Madras High Court
S.Kumar vs The Commissioner on 4 June, 2018
Author: V.Bharathidasan
Bench: V.Bharathidasan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Orders Reserved on : 28..03..2018
Order Pronounced on : 04..06..2018
Dated: 04.06.2018
CORAM
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
Writ Petition (MD) Nos.4069 of 2018 to 4113, 4158 to 4180,
3719 to 3722, 3942, 4023 to 4028,
4058 to 4061, 3970 to 4001,4030, 3610 to 3615,
3649 to 3660, 3688, 3755 to 3773, 2642, 3835, 4335
3604, 3606, 3607, 3871, 4337, 4371, 4488, 4498,
4505, 4665, 4789 to 4793, 4798 to 4800, 4933, 6801,
7027, 5155 to 5157, 5534, 5072 to 5085,
5298, 5607, 5870, 5974 to 5990, 6002, 5630, 3909
6138 to 6142, 6144, 6170, 6172, 4320, 4334, 6268,
6271 to 6278, 6280, 6312 to 6315, 6483, 6490,
6491, 6574 to 6576, 6651 to 6658 of 2018
and WMPs
W.P.(MD) No.4069 of 2018
S.Kumar
..... Petitioner
Versus
1.The Commissioner,
Hindu Religious & Charitable
Endowment Department,
No.119, Uthamar Gandhi Salai,
Nungambakkam,
Chennai 600 034.
2.The Joint Commissioner,
Hindu Religious & Charitable
Endowment Department,
Sivagangai Division,
Muthusamy Street,
Sivagangai.
3.The Executive Officer
A/M Natchiyar (Aandal) Temple,
Srivilliputhur,
Viruthunagar District.
..... Respondents
Prayer in W.P.No.4069 of 2018: Writ Petition filed under Article 226 of The
Constitution of India praying for issuance of a Writ of Certiorari calling
for the records relating to the impugned order passed by the 3rd respondent
vide proceedings in Notice Na.Ka.No.11/2018/A5 dated 16.02.2018 and to quash
the same.
!For Petitioner in W.P.No.4069 of 2018
:
Mr.K.Balasubramani
^For Respondents in W.P.No.4069 of 2018
:
Mr.Chellapandian,
Addl. Advocate General Assisted by Mr.V.R.Shanmuganathan, Spl. Government
Pleader, Mr.Aayiram K. Selvakumar, Addl. Government Pleader and
Mrs.J.Padmavathi Devi, Spl. Government Pleader for R1 and R2
Mr.P.Mahendran,
Standing Counsel for R3
:COMMON ORDER
Challenge in all these writ petitions is to the notices of eviction issued by the respondent temple authorities. The petitioners in these writ petitions are lessees and Association of lessees under different temples situate at various places in South Tamil Nadu. Since the issues involved in these writ petition are one and the same, they have been heard together and are being disposed of by this common order.
2. Brief facts, which lead to the filing of the writ petitions, are as follows:-
The petitioners claim to be the lessees under different temples. The temples covered in these writ petitions are under the control of the Tamil Nadu Hindu Religious and Charitable Endowments [in short, "the H.R. & CE Department"]. The name of the temples are:-
Sl.No. Name of the Temple 1 Arulmigu Meenakshi Sundareswarar Temple, Madurai, Madurai District, 2 Arulmigu Subramaniya Swamy Thirukovil, Thirupparankundram, Madurai District 3 Arulmigu Madhanagopalasamy Temple, West Masi Street, Madurai, Madurai District 4 Arulmigu Sevugaperumal Ayyanar Temple, Annanagar, Madurai (Sub Temple of Arulmigu Madhanagopala Swamy Temple, Madurai), Madurai District.5
Arulmigu Anjaneyar Temple, Krishnarayar Tank Street, (Sub Temple of Arulmigu Madhanagopala Swamy Temple), Madurai, Madurai District.6
Arulmigu Nellaiappar Arultharum Gandhimathi Ammal Temple, Tirunelveli, Tirunelveli Distirct 7 Arulmigu Sankara Narayana Swamy Temple, Sankarankovil, Tirunelveli District 8 Arulmigu Thirucourtallanatha Swamy Thirukovil, Tirunelveli 9 Arulmighu Viswanatha Swamy Thirukkovil , Sivakasi, Virudhunagar District 10 Arulmighu Nachiyar (Aandal) Temple, Srivilliputhur, Virudhunagar District 11 Arulmighu Bhagavathi Amman Thirukovil, Kanyakumari, Kanyakumari District 12 Arulmigu Aranganatha Swamy Temple, Srirangam, Trichy District 13 Arulmigu Thayumanava Swamy Temple, Malaikottai, Trichy, Trichy District.14
Arulmigu Naganatha Swamy Temple, Trichy, Trichy District.15
Arulmigu Ramanatha Swamy Temple, Rameshwaram, Ramanathapuram District.
3. According to the petitioners is that, they are lessees in respect of petty shops either inside the temple premises or outside the temple, abutting the compound wall or at a distance from the temple premises. They used to sell a range of products from plastic toys to puja articles. They have been paying lease amount to the temple authorities regularly and their families have been doing business years together, without any hindrance either to the worshipers or to the general public. While so, unfortunately on 02.02.2018, a major fire broke out in Veera Vasantharayar Mandapam in Arulmigu Meenakshi Amman Temple at Madurai. Following the above said fire accident, a High Level Meeting chaired by the Hon'ble Chief Minister of Tamil Nadu was held on 12.02.2018 and a policy decision had been taken in that meeting to protect and safeguard the temples, more particularly, historic temples, like Meenakshi- Sundareshwarar Temple at Madurai and to conserve their architectural heritage. Based on the policy decision taken by the State Government, the Commissioner, Hindu Religious and Charitable Endowment Department, Government of Tamil Nadu, had issued a circular dated 14.02.2018 issuing various guidelines and directions to all the Executive Officers of the Temples under the control of HR & CE Department, to take precautionary measures to protect the temples from any fire accident. In the said circular, the Commissioner had also given directions (i) to ensure the safety of the temples and (ii) in the interests of the temples, the shops which are run either inside the temples' premises or abutting the compound walls of the temples should be removed by following due process of law. Pursuant to that circular, the Executive Officers of the respective Temples have issued the impugned notice of eviction directing the lessees to vacate the shop and hand over the possession of the same to the temples immediately.
4. In some of the writ petitions, the petitioners were granted lease to do their business outside the temple premises. According to them, they cannot be treated on par with lessees who carry on business in the leasehold land situated within the premises of the temples; whereas the temple authorities, without considering their cases in a different way, proceeded to issue notices of eviction directing them also to vacate their shops.
5. The main grievance expressed by all the petitioners, in general , is that The Tamil Nadu Hindu Religion and Charitable Endowments Act, 1959 [in short, "the Act"] prescribe various procedures to be followed in the matter of eviction of the lessees, but, without following none of the procedures, without giving any opportunity to the lessees to submit their objections and without conducting any enquiry, the impugned notices have been issued in utter violation of principles of natural justice.
6. Individual counter affidavits have been filed by the respective temple authorities wherein inter alia contended that a high level meeting chaired by the Hon'ble The Chief Minister of Tamil Nadu was held on 12.02.2018 following the major fire accident that took place on 02.02.2018 at Veera Vasantharayar Mandapam in Arulmigu Meenakshi Amman Temple, in which, a policy decision had been taken by the Government to protect the historic temples with rich heritage. Based on such policy decision, the Commissioner HR & CE Department, had issued a circular containing various guidelines and directions to safeguard the interests of the temples. One of the directions issued in the circular was that to safeguard the temple premises from any fire accident in future, and also to ensure the safety of the temples, the shops which are run either inside or outside the temple, abutting compounds wall have to be removed following due process of law. Pursuant to the above said circular, in order to ensure the safety of the temples, the authorities have decided to evict the lessees from the leased out shops located within the temple premises.
7. It is further contended that the procedures for eviction prescribed under Section 78 of the Act will have no application to the petitioners, since the authorities are not removing any encroachments, and that the petitioners are not occupying the premises without the authority of the department or after termination of lease. Section 80 of the Act will have no application to the petitioners case. As the leases have not been terminated, the provisions of Section 34-B of the Act also will not be applicable.
8. In the counter affidavits, there is a reference with regard to the provisions of Section 77 of the Act, which prohibits leasing or mortgaging with possession, or granting a licence for the purpose of occupation of any land belonging to the religious institution which is appurtenant or adjoining to the religious institution or any sacred tank, well, spring or water course, appurtenant to the religious institution whether situated within or outside the precincts thereof. Section 77 (1)(b) of the Act prohibits granting a licence for the purpose of occupation of any space within or outside prakarams, mantapams, courtyards or corridors of the religious institution. Apart from that, Rules framed under the Tamil Nadu Temple Entry Authorization Act, 1947 also prohibit using of temple premises for the purposes not connected with or arising from the worship, usages and observations of such temples. Rule 11 of the above said Rules speaks of removal of a person from the temple in case of any contravention provisions of the Rules.
9. It is further stated that under the Act, a discretion is vested with the temple administration to lease out any portion of the property or shop at the temple premises to carry on business of selling flowers and puja articles. Now, after the fire accident at Madurai Meenakshi Amman Temple, a policy decision had been taken following the policy decision taken by the High Level Committee of the State Government to withdraw the discretion exercised by the authorities throughout the State of Tamil Nadu. In the above circumstances, the impugned notices issued by the authorities for eviction of the petitioners, as a precautionary measure to protect the historic temples with rich heritage and to conserve the monuments, sculptures, heritage and other historic things, cannot be stated to be either arbitrary or without jurisdiction.
10. In the counter affidavit filed on behalf of Arulmigu Nellaiappar Arultharum Gandhimathi Ammal Temple, inter alia, it is contended that in the year 2014, Assistant Commissioner of Police, Tirunelveli City, has sent a communication to the Assistant Commissioner of HR & CE Department, wherein he had informed that several instances of recovery of explosives at Madurai and other places have posed a great threat to the security of the temple and the commercial shops located at the entrance of Nellaiappar and Gandhimathi Amman Temple are not only making the security of the temple difficult and they could be highly dangerous to the security of the temple. That apart, an Expert Committee, consisting of (i) Structural Engineering Expert, (ii) Archaeological Expert, (iii) Conservation Expert, (iv) Traditional Sthapathi and Agama Experts of Vaishnavam and Saivam and Member Secretary, recently inspected the temple on 2103.2018 and had given various suggestions for repair and cleaning works in Kudavaravasal wood works of Swamy and Ambal sannathy. Now, most of the shops are situated around the temple in the appurtenant area and also abutting the compound wall of the temple. Hence, the authorities have taken steps for eviction of the lessees.
11. Insofar as the case relating to Pudhu Mandapam attached to Meenakshi Amman Temple at Madurai is concerned, it is contended by the temple authorities that pudhu mandapam is also a part and parcel of Arulmigu Meenakshi Amman Temple and to the east of Pudhu Mandapam , a huge 'Nandhi' has been enshrined to which all rituals, including pradhosa pooja, are being performed. The said Pudhu Mandapam has 112 stone pillars at a minimum distance of 2.40 meters in between two pillars. In the said Mandapam, King Tirumalai Naickar had established 28 historical statues which depict "Thiruvilayadal" done by Lord Shiva at Madurai, which could be rarely seen in the form of sculptures. Apart from that, two festivals namely, "Vaikasi Vasantha Urchavam" and "Margazhi Ennaikappu Urchavam" are being conducted at Pudhu Mandapam. Because of the shops situated within the Pudhu Mandapam , ancient sculptures are being damaged and the department is unable to take steps to rectify the same. Further, because of the shops situated within Pudhu Mandapam, the worshipers and the visitors to the temple are not able to have a glimpse of historic and heritage architecture of the mandapam and sculptures available in the Mandapam.
12. In the counter affidavit filed by the Executive Officer on behalf of Thayumana Swamy Thirukoil, Malaikottai, Trichy, inter alia, it is contended that the temple has been established about 100 feet height from the ground level and that "Uchi Pillaiyar Kovil" is situated on the top of the hillock. According to him, stair-cases, which start from Malaivasal, lead to Uchi Pillaiyar Kovil through Thayumanaswamy Kovil and that the petitioners run their respective shop situated in Mandapams constructed on the two side of Raja Gopuram which is within the temple premises and that area is called "Malaivasal" and the devotees have to enter into Mandapam to reach the stair- cases leading to Thayumana Swamy Temple and Uchi Pillaiyar Temple. The Raja Gopuram is situated at NSB Road and that abutting the staircase leading to Thayumana Swamy Kovil and Uchi Pillaiyar Temple, one of the petitioners has been inducted as lessee at South Street and three of the petitioners have been inducted as lessees at Uchimalai. Yet another Temple Nandi Kovil, which is a sub temple of Thayumanaswamy Kovil, and within that temple mandapam, one of the petitioners has been inducted as lessee. All the shops are situated within the temple premises and that the lessees thereunder not only sell puja articles, they also used to sell cool drinks and fancy items and run grocery shops, used to keep flammable goods inside their shops as well. Therefore, based on the circular issued by the Commissioner, a drive for eviction of these shops has been undertaken.
13. In the separate counter affidavits filed by the Executive Officer, Arulmigu Subramaniya Swamy Thirukovil, Thirupparankundram, inter alia, it is contended that most of the petitioners are in huge arrears of rent and that the leased out shops are situated within the precincts of the temple and also within the Mandapam which would certainly mar the artistic appearance of the temple. In order to safeguard the artistic appearance of the temple and also to preserve the spiritual fervor, eviction notices have been issued to the petitioners, individually.
14. In the common counter affidavit filed by the Executive Officer on behalf of Sri Arulmigu Nachiar (Andal) Thirukovil, Srivilliputtur, it is contended that the temple is a heritage temple and that most of the shops are located within the temple precincts. The temple has various mandapams and there is also a Garudar Sannathi which is attached to the compound wall of the temple. The temple authorities taking into consideration the safety of the temple structures, buildings and also the devotees and visitors to the temple, initiated eviction proceedings and appropriate notices have been issued to the lessees to vacate and handover vacant possession of the premises to the authorities.
15. In the counter affidavit filed by the Joint Commissioner / Executive Officer, Kanyakumari, it is inter alia contended that in so far as Arulmighu Bhagavathi Amman Thirukovil, Kanyakumari, Kanyakumari District is concerned, original lessees have sub-let their shops without the consent of the HR & CE Department and in order to conserve the antique structures and sculptures in the temple, which is one of the oldest historic temple in the State of Tamil Nadu, the temple authorities decided to evict the lessees from the leased out shops and as such notices for eviction have been issued to the lessees, individually.
16. Like-wise, in the individual counter affidavits filed by the Executive Officer, Arulmigu Naganathar Swamy Thirukkoil, Trichy and the Executive Officer, Arulmigu Madanagopalasamy Temple, Madurai, it is contended that all the shops situate within the temple premises and as per the policy decision taken by the State Government, the temple authorities in order to protect the heritage of the temple and for the safety of the devotees have taken steps to evict the lessees from the leased out shops.
Submissions of the counsel for the petitioners:
Writ Petitions relating to Arulmigu Meenakshi-Sundareshwarar Temple at Madurai:
17. Mr.Valliyanayagam, learned senior counsel appearing for the petitioners who are lessees in Arulmigu Meenakshi Sundarashewarar Temple at Madurai, would submit that there are totally 115 shops situated inside the temple premises, out of which, 42 shops are located in Veera Vasantharayar Mandapam. According to him, out of the total 42 shops, 19 shops gutted in fire in the recent major fire accident which took place on 02.02.2018 inside the Madurai Meenakshi Temple, but, the temple authorities had chosen to lock all the shops, without any notice whatsoever, forcibly from 02.02.2018.
18. The learned senior counsel would further submit that the petitioners are lawful lessees under the Tamil Nadu HR & CE Department and they have been paying lease amount. If at all the respondents want to evict the petitioners from the shops, they have to follow the procedure contemplated under the Act. According to the learned senior counsel, Section 34-B of the Act, provides for termination of lease of immovable property on non-payment lease rent or in case of violation of any of the conditions imposed in the lease agreement, that too, only after giving a reasonable opportunity of being heard.
19. Further, according to the learned senior counsel, Section 78 of the Act gives power to the authorities to evict encroachers in the temple property. Even though the petitioners cannot be termed as "encroachers", if the authorities still want to evict the petitioners, they have to follow the procedures established by law. Even in such a case, the Joint Commissioner of HR & CE Department, alone is competent to initiate proceedings for eviction based on the report submitted by the Assistant Commissioner, after giving a reasonable opportunity to such encroachers to submit their objections, and after conducting an enquiry. Even if the authorities have come to a conclusion that the petitioners, who have been in possession of the leased out property, have taken action which have marred or likely to mar the artistic appearance or the religious atmosphere of the religious institution, the Assistant Commissioner shall report the fact to the Joint Commissioner or the Deputy Commissioner, as the case may be, having jurisdiction over the area in which the religious institution is situated and based on such report, either the Joint Commissioner or the Deputy Commissioner, if satisfied that the artistic appearance or the religious atmosphere of the religious institution has been marred or is likely to be marred by the action of the lessee, shall take appropriate action , that too, after causing a notice and conducting an enquiry. But, in the instant case, the respondents, without having followed none of the procedures contemplated under the Act, had issued the impugned notices directing the petitioners to vacate the premises immediately, which is per se illegal. The recent fire accident in Madurai Meenakshi Amman Temple cannot be a reason to evict the petitioners, as the authorities can take precautionary measures to prevent fire accident in the future. According to the learned senior counsel, the fire accident which took place on 02.02.2018 was due to lethargic attitude of the temple administration towards safety and security for which the petitioners cannot be blamed. Had adequate fire safety measure been provided within the temple premises, such a major fire accident could have been averted.
20. The learned senior counsel for the petitioners would further submit that the petitioners sell only puja articles for worshipers and also flowers for puja in the temple which is permitted under Section 77 of the Act and hence, the impugned notices of eviction issued by the authorities are liable to be set aside.
Writ Petitions relating to Madurai Pudumandapam under the Control of Meenakshi-Sundareshwarar Temple, Madurai.
21. Mr.Ajmal Khan, the learned senior counsel appearing for the members of Madurai Pudumandapam Viyabarkal and Thaiyal Thozilalarkal Sangam would submit that there are totally 257 members in the association. According to him, totally 300 vendors are in occupation in the shops situated in the Mandapam as lessees and for more than 200 years, the above Mandapam is being used as a Centre for vending puja articles, souvenirs, handicrafts and utensils and the Mandapam is located outside the Meenakshi Amman Temple premises on its eastern side. The distance between the mandapam and the temple would be around 100 meters. Now, the families of the members of petitioner association have been in occupation of the leased out premises for more than 80 years and they have been paying lease amount regularly to the temple and the same have been accepted by the temple. While so, all of a sudden, without any notice whatsoever, the temple authorities have locked the main doors of the Mandapam thereby prevented the members of the petitioner association even to enter into the Mandapam and they have been virtually thrown out of the leased out premises. The learned senior counsel also submit that the members of the petitioner association were not even permitted to take out their belongings from their respective lease-hold shops. The temple authorities, without terminating the lease and following the procedures for eviction as contemplated under Section 34-B or 78 of the Act, sought to evict the members of the petitioner association in an arbitrary manner.
22. The learned senior counsel further contended that by means of an alleged policy decision said to have taken by the State Government, following the fire accident which took place at Madurai Meenakshi Amman Temple, the members of the petitioner association cannot in an arbitrary manner be evicted when there are legal safeguards in place under the Act to protect the interests of the members of the petitioners. The circular, said to have been issued by the Commissioner, HR & CE Department, is without jurisdiction and that the Act does not empower the Commissioner to issue any such omnibus circular for eviction of lessees without following due process of law. According to him, Pudu Mandapam is a separate building which is 100 meters away from the main temple and in the guise of evicting the lessees inside the temple premises, the respondents cannot seek eviction of the members of the petitioner association.
Writ Petitions relating to Arulmigu Subramaniya Swamy Thirukovil, Thirupparankundram, Madurai District and Arulmigu Sankara Narayana Swamy Temple, Sankarankovil, Tirunelveli District:-
23. Mr.Meenakshi Sundaram, the learned counsel appearing for the the petitioners, submitted that insofar as the petitioners covered under the writ petitions relating to the Temples at Thiruparankundram and Sankarankoivil are concerned, they are only flower vendors and they sell flowers only for a limited period. While so, all of a sudden, without any notice, they were sought to be evicted from the premises. The petitioners cannot be equated with that of the lessees, who do their business permanently. According to the learned counsel, selling flowers for puja is permitted under Section 77 of the Act and the business of the petitioners at any rate would not mar or affect the artistic appearance or the religious atmosphere of the religious institutions and the petitioners are sought to be evicted in an arbitrary manner.
Writ Petitions relating to Arulmigu Ramanathaswamy Temple, Rameshwaram:-
24. Mr.C.Mayilvahana Rajendran, the learned counsel appearing for the petitioners would submit that the petitioners are lessees under the said temple and that the leased out premises are situated outside the temple and further they have been permitted to sell puja articles and that now they are sought to be evicted without any notice or enquiry.
Writ Petitions relating to Arulmigu Thayumanava Swamy Temple, Malaikottai, Trichy, Trichy District:-
25. Mr.AR.L.Sundaresan, the learned senior counsel appearing for the petitioners would submit that the petitioners have been carrying on their business outside the temple; that they have been granted with lease by the authorities; that the leases were not terminated; and that they have been paying rents regularly to the authorities and there is no arrears, as of today. The learned senior counsel would further submitted that the leased out shops are situated near Rajagopuam which is 100 meters away from the Temple and there are 200 residential buildings situated near the leased out shops. Now, all of a sudden, the petitioners are sought to be evicted by the temple authorities without even terminating the lease and without conducting any enquiry. Each of the petitioners have been served with notices for eviction requiring them to vacate the premises forthwith and that the notices for eviction did not contain any imputation against the petitioners and there is also no ground available to the authorities to evict the petitioners from the leased out shops.
26. The learned senior counsel for the petitioners would further submit that the entire family of the respective member of the petitioner association solely depend on the income derived from their business in the leased out shop and all of a sudden if they are thrown out of the shop, their entire families would be left in lurch.
Writ petitions relating to Arulmigu Aranganatha Swamy Temple, Srirangam, Trichy District:
27. The learned counsel appearing for the petitioners would submit that the leased out shops are situated 1 1/2 kms away from the temple and without any notice and enquiry, the petitioners are sought to be evicted by the temple authorities.
Writ Petitions relating to Arulmigu Nellaiappar Arultharum Gandhimathi Ammal Temple, Tirunelveli, Tirunelveli Distirct:
28. The respective learned counsel appearing for the petitioners would submit that the shops are not situated inside the temple and some of the shops are situated in a Mandapam which is no way connected with the Temple. The learned counsel would further submit that when the Act provide procedures for eviction of the lessees, the authorities, without following those mandatory requirements, have now issued the impugned notices for eviction of the petitioners forthwith in the guise of protecting the temple, on the ground that there was a major fire accident occurred in Madurai Meenakshi Amman Temple. The learned counsel appearing for some of the lessees under Arulmigu Nellaiappar Temple would submit that there is a dispute regarding title over the shops in question and now Tirunelveli Corporation claims right over the property and that the lessees are all paying tax / rent to the Corporation as well as temple and under such circumstances, the temple cannot claim exclusive right or title over the properties in question.
29. The respective learned counsel for the petitioners relating to other temples would submit that when there is a valid lease existing in favour of the petitioners, without terminating the lease and without following the due process of law, the authorities want to evict the petitioners in the guise of safeguarding the interests of the temple. Even according to the circular said to have been issued by the Commissioner, HR & CE Department, the lessees should be evicted only after following due process of law; whereas the temple authorities, without following the due process of law, have issued the impugned notices of eviction directing the petitioners to vacate the premises leased out to them forthwith which is not only illegal, but also against the very circular issued by the Commissioner, HR & CE Department, Government of Tamil Nadu.
30. Mr.K.Chellapandian, the learned Additional Advocate General, leading the arguments on behalf of the respondents would submit that after the unfortunate fire accident that took place at Veera Vasantharayar Mandapam in Arulmigu Meenakshi-Sundareshwarar Temple, Madurai, a policy decision had been taken by the Government to protect the heritage temples from fire accidents in future and pursuant to the above said policy decision, the Commissioner, HR & CE Department, had issued a circular to the temples in Tamil Nadu to take adequate fire safety measures to prevent any such fire accident in the temples in the future, and in order to ensure the safety of the temples, the shops which are located either inside the temples or abutting the compound wall of the temples are sought to be removed. According to him, based on the above said circular, the impugned notices of eviction have been issued to the lessees individually who are running their shops either inside the temple or appurtenant to the temples to vacate and hand over vacant possession of the premises.
31. According to the learned Additional Advocate General none of the provisions of Sections 34-B, 78 and 80 of the Act would be applicable to the case of the petitioners as the lease granted in favour of them were not terminated and that the petitioners were not treated as encroachers and further, the authorities did not invoke any of the provision in Section 80 of the Act against the petitioners. He would further contend that under Section 34 of the Act, a lease can be granted only for a period of five years and any lease granted beyond the period of five years is null and void, unless, it is sanctioned by the Commissioner, HR & CE Department and in all the instant cases, the lessees are in possession of the premises beyond the prescribed period of five years and hence, the lease itself is null and void and they are liable to be evicted.
32. The learned Additional Advocate General would draw the attention of this court to the provisions of The Tamil Nadu Temple Entry Authorization Act and the Rules made thereunder, more particularly, Rules 8 and 11 and submit that the petitioners cannot be permitted to do any commercial activities inside the temple. So far as the claim for providing alternative accommodation to the petitioners, pursuant to the order of this court, the Commissioner HR & CE, Department, conducted a meeting with the concerned officials and except in the temples at Arulmigu Sankara Narayana Swamy Temple in Sankarankovil and Arulmigu Nellaiappar Arultharum Gandhimathi Ammal Temple in Tirunelveli, no space is available in the other temples to provide alternative accommodation to the respective petitioners and if the existing lessees under the above said two temples are interested in shifting their respective shops to the area identified by the authorities, it is open to them to approach the concerned Executive Officer with an individual written request and their requests would be considered, on merits.
33. Insofar as the cases relating to Pudhu Mandapam attached to Meenakshi amman Temple in Madurai, the learned Additional Advocate General would submit that it is also a part and parcel of Arulmigu Meenakshi- Sundareshwarar Temple and that it is a monument, the structures of the mandapam have rich heritage and history and in order to protect the same, a drive for eviction has been initiated by the temple authorities.
34. Mr.V.R.Shanmuganathan, the learned Special Government Pleader appearing for Arulmigu Meenakshi-Sundareshwarar Temple, Madurai and Arulmigu Sankaranarayana Swamy Temple, Sankarankoil would submit that there is a clear bar under Section 77 of the Act for leasing out a temple premises to any other purpose other than the religious purpose, of course with exceptions, that lease can be granted with prior sanction of the Commissioner for sale of flowers and puja articles. He would further submit that in case any lease has been granted without sanction of the Commissioner and the shop which is not selling flowers or puja articles, such a lease is void. Even assuming that the temple authorities have permitted the petitioners all along, it is only illegal and such illegality cannot be allowed to be perpetuated. According to him, it was only a discretion exercised by the temple authorities and that now they have decided to evict the petitioners in the larger interest of the temple administration following the recent fire accident at Madurai Meenakshi Amman Temple.
35. The learned Special Government Pleader would further submit that the petitioners were put on notice and sufficient time was given to vacate the premises. Even though the impugned notices were issued as early as on 14.02.2018 to all the lessees, in some cases, even after lapse of two months, lessees continues to be in possession. Now, considering the larger public interest and in order to protect the temples like Madurai Meenakshmi Amman Temple and their architectural and monumental values, the petitioners are sought to be evicted immediately and hence, eviction notices have been issued to them. Since all the petitioners are running establishments commercially, they cannot seek protection under Article 21 of The Constitution of India. Under Section 23 of the Act, the Commissioner has the power of general superintendence and control over the administration of all temple and religious endowments including the power to pass any orders which may be deemed necessary to ensure that the temples and endowments are properly administered and maintained. Being the competent authority, a duty cast upon the Commissioner to safeguard the temples and religious endowments and their architectural and monumental values and to ensure the safety of the devotees and the general public who visit the historic temples to have a glimpse of architecture and sculptures which have rich heritage. Therefore, the learned Special Government Pleader, while justifying the action of the temple authorities, prayed this court for dismissal of the writ petitions.
36. The learned Special Government Pleader would reiterate that Madurai Pudhu Mandapam is a part and parcel of Arlumigu Meenakshi-Sundareshwarar Temple, Madurai, and that it is a place of public religious worship and festivals are being conducted regularly and therefore, it is deemed to be a temple as per Section 6(20) of the Act.
37. The learned respective counsel appearing for the other temples, while adopting the arguments of the learned Additional Advocate General, would add that the shops in question situate within the temple premises and in order to protect the interests of the temple and also the general public, eviction notices have been issued to the lessees to vacate the premises and handover the vacant possession of the premises.
38. So far as the title dispute in respect of Nallaiappar Temple is concerned, the learned counsel appearing for Arulmigu Nellaiappar Temple would submit that all the shops belong to the temple and that the petitioners are continuously paying lease / rent to the temple only. Therefore, now it is not open to them to contend that the temple is not the owner of the premises.
39. I have considered the rival submissions and also perused the records carefully.
40. To appreciate the rival contentions, it may be useful to refer to the appropriate provisions in The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1950, which deal with lease of temple properties and eviction of lessees.
41. The term "temple" has been defined in Section 6(20) of the Act which reads as follows:-
"6 (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"
42. Section 34 of the Act deals with granting a lease which read as follows:-
"34. Alienation of immovable trust property.?(1) Any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property, belonging to, or given or endowed for the purpose of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution :
Provided that before such sanction is accorded, the particulars relating to the proposed transaction shall be published in such manner as may be prescribed, inviting objections and suggestions with respect thereto; and all objections and suggestions received from the trustee or other persons having interest shall be duly considered by the Commissioner:
Provided further that the Commissioner shall not accord such sanction without the previous approval of the Government. Explanation.? Any lease of the property above mentioned through for a term not exceeding five years shall, if it contains a provision for renewal for a further term (so as to exceed five years in the aggregate), whether subject to any condition or not, be deemed to be a lease for a period exceeding five years.
As per Section 34 of the Act, granting of lease exceeding the period of five years without sanction of the Commissioner is null and void.
43. Section 34-B of the Act deals with termination of lease of immovable property which reads as follows:-
34-B. Termination of lease of immovable property.?(1) The lease of immovable property belonging to, or given or endowed for the purpose of, any religious institution shall be liable to be terminated on the non-payment of the lease rent or on violation of any of the conditions imposed in the lease agreement (Added by the Act 31/2009) after giving a reasonable opportunity of being heard.
(2) No proceeding to terminate the lease shall be initiated, if?
(i) the time for appeal or revision under sub-section (3) or sub- section (5), as the case may be, of section 34-A has not expired; or
(ii) the order has been made the subject of such appeal or revision till the disposal of the matter.
(3) On the termination of the lease under sub-section (1), the property shall vest with the concerned religious institution free from all encumbrances and the Executive Officer, the Trustee or the chairman of the Board of Trustees, as the case may be, of such religious institution shall take possession of the property including the building, superstructure and trees, if any."
44. Section 78 of the Act speaks of eviction of encroachers from the temple land which reads as follows:-
78. Encroachment by persons on land or building belonging to charitable or religious institution or endowment and the eviction of encroachers.? (1) Where the Assistant Commissioner having jurisdiction either suo motu or upon a complaint made by the trustee has reason to believe that any person has encroached upon (hereinafter in this section referred to as ?encroacher?) any land, building, tank, well, spring or water-course or any space wherever situation belonging to the religious institution or endowment hereinafter referred to as ?the property?, he shall report the fact together with relevant particulars to the Joint Commissioner having jurisdiction over the division in which the religious institution or endowment is situated.
Explanation.?For the purpose of this section, the expression ?encroacher? shall mean any person who unauthorisedly occupies any tank, well, spring or water-course or any property and to include-
(a) any person who is in occupation of property without the approval of the competent authority (sanctioning lease or mortgage or licence) and
(b) any person who continues to remain in the property after the expiry or termination or cancellation of the lease, mortgage or licence granted to him.
(2) Where, on a perusal of the report received by him under sub-section (1), the Joint Commissioner finds that there is a prima facie case of encroachment, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling on him to show cause before a certain date why an order requiring him to remove the encroachment before the date specified on the notice should not made. A copy of the notice shall also be sent to the trustees of the religious institution or endowment concerned.
(3) The notice referred to in sub-section (2) shall be served in such manner as may be prescribed.
(4) Where after considering the objections, if any, of the encroacher received during the period specified in the notice referred to in sub-section (2) and after conducting such inquiry as may be prescribed, the Joint Commissioner is satisfied that there has been an encroachment, he may by order and for reasons to be recorded, require the encroacher to remove the encroachment and deliver possession of the property (land or building or space) encroached upon to the trustee before the date specified in such order.
(5) During the pendency of the proceeding, the Joint Commissioner shall order the encroacher to deposit such amount as may be specified by him in consideration of the use and occupation of the properties in question in the manner prescribed.
45. As per Section 78 of the Act, where the Assistant Commissioner having jurisdiction over the temple has reason to believe that any person has encroached upon any land, building, tank, well, spring or water-course or any space wherever situate belonging to the religious institution or endowment, he shall submit a report with relevant particulars to the Joint Commissioner having jurisdiction over the division in which the religious institution or endowment is situated. On receipt of such report from the Assistant Commissioner, if the Joint Commissioner finds that there is a prima facie case of encroachment, after serving a notice to the encroacher and after conducting an enquiry, he shall pass an order for removal of encroacher and also for delivery of possession of the property. The explanation to Section 78 of the Act defines the term "encroacher" and it shall mean a person who is in occupation of the property without the approval of the competent authority or a person who remain in occupation after the expiry or termination or cancellation of lease.
46. Section 79 of the Act prescribes mode of eviction on failure of removal of the encroachments as directed by the Joint Commissioners. Section 80 of the Act empowers the Joint Commissioner or the Deputy Commissioner to terminate the lease and seek for delivery of possession in the event he is satisfied that the lessee has taken any action which has marred or is likely to mar the artistic appearance or religious atmosphere of the religious institution, based on the report submitted by the Assistant Commissioner, after giving notice to the lessee and conducting an enquiry.
47. Section 80 of the Act reads as follows:-
80. Eviction of lessees, licensees or mortgages with possession in certain cases.?(1) Where the Assistant Commissioner having jurisdiction over the area in which the religious institution is situated is of the view that the lessee, licensee or mortgagee with possession of any land belonging to the religious institution wherever it is situated] or any sacred tank, well, spring or water course, appurtenant to the religious institution whether situated within or outside the precincts thereof, or any space within or outside the prakarams, mantapams, courtyards or corridors of the religious institution, has taken any action which has marred or is likely to mar the artistic appearance or the religious atmosphere of the religious institution, the Assistant Commissioner shall report the fact together with relevant particulars to the Joint Commissioner or the Deputy Commissioner, as the case may be], having jurisdiction over the area in which the religious institution is situated.
(2) The Joint Commissioner or the Deputy Commissioner, as the case may be, if satisfied that the artistic appearance or the religious atmosphere of the religious institution has been marred or is likely to be marred by the action of the lessee, licensee or mortgagee with possession shall cause to be served on the lessee, licensee or mortgagee concerned, a notice calling upon him to show cause before a certain date why an order terminating the lease license or cancelling the mortgagee, and requiring the lessee, licensee or mortgagee, as the case may be, to deliver possession of the property which is the subject of the lease, licence or mortgage to the trustee before a date specified in the notice should not be made. A copy of the notice shall also be sent to the trustee of the religious institution concerned.
(3) The notice referred to in sub-section (2) shall be served in such manner as may be prescribed.
(4) After considering the objections, if any, of the lessee, licensee or mortgagee, received within the period specified in the notice referred to in subsection (2), the Joint Commissioner or the Deputy Commissioner, as the case may be, may, if he decides that the artistic appearance or the religious atmosphere of the religious institution has been marred or is likely to be marred by the action of the lessee, licensee or mortgagee by order terminate the lease or license or cancel the mortgage and require the lessee, licensee or mortgagee to deliver possession of the property which is the subject of the lease, licence or mortgage to the trustee before a date specified in the order.
(5) The order of 1[the Joint Commissioner or the Deputy Commissioner, as the case may be], shall be in writing and shall contain the grounds on which he has passed the order."
48. Yet another provision under the HR & CE Act, which prohibits the trustee of a religious institution from granting lease or license for the occupation of any land belonging to the religious institution which is appurtenant to or adjoins the religious institution or any sacred tank, well, spring or water-course, appurtenant to the religious institution whether situated within or outside the precincts thereof or any space within or outside the prakarams, mantapams, courtyards or corridors of the religious institution. However, the trustees are permitted to lease or grant a license of occupation of any such land or space for the purpose of providing amenities to pilgrims or of vending flowers or other articles used for worship or of holding for specified periods, fairs or exhibitions during festivals connected with the religious institution. The relevant provisions of the Act read as follows:-
77. Transfer of lands appurtenant to or adjoining religious institutions prohibited except in special cases.?(1) Notwithstanding anything contained in section 34, no trustee of a religious institution shall lease or mortgage with possession or grant a licence for the occupation of?
(a) any land belonging to the religious institution which is appurtenant to or adjoins the religious institution, or any sacred tank, well, spring or water course, appurtenant to the religious institution whether situated within or outside the precincts thereof, or
(b) any space within or outside the prakarams, mantapams, courtyards or corridors of the religious institution ;
Provided that nothing contained in this sub-section shall apply to the leasing or licensing of any such land or space for the purpose of providing amenities to pilgrims or of vending flowers or other articles used for worship or of holding for specified periods, fairs or exhibitions during festivals connected with the religious institution.
(2) Any lease or mortgage with possession or licence in contravention of the provisions of sub-section (1) shall be null and void.
(3) Notwithstanding anything contained in sub-section (1) or (2), the Commissioner may sanction the lease or mortgage with possession or granting of a licence for the occupation of any such land or space as is mentioned in sub-section (1) and situated outside the precincts of a religious institution for any purpose other than a purpose mentioned in the proviso to sub-section (1).
49. Admittedly, the petitioners are lessees under the temples. It is the grievance of the petitioners that if at all the temple authorities want to evict them from the lease hold premises, the authorities must terminate the lease first and thereafter the authorities can take steps under Section 78 of the Act to evict them after issuing notice and conducting enquiry, but, without resorting to any such mandatory procedures, the concerned Executive Officers of the Temples have issued the impugned notices of eviction thereby requiring the petitioners to vacate the premises immediately which is not only against the provisions of the Act, but also in violation of the principles of natural justice.
50. On behalf of the temples it is contended that the impugned notices have been issued based on a policy decision taken by the Government in order to ensure the safety of the temple. It is further contended that the petitioners have been doing commercial activities inside the premises of the temple or in the area appurtenant to the temple premises. Now a serious threat is posed to the safety of the temples which could be evident from the recent fire accident that place inside Veera Vasantharayar Mandapam in Arulmigu Meenakshi Amman Temple at Madurai which contained ancient sculptures. No doubt, all these temples are monuments enriched with rich ancient sculptures and historic things and only in order to protect those monuments and heritage, the Government had taken a policy decision to vacate the lessees, since it was being a policy decision of the Government, the court cannot interfere with the same. That apart, it is their further contention, that Section 77 of the Act prohibits leasing or granting a licence for the occupation of any land belonging to the religious institution which is appurtenant to or adjoins the religious institution whether situated within or outside the precincts thereof or any space within or outside the prakarams, mantapams, courtyards or corridors of the religious institution. As per sub-section (2) of Section 77 of the Act , any lease or licence granted in contravention of the provisions of sub-section (1) of Section 77 of the Act, shall be null and void and in the instant case, despite the prohibition contained in Section 77 of the Act, leases have been granted to the petitioners to carry on their business inside the temples and appurtenant or adjoining the temples, hence their leases are null and void and the petitioners cannot claim any protection under law. Apart from that the petitioners mar the artistic appearance of the temple and they have been doing commercial activities within the temple premises which is also spoiling the religious atmosphere inside the temple. Therefore, on that score also, the petitioners are liable to be evicted.
51. Before considering the rival submissions, it would be useful to consider the long history behind all these temples.
(i) Arulmigu Meenakshi - Sundareshwarar Temple, Madurai Arulmigu Meenakshi - Sundareshwarar Temple in Madurai, is also called as "Meenakshi Amman Temple". It is a historic temple located on the Southern bank of Vaigai River in the Temple city of Madurai. It is dedicated to Goddess Meenakshi, a form of Parvathi and her consort Sundareshwarar, a form of Shiva.
Though the temple has historic roots, most of the present campus structure was rebuilt after the 14th Century, further repaired, renovated and also expanded in the 17th Centry by Thirumalai Nayak, a King in the Nayaka Dynasty. There are 14 Gateway Towers (Gopurams) ranging from 45 to 50 meters in height amongst which Southern gopuram is the tallest at 51.9 meters (170 feet). The mandapam halls display mythological scenes from Hindu texts.
This temple is a major pilgrimage destination within Shaivism tradition dedicated to Goddess Meenakshi and Lord Shiva. The large temple complex is the most prominent land mark in Madurai, attracts tens of thousands visitors a day.
This temple complex has numerous sculpted pillared halls such as Vira Vasantha Raya Mandapam, Thousand Pillar Hall (Ayiarakkal Mandapam), Pudu Mandapam, Kilikoondu Mandapam and Golu Mandapam. They were built by Kings and wealthy patrons over the centuries.
Vira Vasantha Raya Mandapam is situate on the South of Thousand Pillar Mandapam. It was completed in 1611 by Muthu Veerappa Nayakar and to the south of this hall is the Kalyana Mandapam (wedding Hall) where marriage of Lord Shiva and Parvathi is celebrated every year during the Tamil Month of Chithirai.
Yet another prominent mandapam is Pudu Mandapam. It is also called "Vasantha Mandapam". This mandapam was completed by Thirumalai Nayak in the 17th Century. It is in front of Eastern Towner, outside the current walled complex. It leads to the unfinished Eastern gopuram. It has 124 pillars, each with intricately carved sculptures of Meenakshi's wedding to Shiva, Kali, Nataraja, Surya, Chandra as well as common life scenes such a elephants eating sugarcanes are found in this mandapam.
(ii) Arulmigu Subramanya Swamy Temple, Thiruparankumdram Tirupuramkundram is one of the six main pilgrimage sites for the devotion of the son of Lord Shiva - Muruga (also Subramanya), Tamil Hindu god of war and patron of Tamil Nadu. According to legend, the Lord married Deivyani, the daughter of Lord Indra at this place. Tirupuramkundram Temple at Madurai, dates back to the sixth century. The antiquity of Tirupuramkundram Temple can very well be gauged from the fact that it finds mention even in the Sangam Literature. The temple is built in rock-cut architecture dating back to the Pandya period of 6th century and the life sized sculptures in the mandapas of the Nayak period during the 16th century. In the main shrine, apart from Muruga, deities of Shiva, Vishnu, Vinayaka and Durga are housed. The Kambathadi Mandapam, Ardha Mandapam, and Mahamandapam, the three halls leading to the sanctum, are situated at varying elevation. The main shrine is an early rock cut temple which has cells that house the sanctums of Subramanya, Durga, Vinayakar, Shiva and Vishnu. All the statues are carved on the wall of the parankundram rock.
(iii) Arulmigu Madana Gopala Swamy Temple, Madurai Madana Gopala Swamy Temple is located at Madurai. This temple is perceived as a worshiping place of Vaishnavites.The main idol of this temple is Sri Madana Gopala Swamy and the goddess is Mother Maduravalli Thayar. In the temple premises there is a separate sannidhi for Sri Aandaal. The Maha Mandapam with beautiful sculptures depicting Ramayana scenes on both northern and southern sides is seen in front of the Sannidhi (sanctum).
(iv) Arulmigu Nellaippar - Kanthimathi Temple, Tirunelveli Swami Nellaiappar Temple is a Temple dedicated to deity Lord Shiva located in Tirunelveli, a city in the South Indian State of Tamil Nadu.
The temple is located on the northern banks of Thamirabaran River. The presiding deity is revered in the 7th century Tamil Saiva literary work, the Devaram, written by Tamil saint poets known as the Nayanmars.
The temple complex covers an area of Fourteen and a half acres and all its shrines are enclosed with concentric rectangular walls. The temple has a number of shrines, with those of Swamy Nellaiappar and his consort Sri Kanthimathi Ambal being the most prominent.
The original complex is believed to have been built by Pandyas, while the present masonry structure was added by Cholas, Pallavas, Cheras, and kings of Nayak dynasty. The gopuram of this temple is 850 feet long and 756 feet wide. Sangili Mandapam was built on 1647 by vadamalaiyappa pillayan connects the Ganthimathi Amman and Nellaiyappar temples. The composite columns of Virabhadra holding sword and horn are found to be additions of the Vijayanayagara kings during the early 1500s.
(v) Arulmigu Sankara Narayana Swamy Temple, Sankarankoil This temple with Mandapams, Gopuram and compound walls was believed to be built by King Ukkirapandia who ruled over Ukkirankottai in the 11th Century. According to the history, In the 12th Century king Seevalaramapandian constructed rajagopuram and front mandapam. It houses the deity by the name Sankara Narayanan, which is half Lord Shiva and the other half Lord Vishnu.
(vi) Sri Kasi Viswanatha Swamy Temple at Sivakasi in Virudhunagar District Kasi Viswanathar Temple in Sivakasi, a town in Virudhunagar District is dedicated to Lord Shiva. Constructed in the Dravidian style of architecture, the temple is believed to have been built by Pandyan ruler Harikesari Parakkirama Pandian during the 16th century, with later additions from Madurai Nayaks. Shiva is worshiped as Kasi Viswanathar and his consort Parvathi as Visalakshi. The temple was the scene of temple entry movement in the year 1899. The temple has a three-tiered gopuram (temple tower). The right of the main entrance facing the Sivakami shrine is the temple water tank.
(vii) Arulmigu Thirucourtalanatha Swamy, Thirukkoil, Courtalam:-
Thirukkutralanathr temple was constructed by Chola King Raja Rajan. The first round wall was build by him. It is an example of chola reign. During the pandiya reign the karuvarai Artha mandapam, maha mandapam, separate temple for kulalvai mozhi amman and pillayan kattalai mandapam were constructed.
At the time of Nayakkar rule Parasakthi temple was constructed, the compound wall , sangu street and inner street and new sannithis were built. Tirikootamandapam here is the site of festivities here. Parvati's shrine is also of significance here and is regarded as one of the 64 Shakti Peethams. The Chitra Sabhai or the hall of pictures is located in a picturesque locale away from the main temple. Architecturally the Chitrasabha resembles that of the other Nataraja Sabhas elsewhere in Tamil Nadu, and its interior is decked with hundreds of murals, depicting images from the Indian epics.
(viii) Arulmigu Nachiyar (Aandal) Temple, Srivilliputhur, Virudhunagar District Srivilliputhur Andal temple in Srivilliputhur, a Town in Virudhunagar District is dedicated to Lord Vishnu. Constructed in the Dravidian style of architecture. The temple has two divisions - the one of Andal located on the Southwest and the second one of Vadapathrasayi on the Northeast direction. A granite wall surrounds the temple, enclosing all its shrines, the garden where Andal is believed to have been born and two of its three bodies of water. The Vijayanagar and Nayak kings commissioned paintings on the walls of the shrine of temple, some of which are still present.
Even though the age of this temple is under debate, this temple has inscriptions from Chola, Pandya and Nayak rulers, spanning across various centuries from the 10th to 16th centuries. As per some accounts, the original structure was constructed by Tribuvana Chakravarthy Konerinmai Kondan Kulasekaran and the Andal temple by Barathi Rayar. During the reign of Thirumalai Nayak (1623-1659) and Rani Mangammal (1689 - 1706), this city became very popular. Thirumalai Nayak renovated all the temples of this city. He installed choultaries, temple tanks, paintings and golden towers inside the temple. The sculptures in the hall leading to the shrine of Andal were also built by him.
(ix) Arulmigu Bhagavathi Amman Thirukovil at Kanyakumari:
The Bhagavathy Temple is located in Cape Kanya Kumari at the southern tip of main land India, thereby located on the confluence of the Bay of Bengal, the Arabian Sea and the Indian Ocean. This temple was said to be constructed by Parasuram over 3000 years ago and then renovated by one of the kings of Pandya Dynasty.
(x) Arulmigu Shri Ranganathar Swamy Temple, Srirangam, Trichirappalli The Sri Ranganathaswamy Temple or Thiruvarangam is dedicated to Lord Ranganatha, a reclining form of Lord Vishnu, located in Srirangam, Tiruchirapalli District. This was constructed in the Tamil style of architecure. This temple is glorified in the Thiviya Pirabandham, the early medieval Tamil literature canon of the Alvar saints of Bhakti movement from the 6th to 9th centuries AD. Beyond the ancient textual history, archaeological evidence such as inscriptions refer to this temple, but these stone inscriptions are from late 1st millennium AD. The inscriptions in the temple belong to the Chola, Pandya, Hoysala and Vijayanagar dynasties who ruled over the region. These inscriptions range in date between the 9th and 16th centuries.
The temple is enclosed by 7 concentric enclosures with courtyards (termed prakarams or mathil suvar). Each layer has walls and gopurams, which were built or fortified in and after the 16th century. These walls total 32,592 feet (9,934 m) or over six miles. The temple has 17 major gopurams (towers, 21 total), 39 pavilions, 50 shrines, 9 sacred water pools, Ayiram kaal mandapam (a hall of 1000 pillars) and several small water bodies inside.
(xi) Arulmigu Thayumanava Swamy Temple, Malaikottai, Trichirappalli:-
This temple was originally built by the Pallavas, it was later reconstructed by the Madurai Nayaks and Vijayanagara rulers. The major complex in the temple are believed to be built during the 8th century by the Pandyan Empire. The temple complex has three shrines, two of which are dedicated to Lord Ganesha, one at the foot and the Ucchi Pillayar Temple at the top, and the Thayumanavar Temple between them. The Thayumanavar temple, the largest of the three, houses a shrine for Amman (the Goddess) as well as the main deity. The temple is located halfway up the Rockfort. The temple has columned structure. There central shrine of Thayumanaswamy is located a level up to the lower half that houses the shrine of Mattuvar Kuzhalammai. The lower level also houses the niches of Vinayagar, Arumugar, Navagrahas and Veerabadraswami. The walls around the central shrine houses the image of Dakshinamurthy, Somaskandar, Natarajar, Surya, Brahma and Durga.
(xii) Arulmigu Ramanatha Swamy Temple, Rameshwaram, Ramanathapuram:
Ramanathaswamy Temple is dedicated to the Lord Shiva located on Rameswaram Island. It is also one of the twelve Jyotirlinga temples. It is one of the 274 Temples, where the three of the most revered Nayanars (Saivite saints), Appar, Sundarar and Tirugnana Sambandar, have glorified the temple with their songs. The temple was expanded during the 12th century by Pandya Dynasty, and its principal shrines sanctum were renovated by Jeyaveera Cinkaiariyan and his successor Gunaveera Cinkaiariyan of the Jaffna Kingdo in Sri Lanka. The temple has the longest corridor among all Hindu temples in India. The temple is considered to be one of the holy and sacred places for Shaivites, Vishnavites and Smarthas.
It is believed that at the beginning, Ramanathaswamy Temple was in a thatched shed and that the present structure was the work of many individuals spread over number of centuries. The pride of place in the establishment for the Temple goes to the Sethupatis of Ramanathapuram. In the seventeenth century, Dalavai Sethupati built a portion of the main eastern Gopuram. In late eighteenth century, the world-famous third corridor was constructed by Muthuramalinga Sethupati who ruled between 1763 and 1795.
There are several architectural features in the Ramanathaswamy Temple that are worth mentioning, none is as magnificent as its corridors.
52. The protection of ancient monuments of this country was gained momentum during the British colonial regime. A movement to protect the ancient monuments was started and in the year 1784 and a society has been formed in Kolkatta to carryout survey of monuments in various parts of India. In the year 1904, an Act came to be enacted called as "The Ancient Monuments Preservation Act", for preservation of ancient monuments, archaeological, historical and artistic interests. That effort has been continued after the independence. While framing the Constitution, the Constituent Assembly was very much conscious of the need of protecting the monuments and places/objects of artistic and historic importance. A specific Article has also been incorporated in Part IV of the Constitution of India in the Directive Principles of State Policy, vide Article 49, thereby an obligation has been imposed on the State to protect every monument or place or object of artistic or historic interest declared by or under law made by Parliament. It may be useful to refer Article 49 of the Constitution of India which reads as follows :-
"49. Protection of monuments and places and objects of national importance It shall be the obligation of the State to protect every monument or place or object of artistic or historic interests, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be."
Thereafter, in the year 1951, the Parliament enacted a new legislation called "Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951". Under the said Act, various monuments were declared as national importance. Subsequently, in the year 1958, another Act was enacted by the Parliament called "Ancient Monuments and Archaeological Sites and Remains Act, 1958" for the preservation of ancient and historical monuments and archaeological sites and remains of national importance and for the regulation of archaeological excavations , for the protection of sculptures, carvings and other like objects. Section 2 of the above said Act defines the term "ancient monument" which reads as follows:-
"2. In this Act, unless the context otherwise requires?
(a) ?Ancient Monument? means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith which is of historical, archaeological or artistic interest and which has been in existence for not less than 100 years and includes? (i) remains of an ancient monument, (ii) site of an ancient monument, (iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument, and (iv) the means of access to, and convenient inspection of, an ancient monument; "
Under Section 4 of the said Act, the Central Government is empowered to declare any ancient monument, by way of notification, to be of national importance. Even though none of the temples covered under these writ petitions has been declared as monuments of national importance under the Act, as these temples contained sculptures, carvings and other objects of artistic interest and they have been in existence for many centuries. Considering the long and glorious history of the temples, this court is of the view that these temples are also ancient monuments with rich heritage.
53. Under Article 49 of the Constitution of India, the State has a constitutional obligation to protect every monument or place or object of artistic or historic interest. Apart from that, under Article 51-A (f) of the Constitution of India, every citizen has a fundamental duty to value and preserve the rich heritage of our composite culture. In such circumstances, in order to protect the above temples, the State has every power to formulate a policy to achieve the above object and it cannot be considered as arbitrary or mala fide.
54. Unfortunately, all these ancient monuments have been totally neglected and the temple premises have been turned into commercial premises. Despite a bar under Section 77 of the Act, now the places inside the temple have been leased out for commercial purposes by the authorities who are supposed to maintain and administer the temples in good and safe condition, as the result of which, now the ancient sculptures and the other artistic values inside the temples are being destroyed, it is evident from the recent fire accident that took place on 02.02.2018 at Veera Vasantharayar Mandapam, situated inside Arulmigu Meenakshi-Sundareshwarar Temple, Madurai, which had rich heritage. Now, it was fully damaged.
55. All these leased out properties belong to the idol/ deity and the persons who represent the idol, instead of preserving the heritage, now allowed it to be ruined. It is the well settled law that an idol is in the position of a minor. When the person representing the idol / deity, neglect to protect it, this court has to protect the same by exercising the power of "parens patriae" and could pass appropriate orders to protect the interest of such temples.
56. The Hon'ble Supreme Court in Bishwanath v. Radha Ballabhji reported in AIR 1967 SC 1044 has held s follows:-
10. The question is, can such a person represent the idol when the Shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle we do not see any justification for denying such a right to the worshipper. An idol is in the position of a minor when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest."
57. The above said judgment has been followed by this Court in Sri. Madhavaperumal Devasthanam v. Tmt.Dhanalakshmi reported in 1996 - 1 - L.W. 231, wherein, this court has held as follows:-
"4. It should not be forgotten that an idol is in the position of a minor. It has been held in Bishwanath v. Radha Ballabhji (AIR 1967 S.C. 1044) that an idol is in the position of a minor and when the person representing it leaves it in lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interests. The principle would certainly apply in a case where the persons in management of a temple have not been as diligent as is necessary in conducting a litigation on behalf of the temple. The court can take notice of the fact that Executive Officers who are put in charge of the temple are changed periodically and in many a case, they do not get fully acquainted with the history or affairs of the temple. If there is some slackness on the part of the Executive Officer or even the trustees of the temple, it is the duty of the Court to see that the idol does not suffer thereby. Courts should be astute to protect the interests of an idol in any litigation."
58. Very recently, this court in N.Dhanasekaran v. The Tamil Nadu Government [2018 - 2 - L.W. 216], in a similar situation while disposing of a batch of writ petitions pertaining to a eviction proceedings initiated by the temple authorities of Arulmigu Dhandayuthapani Swamy Thirukoil, Palani, has held that the act of the authorities in allowing the temple to become a commercial space would certainly be opposed to the religious principles and that the lessees are liable to be evicted under Section 80 of the Act as the religious atmosphere inside the temples are being marred. Paragraphs 43 to 45 of the judgment are relevant which read as follows:-
"43. This Court is of an opinion that even as per Section 80 of the Act, the authorities can evict the lessee, licensee and mortgagees with possession in certain cases. The circumstances are very much stated in Section 80 of the Act. As per the ingredients stipulated in Section 80, the ?religious atmosphere and the architecture appearance? are also to be protected. When the ?religious atmosphere? is in peril then those commercial vendors cannot be permitted in temple premises.
44. The religious atmosphere is that a peaceful and conducive atmosphere has to be provided for the purpose of devotees who are entering into the temple premises. Over all, atmosphere in the religious institutions are also to be protected and the same is stipulated in the Act. Thus, a commercial shops and vendors inside the temple premises cannot create a religious atmosphere. The commercial premises are permitted in order to sell varieties of items which is not connected with the poojas and offerings to be performed inside the temples. However, all commercial items are being sold by this vendors who all are in occupation of the temple premises.
45. It is the duty mandatory on the part of the executives to protect the ?Religious atmosphere? in the temple as contemplated under the Act. In the event of permitting the commercial vendors to sell the commercial products inside the temple premises, certainly the religious atmosphere cannot be maintained. Enough commercial establishments are ventured outside the temple premises in almost all the places in our country. Thus, further allowing the commercial establishments inside the temple premises are certainly unnecessary and unwarranted. The attitude of the competent authority in this regard in granting permission for commercial vendors are to be certainly deprecated. This Court has forced to come to a conclusion that the competent authorities of the department of Hindu Religious and Charitable Endowments are not performing their duties and responsibilities as required under the Act and Rules and to the expectations of the pilgrims and devotees who all are having high sentiments, faith and attachments with large number of ancient and other temples all over the State."
59. In N.Dhanasekaran's case cited supra, this court had also given a direction to the authorities concerned to take appropriate action to evict all those commercial establishments situate inside the temple premises.
60. No doubt, the impugned notice of eviction would cause some difficulty to the petitioners. But, at the same time, considering the larger public interests in protecting the interest of the temples, the private interests of the petitioners cannot be placed above the public interest. The Hon'ble Supreme Court in L.Muthukumar v. State of Tamil Nadu, (2000) 7 SCC 618 has held that interests of the individual cannot be placed above or preferred to larger public interests. A Division Bench of this court in T.K. Saminathan vs The Special Commissioner and Commissioner of Land Adm, Chepauk, 2011 (4) CTC 48 has held as follows:-
"9. ... ... ... The temple lands and the land appurtenant thereto are to be enjoyed by the devotees/worshipers of the temple and it cannot be used by any encroacher, that too, for constructing toilet near the temple which will hamper the sanctity of the temple, which will cause nuisance to the worshippers in general. When public interest and private interest are pitted against each other, it is the well settled proposition of law that the public interest will have to be prevailed over private interest and the Courts have to lean to uphold the public interest in preference to the private interest. The said principle is reiterated by the Supreme Court in the case of State of Uttra Pradesh and others v. Bhupendra Nath Tripathi and others, reported in 2010 (8) Supreme 690 ; 2010 (11) Scale 521. In the said Judgment, the Supreme Court held as follows:- .... In cases like these, interest of individuals cannot be placed above or preferred to larger public interest."
Therefore, allowing any commercial activities to be carried on inside the temple premises will cause irreparable damage to the temples and it would ultimately lead to the destruction of rich heritage.
61. Insofar as the contention of the petitioners that the impugned notices of eviction have been issued without following the mandatory requirements and in utter violation of principles of natural justice is concerned, it is settled law that the principles of natural justice required to be complied with having regard to the fact-situation of each case. It cannot be put in any straitjacket formula and it also cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. The Hon'ble Supreme Court in Karnataka State Road Transport Corporation v. S.G. Kotturappa (2005) 3 Supreme Court Cases 409 has held as follows:-
"24. .. .. .. .. .. The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. .. .. .. .."
62. In another judgment in Municipal Committee, Hoshiarpur v. Punjab State Electricity Board, (2010) 13 Supreme Court Cases 216, the Hon'ble Supreme Court has held as follows:-
32. The two rules of natural justice, namely, nemo judex in causa sua, and audi alteram partem now have a definite meaning and connotation in law and their contents and implications are well understood and firmly established; they are nonetheless non-statutory. The court has to determine whether the observance of the principles of natural justice was necessary for a just decision in the facts of the particular case. (Vide Board of Mining Examination and Chief Inspector of Mines v. Ramjee [(1977) 2 SCC 256 : 1977 SCC (L&S) 226 : AIR 1977 SC 965] , SCC p. 262, para 13; Union of India v.
Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : AIR 1985 SC 1416] ; and ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704: AIR 1994 SC 1074] .)
33. There may be cases where on admitted and undisputed facts, only one conclusion is possible. In such an eventuality, the application of the principles of natural justice would be a futile exercise and an empty formality. (Vide State of U.P. v. Om Prakash Gupta [(1969) 3 SCC 775 : AIR 1970 SC 679], S.L. Kapoor v. Jagmohan[(1980) 4 SCC 379 : AIR 1981 SC 136] and U.P. Junior Doctors' Action Committee v. Dr. B. Sheetal Nandwani, (1990) 4 SCC 633 : AIR 1991 SC 909."
63. In yet another judgment in Dharampal Satyapal Ltd v. CCE, (2015) 8 SCC 519, the Hon'ble Supreme Court, after having considered the earlier judgments, has held as follows:-
39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason?perhaps because the evidence against the individual is thought to be utterly compelling?it is felt that a fair hearing ?would make no difference??meaning that a hearing would not change the ultimate conclusion reached by the decision-maker?then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578 : (1971) 2 All ER 1278 (HL)] , who said that: (WLR p. 1595 : All ER p. 1294) ?? A breach of procedure ? cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain.?
Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority [(1980) 1 WLR 582 : (1980) 2 All ER 368 (CA)] that: (WLR p. 593 : All ER p. 377) ?? no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing.?
In such situations, fair procedures appear to serve no purpose since the ?right? result can be secured without according such treatment to the individual."
64. Considering the facts of the instant case and in the the larger public interest, this court is of the view that in order to protect these temples from spoliation, disfigurement or destruction at the hands petitioners, who are all carrying on commercial activities, either inside the temple premises or outside the temple, abutting the compound wall or at a distance from the temple premises, as lessees, the eviction of the petitioners is necessary and there would be no purpose served in issuing notice and even if any such enquiry is conducted after issuing notice, the out come of the enquiry would not change the ultimate conclusion and it would only be an empty formality.
65. As far as the next contention of one set of the petitioners that the shops leased out to them are situated outside the temple is concerned, the term "temple" as has been defined in Section 6(20) of the Act includes 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. In view of the above, the contention of the petitioners that they are carrying on business in the shops situated out side the temple premises, cannot be countenanced.
66. In view of the foregoing discussions, this court is of the firm view that the authorities in the instant cases were right in issuing notice to the petitioners for eviction irrespective of the fact whether the lessees carry on their business, either inside or outside the temple, and this court does not find any illegality or irregularity in the same warranting interference.
67. But, at the same time, this court has to consider the interests of the petitioners as well. The petitioners are in possession and enjoyment of lease hold areas for a long time and that they are eking out their livelihood from the income being derived from the leased out shops. If they are sought to be evicted all of a sudden, then their livelihood would certainly be put at stake.
68. In the above circumstances, this court earlier directed the authorities to find out whether the temple authorities could provide any alternative accommodation to the petitioners nearby to the temples. The Commissioner, HR & CE Department, accordingly, submitted her report wherein she has stated that except in two temples namely, Arulmigu Sankara Narayana Swamy Temple at Sankarankoil and Arulmigu Nellaiappar Arultharum Gandhimathi Ammal Temple in Tirunelveli City, no space is available in other temples to provide alternative accommodation to the petitioners. According to the report, in Sankarankoil, alternative accommodation is available at a distance of 200 meters from the temple premises where the existing lessees could be accommodated. Insofar as Tirunelveli is concerned, according to the report, temple land is available at Thamaraikulam which is situate 500 meters away from the temple where, all the existing lessees could be accommodated.
69. Considering the above report, if the existing lessees in these Temples, namely Arulmigu Sankara Narayana Swamy Temple and Tirunelveli where Arulmigu Nellaiappar Arultharum Gandhimathi Ammal Temple, are willing to occupy the alternative places identified by the temple authorities, they can very well express their willingness in writing before the concerned authorities and if any of the existing lessees come forward with a request for allotment of alternative space, the authorities shall consider their requests sympathetically and provide alternative accommodation.
70. As stated earlier, since all these petitioners have been in possession of lease-hold areas for long number of years and in the prevailing situation, it is very difficult for them to find out a suitable private accommodation near by the temples immediately. In the said circumstances, this court is of the view that the petitioners should be given some breathing time, enable them to find out suitable alternative place to carry on their business.
71. Considering the above fact, petitioners shall be permitted to occupy their respective leased hold premises until 31st December 2018. If the petitioners want to continue their business in the leased out premises, they should approach the concerned Executive Officer of the Temple, within a period of Two weeks from the date of receipt of a copy of this order and submit an undertaking affidavit individually that they would vacate the premises on their own on or before 31.12.2018 and they would also pay the lease amount. On submitting such undertakings, the concerned Executive Officers shall permit the petitioners to do their business in their respective places till 31st December, 2018. If the petitioners fail to submit undertaking affidavits, as directed above, the authorities are at liberty to evict them forthwith.
72. In the result, the writ petitions are dismissed, however with the directions as indicated above. Consequently, connected WMPs are closed.
.