Madras High Court
Sri Subramaniyaswami vs The Commissioner on 3 September, 2024
Author: B.Pugalendhi
Bench: B.Pugalendhi
WP(MD)No.23733 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 27.03.2024
Pronounced on : 03.09.2024.
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.23733 of 2023
1.Sri Subramaniyaswami,
Thirukovil Sudhanthira Paribalana
Sthalatharkal Sabha,
Reg No.12 /96,
represented by the President,
Veerabahu Moorthi
2.R.Hariharasubramanian
Joint Secretary ... Petitioners
VS
1.The Commissioner,
Hindu Religious and
Charitable Endowments Department,
119, Gandhi Salai,
Nungambakkam,
Chennai – 600 0034.
2.The Joint Commissioner /
the Executive Officer,
Arulmigu Subramniya Swamy Temple,
Tiruchendur,
Tuticorin District. ... Respondents
1/15
https://www.mhc.tn.gov.in/judis
WP(MD)No.23733 of 2023
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of writ of certiorari calling for the records on the file
of the 2nd respondent in connection with the order passed by the 2nd
respondent in his proceedings in Na.Ka.No.5089/2022U(2), dated
21.09.2023 and quash the same.
For Petitioners : Mr.R.Singaravelan,
Senior Counsel for
Mr.D.Selvanayagam
For Respondent : Mr.P.Subba Raj,
No.1 Special Govt.Pleader
For Respondent : Mr.M.Muthu Geethaiyan,
No.2 Standing Counsel
ORDER
The 1st petitioner a Society along with its Joint Secretary in the
individual capacity has filed this writ petition challenging the orders of
the 2nd respondent dated 21.09.2023.
2.The 2nd respondent by the order impugned in this writ petition
has shifted the place of distribution of vibuthi prasadam to the devotees
of the Arulmigu Subramaniyaswamy Thirukovil, Tiruchendur from Mayil
Thevar Sannadhi at Maha Mandabam to near Kodi Maram in the next
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praharam. By the impugned order the executive officer of the temple has
taken certain administrative decision in distribution of vibuthi prasadam
offering of coconut etc., The distribution of vibudhi by Tirusundarars was
shifted from Mayil Thevar Sannidhi and similar order was also passed for
the distribution of vibudhi by the Pattars, Sivachariyars as in front of
Nadarajar Sannidhi. Breaking of coconut and archanai arrangements for
the devotees coming on paid dharsan at Valli Sannidhi in the first
praharam and at Kumara Vidangar Sannidhi. For those visiting the
temple in general que the archanai and coconut breaking would be near
Dwara Balagar in the 2nd praharam. These changes have been
recommended by the Board of Trustees of the temple for the purpose of
peaceful and speedy dharsan in the temple and the same was
implemented by the 2nd respondent Executive Officer by this impugned
order.
3.The petitioners are Tirusundarars and archargars of the tempele.
The learned Senior Counsel appearing for the petitioner submits that the
distribution of vibhuthi and breaking of coconut in front of the deity
inside the Mahamandapam is a religious practice in vogue for several
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years has been changed by this impugned order. Receiving vibudhi
prasadam and offering coconut to the deity are religious right of the
devotees guaranteed under Article 25 of the Constitution of India and
also the right conferred under Sections 105 and 107 of the Tamil Nadu
Hindu Religious and Charitable Endowments Act, 1959. The impugned
order not only interferes with the right of the devotees but also interferes
with the right of the Thirusundarar, who are serving in the temple.
The distribution of vibuthi by the Thirusundarar inside the
Mahamandabam behind the Mayil Thevar Sannidhi is permitted by an
order in the year 2012 and the same is now disturbed without providing
any opportunity to the Thirusundarars. In this regard, the learned Senior
Counsel has referred the orders of the Hon'ble Full Bench in
R.S.Kalyanasundaram Vs The Commissioner, HR and CE Department,
Chennai dated 30.08.2022 and submits that the Hon'ble Full Bench has
held that the right of the Thiru Sundarar should not be affected without
giving them opportunities being heard. The learned Senior Counsel has
also relied on Section 105 of the HR&CE Act, 1959 and submits that no
customary practice can be upset by the Department. He further submits
that the right of the department to regulate the temple is only related to
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secular activities and not the religious activity unless, if any of the
religious activities amounts to illegal or inhumane or prohibitory in
public interest. In this regard the learned Senior Counsel has relied on the
orders of the Hon'ble Supreme Court in the Commissioner, HR and CE
Department Vs Sri Lakshmindra Thirtha reported in 1954 SCR 1005 and
Sri Venkataramana Devaru Vs State of Mysore in 1958 SCR 895. The
learned Senior Counsel has also relied on the orders of the Hon'ble
Supreme Court in Seshammal & Others Vs. State of Tamil Nadu reportd
in 1972 2 SC 11 and submits that the government have no power to
interfere with the religious affairs or the rituals and even if interfered
with, any person a worshipper or the person interested in the temple can
question the same. The relevant paragraph referred by the learned Senior
Counsel in Seshammal's case is extracted as under:
“The Archaka has never been regarded as a spiritual
head of any institution. He may be, an accomplished person,
well versed in the Agamas and rituals necessary to be
performed in a temple but he does not have the status of a
spiritual head. Then again the assumption made that the
Archaka may be chosen in a variety of ways is not correct. The
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Dharam-karta or the Shebair makes the appointment and the
Archaka is a servant of the temple. It has been held in K.,
Seshadri Aiyangar v, Ranga Bhattar(1) that even the position of
the hereditary Archaka of a temple is that of a servant subject to
the disciplinary power of the trustee. The trustee can enquire
into the conduct of such a servant and dismiss him for
misconduct. As a servant he is subject to the discipline and
control of the trustee as recognised by the unamended section
56 of the Principal Act which provides "all office-holders and
servants attached to a religious institution or in receipt of any
emolument or perquisite therefrom shall, whether the office or
service is hereditary or not, be. controlled by the trustee, and
the trustee may, after following the prescribed procedure, if any,
fine, suspend, remove or dismiss any of them for breach of trust,
incapacity, disobedience of orders, neglect of duty, misconduct
or other sufficient cause." That being the position of an
Archaka, the act of his appointment by the trustee is essentially
secular.”
4.The learned Senior Counsel has also referred to the judgment of
the Hon'ble Supreme Court in Adi Saiva Sivachariyargal Nala Sangam &
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others Vs.Govt of Tamil Nadu and another reported in 2016 2 SCC 725
and the orders of the Hon'ble Supreme Court in Kantaru Rajeevaru V
Indina Yong Lawyers Association reported in 2022 SCC OnLine Mad
4154 and submits that the trustees have to administrate the temple in
accordance with the usage of the institution. Therefore, according to the
learned Senior Counsel the distribution of vibuthi prasadam and breaking
of coconut inside the Mahamandapam is in usage of temple for several
years and that cannot be disturbed in the name of the administration and
this amounts to affecting the fundamental rights of the devotees, which is
in existence from time immemorial.
5.The learned Counsel for the 2nd respondent has raised
preliminary objections with regard to the maintainability of this writ
petition on the ground that the writ petition has been filed by the
association. The petitioner's society has not produced any documents that
the society is in existence as on date. The 2nd petitioner
Hariharasubramanian, who filed this writ petition in the individual
capacity is a suspended Archaga and he was suspended by order dated
27.07.2023. Though the 2nd petitioner has obtained an interim order in
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WP(MD)No.19620 of 2023, dated 11.08.2023, the same was stayed by
the Division Bench of this Court in WA(MD)No.1504 of 2023 and
therefore, he cannot maintain this writ petition.
6.He further submits that the Thirusudandhirar are not Archagars,
they are idainaali, which means, they cannot enter into the garpha graha
of the main deity and Lord Shanmuga and also other deities for the
purpose of doing archanai services to the respective deities. They are
only doing services like preparing Sathakattai, kittyam, Sripadam,
Athiyanam, Vedhaparayaman and other related services. Therefore,
according to him the services of Thirusudhandhirar are nothing but an
assistance in the performance of pooja of an employee. For doing these
services they are provided with share in their respective services as
remuneration from the 2nd respondent temple by way of cash and for
certain services as paditharam. Since they are receiving cash as
remuneration, they are employees of the temple and therefore, they
cannot question the impugned proceedings.
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7.With regard to the earlier proceedings, conferment of certain
right on the petitioners / Thirusudandhirar for distributing vibuthi
prasadam behind the Mayil Thevar Sannidhi in Na.Ka.No.7159/2012/U2,
dated 02.08.2012, the learned Counsel for the 2nd respondent submits that
was the decision taken by the then Thakkar, who belongs to the
Thirusundarar community in favour of their Society. The present trustees
have taken this decision considering the situation prevailing and
therefore, according to him when the earlier trustee can take decision in
the year 2012 for distributing vibuthi prasadam behind Mayil Thevar
Sannidhi, the present trustee is also having right to cancel, modify the
same. The earlier proceedings dated 02.08.2012 was issued with certain
conditions and the same has been now revised after 11 years, considering
more number of devotees visiting the temple. The said decision was
taken by the board of trustees for the convenience of the devotees
visiting the temple and it cannot be stated as violation of the religious
practice and the fundamental rights.
8.He further submits that this decision was taken by the board of
trustees on the complaints received from devotees that the archagars are
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demanding money. He further submits that the Mahamandabam where
the main deity is situated in the Sanctum Sanctorium is a very small place
and everyday several thousands of devotees are visiting the temple,
breaking coconut near the main deity is causing delay in movement of
the que and on account of that the devotees coming in general que are
affected.
9.This Court considered the rival submissions made and perused
the materials placed on record.
10.The order impugned is a decision taken by the Board of trutees
in the administration of the temple and the same was implemented by the
2nd respondent. In course of administration they can take such decision in
the interest of the devotees. However certain religious and customary
practice cannot be changed for the convenience of the administration.
The distribution of vibuthi prasadam in front the deity with the deepa
aradhana is a religious and customary practice not only in the 2 nd
respondent temple, but also in all other temples in this State. Any change
in the distribution of vibhuthi prasdam inside the sanctum sanctorum
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would certainly affect the devotees, who are visiting the temple.
As stated in Sehammal's case cited supra, if any rule is framed by the
Government for the purpose of interfering with the rituals and
ceremonies of the temple, the same is liable to be challenged by those
who are interested in the temple worship and therefore, every person
interested in the temple is entitled to challenge the proceedings. In this
case, this writ petition has been filed not only by the Society but also by,
an Archagar of the Temple in the individual capacity and therefore, this
Court rejects the preliminary objection raised by the second respondent.
11.At the same time, the Agama and other rituals in the temples
are often changed to the convenience of the administration and archagas.
Even in this temple several changes have been made in the past by
opening the temple on special occasions @ 1.00am, not closing the
temple in the afternoon, etc., These changes have not been challenged by
Archagas of the temple, even though they are against Agamas.
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12.It is true the number of devotees visiting the temple is increased
in manifold in the past. The people who are visiting the temple in general
dharshan are waiting for hours together to have dharsan of the deity and
they do not have adequate facilities in their que. They also need to be
addressed by the administration of the temple. The temple administration
is taking a stand that breaking of coconut at mahamandapam is causing
certain delay in moving the que, which cannot be ignored.
In Thiruchendur temple, Lord Muruga is in five forms, as Moolavar
Shanmugar and Jeyanthi Nathar within Mahamandabam, and as Kumaraa
Vidangar in the first praharam and as Alaivaai Ugantha Muruga Peruman
and therefore, there offerings of coconut can be shifted to Kumara
Vidangar or Mayura Nathar. The temple administration shall also work
out the possibility of shifting the Jayanthi Nathar from Mahamandabam
to any of the outer mandabams and the coconut offerings can be shifted
to this place.
13.The order has been passed considering the movement of the
devotees in the que. The distribution of vibuthi may not cause much
delay and it is also unavoidable customary practice for the devotees to
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have their vibudhi prasadam in front of the deity along with
Deepaaradhanai. At the same time the petitioners and the administration
shall workout the possibility of shifting the place of breaking of coconut
at Kumara Vidangar or at Mayura Nathar in consultation with other
stakeholders.
14.Accordingly the impugned order is set aside with a direction to
the 2nd respondent to take a decision in consultation with stakeholders
including the petitioner's saba and also considering the convenience as
well the sentiments of the devotees who are visiting the temple.
Accordingly this writ petition is disposed of. No costs. Consequently
connected miscellaneous petition is also closed.
03.09.2024
DSK
https://www.mhc.tn.gov.in/judis
To
1.The Commissioner,
Hindu Religious and
Charitable Endowments Department,
119, Gandhi Salai,
Nungambakkam,
Chennai – 600 0034.
2.The Joint Commissioner /
the Executive Officer,
Arulmigu Subramniya Swamy Temple,
Tiruchendur,
Tuticorin District.
https://www.mhc.tn.gov.in/judis
B.PUGALENDHI, J.
dsk
03.09.2024
https://www.mhc.tn.gov.in/judis
