Madras High Court
Arulmighu Boovaragasamy Temple vs Thennacharya Divya Samrakshana on 21 January, 2021
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
C.R.P.(PD)No.4515 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 07.01.2021
PRONOUNCED ON : 21.01.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(PD)No. 4515 of 2015
and M.P.No.1 of 2015
Arulmighu Boovaragasamy Temple,
Srimushnam
Rep by its Executive Officer,
Srimushnam
Kattumannar Koil,
Cuddalore District. ... Petitioner
Vs.
Thennacharya Divya Samrakshana
Sath Sangam,
Registered Sangam,
Represented by its Secretaries
1. Murali
S/o. Subbusami
2. Jayaraman
S/o. Govindarajan
Arulmighu Boovaragasamy Thirukkoil
Sevarthi Vazhipaduvoor's representatives
South Street,
Srimushnam,
Kattumannar Koil Taluk,
Cuddalore District. ... Respondents
Page 1 of 16
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4515 of 2015
Prayer:- Civil Revision Petition is filed under Article 227 of the
Constitution of India to set aside the fair and decretal orders passed in
I.A.No.295 of 2009 in O.S.No.139 of 2008 dated 03.02.2014 on the file of
the Court of District Munsif cum Judicial Magistrate, Kattumannarkoil and
allow the said I.A. by allowing this Civil Revision Petition.
For Petitioner : Mr.A.Muthukumar
For Respondents : Mr.S.Vijayalakshmi
ORDER
This revision petition is directed as against the order dated 03.02.2014 passed by the learned District Munsif cum Judicial Magistrate, Kattumannarkoil, in I.A.No.295 of 2009 in O.S.No.139 of 2008, thereby dismissing the petition filed by the petitioner for rejection of plaint.
2. The petitioner is the defendant in the suit filed by the respondents for declaration, mandatory injunction and appointment of advocate commissioner in respect of Kulanthaiamman Sannithi which comes under the purview of the petitioner's temple and also to declare that that said Kulanthaiamman Sannithi is not a separate temple and it administered by the petitioner's temple. The petitioner filed an application Page 2 of 16 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.4515 of 2015 in I.A.No.295 of 2009 for rejection of plaint only on the ground that the prayers sought for in the main suit have no jurisdiction to entertain by the Civil Court and it is clearly barred under Section 108 of Hindu Religion & Charitable Endowment Act, 1959 (herein after referred to as “HR&CE Act”). Instead of approaching the Commissioner of HR&CE, the respondents filed the present suit. The trial Court by an order dated 03.02.2014 dismissed the above said application by observing that the prayers did not either relate or affect to the management and administration of the said temple. Aggrieved by the same the petitioner is before this Court.
3. The learned counsel appearing for the petitioner would submit that the petitioner temple has come under the purview of HR&CE Board and in fact it is represented by its Executive Officer. While being so, the respondents are being the members of Thennacharya Divya Samrakshana Sath Sangam, and in the capacity of worshipers, filed the suit with the prayer that the Kulanthaiamman Sannathi is not a private and individual temple and it is came under the petitioner's temple and its administration. Page 3 of 16 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.4515 of 2015 Further prayed that the Mandabam constructed by the petitioner adjacent to the Kulanthaiamman Sanithi is not under the Agama Rules and it is liable to be demolished. The respondents also prayed for injunction restraining the petitioner from performing pooja under the Vaishanava customs. Therefore, all the prayers sought in the suit are pertaining to the administration and management of the religious institution. Therefore, the suit itself is not maintainable, since there is clear bar under Section 108 of HR&CE Act.
4. Per contra, the learned counsel appearing for the respondents submitted that the respondents filed suit in the year 2008. Immediately after receipt of the summons, the petitioner filed its written statement. In fact, the commissioner was appointed to inspect the petitioner's temple and note down the physical features. Accordingly, he inspected the petitioner's temple and filed his report. Thereafter, the petitioner filed the petition for rejection of plaint on the ground that the suit itself is not maintainable and there is a bar under section 108 of HR&CE Act. The Commissioner of HR&CE does not have any power to issue direction to demolish the construction put up by the petitioner against Agama rules. Only the civil Page 4 of 16 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.4515 of 2015 Court has got power and jurisdiction to issue mandatory injunction to remove the construction put up by the petitioner herein. Further she submitted that though the petitioner's temple comes under the purview of HR&CE Board, they are performing all the poojas against the customs of Vishnava. Therefore, the suit is very much maintainable. In support of her contention, she relied upon the judgment reported in (2001) 3 M.L.J.73 in the case of Sayarakshai Kattalai Vs. R.Radhakrishnan and anr.
5. Heard Mr.M.Muthukumar, learned counsel appearing for the petitioner and Ms.S.Vijayalakshmi, learned counsel appearing for the respondents.
6. The petitioner is the defendant in the suit filed by the respondents for declaration, mandatary injunction, appointment of Advocate Commissioner and also Injunction. Admittedly, the petitioner's temple has come under the purview of HR&CE Board and administered by its Executive Officer. On perusal of the plaint the respondents prayed for the following reliefs:-
Page 5 of 16
https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.4515 of 2015 "6. vdnt rK:fk; nfhh;l;lhh;fs;
mUs;Th;e;J thjpfSf;F gpujpthjp nghpy;
m/ flY}h; khtl;lk;. fhl;Lkd;dhh;
nfhapy; tl;lk;. _Kc&;zk; fpuhkj;jpy;
,Uf;Fk; _g{tuhftRthkp Mya
tshfj;jpy; mike;Js;s FHe;ij
mk;kd; rd;djp jdpf;nfhapy; my;y
gpujhd Myaj;jpd; rd;djp. gpujhd
Myaj;jpw;F cl;gl;lJ/ jdp eph;thf
jd;ika[ilaJ my;y vd tpsk;g[if
ghpfhuk; mspj;Jk;. mjid xl;o
rd;dpjpf;F bjw;fhYk;. gpuhjd tlf;F
gpufhuj;ij Mf;fpukpj;J g[jpajhf
vGg;gptug;gLk; kz;lgk;. mjd; nky;
mikf;fg;gl;l fij tpf;ucwf';fis
Mfpaitfis rK:fk; nfhh;l;lhh;
mth;fis Fwpg;gpLk; fhy bfhLtpw;Fs;
mfw;w giHa epiyf;F mikf;Fk;go
xU bray; cWj;Jf;fl;lis ghpfhuk;
mspf;Fk;gof;Fk;
M/ jtWk;gl;rj;jpy; rK:fk;
nfhh;l;oy; kD bra;J Mizah; epakdk;
bgw;W gpujpthjp brytpy; bray;gLj;jpf;
bfhs;s thjpfSf;F mDkjpaspf;Fk;
gof;Fk;/
Page 6 of 16
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4515 of 2015
,/ FHe;ij mk;kd; rd;djpapy;
jdpg;gl;l g{i$fs;. gpurhj tpepnahfk;.
tpg{jp gpurhjk; mspj;jy;. jdp ncwhkk;.
ahfrhiy. Fk;ghgpnc&fk; Kjyhdit
fis itc&zt rk;gpujha Kiwg;go
,y;yhkYk;. Myaj;jpy; m';fPfhpf;fg;gl;l
gl;oaypy; Fwpg;gpl;Ls;s _itc*&;z
!;jyj;jhh;. jPh;j;jf;fhuh;. gpujhd nfhapy;
mh;rr
; fh;fs; jtpu kw;w egh;fs; K:yk;
gpujpthjpfnsh. mtuJ Ml;fnsh.
Vb$z;Lfnsh. gpujpthjpfnsh bra;af;
TlhJ vd epue;ju cWj;Jf;fl;lis
ghpfhuk; mspf;Fk; gof;Fk;/
</ ,t;tHf;fpd; bryt[j;
bjhifapid gpujpthjp thjpfSf;F
bfhLf;Fk; gof;Fk;/
c/ ,t;tHf;fpd; jd;ik Fwpj;J
rK:fk; nfhh;l;lhh; mth;fSf;F crpjkhf
njhd;Wk; ,ju cfe;j ghpfhu';fs;
mspj;J jPh;g;g[k; jPh;g;ghiza[k; gpwg;gpf;Fk;
go thjpfs; gzpt[ld; ntz;of;
bfhs;fpd;whh;fs;/"
Page 7 of 16
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4515 of 2015
7. Further the respondents are the worshipers in the petitioner's temple and except the said capacity they have no locus to interfere with the administration and management of the temple. The above prayers sought for by the respondents are nothing but grievances over the administration and management of the temple. It is relevant to extract the provision under Section 108 of HR&CE Act "108. Bar of suits in respect of administration or management of religious institutions, etc.
- No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act, shall be instituted in any Court of Law, except under, and in conformity with, the provisions of this Act."
8. The first relates to administration and management of religious institution and the second relates to any other matter or dispute for determining of which, a provision is made in the Act. The bar of jurisdiction under Section 108 of HR&CE Act excludes the jurisdiction of Civil Court Page 8 of 16 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.4515 of 2015 to decide on the issue of character and nature of a temple. The prayers sought for in the present suit are in respect of the administration and management of the petitioner's temple.
9. That apart, the petitioner's temple comes under the purview of HR&CE Board and as such the respondents have no locus to file the suit as against the petitioner. The learned counsel appearing for the respondents submitted that if the question that arises for adjudication in the present suit falls outside the scope and ambit of Section 108 of the HR&CE Act, then the Subordinate Court has got jurisdiction to entertain the suit. Therefore, the suit is not barred under Section 108 of HR&CE Act. In support of her contention, she relied upon the judgment reported in (2001) 3 M.L.J.73 in the case of Sayarakshai Kattalai Vs. R.Radhakrishnan and anr., which reads as follows :-
" 18. It is proper to take up the issue regarding the maintainability of the suit and thereafter the other points could be taken up for consideration. Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments act, Page 9 of 16 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.4515 of 2015 which is being heavily relied upon by the counsel for the 3rd defendant to hold that the suit is barred and not maintainable. The legal position or principle as to exclusion of jurisdiction of the Civil Court is provided under Section 108 of the Tamil Nadu Act 22 of 1959. By now the legal position is well settled. If the dispute arise or suit relates to the administration or management of a religious institution, or any other matter for determination of which a provision has been made under the Act, a bar under Section 108 will apply or gets attracted. If the question that arises for adjudication in the present suit falls outside the scope and ambit of Section 108 of the Act, then the Civil Court definitely has the jurisdiction to entertain the suit and such a suit is not barred under Section 108 of the Act.
19. It is also well-settled that if in a suit any matter in respect to which a provision is made under the Act has to be incidentally decided, the jurisdiction of Civil Court is not excluded. If a question in respect of which the bar is conferred on the Deputy Commissioner to decide under Section 63 of the Act, arise incidentally for Page 10 of 16 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.4515 of 2015 consideration in a suit, jurisdiction of the Civil Court will not be excluded.
20. Notwithstanding Section 108 of the Act, where the dispute relates to a temple is only between two private parties and the Endowments Department is not directly concerned, yet the Civil Court has jurisdiction to try the suit as has been held by this Court in Kailasa Mudaliar and Ors. v. Anandavadivelu Mudaliar and Ors. , a Division Bench of this Court in the said judgment held thus:
The principle on which the jurisdiction of the Civil Court is excluded under Section 108 of Tamil Nadu Act XXII of 1959 are now well settled. If the dispute raised in the suit relates to the administration or management of a religious institution of which a provision has been made in the Act, the bar under Section 108 of the Act will be attracted. On the other hand if the question arising for adjudication falls outside the scope and ambit of Section 108 of the Act, then the Civil Court will have jurisdiction to entertain the suit and the bar of exclusion of jurisdiction provided for under Section 108 cannot be invoked.Page 11 of 16
https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.4515 of 2015 It is equally settled that if, in a suit, any matter in respect of which a provision is made under the Act had to be incidentally decided the jurisdiction of the Civil Court will not be excluded. To be more specific if any other question in respect of which the power is conferred on the Deputy Commissioner to decide under Section 63 of the Act, arises incidentally, for consideration in the suit, the jurisdiction of the Civil Court will not be excluded. Notwithstanding Section 108 of the Act, where the dispute relating to a temple is only between two private parties and the board is not directly concerned, the Civil Court has jurisdiction to try the suit.
In the instant case it as clear that the jurisdiction of the Civil Court was not excluded. The plaint proceeded definitely on the basis that the first defendant had been clearly appointed as trustee and subsequently plaintiffs 1 to 4 had been appointed trustees by the Board. There was a clear statement that the first defendant had been directed to hand over charge of all the records and properties of the trust to the newly appointed trustee viz., plaintiffs 1 to 4. The alienees from the Page 12 of 16 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.4515 of 2015 first defendant were in possession of the suit properties. The alienees were strangers so far as the Devasathanam was concerned and naturally therefore, the plaintiffs had to recover possession of the properties from the strangers who are in the wrongful possession, according to the plaintiff, of the suit properties. This as the main and substantial relief asked for in the suit."
This Court held that whether the dispute relates to the temple is only between two private parties, and the endowment department is not directly concerned, the civil Court has got jurisdiction to try the suit. Further held that any other question in respect of which the power is conferred on the Deputy Commissioner to decide under Section 63 of the Act arises incidentally, for consideration in the suit, the jurisdiction of the Civil Court will not be excluded. Whereas in the case on hand, the respondent filed suit for the above prayers and all the reliefs sought for by the respondents are related to the administration and management of the religious institution that too administered by the HR&CE Board. Therefore, the above judgment is not applicable to the case on hand.
10. In view of the above discussions, this Court finds that the order Page 13 of 16 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.4515 of 2015 passed by the Court below is perverse and contrary to the law. Accordingly, the order dated 03.02.2014 passed in I.A.No.295 of 2009 in O.S.No.139 of 2008 by the learned District Munsif cum Judicial Magistrate, Kattumannarkoil is hereby set aside. Consequently, the application in I.A.No.295 of 2009 is allowed and the plaint in O.S.No.139 of 2008 is hereby rejected. However, if the respondents are having any grievances over the administration and management of the petitioner's temple, they are at liberty to approach the concerned authority under the HR&CE Act in the manner known to law.
11. Accordingly, the Civil Revision Petition stands allowed. There shall be no order as to costs. Consequently connected miscellaneous petition is closed.
21.01.2021 Internet : Yes Index : Yes/No Speaking order/Non-speaking order rts Page 14 of 16 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.4515 of 2015 To
1. The District Munsif cum Judicial Magistrate, Kattumannarkoil.
2. The Section Officer, V.R. Section, Madras High Court, Chennai.
Page 15 of 16 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.4515 of 2015 G.K.ILANTHIRAIYAN, J.
rts C.R.P.(PD)No. 4515 of 2015 and M.P.No.1 of 2015 21.01.2021 Page 16 of 16 https://www.mhc.tn.gov.in/judis/