Madras High Court
H.H.Sankaracharya Swamigal vs The Govt. Of Tamil Nadu on 8 December, 2023
Bench: Sanjay V.Gangapurwala, D.Bharatha Chakravarthy
W.A.No.216 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.12.2023
CORAM :
THE HON'BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Writ Appeal No.216 of 2021
C.M.P.No.950 of 2021
H.H.Sankaracharya Swamigal
Kanchi Kamakodi Peetam
Hereditary Trustee
Sri Viswanatha Swamy Devasthanam
Melavanjur, Thirumalairaya Pattinam
Pondicherry.
.. Appellant
Versus
1. The Govt. of Tamil Nadu,
Represented by its Secretary,
Tourism, Culture and Charitable Endowments Department
Fort St.George
Chennai – 600 009.
2.The Commissioner
Hindu Religious & Charitable
Endowments Department
Nungambakkam High Road
Chennai – 600 034.
Page 1 of 22
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W.A.No.216 of 2021
3.The Asst. Commissioner
Hindu Religious & Charitable
Endowments Department
Nagapattinam.
.. Respondents
Prayer : Writ Appeal filed under Clause 15 of the Letters Patent, to set aside
the order dated 12.02.2020 made in W.P.No.23096 of 2013 and allow the
above Writ Appeal.
For Appellant : Mr.A.K.Sriram, Senior Counsel
for Mr.Wilson Topas
for M/s A.S.Kailasam & Associates.
For Respondents : Mr.N.R.R.Arun Natarajan
State Government Pleader,
for RR-1 to 3
JUDGMENT
(Judgment made by the Hon'ble Mr.Justice D.Bharatha Chakravarthy)
A. The Questions:
1. The questions which arise for our determination in this Writ
Appeal are,
(i)whether action of the authorities of the State of Tamil Nadu under
the Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959, in
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appointing a fit person in respect of the properties of the appellant Temple is
without jurisdiction as extra territorial exerciser of power?; and
(ii)even if they had jurisdiction, whether a fit person can be
appointed in respect of property of the temple?
B. The Appeal:
2. This Writ Appeal is directed against the Order of the learned
Single Judge dated 12.01.2020 in W.P.No.23096 of 2013, by the said order,
the learned Single Judge had disposed of the Writ Petition, on the following
terms:
“19. In the result, the impugned orders are
quashed and the matter is remanded back to the third
respondent for fresh consideration and the third respondent
shall pass final orders under Section 49 of the Tamil Nadu
Hindu Religious and Charitable Endowments Act, 1959 after
affording sufficient opportunity to the petitioner including
granting him the right of personal hearing and after
considering all the objections raised by the petitioner within a
period of four months from the date of receipt of a copy of this
Order.
20. With the aforesaid directions, this writ petition is
disposed of. No costs. Consequently, connected miscellaneous
petition is closed.”
2.1 In the said Writ Petition, the appellant/writ petitioner had prayed
for a Certiorarified Mandamus, calling for the records of the first respondent, in
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G.O.(Ms) No.91, dated 16.05.2013, to quash the same and consequently
forbear the respondents from taking any action against Sri Viswanathaswami
Devasthanam, Melavanjur, Thirumalairayar Pattinam, Puducherry.
C. The Factual Matrix:
3.The case of the appellant is that the aforementioned temple is
situated in the Union Territory of Puducherry. The Hindu Religious Institutions
situated within the Territory of Puducherry are governed by the Puducherry
Hindu Religious Institutions Act, 1972 (hereinafter ‘the Puducherry Act’). The
appellant is a private temple. A certificate is already issued by the Additional
Commissioner of Hindu Religious Institution, Puducherry, that the temple in
question is not coming under the purview of the Puducherry Act.
3.1 The appellant temple is possessed of wet lands, ad-measuring an
extent of acres 26.13 cents and dry lands ad-measuring an extent of acres
182.55 cents, which are situated in Panangudi Revenue Village, Nannilam
Taluk, Nagapattinam District, in the State of Tamil Nadu. While so, a show
cause notice dated 25.10.1994 was issued to the appellant as to why a fit
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person should not be appointed for management of the aforesaid lands. Though
an explanation was submitted by the appellant, objecting for such an action,
the objections were rejected and a fit person was appointed for managing the
said lands, to collect the arrears of rent in respect of the said lands from the
cultivating tenants, similarly to collect the arrears due from the plots, to fix fair
rent in respect of the above said lands, and to evict the encroachers from the
lands. The Executive Officer of the Arulmigu Navaneethaswamy Temple,
Sikkal, Nagapattinam District, was given additional charge as the fit person.
Aggrieved by the said order, a review petition in R.P.No.32 of 2007 is filed
before the second respondent herein. By an order dated 11.10.2010, the review
petition was dismissed. Against which a further Revision was laid before the
Government of Tamil Nadu/first respondent, under Section 114 of the Hindu
Religious and Charitable Endowments Act, 1959 (hereinafter ‘the Tamil Nadu
Act’). The said Revision Petition also dismissed by Order dated 16.05.2013 in
G.O.(Ms) No.91. Aggrieved thereby a W.P.No.23096 of 2013 is filed.
3.2 It is the further case of the appellant that when the temple is
situate within the Union Territory of Puducherry, the respondents herein cannot
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exercise extra territorial jurisdiction. A fit person can only be appointed in
respect of a religious institution and not in respect of the lands. When there is
a hereditary trustee for the temple, there is no jurisdiction to appoint a fit
person for the temple. When the authorities of Puducherry themselves have
issued a certificate, then the same is binding on the respondents. Merely
because the definition in Section 6 (20) of the Tamil Nadu Act, includes the
land situated within the State, it can at best be only for the purposes of
removing the encroachment etc., and not in respect of the appointment of a fit
person for the temple.
3.3 It is the case of the respondents that the Section 6 (20) of the
Tamil Nadu Act, confers jurisdiction on the respondent authorities in so far as
the properties of the temple which are situated within the State of Tamil Nadu.
The respondent authorities had passed an order dated 12.06.1983, to bring the
said temple in the control of the Hindu Religious & Charitable Endowment
Department and the appellant challenged the same by filing R.P.No.2 of 1994
and by an order dated 25.10.1994, the second respondent had already held that
the temple is a public temple. In the absence any contra declaration that the
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temple is a private temple, the appellant is bound to render true and proper
accounts of the income from the property situate in the State of Tamil Nadu
and in case of mismanagement, action can be taken under the Tamil Nadu Act.
3.4 As a matter of fact, when the appellant wanted to sell a part of
their lands belonging to them in Panangudi Village, they approached the
second respondent under Section 34 of the Tamil Nadu Hindu Religious and
Charitable Endowments Act, and permission was granted by the second
respondent vide order dated 27.05.2007. Therefore, the respondents have
jurisdiction in respect of the subject matter and the appellant themselves
admitted the jurisdiction. Section 49 (1) read with explanation to Section 6
(20) of the Act, would make it clear that a fit person can be appointed to
administer the property situated within the State of Tamil Nadu. The same is
for the allowed purposes of saving the property belonging to the temple and to
ensure proper management of the properties.
D. The Findings & Order in the Writ Petition:
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4.The learned Single Judge considered the case of the parties found
that from the proceedings, it is not known whether any order was passed
removing the trustees under Section 53 of the Act. When it is the case of the
respondents that the temple is a public temple, an express finding thereof is not
given. There is no application of mind, while passing the impugned orders.
However, a reading of Section 49 along with Section 6 (20) of the Act would go
to show that the respondents are enabled to appoint a fit person, for the
purpose of the temple whose properties are situated within the State of Tamil
Nadu. Therefore, even though the respondents have the power, since they have
not passed a speaking order in clear terms with proper evidence, the impugned
orders were quashed and the matter was remanded back to the third respondent
herein, to decide the matter afresh, after affording sufficient opportunity to the
appellant. Aggrieved thereby, the present Writ Appeal is filed.
E. The Submissions:
5.We have heard Mr.A.K.Sriram, learned Senior Counsel appearing
on behalf of the appellant and Mr.N.R.R.Arun Natarajan, learned Special
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Government Pleader appearing on behalf of the respondents 1 to 3 and also
perused the material records of the case.
5.1 Mr.A.K.Sriram, learned Senior Counsel appearing on behalf of
the appellant would submit that once the temple is situate within the Union
Territory of Puducherry, the primary control of the temple would only vest with
the authorities in the said Territory under the Puducherry Act. If at all any fit
person can be appointed, it can be only by exercising the powers under the
Puducherry Act and not by the respondents. When the said authorities
themselves had given the certificate that the appellant temple is a private
temple, then the respondents herein have no jurisdiction whatsoever to declare
otherwise or proceed in the matter holding otherwise. Whenever a temple and
its properties are situated in more than one jurisdiction, the provisions of the
Acts have to be read harmoniously. The jurisdiction, if any, can only be
exercised in terms of protecting the properties such as removal of encroachers
taking over possession, etc.. Appointment of fit person can only be in respect of
religious institution. In this case, no religious institution exists in Tamil Nadu,
only landed properties situated in Tamil Nadu. No fit person can be appointed
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in respect of the landed properties. Therefore, he would submit that the entire
exercise of the respondents was absurd and without jurisdiction.
5.2 The learned Senior Counsel appearing on behalf of the appellant
would rely upon the Judgment in the case of Anant Prasad Lakshminiwas
Ganeriwal Vs.State of A.P. And others 1 more specifically relying upon
paragraph No. 12 to contend that primarily the law, which is applicable to the
territory in which the temple is only be applicable. He would further rely upon
the Judgment of the Hon'ble Supreme Court in the case of Ramaswarup Guru
Chhote Balakdas Vs. Motiram Khandu Patil and others 2 more specifically
relying upon the paragraph No.7 to contend that once the institution is
governed by the law in which it is situate, the same cannot fall within the
jurisdiction of the authorities of the other States, merely because properties of
the institutions is situate in the State. He would press into service the Judgment
of the Hon'ble Supreme Court in the case of Charity Commissioner, Bombay
Vs. Administrator of the Shringeri Math and its properties 3 more specifically
by relying upon the paragraph No.7 to contend that the situs of the math has to
1 AIR 1963 SUPREME COURT 853
2 AIR 1968 SUPREME COURT 422
3 (1969) 1 SCR 660
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be reckoned and once the situs is in Puducherry, merely because of the lands
are situate in Tamil Nadu, the respondent authorities cannot exercise the
jurisdiction.
5.3 Per contra, Mr.N.R.R.Arun Natarajan, the learned Special
Government Pleader by taking this Court to the certificate dated 26.03.1991
issued by the authorities of Puducherry would contend that nothing specifically
mentioned in the said certificate that the temple is a private temple. As a matter
of fact in R.P.No.2 of 1994, there is a specific finding that the temple is a
public temple and once it is a pubic temple, express power is conferred by the
Tamil Nadu Act as per the explanation under Section 6 (20). The said order
has become final inter parties.
5.4 He would further contend that the appellant on the earlier
occasion having approached the second respondent, for grant of permission for
selling the lands, cannot now re-probate and contend that there is no
jurisdiction vested with the authorities in Tamil Nadu. He would submit that a
fit person is not appointed, in respect of other affairs of the temple as that
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would be within the jurisdiction of the authorities in Puducherry. When the
temple lands were lying within the jurisdiction of the second respondent and
the same was mismanaged, a reading of the Section 49 of the Tamil Nadu Act
empowers the appellant to appoint a fit person. It is only for the benefit of the
temple and in the interest of safeguarding of the properties, action is taken. As
a matter of fact, several complaints were received from the villagers about the
mis-managment of the temple. In any event, the appellant can raise all the
contentions regarding the merits of the case before the third respondent, to
whom the learned Single Judge has remanded the matter to pass orders afresh.
F. The Report of the Amicus Curiae:
6. Earlier by an order dated 10.08.2021, this Court was pleased to
appoint Mr.V.Lakshminarayanan, Advocate (now, Justice
V.Lakshminarayanan, Judge,Madras High Court) as Amicus Curiae to assist
the Court. The learned Amicus Curiae had also filed a brief dated 21.08.2021.
A perusal of the brief filed by the learned Amicus Curiae, it can be seen that he
had first considered as to whether a State can exercise extra territorial
jurisdiction and answered the same in negative. Thereafter, he proceeded to
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consider that when the primary situs of the temple is situate in one jurisdiction
and if it has properties in another jurisdiction and when there are provisions in
different acts, enabling different authorities to act, the provisions have to be
harmoniously construed and it is viewed from that angle, only in respect of the
purposes as such removal of encroachment etc., the powers of the respondent
authorities can be exercised and merely because in the definition under Section
6 (20) of the Act, the properties of the temple situated within the State are
mentioned, in the absence of an enabling provision, a fit person cannot be
appointed for management of the properties.
6.1 We have given our anxious consideration to the submissions
made on either side and have duly considered the report of the learned Amicus
Curiae and also perused the material records of the case.
G. Question No. (I):
7.At the outset we fully in agreement with the brief of the learned
Amicus Curiae that the State of Tamil Nadu cannot make extra territorial
legislation that when the institution is in a particular jurisdiction and also has
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branches or properties in other jurisdictions, the primary situs of the institution
has to be taken into consideration and therefore whenever any question arises
relating to the management or otherwise of the temple, it should be performed
only by the authorities of that jurisdiction and any other law which also
entitles jurisdiction on the other authorities should be harmoniously construed
so as to facilitate the above.
7.1 In this regard, the relevant provision, viz., 6 (20) is extracted
hereunder:
“(20) “temple” means a place by whatever
designation known, used as a place of public religious
worship and dedicated to, or for the benefit of, or used as of
right by, the Hindu community or of any section thereof, as
a place of public religious worship;
Explanation. —Where a temple situated outside the State
has properties situated within the State, control shall be
exercised over the temple in accordance with the provisions
of this Act, in so far as the properties of the temple situated
within the State are concerned;”
7.2 Thus it can be seen that it is not an extra territorial legislation,
but applies the law only in respect of the properties which are situated within
the State of Tamil Nadu. In the present case, there is no question of any conflict
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of orders between two authorities of the Union Territory of Puducherry and the
State of Tamil Nadu. It is not the case of the appellant that it is being dealt with
by the appropriate Act, viz., the Puducherry Act. On the contrary, it is their
specific pleading that it is a private temple. Though we are in agreement with
Mr.A.K.Sriram, the learned counsel appearing on behalf of the appellant that it
is not necessary in the first instance for any private temple to go before the
Civil Court or before the authorities to declare it is a private temple. However in
this case, by a statutory order binding the inter parties, the second respondent
in R.P.No.2 of 1994 has held that the appellant temple is a public temple. It is
relevant to quote the paragraph No.7 of the said order:
“7.The Preliminary report shows that it is a public
temple and that even though the temple is located within the limits
of Pondicherry State all the properties are situated in Tamil Nadu
State only.......”
7.3 Further, as opined by the learned Amicus Curiae and contended
by Mr.A.K.Sriram, the learned Senior Counsel we are also in agreement that if
the authorities in which the primary situs of the temple viz., the Hindu
Religious Institution Authorities in Puducherry have held that the temple is a
private temple, by way of harmonious construction of the two statutes, taking
into account, the situs of the temple being in Puducherry, a contrary stand
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cannot be taken by the respondents herein. In this context what is relied upon
by the appellant is a certificate dated 26.03.1991 issued by the Additional
Commissioner, Hindu Religious Institutions, Puducherry. The certificate states
that the Sri Viswanatha Swamy Devasthanam, Melavanjur, Thirumalairaya
Pattinam, Puducherry, is not coming under the Puducherry Act. It further
states that the certificate is issued, so as to enable temple authorities to produce
the same to the Electricity Department and Public Works Department for
providing electricity/water service connection to the houses belonging to the
above said devasthanam, subject to verification of title deeds. The certificate
also specifically instructs that it can be produced to the Electricity Department
or Public Works Department, whenever needed. Thus the same cannot be
construed as one declaring the appellant as a private temple.
7.4 On the contrary the appellant on their own conduct, on an earlier
occasion when they wanted to sell a piece and parcel of the land situate in the
same Nagapattinam District, under the jurisdiction of the third respondent
have approached the second respondent viz., the Commissioner, HR & CE,
State of Tamil Nadu to grant permission for selling the property under Section
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34 of the Tamil Nadu Act. Unless they are a public temple it is not necessary
for them to approach the second respondent and obtain a permission before
them. Therefore, the argument that the appellant need not at the first instance
approach any Court or Authority to establish that it is a private temple is
unacceptable in the context of the present case. In view of the earlier findings to
the contrary and the said order having been allowed to become final and the
appellant’s own conduct of approaching the second respondent, it is now
become incumbent on the appellant either to establish before the third
respondent or by approaching the appropriate Civil Court to establish that it is
a private temple. It can also do so by taking recourse under the Puducherry
Act. If such a declaration is granted, then automatically it comes out of the
purview of the Section 6 (20) of the Tamil Nadu Act as it will not be a temple
within the meaning of Section 6 (20). In the absence of the same, it cannot be
said that there is an exercise of extra territorial jurisdiction.
H. Question No. (II):
8.The second limb of the argument on behalf of the appellant is that
the fit person cannot be appointed under the Tamil Nadu Act only in respect of
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the landed properties. Firstly, this question will arise, if only the
appellant/Institution fails to establish that it is a private temple. Secondly, as
per Section 49 of the Tamil Nadu Act, power is conferred on the Assistant
Commissioner to appoint a fit person for any 'religious institution'. The term
'religious institution' is defined under Section 6(18), which reads as follows:-
“(18) “Religious institution” means a math, temple
or specific endowment and includes,: —
(i) a samadhi or brindhavan; or
(ii) any other institution established or maintained
for a religious purpose. Explanation.- For the purpose of this
clause-
(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;)”
8.1 The lands cannot be said to be mere properties, but are
endowments as defined under Section 6 (17) of the Act, which is extracted
hereunder:
“(17) “Religious endowment” or “endowment”
means all property belonging to or given or endowed for the
support of maths or temples, or given or endowed for the
performance of any service or charity of a public nature
connected therewith or of any other religious charity; and
includes the institution concerned and also the premises
thereof, but does not include gifts of property made as
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personal gifts to the archaka, service holder or other employee
of a religious institution; ……”
8.2 As a matter of fact, if the land is endowed to a temple with
specific purpose, then it becomes specific endowment and Section 6 (19)
defines 'specific endowment', which is as follows:-
“(19)“specific endowment” means any property
or money endowed for the performance of any specific service
or charity in a math or temple or for the performance of any
other religious charity, but does not include an inam of the
nature described in Explanation (1) to clause (17);”
8.3 'Specific endowment' by itself would be a religious institution.
The title deeds relating to the lands in question, whether they are mere
endowments or specific endowments etc., are not placed before us. Secondly, if
they are not specific endowments, then the question would be, whether for the
religious endowment alone, a fit person can be appointed, merely by placing
reliance under Section 6 (20) of the Tamil Nadu Act. Similarly, the further
question that when the hereditary trustee is there, whether a fit person can be
appointed and if so under what circumstances and whether the circumstances
are made out or not will further arise. Therefore, when the learned Single Judge
already set aside the order of appointment of a fit person and has remanded
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back the matter to the third respondent, all the questions are left open to be
decided by the third respondent.
I. The Result:
9. Therefore, while affirming the order of the learned Single Judge,
we allow the appellant to raise all their submissions before the third respondent
when the matter is proceeded denova. We further direct the respondents to
render the accounts and handover all the money that are collected in the form
of rent, etc from the properties of the temple to the appellant, after defraying
the expenses if any. It goes without saying that unless the appellant establishes
that it is a private temple, due accounts in respect of the spending etc., shall be
furnished before the appropriate authorities, in accordance with law.
9.1 The Writ Appeal is disposed of on the above terms. No costs.
Consequently, connected miscellaneous petition is closed.
(S.V.G., C.J.,) (D.B.C., J.,)
08.12.2023
Index : yes
Speaking order
Neutral Citation : yes
Jer
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To
1. The Secretary,
Govt. of Tamil Nadu,
Tourism, Culture and Charitable Endowments Department
Fort St.George
Chennai – 600 009.
2.The Commissioner
Hindu Religious & Charitable
Endowments Department
Nungambakkam High Road
Chennai – 600 034.
3.The Asst. Commissioner
Hindu Religious & Charitable
Endowments Department
Nagapattinam.
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THE HON'BLE CHIEF JUSTICE
AND
D.BHARATHA CHAKRAVARTHY, J.,
Jer
Order made in
08.12.2023
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