitioner and
Mr. N.R.R.Arun Natarajan, Learned Special Government Pleader who takes
notice for the Respondents and perused the materials placed on record, apart
from the pleadings of the parties.
2. The Petitioner, which claims to be a 'Private Temple', has challenged its
mention at S. No. 218 in the list of Public Temples published under Section
46(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959 (hereinafter referred to as 'the Act' for short).
3. It has been brought to notice by Learned Special Government Pleader
appearing for the Respondents that the Petitioner has been treated as a 'Public
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W.P. No. 27971 of 2022
Temple' in furtherance to the conclusions arrived by this Court in the judgment
and decree dated 16.04.2003 in S.A. No. 1742 of 1992 filed by the Petitioner,
where it has been held as follows:-
"21. For the reasons stated above, the decree passed by the
Courts below are modified, as follows:-
(1) The declaration that the suit temple is a denominational
temple is set aside.
(2) The decree that the suit temple belong to people of
Senguntha Mudaliar of three streets is set aside.
(3) The decree passed in O.S. 28 of 1914 that the temple belong
to people of Senguntha Mudaliar community of
Pazhantheru (Old Street) is confirmed.
(4) The H.R. & C.E. can appoint only the people of Senguntha
Mudaliar community of the three streets as trustees of the
temple is confirmed."
It is further stated that the Petitioner had filed the Writ Petition in W.P.
No. 12822 of 2020 impeaching the demand for payments due under Section 92
of the Act, which was dismissed by order dated 23.03.2022 passed by the Court
holding as follows:-
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W.P. No. 27971 of 2022
"7. From the materials on record, it is seen that the petitioner
is challenging the demand notices dated 06.11.2019 and
14.11.2019, issued by the Respondent under Section 92 of the Act.
The Court can interfere with a notice only when the said notice is
issued by the person having no jurisdiction or notice is malafide.
When a person is alleging malafide, the official who is acting in a
malafide manner must be impleaded in his individual capacity. In
the present case, it is not the case of the Petitioner that the
Respondent is acting in a malafide manner. But, it is the case of
the Petitioner that the Petitioner Temple is a Private Temple and
it is not a Public Temple. Therefore, provisions of the Act is not
applicable. On the other hand, it is the case of the Respondent
that in the scheme decree framed in O.S. No. 28 of 1914, it has
been held that the Petitioner Temple is a Public temple. The
Respondent has contended that publication has been effected
under Section 46(1) of the Act, declaring Arulmighu
Kumbeswarar Koil, Kurinjipadi, Kurinjipadi Taluk, Cuddalore
District as a Public Temple. Further, it is the case of the
Respondent that general public are worshipping in the said
temple and it is not restricted to the people of the Sengundha
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W.P. No. 27971 of 2022
Mudaliar Community alone. According to the Respondent, audits
are conducted regularly by the HR & CE Department and
Petitioner is paying contribution from Fasli 1389 to 1427 (upto
2018 – 2019) and also paying audit fees. These averments are not
denied by the Petitioner. It is the further case of the Petitioner
that Section 92 of the present Act is corresponding to Section 76
of Old Act and Section 76 of the Old Act has been struck down by
the Hon'ble Apex Court. On the other hand, the Respondent has
furnished the details to show that validity of Section 92 of the
present Act has been confirmed by this Court as well as by the
Hon'ble Apex Court. In view of the confirmation of the validity of
Section 92 of the Act, the contention of the Petitioner that Section
92 of the Act is not valid and it is not applicable to the Arulmighu
Kumbeswarar Koil, Kurinjipadi, Kurinjipadi Taluk, Cuddalore
District is without merits. For the above reasons, the Writ
Petition is liable to be dismissed as devoid of merits."
In the appeal preferred by the Petitioner against the said order, the Division
Bench of the Court by order dated 23.08.2022 in W.A. No. 1858 of 2022 has
held as follows:-
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W.P. No. 27971 of 2022
"4. It is also the fact that the Respondent before the Learned
Single Judge has referred a notification published under Section
46(1) of the Act of 1959 declaring the temple in question to be a
Public Temple. It was found that general public are worshiping in
the said Temple and it is not restricted to the people of Sengundha
Mudaliar community alone. It was also found that audits are
conducted by the HR & CE Department and the Appellant has
paid contribution from fasli 1389 to 1427 (up to 2018-2019),
apart from payment of audit fees. Those averments were not
denied, but the fact remains that publication declaring Arulmighu
Kumbeswarar Koil, Kurinjipadi, Kurinjipadi Taluk, Cuddalore
District to be a Public Temple was not questioned.
5. In the light of the aforesaid, we do not find any reason to
cause interference in the order unless the Appellant successfully
challenged the publication declaring the Temple to be a Public
Temple and remained successful therein. The liberty aforesaid
would not affect the outcome of this litigation. However, till the
challenge remains successful, the Appellant has to satisfy the
payment, as the Appellant earlier paid the required payment till
the year 2018-2019."
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W.P. No. 27971 of 2022
It is evident from the said legal proceedings that the Petitioner has been held to
be a Public Temple and the plea now raised that it is a private Temple cannot be
countenanced in law.
4. Though Learned Counsel for the Petitioner contends that the Division
Bench of the Court had granted liberty to the Petitioner to challenge the
publication declaring the Petitioner to be a Public Temple in the order dated
23.08.2022 in W.A. No. 1858 of 2022, it is apparent from the materials borne
out of the record that the Petitioner has been treated a 'Public Temple' is in
furtherance to the conclusions arrived by this Court in the earlier legal
proceedings between the parties culminating in the judgment and decree dated
16.04.2003 in S.A. No. 1742 of 1992 passed by this Court, which has attained
finality, as referred supra.
5. At this juncture, reference must be made to the effects of finality of
litigation as deduced from the authoritative pronouncements of the Hon’ble
Supreme Court of India in M.Nagabhushana –vs- State of Karnataka [(2011)
3 SCC 408] and Union of India –vs- Major S.P.Sharma [(2014) 6 SCC 351],
which can be summarized as under:-
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W.P. No. 27971 of 2022
(a) The doctrine of finality of litigation is an outcome of two age old salutary
principles of public policy, viz., interest reipublicae ut sit finis litium
which signifies that it is in the interest of the State that there should be an
end to litigation, and the other principle, viz., nemo debet bis vexari, si
constat curiae quod sit pro una et eademn causa, conveys that no one
ought to be vexed twice in a litigation if it appears to the Court that it is
for one and the same cause. One important consideration of public policy
is that the decisions pronounced by courts of competent jurisdiction
should be final, unless they are modified or reversed by appellate
authorities or by adopting a procedure prescribed by law. The other
principle is that no one should be made to face the same kind of litigation
twice over, because such a process would be contrary to considerations
of fair play and justice. In the absence of such principle, great oppression
might result under the colour and pretence of law in as much as there will
be no end of litigation and a resourceful and malicious litigant may
succeed in infinitely vexing his opponent by repetitive suits and actions.
This may compel the weaker party to relinquish his right. The universally
acclaimed rule of res judicata has been evolved to prevent such anarchy.
(b) The rule of res judicata is common to all civilized system of
jurisprudence to the extent that a judgment after a proper trial by a court
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W.P. No. 27971 of 2022
of competent jurisdiction should be regarded as final and conclusive
determination of the questions litigated and should forever set the
controversy at rest. That is why it is perceived that the plea of res
judicata is not a technical doctrine but a fundamental principle which
sustains the Rule of Law in ensuring finality in litigation. This principle
seeks to promote honesty and a fair administration of justice and to
prevent abuse in the matter of accessing court for agitating on issues
which have become final between the parties. Any proceeding which has
been initiated in breach of the rule of res judicata is prima facie a
proceeding which has been initiated in abuse of the process of Court.
(c) If a litigant has chosen to put his case in one way, he cannot thereafter
bring the same transaction before the court, put his case in another way
and say that he is relying on a new cause of action. An adjudication is
conclusive and final not only as to the actual matter determined but as to
every other matter which the parties might and ought to have litigated
and have had decided as incidental to or essentially connected with
subject-matter of the litigation and every matter coming into the
legitimate purview of the original action both in respect of the matters of
claim and defence. It also does not lose its authority merely because it
was badly argued, inadequately considered and fallaciously reasoned.
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W.P. No. 27971 of 2022
Such consequence follows both to an order from which an appeal lies but
has not been preferred, as well as to an order from which no appeal is
provided. This precept is referred in legal parlance as `constructive res
judicata’. In a country governed by the Rule of Law, finality of judgment
is absolutely imperative to which great sanctity is attached and it is not
permissible for the parties to re-open the concluded judgments of the
court as it would not only tantamount to merely an abuse of the process
of the court but would have far reaching adverse affect on the
administration of justice.
(d) It is an abuse of the process of the court and contrary to justice and
public policy for a party to re-litigate the same issue which has already
been tried and decided earlier against him. The re-agitation may or may
not be barred as res judicata, but if the same issue is sought to be
re-agitated, it also amounts to an abuse of the process of court. The court
then has the power to stop such proceedings summarily and prevent the
time of the public and the court from being wasted.
In view of this legal position, it is not possible to entertain this Writ Petition,
which is prosecuted in abuse of the legal process.
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W.P. No. 27971 of 2022
6. In the result, the Writ Petition, which is devoid of merits, is dismissed.
Consequently, the connected Miscellaneous Petitions are closed. No costs.
20.10.2022
vjt
Index: Yes/No
Note: Issue order copy by 14.11.2022.
To
1. The Commissioner,
Hindu Religious and Charitable Endowments Department,
No. 119, Uthamar Gandhi Salai,
Nungambakkam,
Chennai - 600 034.
2. The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
Villupuram.
3. The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
No. 8, River Side Street,
Pudupalayam,
Cuddalore - 607 001.
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W.P. No. 27971 of 2022
P.D. AUDIKESAVALU, J.
vjt
W.P. No. 27971 of 2022
20.10.2022
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