Madras High Court
S.Sarveshwaran Achari vs The State Of Tamil Nadu on 20 April, 2023
W.A.No.2252 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 09.03.2023
DATE OF DECISION : 20.04.2023
CORAM :
THE HON'BLE MR.T.RAJA, ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.No.2252 of 2022
S.Sarveshwaran Achari .. Appellant
v.
1. The State of Tamil Nadu
rep by its Secretary to Government
Tourism, Culture and Endowment Department
Fort St.George, Chennai 600 009
2. The Commissioner
Hindu Religious and Charitable Endowments Department
No.119, Uthamar Gandhi Salai
Nungambakkam, Chennai 600 034
3. The Joint Commissioner
Hindu Religious and Charitable Endowments Department
Chennai Division-I
Yadhaval Street, Padi, Chennai 600 050 .. Respondents
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Appeal filed under Clause 15 of the Letters Patent, against the order
dated 23.09.2022 passed in W.P.No.25803 of 2022.
For Appellant :: Mr.R.Singaravelan
Senior Counsel assisted by
Mr.T.S.Rajamohan
For Respondents :: Mr.R.Shunmugasundaram
Advocate General assisted by
Mr.N.R.R.Arun Natarajan
Special Government Pleader
JUDGMENT
The Hon'ble Acting Chief Justice
This writ appeal has been directed against the impugned order dated
23.09.2022 passed by the learned single Judge in Writ Petition No.25803 of
2022, dismissing the writ petition filed by the appellant/writ petitioner on a
challenge to the G.O.Ms.No.103, Tourism, Culture and Religious
Endowments Department dated 23.09.2020 reducing the term of office of
the non-hereditary trustees from three years to two years.
2. Mr.R.Singaravelan, learned Senior Counsel appearing for the
appellant/writ petitioner argued that Arulmighu Sri Kalikambal
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Kamadeswarar Temple is one of the ancient temples in the State constructed
even prior to 16th Century B.C., because the Great Maratha Warrior
Chatrapathi Sivaji Maharaj visited this temple and offered his prayers to the
Goddess on 03.10.1677 during his Dakshin Digvijaya campaigns in South
Indian region. This temple is also identified with Viswakarma community
people and absolutely dedicated to the said family only. Moreover,
Arulmighu Kalikambal Kamadeswarar Temple is a denominational temple
declared under the Scheme Suit, C.S.No.654 of 1926 dated 08.08.1927 and
the Scheme framed in the said suit was re-framed by formulating a fresh
scheme in its place, vide judgment and decree dated 25.09.1935 passed in
C.S.No.62 of 1933 by the High Court of Madras. As per the said Scheme
Decree dated 25.09.1935, the management and administration of the temple
exclusively vest with the Hindu Vishwakarma community people alone. The
Scheme Decree clearly mentions the manner and administration of the day
to day activities of the temple. It also deals with the mode of conduct of
election, qualification of members who wish to contest elections, besides
the tenure of office etc. When Clause-5 of the Scheme Decree spells out the
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W.A.No.2252 of 2022
tenure of office of trustees for three years, the said period of three years
cannot be reduced to two years by the impugned G.O.Ms.No.103 dated
23.09.2020, as the temple is a denominational temple declared under the
Scheme Decree dated 25.09.1935 in C.S.No.62 of 1933 and that the
management and administration of the temple exclusively vest with the
Hindu Vishwakarma community people. Therefore, in view of Section 107
of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959
(for short, “the Act”), Section 47 of the Act cannot be pressed into service,
in the absence of any complaint either under Section 106 of the Act or
Article 25(2) of the Constitution of India, as it is a denominational temple
protected by Article 26 of the Constitution of India, for the simple reason
that the scheme in respect of a denominational temple can be modified only
by resorting to civil remedy to modify or re-frame the scheme settled by the
competent civil Court under Section 92 of the Code of Civil Procedure. In
the case on hand, when the scheme was settled by this Court in C.S.No.62
of 1933 on 25.09.1935, as per the Scheme Decree, when the tenure of
trustees is three years and not two years, the ratio laid down by the Hon'ble
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W.A.No.2252 of 2022
Apex Court in R.Murali and others v. Kanyaka P.Devasthanam and
Charities and others, (2005) 6 SCC 166 would squarely apply to the present
case. The judgment says, he pleaded, that the institution of religious
denomination of Arya Vysya community is protected under Article 26 of the
Constitution of India from interference in its administration by the
authorities under the Act, because the right guaranteed under Article 26 of
the Constitution of India has been expressly protected under Section 107 of
the Act by making inapplicable the other provisions of the Act including
Section 64 to institutions of religious and charitable nature of religious
denominations. Arguing further, the learned Senior Counsel submitted that
the impugned Government Order passed without following the procedure
contemplated under Section 64(5) of the Act is liable to be set aside.
Concluding his arguments, it is argued that when the G.O.Ms.No.103 dated
23.09.2020 was issued during the Corona virus pandemic situation, when
the State and Central Governments have issued advisories to the public at
large that they shall wear face masks mandatorily in all public places, due to
the fear of Corona virus, the trustees elected could not challenge the
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Government Order immediately. But the learned single Judge, finding fault
with the filing of the writ petition challenging the said Government Order,
has erroneously held that the trustees cannot challenge the Government
Order impugned at the fag end of their tenure. This finding of the learned
single Judge is contrary to the admitted pandemic situation prohibiting the
people not to come out of their homes during the Corona virus pandemic
situation. Moreover, in some of the places, the Court proceedings were also
held through video conferencing mode. This aspect has been completely
overlooked by the learned single Judge. Therefore, the impugned order is
liable to go, the learned Senior Counsel pleaded.
3. A detailed counter affidavit has been filed filed by the second
respondent. Mr.R.Shunmugasundaram, learned Advocate General appearing
for the respondents argued that when the Board of Trustees of Arulmighu
Sri Kalikambal Kamadeswarar Devasthanam shall have a tenure of three
years from the date of election, by virtue of Section 47(3) of the Act, the
term of office of non-hereditary trustees was reduced from three years to
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two years. But the implementation of the Scheme was kept in abeyance for
few years due to the pendency of litigations challenging both 2008 and 2010
amendment Acts on reducing their term of office under Section 47(3) of the
Act. When the election to the Board of Trustees to the said Devasthanam
took place in the year 2012, the first respondent passed G.O.Ms.No.173
dated 03.07.2012 fixing the term of office as three years, instead of two
years, granting them the benefit of pendency of the litigations on the
validity of such amendment. When this Court has upheld the validity of the
amendment to Section 47(3), the same was implemented effectively.
Therefore, when the said Devasthanam Board was again elected and
constituted in May 2016, the first respondent passed G.O.Ms.No.48,
Tourism, Culture and Religious Endowments Department dated 04.03.2016
restricting the period of newly elected Trust Board for two years. This was
questioned in Writ Petition No.10652 of 2018. The learned single Judge
passed an order on 27.04.2018 directing the petitioners therein to give a
fresh representation to the second respondent with a further direction to
consider the same and pass appropriate orders. Accordingly, a fresh
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representation dated 07.05.2018 was given by the Board of Trustees to the
first respondent, who has, vide order dated 04.09.2018 in
Na.Ka.No.2491/2018/A1, reiterated the legal position that the period of the
Trust Board shall be only for two years, which is in fine tune with Section
47(3) of the Act, because Section 50 will prevail and override if anything
runs contrary to the said Scheme. Two more writ petitions, namely,
W.P.Nos.24060 of 2018 and 4751 of 2019 were also filed by the trustees
and devotee against the order dated 04.09.2018. In the meanwhile, another
devotee filed Application No.3021 of 2019 in the Scheme Decree,
C.S.No.62 of 1933 to conduct elections for trusteeship for the year 2019.
This Court, by order dated 24.04.2019 in A.No.3021 of 2019 in C.S.No.62
of 1933, appointed Fit Person and Additional Fit Person to continue the
affairs till such time the elected Board including the Managing Trustee have
been elected and ready to take office. This was questioned in
O.S.A.Nos.133 and 135 of 2019 before the Division Bench of this Court
and the same was set aside directing the Government to conduct election to
the temple in question. In the meanwhile, the tenure of the existing trustees
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got expired. Only thereafter, in February 2020, election was conducted and
five non-hereditary trustees were appointed with a tenure of two years. By
giving a representation dated 09.06.2021, the trustees of the Board sought
for one more year and thereafter filed W.P.No.7725 of 2022 for a mandamus
to consider their representation and also to modify the G.O.Ms.No.103
dated 23.09.2020. The said writ petition was disposed of on 30.03.2022
with a direction to the respondents to consider the same. The appellant/writ
petitioner also filed W.P.No.25803 of 2022 for issuance of a writ of
certiorarified mandamus, calling for the records of the respondents,
particularly that of the second respondent in G.O.Ms.No.103 dated
23.09.2020 and quash the same as illegal, ultra vires and without
jurisdiction and contravention to the scheme decree passed in C.S.No.62 of
1933 dated 25.09.1935 and consequently direct the respondents to confirm
the tenure of 3 years for the elected board of Trustees who are holding
office in Chennai Sri Kalikambal Kamadeswarar Devasthanam at No.212,
Thambu Chetty Street, Chennai-600 001, for 3 years as fixed by scheme
decree passed in C.S.No.62 of 1933 dated 25.09.1935 and accordingly
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permit the present Board of Trustees to continue to hold and discharge their
office until 01.10.2023. The learned single Judge, appreciating the legal
position, has rightly dismissed the writ petition. When the third respondent
had also issued a notice dated 12.09.2022 in R.C.No.3082/2022/A1 inviting
their consent for modification of the Scheme Decree as framed in C.S.No.62
of 1933, that does not require any interference. Therefore, the writ appeal
should go, the learned Advocate General pleaded.
4. Heard both sides.
5. Chennai Arulmighu Sri Kalikambal Kamadeswar Temple is a
religious denomination temple belonging to Hindu Vishwakarma
community people and the administration and management of the temple
vest with the Board of Trustees to be constituted by way of election in the
manner prescribed by this Court in the Scheme Decree dated 25.09.1935
framed in C.S.No.62 of 1933. As per the said decree, there must be five
trustees in the Board and among them, one can be the Managing Trustee to
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be elected and appointed and the Board of Trustees shall have a tenure of
three years, prior to the amendment to Section 47(3) of the Act. Moreover,
the Scheme Decree says that the trustees shall be elected by direct election
through balloting and the electoral college would consist of Viswakarma
male members having residence at Chennai and such other qualifications as
prescribed in the scheme. When the Scheme Decree had been adopted by
the Devasthanam and managed by the Trust Board elected from time to
time, by way of an amendment to Section 47(3) of the Act, the term of
office of non-hereditary trustees was reduced from three years to two years,
giving rise to the present litigation.
6. Now the short question involved in the appeal is whether, by
exercising the power under Section 47(3) of the Act and by virtue of Section
50, which will override and prevail over the Scheme if any contrary to the
Scheme, the term of office of the non-hereditary trustees can be reduced
from three years to two years, on the basis of G.O.Ms.No.103, Tourism,
Culture and Religious Endowments Department dated 23.09.2020?
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7. Once the Chennai Sri Kalikambal Kamadeswarar Temple is a
denomination temple, it is relevant to refer to Section 107 of the Act, which
is extracted as follows:-
“107. Act not to affect rights under Article 26 of
the Constitution.— Nothing contained in this Act
shall, save as otherwise provided in section 106
and in clause (2) of Article 25 of the Constitution,
be deemed to confer any power or impose any duty
in contravention of the rights conferred on any
religious denomination or any section thereof by
Article 26 of the Constitution.”
Before dealing with Section 107 of the Act, it is also relevant to refer to
Articles 25 & 26 of the Constitution of India, which are extracted as under:-
“25. Freedom of conscience and free profession,
practice and propagation of religion..- (1)Subject
to public order, morality and health and to the
other provisions of this Part, all persons are
equally entitled to freedom of conscience and the
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right freely to profess, practice and propagate
religion.
(2) Nothing in this article shall affect the operation
of any existing law or prevent the State from
making any law --
(a) regulating or restricting any economic,
financial, political or other secular activity
which may be associated with religious
practice;
(b) providing for social welfare and reform or
the throwing open of Hindu religious
institutions of a public character to all classes
and sections of Hindus.
Explanation I: The wearing and carrying of kirpans
shall be deemed to be included in the profession of
the Sikh religion.
Explanation II: In sub clause (b) of clause (2), the
reference to Hindus shall be construed as including
a reference to persons professing the Sikh, Jaina or
Buddhist religion, and the reference to Hindu
religious institutions shall be construed
accordingly.
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26. Freedom to manage religious affairs..--Subject
to public order, morality and health, every
religious denomination or any section thereof shall
have the right
(a) to establish and maintain institutions for
religious and charitable purposes;
(b) to manage its own affairs in matters of
religion;
(c) to own and acquire movable and
immovable property; and
(d) to administer such property in accordance
with law.”
8. When Section 107 of the Act shows that nothing contained in the
Act shall, save as otherwise provided in section 106 and in clause (2) of
Article 25 of the Constitution, be deemed to confer any power or impose
any duty in contravention of the rights conferred on any religious
denomination or any section thereof by Article 26 of the Constitution
coupled with the freedom guaranteed to every religious denomination to
practice and establish and maintain religious institutions under Articles 25
& 26 of the Constitution of India, since the temple in question is governed
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W.A.No.2252 of 2022
by the Scheme Decree, the scheme in respect of a denomination temple can
be modified only by resorting to the civil Court under Section 92 of the
Code of Civil Procedure. Admittedly, the Scheme, in the case on hand, was
settled by the Scheme Decree dated 25.09.1935 in C.S.No.62 of 1933. As
per the said Scheme Decree, the tenure of trustees is three years and not two
years. Therefore, the respondents can approach the same Court, which has
passed the Scheme Decree for modifying or re-framing the Scheme Decree.
As it has not been done, the same has been put to challenge.
9. In similar circumstances, an identical issue came up before the
Hon'ble Apex Court in R.Murali and others v. Kanyaka P.Devasthanam
and Charities and others, (2005) 6 SCC 166 : 2005 SCC OnLine SC 1080,
wherein the Apex Court has held as follows:-
“19. As a result of the decree of declaration that
the Institution is a religious denomination of the
Arya Vysya community, it had protection under
Article 26 of the Constitution from interference in
its administration by the Authorities under the
Tamil Nadu Act. This right guaranteed under
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Article 26 of the Constitution has been expressly
protected under Section 107 of the Tamil Nadu
Act by making inapplicable the other provisions of
the Act including Section 64 to institutions of
religious and charitable nature of religious
denominations.
20. Our conclusion is that on grounds both of
existence of a decree of declaration and injunction
granted by the City Civil Court in the year 1976 in
the suit instituted by the respondents themselves
and the mixed character of the Institution of
“religious denomination” as religious and
charitable with protection of Article 26 and
Section 107 of the Tamil Nadu Act, it is not open
to the present appellants to approach the
Authorities under Section 64 of the Tamil Nadu
Act for modification or reframing the scheme of
the administration of the Trust. As the decree of
declaration and injunction is operative against the
Authorities under the Tamil Nadu Act, the civil
court alone could have been approached by
obtaining leave under Section 92 CPC for seeking
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modification or reframing of scheme of
administration of the Trust.
21. For the aforesaid reasons, the impugned order
of the Division Bench of the High Court deserves
to be set aside and that of the learned Single Judge
restored. In the result, this appeal succeeds and is
allowed. The impugned order of the Division
Bench dated 23-12-2003 is set aside. The order of
the learned Single Judge dated 2-9-2003 is
restored. Respondents 2 to 7 shall individually and
collectively, without using funds of the Institution,
pay full costs incurred in this appeal to the
appellants.”
10. In the light of the above ratio laid down by the Hon'ble Apex
Court that by virtue of Section 107 of the Act read with Article 26(d) of the
Constitution of India, Section 64 is not applicable to the denomination
temple and the only course open to the respondents is to approach the civil
Court to modify the scheme under Section 92 of the Code of Civil
Procedure and therefore the Government cannot even resort to Section 64 of
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the Act, this aspect has been completely overlooked by the learned single
Judge. Therefore, the impugned order is set aside and the writ appeal stands
allowed giving liberty to the respondents to approach the civil Court
concerned for modification of the Scheme Decree. Consequently,
C.M.P.Nos.17155 & 17156 of 2022 are closed. There shall be no order as
to costs.
Speaking order (T.R.,A.C.J.) (D.B.C.,J.)
Index : yes 20.04.2023
Neutral Citation : yes
ss
To
1. The Secretary to Government
Tourism, Culture and Endowment Department
Fort St.George
Chennai 600 009
2. The Commissioner
Hindu Religious and Charitable Endowments Department
No.119, Uthamar Gandhi Salai
Nungambakkam
Chennai 600 034
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3. The Joint Commissioner
Hindu Religious and Charitable Endowments Department
Chennai Division-I
Yadhaval Street, Padi
Chennai 600 050
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W.A.No.2252 of 2022
THE HON'BLE ACTING CHIEF JUSTICE
AND
D.BHARATHA CHAKRAVARTHY,J.
ss
Judgment in
W.A.No.2252 of 2022
20.04.2023
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