Madras High Court
T.E.Vijayararaghavan (Deceased) vs The Commissioner on 15 December, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.12.2014
CORAM
THE HON'BLE Ms. JUSTICE K.B.K.VASUKI
Writ Petition No.20952 of 2006
1.T.E.Vijayararaghavan (deceased)
2.G.Raman ... Petitioners
(second petitioner is substituted as legal heir
in the place of the deceased petitioner as per
the order dated 28.3.2014 made in MP.1/2013)
vs.
1.The Commissioner
Hindu Religious and Charitable Endowment Department,
Nungambakkam, Chennai-34.
2.The Executive Officer,
Vilakkoli Perumal (Deepa Prakasar)
Sri Vedantha Desikar Thirukkoil
Little Kancheepuram.
3.Sri Thatha Desika Thiruvamsathan Sabha
rep. by its Secretary, Sannadhi Street,
Little Kancheepuram.
(R3 impleaded as per the order dated 21.8.2007
made in MP.1/2006)
4.Vadakalai Sri Vaishnava Sampradaya Sabha Kanchipuram
represented by its President
T.C.Shrinivaasan, New NO.90, Sannidhi Street,
Kanchipuram -631 503.
(R4 impleaded as per the order dated 5.9.2007
made in MP.1/2007)
5.T.A.Ranganathan
(R5 impleaded as per the order dated 8.11.2011
made in MP.No.1/2011)
6.P.S.Durai
(R6 impleaded as per the order dated 16.12.2011
made in MP.2/2011) ... Respondents
Writ Petition filed under Article 226 of The Constitution of India praying this Court to issue a writ of Mandamus, to direct the respondents to forthwith obey and implement the judgment and decree of this Hon'ble Court dated 18.07.1918 made in Appeal against Order No.221/1917 by recognising the right of the petitioner representing Tengalai Adhyapaka Mirasidars as set out in the said judgment and decree.
For Petitioners : Mr.V.T.Gopalan, SC
for M/s.Radha Gopalan
For Respondents : Mr.S.Kandaswamy, SGP (HR&CE) -R1
Mr.T.S.Baskaran -R2
Mr.T.Ramesh - R3
Mr.V.C.Janardhanan -R4
Mr.V.Santhanam -R5
Mr.V.Anand - R6
O R D E R
The writ petition is filed by an individual for himself and on behalf of Tengalai Adhyapaka Mirasidars, which is one of the sects professing Vaishnavism in Kancheepuram. Originally the writ petition was filed against the Commissioner, HR&CE Department, Chennai and the Executive Officer, Vilakkoli Perumal (Deepa Prakasar) Sri Vedantha Desikar Thirukkoil, Little Kancheepuram for issuing a writ of mandamus, directing the official respondents to forthwith obey and implement the judgment and decree of the Division Bench of this court dated 18.7.1918 made in CMA.221/1917 thereby reversing the judgment and decree of the lower appellate court made in AS.No.443/1915 dated 31.3.1917 and restoring the judgment and decree of the trial court made in O.S.No.414/1908 dated 15.5.1915.
2.The suit in O.S.414/1908 was filed by the individual plaintiffs representing Tengalai Sri Vaishnava Brahmins, residents of Kancheepuram against the individual defendants belonging to Vadagalai Sri Vaishnava Brahmins of Kancheepuram and against the trustees of the second respondent temple in respect of Adhyapakam Miras right in the said temple as declared by the High court in SA.Nos.1146, 1147, 1148 and 1423 of 1889 arising out of O.S. No.295 of 1889 on the file of the District Munsif Court, Chengalpet. There are two sects in Vaishnavism (i)Vadagalai and (ii)Tengalai sects. Vadagalai sect consists of the followers of Swami Vedhantha Desikan and Tengalai sect consists of the followers of Sri Manavala Mamunigal. The recitation of 4000 tamil verses of Dhivya Prabhandham sung by 12 Alwars being done in the Vishnu temples, is common to both sects. Both the sects claimed independent right regarding the mantram to be chanted at the recitation of Prabandham in connection with the worship in the temple and the shrines attached thereto and in the processions. While tengalai sect claimed "Sree Sailesa Thayapathram" as mantram to be chanted, before starting recitation of Prabandham, according to Vadagalai sect, the recitation of Dhiva Prabhandham should start with the mantram of "Ramanuja Dhayapathram". Vadagalai has no right to recite any mantram, Prabandham or Vazhi Thirunamam, except to take part in Adhyapakam service as ordinary worshippers and to join Tengalai Mirasidars in Adhyapakam service and to recite the same mantram, same Prabandham and same Vazhi Thirunamam as Tengalai Mirasidars, that too without forming separate Ghosti. The suit in O.S.414/1908 was filed by the individual plaintiffs belonging to Tengalai sect for certain rights as stated above and for consequential injunction restraining Vadagalai from reciting any mantram, Prabandham or Vazhi Thirunamam either during worship inside or outside the temple or during procession except as ordinary worshippers.
3.The suit was seriously resisted by the contesting individuals belonging to Vadagalai brahmins. During the pendency of the suit in O.S.No.414/1908, similar suit in OS.No.10/1906 relating to Adhyapakam miras in the temple of Devarajaswami at Kancheepuram was disposed of by the District Court, Chengalpet on 31.12.1909 and the same was thereafter questioned before the High court by way of first appeal in AS.No.175 of 1910 and the High court by judgment dated 15.1.1913 modified the judgment of the District Court, Chengalpet. In view of the modified judgment of the High court in the identical case, the parties in O.S.414/1908 arrived at a settlement to have similar decree as that of the decree made in O.S.10/1906 as modified in AS.175/1910 by the High court.
4.The suit was therefore disposed of by judgment dated 15.5.1915 by granting the reliefs of declaration and injunction as follows: (i)it is only Tengalai Mantram of Sri Sailesa Thaya Pathram that may be recited within the temple of Sri Deepa Prakasa Swami at Kancheepuram and the shrines appertaining thereto including Vedanta Chariar's shrine and during any ceremonial worship or by any Goshti; (ii)Vadagalais are only entitled to join Tengalai Adhyapaka Goshti as worshippers by reciting the same portion of Prabandham that is being recited by Adhyapaka Mirasidars; (iii)Vadagalais are perpetually restrained from reciting their own Mantrams and Prabandhams during puja period that is from the commencement of the pooja to the close thereof by the distribution of teertham and Prasadham and also during any ceremonial worship in the shrines or other places of worship where pooja is performed whether the service of Adayapakkam is going or not; and (iv)with regard to processions, Vadakalai are restrained from reciting their own Mantrams and Prabandams by forming a separate Goshti in front of the deity or by interposing between the idol and the vedic Goshti.
5.Aggrieved against the same, the defendants therein preferred an appeal in AS.No.443/1915 and the appeal was allowed on 31.3.1917 by setting aside the judgment and decree of the trial court and the case was remanded back to the trial court to dispose of the same afresh according to law and on merits. The correctness of the same was challenged by the plaintiffs by way of further appeal in CMA.No.221/1917 before this court and the appeal was allowed on 18.7.1918 by setting aside the judgment and decree of the lower appellate court and by restoring the judgment and decree of the trial court as stated above.
6.It is not in dispute that despite the reliefs of declaration and injunction granted by the trial court as confirmed by the High court in favour of Tengalai sect, the plaintiffs have not chosen to enforce their rights flowing from the judgment and decree to perform Divya Prabhanda Adhyapaka Kainkaryam inside the temple and they continue to on their own perform the same outside the temple. While so, the second respondent temple was taken over by the HR& CE department and an Executive Officer was appointed to have the direct control of administration of the temple. During 2000 renovation work was done in the temple after a lapse of nearly 100 years and Balalayam was conducted on 15.11.2004, in the course of which, Vadagalais recited vedas and Prabandhas and Samprokshanam was scheduled to be held on 10.2.2006. In the mean while, Tengalai Sect chose to give a representation dated 7.2.2006, seeking permission to perform Divya Prabandham services during Samprokshanam by claiming exclusive right to do so on the strength of the judgment and decree made in O.S.No.414/1908 as confirmed by the High Court in CMA.221/1917. Tengalai sect gave a police complaint on 8.2.2006 against the Executive Officer for not allowing them to do so and also gave a complaint to the District Collector on 9.2.2006 and the same was followed by a peace committee meeting held by the District Revenue Officer in the presence of the Revenue Divisional Officer and Deputy Superintendent of Police and the representatives of both sects. Ultimately, the Executive Officer decided not to permit Tengalai sect to do any service inside the temple and passed a written order on 10.2.2006 and the same compelled one T.E.Vijayaraghavan to file the present writ petition on his behalf and also on behalf of Tengalai Adhyapaka Mirasidars of Kancheepuram Shri Vilakkoli Perumal (Deepa Prakasar) Sri Vedantha Desikar Thirukkoil for the reliefs stated supra. During the pendency of this writ petition, the original petitioner died and the second petitioner by name G.Raman came on record to pursue the relief sought for herein. The respondents 3 and 4 representing Vadagalai sect also got impleaded themselves to contest the relief sought for herein.
7.According to the petitioners, Tengalai sect are entitled to enforce the right conferred on them by way of civil court judgment and decree as confirmed by this Court and the respondent officials are bound by the same and any refusal on the part of the respondents for allowing Tengalai sect to recite Tengalai Mantram of Sri Sailesa Thayapathram inside the temple will amount to disobedience of the judgment of this court and the adverse order passed by the second respondent, denying the right of Tengalai sect cannot be allowed to stand and therefore, appropriate direction be issued to them to implement the judgment and decree of the civil court in O.S.No.414/1908 as confirmed by the High court in CMA.221/1917, thereby recognising the right of Tengalai sect.
8.According to the representatives of Vadagalai sect, no writ petition is maintainable for enforcing the right of the parties in confirmity with the right of the civil court decree and the appropriate remedy available to the petitioner is under section 63 of the HR &CE Act. It is also their case that the relief sought for in this writ petition suffers from delay and laches by reason of the conduct of Tengalai sect in continuing to perform the service on their own outside the temple and not inside the temple on their own without any interruption by Vadagalai Sect and the Tengalai sect thus waived their right by not enforcing the same for more than 85 years and are hence estopped from claiming the same, that too by way of present writ petition by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
9.Heard the rival submissions made on both sides and perused the records.
10.The right sought to be enforced herein by Tengalai sect is to recite their Mantram of Sree Sailesa Thayapathram inside the temple in front of deity, which right was declared in the civil suit in O.S.414/1908 as confirmed by the High Court in CMA.221/1917. The trial court as well as the High court have in their respective judgments dated 15.01.1913 and 18.7.1918 declared that it is only Tengalai Mantram of Sri Sailesa Thaya Pathram that may be recited within the temple of Sri Deepa Prakas Swami Thirukoil at Kancheepuram and Vadagalais are only entitled to join with Tengalai Adhyapaka Goshti as worshippers by reciting the same portion of Prabhandam and Vadagalais are perpetually restrained from forming any separate ghosti and from reciting their own Mantrams and Prabandhams either inside or during processions outside the temple. Though such right of Tengalais was declared as early as in the year 1918, the same has till 2006 not been sought to be enforced by Tengalai sect for reasons best known to them. It is categorically admitted in para 3 of the affidavit filed in support of the writ petition that they have been performing Divyaprabhanda Adhyapaka Kainkaryam not inside the temple, but outside the temple when the deity Deepa Prakasar and Sri Vedanta Desikar are taken in processions. Tengalai for the first time since the date of judgment and decree of the High court dated 18.7.1918, gave a representation only on 7.2.2006 to the second respondent Executive officer, seeking permission to do Divya Prabandham services during Samprokshanam that was scheduled to be held on 10.2.2006. In the said representation, they claim exclusive right to recite the same inside the temple. The second respondent Executive Officer, having regard to the conduct of the parties and having regard to the prevailing practice of performing the service by Vadagalais inside the temple and by Tengalais outside the temple on their own without any interruption by or against each other, decided to allow the same practice to continue, thereby denied the right claimed by Tengalai sect. Curiously, the said order is not challenged by the petitioner in this writ petition. The relief sought for in this writ petition is only to direct the official respondents to implement the judgment and decree of the civil court as confirmed by the High Court as stated supra, thereby to allow the Tengalai Sect to which the petitioners belong to perform the service inside the temple.
11.Before going into the claims of the parties, the first aspect to be considered herein is the maintainability of this writ petition. It is categorically stated in para 1 of the affidavit filed in support of this writ petition that the petitioners have filed this writ petition on their behalf as well as on behalf of Tengalai Adhyapaka Mirasidars permanently residing at Kancheepuram. The learned counsel for the respondents in support of the legal stand taken against the very maintainability of this writ petition for the reliefs as well as the institution of the same in representative capacity, cited the following judgments: (i) 1996 (II) CTC 211 (the Government of Tamil Nadu, Madras and another v. Rajamanickam and two others) (ii)(1999) 9 SCC 105 (Ramchander Sunda and another v. Union of India and others) (iii)(2005) 3 SCC 734 (Swamy Atmananda v. Swami Bodhananda and others) and (iv)(2014) 1 SCC 603 (Commissioner of Income Tax and others v. Chhabil Dass Agarwal).
12.In the judgment reported in (1999) 9 SCC 105 (cited supra), the Hon'ble Supreme Court has dealt with the maintainability of the writ petition filed by an individual in representative capacity without obtaining leave of the court under Order 1 Rule 8 CPC and without effecting necessary publication. In that case also, the original petitioner who filed the writ petition, died and another petitioner was substituted pursuant to an order of the Supreme Court. It was contended that as the petition has been admitted, it must be proceeded with as a petition in a representative capacity. The Apex court negatived such contention and held in para 2 that it was for the petitioner to make an application under Order 1 Rule 8 C.P.C and it was not for the court to see at the time of admitting the writ petition, whether it was in a representative capacity or otherwise. An objection was also raised to allow the individual petitioner to proceed with the case. The Apex court dismissed the writ petition on the ground that the application under Order 1 Rule 8 CPC should have been made immediately after it was filed and thus refused to entertain the application, seeking permission to represent the same in representative capacity.
13.In the case reported in 1996 (II) CTC 211 (Govt. of Tamil Nadu v. Rajamanickam and two others) arising out of the land acquisition proceedings, the validity of the same was successfully challenged in the civil suit and declaration under section 6 was declared illegal and void and the authorities were restrained from proceedings further with acquisition proceedings. Inspite of having obtained a decree for declaration and injunction from appropriate civil forum, the writ petitions were filed by the land owners for issuing a writ of mandamus, restraining the respondents therein from interfering in any manner with the right of the petitioners therein to be in possession and enjoyment of the properties, which was the subject matter of the civil proceedings and the writ petitions were dismissed as not maintainable. While doing so, the learned single judge made certain observations in the order against the Government and the same was challenged by the Government by way of writ appeals. The Division Bench of our High court found fault with the learned single judge for making such observations, while dismissing the writ petitions as not entertainable. The Division Bench was pleased to hold that the decision of the civil court can be implemented by appropriate proceedings provided for in the Code of Civil Procedure and the writ jurisdiction could not be invoked for enforcing the decree passed by the civil court and such proceedings was not maintainable.
14.In the decision reported in (2005) 3 SCC 734 (cited supra), the appeal was arising out of the Division Bench Judgment passed in the writ petition filed for issuing a writ of mandamus directing the respondents therein to give all assistance to the appellant in taking over the management of the institutions specified therein. The relief was sought for based on the judgment of the civil court and the writ petition was allowed and the same was challenged by way of writ appeal and the Division Bench of Madras High court confirmed the order made by the learned single judge. When the same was challenged by the respondents in the writ petition by way of civil appeal before the Supreme Court, the Supreme Court set aside the judgment made in the writ appeal as well as the order made in the writ petition solely on the ground that the decree passed by the civil court must be executed in terms of the provisions contained in the Code of Civil Procedure and the writ petition was not the appropriate remedy and accordingly allowed the civil appeal, however, with liberty given to the writ petitioner to execute the decree in accordance with law.
15.Similar observation was made by the Hon'ble Supreme Court in the case reported in (2014) 1 SCC 603 (cited supra), wherein also, the Apex Court was of the view that when there is an efficacious alternative remedy available to the aggrieved person, the High Court will not entertain a petition under Article 226 of the Constitution of India.
16.Even otherwise, it is sought to be argued before this court that the respondent officials are bound by the judgment of the civil court as confirmed by the High Court and are further bound to implement the same and the remedy under Article 226 of the Constitution of India by way of writ petition is an appropriate remedy to issue appropriate direction to the respondent officials for implementing the same. But such a stand taken herein is, for the following reasons, liable to be negatived.
17.As already referred to, Tengalai sect has been continuously reciting Divya Prabhandam not inside the temple, but outside the temple before and after the judgment and decree of the civil court as confirmed by the High Court. There is absolutely no explanation in the writ petition for not performing their service inside the temple on the strength of the right conferred on them by the civil court for such a lengthy duration of more than 80 years. There is also no averment in the writ petition as if they are prevented from doing so by Vadagalai sect. Tengalai sect has not chosen to recite Divya Prabandham in front of the deity on their own and such conduct of the Tengalai sect in not taking any steps to exercise their right conferred on them by performing their service inside the temple without any interruption by any one and without any other reason would, as rightly pointed out by the learned counsel for the contesting respondents, amount to waiver and abandonment of their right.
18.In the judgment reported in (1974) 2 SCC 725 (P.Dasa Muni Reddy v. P.Appa Rao), the Supreme Court has in para 13 explained in detail as to what is waiver and abandonment of right. Waiver is, in the opinion of the Supreme Court, an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature and it implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It is further observed therein that abandonment of right is much more than mere waiver, acquiescence or laches.
19.The Hon'ble Apex court in the decision reported in AIR 1953 SC 98 (Sha Mulchand and Co. Ltd v. Jawahar Mills Ltd, Salem) has laid down that mere waiver, acquiescence or laches not amounting to an abandonment of his right or to an estoppel against a person cannot dis-entitle that person from claiming relief in equity in respect of his executed and not merely executory contract. It is further observed in para 12 of the same decision that in order to sustain a plea of abandonment of right or estoppel, it must be shown that the party had done some act and/or had been guilty of some conduct and the conduct is such, it establishes the abandonment of right. The Hon'ble Apex Court has in para 18 of the same judgment held that waiver and abandonment of right are in the primary context, unilateral acts. While waiver is the intentional relinquishment, of a right of privilege, abandonment is the voluntary giving up of one's rights and privileges or interest in property with the intention of never claiming them again. The Supreme Court in paras 19 and 21 further observed that abandonment and waiver do not in themselves unilaterally bring about a change in legal status and something else must intervene either a statutory mandate or an act of acceptance, express or implied by another person or acts, which are equivalent to an agreement or a licence or an estoppel in cases where an estoppel can be raised and when there is an estoppel, pure and simple, the right can be lost by what is loosely called abandonment or waiver, but even then it is not the abandonment or waiver 'as such' which deprives him of his title, but the estoppel which prevents him from asserting their right.
20.As rightly argued by the learned counsel for the respondents, the conduct of Tengalai sect in allowing Vadagalai sect to continue to recite Ramanuja Dhayapathram and not to enforce their right as granted under the decree in O.S.414/1908 and continued to remain outside the temple intentionally and voluntarily to recite Sree Sailesa Dhayapathram only outside the temple for more than 85 years amounts to an act of abandonment of right and waiver as explained by Apex Court and by virtue of the right accrued to Vadagalai sect, for reciting their own Mantram inside the temple, they are hence entitled to raise the plea of estoppel and the petitioners belonging to Tengalai sect are estopped from claiming any right and asserting their right if any under the decree dated 18.07.1918. It is not the case of mere inaction on the part of Tengalai sect to enforce their right conferred on them by the civil Court. Here is the case wherein, Tengalai sect has not only failed to exercise their right, but also failed to take any legal steps to enforce their right, but contrary to the right conferred on them, chose to allow other sect to perform their service contrary to the right conferred on them and to remain outside the temple and to chant their Mantram outside the temple. Such action coupled with voluntary and intentional further action amounts to relinquishment of the right vested on them and the same has entirely changed their legal status.
21.As already referred to, the right vested on them is by virtue of compromise decree dated 15.1.1913, whereas, the beneficiaries of the compromise decree for the first time seek to exercise their right only during 2006, i.e, nearly after 90 years. There is absolutely no explanation on their part for such inordinate delay and laches. Though the learned senior counsel for the petitioners would say that there is cause of action for approaching the court of law on every right, as and when the right is infringed, such plea is not available to the writ petitioners, who have by reason of their inaction, given up and abandoned of their right. The Full bench of the Apex Court has in para 17 of the judgment reported in AIR 1964 SC 1006 (State of MP and another v. Bhailal Bhai and others) laid down the general rule that if there has been unreasonable delay, the court ought not ordinarily to lend its aid to a party by the extraordinary remedy of mandamus. Even if there is no such delay, as the Government or the statutory authority against whom the consequential relief prayed for raises a prima facie triable issue regarding the availability of such relief on merits on the grounds of limitation, the Court should ordinarily refuse to issue the writ of mandamus for such action. In the same decision, the Hon'ble Supreme court was also of the view that it would be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Article 226 of the Constitution.
22.Here also, one of the grounds raised for opposing the relief is the remedy available to the petitioners is to go before appropriate civil forum to enforce their right and when such right is lost by reason of limitation to file execution petition, no remedy can be available to the petitioners by way of writ petition. The objection raised herein on the side of the petitioners that the special remedy provided under Article 226 is not available to the party, who can avail the alternative modes of obtaining relief by an action in a civil court, is fortified by the Supreme Court in para 17 of the same judgment.
23.The Hon'ble Supreme Court has also in a recent decision reported in (2014) 1 SCC 603 (Commissioner of income Tax and others v. Chhabil Dass Agarwal) observed that the High court will not entertain a petition under Article 226 of the Constitution, if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance which still holds the field and therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
24.When the petitioners are vested with the right to execute the decree before the civil court, the petitioners having failed to do so, for decades together, cannot be permitted to maintain any writ petition by invoking the extraordinary jurisdiction under Article 226 of the Constitution. The same view was also expressed by the Division Bench of this Court in the judgment reported in 1996 (II) CTC 211 (Govt. of Tamil Nadu v. Rajamanickam and two others), wherein, the writ petition filed by the land owners, for issuance of mandamus, restraining the respondents therein from interfering in any manner with the right of the petitioners to be in possession and enjoyment of the properties, which was the subject matter of the civil proceedings, was held to be not maintainable. While doing so, the Division Bench observed that whatever decision is rendered by the civil court ultimately, the parties thereto will be bound thereby and the decision of the civil court can be implemented by appropriate proceedings provided for in the Code of Civil Procedure and there is no question of exercising jurisdiction under Article 226 of the Constitution of India for such purposes. The same principle enumerated by the Hon'ble Apex court and the Division Bench of our High Court in the decisions (cited supra) is squarely applicable to the facts of the present case and the same hits the maintainability of the present writ petition.
25.Thus, for the reasons stated above, the petitioners are dis-entitled to get any relief in this writ petition, on the grounds of availability of alternative remedy, limitation, delay and latches and abandonment of right, giving rise to the plea of estoppel.
26.In the result, the writ petition is dismissed. No costs.
15.12.2014 Index:Yes/No Internet:Yes/No rk To
1.The Commissioner, Hindu Religious and Charitable Endowment Department, Nungambakkam, Chennai-34.
2.The Executive Officer, Vilakkoli Perumal (Deepa Prakasar) Sri Vedantha Desikar Thirukkoil, Little Kancheepuram.
K.B.K.VASUKI, J.
rk WP.No.20952 of 2006 15.12.2014