Madras High Court
The Dharmapuram Adheenam vs The Commissioner on 4 July, 2022
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
W.P(MD)No.13670 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.07.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P(MD)No.13670 of 2021
and
W.M.P.(MD)No.10607 of 2021
The Dharmapuram Adheenam,
Represented by its Adheena Kartha,
Sri-La-Sri Kayilai Masilamani Desigha
Gnanasambanda Paramachariar,
Dharmapuram,
Mayailadurai District. ... Petitioner
vs.
1.The Commissioner,
The Tamil Nadu Hindu Religious and
Charitable Endowments Department,
Uthamar Gandi Road, Nungambakkam,
Chennai 34.
2.The Tamil Nadu Information Commission,
Rep. by its Registrar, No.2, Thiagaraja Road,
Eldams Road Junction, Teynampet, Chennai.
3.The Public Information Officer,
The Tamil Nadu Hindu Religious and
Charitable Endowments Department,
Office of the Joint Commissioner, Tanjore District.
4.The Joint Commissioner,
The Tamil Nadu Hindu Religious and
Charitable Endowments Department,
Tanjore District. ... Respondents
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W.P(MD)No.13670 of 2021
Prayer : Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Declaration to declare that
the petitioner Adheenam or its constituent religious institutions are
not public authorities under Section 2(h) of the Right to Information
Act, 2005 and to consequently hold that the provisions of the Right to
Information Act 2005 (Act 22 of 2005) do not apply to the petitioner
Adheenam or its constituent institutions.
For Petitioner : Mr.M.Mahaboob Athiff
For Respondents : Mr.M.Lingadurai,
Special Government Pleader
for R1 & R4.
Mr.K.K.Senthil,
Standing counsel for R2 & R3.
ORDER
Heard the learned counsel for the writ petitioner, the learned Special Government Pleader for the respondents 1 and 4 and the learned standing counsel for the respondents 2 and 3.
2.The writ petitioner is an ancient mutt. A private individual sought information under the provisions of The Right to Information Act, 2005 from the writ petitioner. Since the petitioner did not respond, the applicant escalated the matter and ultimately a second appeal was filed before the Tamil Nadu Information Commission. The https://www.mhc.tn.gov.in/judis 2/12 W.P(MD)No.13670 of 2021 Information Commission called upon the petitioner to respond. That led to the filing of this writ petition.
3.The stand of the writ petitioner is that the petitioner Adheenam or its constituent religious institutions are not public authorities within the meaning of Section 2(h) of the Right to Information Act, 2005.
4.The Right to Information Act, 2005 (Act 22 of 2005) enables securing any information under the control of “public authorities”. This expression has been defined in Section 2(h) of the Act as follows :
“2.Definitions.- In this Act, unless the context otherwise requires,-
(h)"public authority" means any authority or body or institution of selfgovernment established or constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any—
(i)body owned, controlled or substantially financed;
(ii)non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;” https://www.mhc.tn.gov.in/judis 3/12 W.P(MD)No.13670 of 2021 The writ petitioner is an ancient religious mutt established in the 16th century to uphold and propogate shaivite philosophy which is a part of Hindu dharma. It is too obvious that it was not established by or under the Constitution or by any other law made by the parliament or state legislature or by notification or order made by any government.
It pre-dates all of them. It is not substantially financed or funded by the appropriate government. It is true that in Tamil Nadu, Hindu religious institutions including mutts have been brought under the purview of the Tamil Nadu Act 22 of 1959. The HR&CE department instead of subsidizing or funding the religious institutions assesses and receives contributions from them. In other words, the converse is the position. Section 6(13) of the TN HR&CE Act, 1959 defines a mutt as a Hindu religious institution presided over by a person in the succession to whose office devolves in accordance with the direction of the founder of the institution, or is regulated by usage. The head of the mutt engages himself in imparting religious instruction and rendering religious service. He exercises spiritual headship over a body of disciples. Looked at from any angle, the writ petitioner will not come within the purview of the definition of “public authority”.
5.The High Court of Bombay (Nagpur Bench) in Bhaskarrao Shankarrao Kulkarni vs. State Information Commissioner and https://www.mhc.tn.gov.in/judis 4/12 W.P(MD)No.13670 of 2021 Ors. (AIR 2009 Bom 163) was concerned with the question if a Trust established for religious and charitable purpose is governed by The Right to Information Act. The Trust had filed the writ petition questioning the order passed by the State Information Commissioner as well as the Information Officer. After extracting Section 2(h) of the Act, the Court held thus :
“8.A bare reading of definition would make it clear that public trust does not fall in either of the categories. It is not established or constituted under the Constitution of India, by law passed by the parliament, by any law of the State Legislature or by Notification issued by any appropriate Government. It is also not a body substantively financed or controlled by the Government nor is it a NGO financed by the Government nor does the trust receive any contribution or grant from the Government. It is not the contention of the State that the State provides any funds to the petitioner trust. It is, therefore, clear from the provisions of this definition that the Act cannot apply to the Public Trust. Any public trust, therefore, is not at all covered by the definition of the public authority. It is only the public authority which is bound by the provisions of the Act. Any person seeking to establish that a particular public trust is covered by the provisions of the Right to Information Act will have to first prove that it is a public trust created by Government or Parliament or is substantively financed by the government. Until that is done, it must be held to https://www.mhc.tn.gov.in/judis 5/12 W.P(MD)No.13670 of 2021 be falling outside the scope of the Right to Information Act. ................ as far as Right to Information Act is concerned, there is no need for any public trust to appoint any Information Officer and to entertain any such application under the Right to Information Act........”
6.The learned counsel for the petitioner drew my attention to the decision of the Hon'ble Kerala High Court reported in (2011) 2 KLT 312 (Bhanunni vs. The Commissioner, Hindu Religious and Charitable Endowments (Admn.) Department) and the decision of the Hon'ble Andhra Pradesh High Court reported in (2019) 2 ALT 140 (G.Rajenderanath Goud Vs. The Government of Andhra Pradesh). It has been categorically held therein that such institutions will not fall within the purview of The Right to Information Act. Paragraph 20 of the decision reported in (2011) 2 KLT 312 is as follows:-
“20.This takes us to the further submission of the learned Senior Government Pleader that the temples to which HR & CE Act applies are public temples and the Temple Advisory Committees are public authorities for the purpose of the RTI Act since they are constituted as per the statutory provisions in HR & CE Act and it needs to be ensured that they are amenable to the provisions of the RTI Act as they are predominantly involved in raising funds by collection from public, for the purpose and matters in connection with the https://www.mhc.tn.gov.in/judis 6/12 W.P(MD)No.13670 of 2021 temples. The Temple Advisory Committees are conceived and constituted in terms of the statutory provisions. Section 14 of the HR & CE Act provides that Temple Advisory Committees may be constituted for each temple, not inconsistent with the existing custom and practices, for the purpose of ensuring adequate participation of Hindu devotees. Therefore, the provision is only an enabling one and the purpose of such a provision is to generate adequate participation of Hindu devotees. It is further provided that the composition of the Temple Advisory Committee shall be in such manner as may be prescribed and the Committees formed under that provision shall be approved by the Board. Therefore, the Temple Advisory Committee is not an extended limb or office of the MDB. It is also not constituted by the MDB, but gets constituted as a committee ensuring adequate participation of Hindu devotees. That process shall not be inconsistent with any existing custom or practice. A committee so constituted shall be approved by the Board. This is the provision in sub-section 2 of Section 14 of the HR & CE Act. Such provisions are insufficient to make any Temple Advisory Committee fall within the definition of "public authority" in Section 2(h) of the RTI Act, by virtue of its constitution and composition. Now, the question would be regarding the funds. Managing or dealing with funds collected from public is not, by itself, a statutory indicia to classify any authority or body or institution as a public authority under Section 2(h) of the RTI Act. There is substantial difference between the concept of funds raised by collection from public contribution and funds provided by the appropriate https://www.mhc.tn.gov.in/judis 7/12 W.P(MD)No.13670 of 2021 Government. The quality of funds generated by collection from public can never be treated as part of funds provided by the appropriate Government. Therefore, a clear distinction has to be maintained between those two concepts and every temple or institution in relation to the affairs of which funds are collected from the public cannot, by that reason alone, be brought within the definition of "public authority" under Section 2(h) of the RTI Act which applies to establishments which are substantially funded, directly or indirectly, by funds provided by the appropriate Government. Whether a temple is a public temple or not is also not decisive.”
7.The religious institutions and charitable endowment trusts as well as trustees/executive officers of temple were the petitioners before the Hon'ble Andhra Pradesh High Court. In W.P.Nos.21677 of 2011 etc. batch, the question of law framed in the said writ petition was as follows:-
“2)Who is a public authority as defined under Section 2(h) of the Right to Information Act? Whether the Temple falls within the ambit and scope of the definition of 'public authority'?” Finally, after an elaborate discussion of the statutory scheme, the Hon'ble Andhra Pradesh High Court held that the religious institutions like temple, churches and mosques, which are not financed/funded by https://www.mhc.tn.gov.in/judis 8/12 W.P(MD)No.13670 of 2021 the Government do not fall within the purview of the Right to Information Act.
8.A learned Judge of this Court vide order dated 01.10.2021 in W.P.Nos.16567 of 2010 etc., had also taken the same view. The learned Judge more particularly held that mutts are not public authorities for the purpose of Right to Information Act, 2005. I should have straightway allowed the writ petition by following the aforesaid decision. However, the learned standing counsel for the respondents 2 and 3 drew my attention to Paragraph No.66 of the said order and wanted me not to grant declaratory relief in absolute terms. The said para is as follows:-
“66. The expansive nature of activities engaged in by a Mutt today as well as the substantial resources that many of them enjoy necessitates some form check upon the management and deployment of resources. Thus, though the Mutts cannot be called upon to furnish information to any and all interested persons, some amount of responsibility cannot be shied away from and the petitioners, to this extent, fairly agree. Queries or clarifications sought for by statutory and other public bodies and authorities in relation to secular aspects of the functioning of the Mutt, have to be responded to, and the required particulars must be furnished by the Mutt as and when called for. The line of distinction between what constitutes secular/temporal on the https://www.mhc.tn.gov.in/judis 9/12 W.P(MD)No.13670 of 2021 one hand, and religious/spiritual on the other, is fine, and is best left to the judgement of the respective Mutts to decide and convey to the authorities, if and when queries/clarifications are sought.” With the greatest of respect to the Hon'ble Judge, I may add that the distinction between the secular and religious activities of the mutts may not be determinative of the issue posed for consideration. The relief sought for in this writ petition hinges on whether the mutt is a public authority as defined in the RTI Act. Once the answer is in the negative, declaration has to be granted as a matter of course. When once Dharmapuram Adheenam or its constituent religious institutions are held to be not “public authorities” for the purpose of The Right to Information Act, the consequence is that the writ petitioner or its constituent religious institutions cannot be directed to furnish any information at the instance of the Information Commission. They are also not required to appoint any Information Officer.
9.The writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
04.07.2022
Index : Yes / No
Internet : Yes/ No
skm
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W.P(MD)No.13670 of 2021
To:
1.The Commissioner, The Tamil Nadu Hindu Religious and Charitable Endowments Department, Uthamar Gandi Road, Nungambakkam, Chennai 34.
2.The Joint Commissioner, The Tamil Nadu Hindu Religious and Charitable Endowments Department, Tanjore District.
https://www.mhc.tn.gov.in/judis 11/12 W.P(MD)No.13670 of 2021 G.R.SWAMINATHAN, J.
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