Andhra HC (Pre-Telangana)
Tallapakam Kuppu Raghavan vs State Of A.P. Rep. By Its Secretary, ... on 17 December, 1996
Equivalent citations: 1997(2)ALT17
Author: V. Raja Gopal Reddy
Bench: V. Raja Gopal Reddy
JUDGMENT P.S. Mishra, C.J.
1. A feature film on the life of Saint Poet Annamayya, it is alleged, is in the process of making by the third respondent, the producer of the film and the fourth respondent, the Director of the film. Annamayya, it is said, was a great devotee of the Lord of the Seven Hills called 'Tirumala', Lord Venkateswara or Balaji, who is worshipped by a multitude of devotees drawn from all parts of the country and abroad. Petitioner herein has invoked this Court's , jurisdiction under Article 226 of the Constitution of India seeking, inter alia, a direction for a reference of the script to a Committee of Experts to verify whether it is in conformity of the life of Tallapakam Annamayya or not and for an order against the first and second respondents not to permit picturisation of the events in the script on any part of the Hills and at any other places in and around the Hills. Since it is indisputable, we can proceed further to state that Tallapakam Annamayya also called 'Chinnamayya' is a celebrated saint, composer, reformer of the fifteenth century India, who has written and composed more than 30,000 Keertanas on Lord Venkateswara and the contemporary life style. The devotional songs composed by him in praise of Lord Venktaeswara are a treasure of common folk and his life legend for the worshippers of Lord Venkateswara. The second respondent and others connected with the affairs and management of Tirumala Tirupathi Devasthanam have records of songs by the great composer and thus Annamayya is a living legend. Petitioner has claimed that he belongs to the line of successors of Annamayya and the Annamayya family introduced various sevas, Utsvas of Lord Venkateswara and even now Annamayya family member is the Kanyadata of Lord Venkateswara Kalyanam every day. At present, his father is serving the God in the capacity of Mirasidar. According to the petitioner, sacred traditions of the temple of Lord Venkatewara at Tirumala have been zealously preserved and that part of the religious rights of the devotees of Lord Venkateswara, there has never been any deviation by any person connected with the affairs of the temple in preserving the sacred traditions and not permitting any commercial or such other activities in the name of the temple or Lord Venkateswara by any person other than such activities which are sanctioned for the benefit of the temple. The third and the fourth respondents, however, have chosen, for the purpose of making the commercial feature film, several sites at the Hills and the sacred surroundings of the Hills. The third respondent, who incidentally is the producer of the film, is a Member of the Legislative Assembly of the State. With the help and services of the fourth respondent as the Director of the film and one Nagarjuna, hero of the film, portraying the character of 'Annamayya', besides some popular heroines, the third respondent is making the film. It is alleged that the third respondent made representation to the second respondent for permission to shoot some parts of the film at Tirumala. When his representation was placed at a meeting of the Trust Board, his request for shooting the film at Tirumala was rejected. He repeated his request by yet another representation. This time also the Trust Board declined to grant any permission. The second respondent, however, has yielded, allegedly, to pressure and on the basis of a communication on behalf of the first respondent- Government of the State of Andhra Pradesh permitted the shooting of the film at places at and around Tirumala and the Office of the Executive Officer of the second respondent has issued orders accordingly, which reads as follows:
"In pursuance of the Govt. Memo first cited and Resolution of TTD Board second read above, permission is, hereby, accorded to the Proprietor, VMC Productions, Hyderabad, to take film shooting for, the film "Annamayya" in the following select locations without any commitment to TTD and subject to the following terms and conditions.
1. Alipiri Where the regular piligrims do not.
2. Akasaganga & Papavinasanam congregate
3. Karveti Nagaram Outside the temple and in and around Koneru outside view only.
4. Srinivasa Mangapuram Around the temple and outside view only.
5. Nagalapuram & Narayana- Around the temple and outside vanam view only.
TERMS AND CONDITIONS:
1. Filming and acting any obscene scenes and offensive songs in the places mentioned above is prohibited.
2. Nothing should be done to detract the sanctity status of the institutions.
3. Any photographs of the institutions which are filmed should not be sold or commercialised.
4. As the subject of the film pertaining to Annamacharya closely associated with Tirumala temple, the entire script, dialogues, sequences etc., of the film should be submitted to the Executive Officer, TTD and his approval for the same be obtained before proceeding with shooting.
5. Soon after completion, preview of the film should be arranged to the Executive Officer, TTD or his nominee and any objectionable scenes noticed shall be deleted.
6. The Producer, VMC Productions, Hyderabad has to obey and respect the customs and usages of the institutions of T.T. Devasthanams.
7. The Producer, V.M.C. Productions, Hyderabad should not take film shooting in the institutions which are celebrating fairs and festivals,
8. The serene and bioaesthetic atmosphere of the institutions shall not be spoiled.
9. Any violation of the conditions will entitle the TTD Management to claim exemplary damages and other legal reliefs.
10. The shooting is permissible from Tuesday to Friday only in week in Tirumala areas where permission is granted.
11. The Producer is not granted permission for shooting at places like Mokali Mitta, Chandragiri View, Ashramam and Sahasra Deepalankara Mandapam as the film shooting will disturb the pilgrims.
12. The Prpprietor, VMC Productions, Hyderabad is responsible for smooth film shooting and to ensure that the convenience of the pilgrims and the sanctity of the temple and tranquility of the temple surroundings are in no way adversely affected by the film shooting.
13. The Producer, VMC Productions is responsible for the loss or damage of any TTD property while film shooting is going and the loss or damage sustained by the TTD will be recovered from him.
14. The Proprietor, VMC Productions will also give an undertaking on a non-judicial stamp that he would abide by the stipulations, terms and criteria as laid down by the TTD in this proceedings.
II The Chief Vigilance & Security Officer, TTD is requested to ensure that the pilgrims are not adversely affected by the film shooting. He will depute Security Guards to the shooting spots and also personally verify the shooting along with Public Relations Officer, TTD.
The Public Relations Officer, TTD is also requested to ensure that the film shooting is done in accordance with the terms and conditions of TTD.
Both the above Officers are requested to verify the film shots after shooting and insist upon the Producer to preview the film before being sent to censor and for release.
The respective Heads of Departments and institutions of TTDs noted in the address entry are requested to permit the film shooting of "Annamayya" in the specified places as above."
2. Material papers produced in the course of hearing contained the first application by the third respondent to the Executive Officer of the Devastanam (second respondent) in which he has described himself as the Proprietor and signed for VMC Productions and stated that he had proposed to make a movie on Annamacharya's life and works in his banner "VMC Productions" and, "the main object of making this movie is to propagate the Bhakticult of Sri Venkateswara through the Literary message of Annamacharya". His second application dated 17-9-1996 specifically mentions, "the main object of making this movie is to propagate the Bhakticult of Sri Venkateswara through the literary message of Annamacharya. Permission have already accorded by T.T.D. to me in this regard........I request you to accord permission to shoot some of the scenes in the film surrounding the temple and pushkarini in Tirumala Hills, Papavinasanam, Akasaganga and also in Karvetinagar temple and pushkarini, Narayanavanam temple, Nagalapuram temple and Srinivasamangapuram ........". When, however, the above applications for permission failed, and it is conceded the third respondent moved the State Government, a memo duly authenticated by a Deputy Secretary to the Government was issued on 26-11-1996 on the subject on the representation of the third respondent in these words:
"It has been represented by the proprietor V.M.C. Productions to grant permission for production of a film in peripheral area of Devastanams without affecting sanctity of the Holy Hills. The production of the film is aimed at popularising life story of Annamacharya. A copy of the material furnished by the producer of V.M.C. Productions is enclosed. The Executive Officer, Tirumala Tirupati Devastanams is requested to reconsider this request by placing the matter in the ensuing meeting of the Trust Board of Tirumala Tirupati Devastanams on 27/28-11-1996. He is also informed that it should be ensured that the film shooting is allowed between 10-00 a.m. to 5 p.m. and shooting should not be permitted in the main area of the temple while taking care to avoid any breach of religious sentiments."
3. It is not in dispute that pilgrims in thousands and millions in number sometimes visit the temple and there is no day which is not full of activities of the pilgrims and various rituals, poojas and rites of the cult preserved since antiquity and no part of the Seven Hills, except some secular activities which are essential for the service of Lord Venkateswara, is free from religious activities in and around the temple right from the Foot Hills on all sides. Article 25 of the Constitution of India guarantees freedom of conscience and free profession, practice and propagation of religion, subject to public order, morality and health and to the other provisions of Part III of the Constitution of India to all persons and States, "all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion". Article 26 of the Constitution of India gives freedom to manage religious affairs subject to public order, morality and health to every religious denomination or any section thereof in these words:
"(a) to establish and maintain institutions for religious and charitable purposes:
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law."
The guaranteed four rights under Article 26 of the Constitution of India to the religious denomination of Hindus and Hindus in general are nothing new conferred under Article 26 of the Constitution of India. The history of the temple is traceable to the beginning of the first era of Christ and goes beyond in antiquity, atleast so to multitude of devotees of Lord Venkateswara. Geographical and political divisions of the country almost at all times respected the above denominational rituals and rites and accorded to all the Seven Hills constituting Tirumala and its surroundings the status of Holiness. Constitution has only affirmed the above rights and no serious endeavour has been made before us to dispute the same. The third respondent has described himself to be an ardent devotee of Lord Venkateswara and it would have been most unexpected of him to dispute the above.
4. The Legislature of the State of Andhra Pradesh has enacted the A.P. Charitable and Hindu Religious Institutions and Endowments Act generally for all Charitable and Hindu Religious Institutions and has made an exception by introducing separate provisions in Chapter XIV therein for Tirumala Tirupathi Devasthanams. Section 95 in the said Chapter of the Act states that the provisions of the Chapter shall apply only to the Tirumala Tirupathi Devasthanams and the other provisions of the Act shall, subject to the provisions of the Chapter XIV, apply to the Tirumala Tirupathi Devasthanams which shall be constituted into a single religious institution for the purpose of inclusion in the list published under clause (a) of Section 6 of the Act; to every specific endowment attached either to the said Devasthanams as a whole or to any Temple or institution thereof; as if all powers and functions assigned therein to a Deputy Commissioner, or an Assistant Commissioner, had been assigned to the Commissioner, instead. Section 96 provides for the Constitution of the Board and Section 97 for powers and functions of the Board, which Section reads as follows:
"Section 97. Powers and functions of the Board:- The Board shall in addition to the powers conferred and functions entrusted to it by this Act, exercise such other powers and perform, such other functions as may be prescribed in regard to matters of policy and general superintendence and review in relation to the Administration of Tirumala Tirupathi Devasthanams having due regard to public interest and the services and amenities to be provided to and welfare safety measures to be undertaken for the pilgrims, devotees and worshippers resorting to Tirumala Tirupathi Devasthanams."
5. Section 97-A provides for constitution of a Committee by the Government called the 'Tirumala Tirupathi Devasthanams Management Committee' and as a body corporate to hold and dispose of property and sue and be sued by the corporate name of the Committee and for powers and functions of the Committee. Section 97-B states, "subject to the provisions of this Act and the rules made thereunder:-
(i) the administration of the Tirumala Tirupathi Devasthanams shall vest in the Committee and the Committee shall, for this purpose, in addition to the powers conferred and functions entrusted to it by this Act exercise such powers and perform such functions as may be prescribed;
(ii) the Committee shall manage the properties and affairs of the Tirumala Tirupathi Devasthanams and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its custom and usage;
(iii) ...........
(iv) ...........
(v) the Committee shall exercise the general superintendence and control over the administration of the Tirumala Tirupathi Devasthanams in conformity with the policy laid down by the Board;
(vi) ............
(vii) the Committee may, subject to such conditions and restrictions as it may lay down delegate to the Executive Officer such of the powers conferred on it by or under this Act, as it may consider necessary."
Prescribing, under the Rules, powers and functions of the Board, the Committee and the other functionaries, law has recognised, in the powers of the Board of Trustees a function to lay down general lines of policy in accordance with the Act and in pursuance thereof, Rule 13(1) states, "it shall be competent to consider and recommend policy guide lines to the Tirumala Tirupathi Devasthanams on - (a) transport......(b).......(c)........(d).......(e) orderly darshan and for worship; (f) safety to person and property; (g) medical and health facilities, education; (h) such other matters of policy on general superintendence and review in relation to the administration of the Tirumala Tirupathi Devasthanams having regard to public interest and the services and amenities provided to, and the welfare and safety measures to be undertaken for pilgrims, devotees and worshipeers resorting to Tirumala Tirupathi Devasthanams. Chapter XXVII of the Rules which speak generally states in Rule 214, "the Executive Officer, Tirumala Tirupathi Devasthanams or an Officer authorised by him, may, by an order, under Section 114(3)(a) of the Act prohibit any commercial activity in the premises of the Tirumala Tirupathi Devasthanams Temples or Institutions or Choultries, Cottages or other places of pilgrims' accommodation. For violation of an order under this Chapter the Executive Officer or an Officer authorised by him shall have the power of seizure and confiscation of goods." Section 114(3)(a) of the Act reads as follows:
"Subject to such rules as may be prescribed, it shall be lawful for the Executive Officer by order to prohibit within the Tirumala Hills area notified under sub-section (1) or within the premises of the Tirumala Tirupathi Devasthanams, specified in the First Schedule as the case may be,-
(i) begging by any person;
(ii) straying of any cattle, pigs or dogs;
(iii) possession, use of consumption of any intoxicating liquor or drug or cigarettes including beedies and chuttas;
(iv) possession, preparation or consumption of meat or other foodstuffs containing meat;
(v) slaughter, killing or maiming any animal or bird for any reason;
(vi) gaming with cards, dice, counters, money or other instruments of gaming;
(vii) tonsuring or hair-cutting or opening and running of a hairdressing saloon by any person other than a person authorised or employed by the Executive Officer."
From the Scheme of the Act and the rules aforementioned the three tier administration of Devasthanams is - (1) the Board of Trustees; (2) the Committee appointed under Section 97-A; and (3) Executive Officer. All the three, however, are assigned powers and asked to perform such functions as are prescribed in the rules, in regard to matters of policy and general superintendence and review in relation to the administration of Tirumala Tirupathi Devasthanams having due regard to public interest and the services and amenities to be provided to and welfare safety measures to be undertaken for the pilgrims, devotees and worshippers resorting to Tirumala Tirupathi Devasthanams. The Committee's powers are restricted to the provisions of the Act and the Rules and to act in conformity with the policy laid down by the Board and the Executive Officer is assigned only such powers and functions which are delegated by the Committee and the rules, including Rule 214 above. While spelling out further powers and duties of the Executive Officer, Rule 223 provides, "The Executive Officer shall be responsible to preserve the security, religious and holy environment at Tirumala and shall have power to issue any order to preserve sanctity, the environment of the Temple."
6. Learned Advocate General has addressed us at length and learned counsel for the third and fourth respondents has taken us through the script of the proposed movie of 'Annamayya'. It has transpired in the course of the hearing that except in terms as spelled out under Articles 25 and 26 of the Constitution of India for the preservance of the security, religious and hill environment at Tirumala, the provisions in the Act and the Rules framed thereunder do not in any manner authorise either the Board of Trustees or the Committee or the Executive Officer to do anything which would in any manner affect or injure the cherished fundamental right of all religions of the land, including those of the Hindus and the denominations or sections of Hindus who are devotees of Lord Venkateswara. Freedom to practise any profession or to carry on any occupation, trade or business as enshrined in Article 19(l)(g) of the Constitution of India is subject to any law imposing reasonable restriction on the exercise of said right in the interest of general public as provided under clause (6) thereof. Viewed in the light of the right under Articles 25 and 26 of the Constitution of India, the freedom under Article 19(l)(g) must always be deemed to be subject to the interest of the general public i.e., the people adhering to any religious faith or denomination of any religion or section thereof. The interests of the general public must, when viewed in the light of the provisions under Articles 25 and 26 of the Constitution of India, receive the meaning of interest of the people adhering to any religious faith or a denomination of the religion or section thereof. It is not possible to see any such freedom of trade or commerce or business at and upon the properties of any religion or religious denomination or section thereof if no law is made to restrict such activities. Nothing can be read in the law or absence of the law a right or freedom of trade and commerce which would infringe the interest of the concerned religion or religious denomination or section thereof. The freedom to practise any profession or to carry on any occupation, trade or business shall always be restricted by the rights under Articles 25 and 26 of the Constitution of India. Learned Advocate General has, however, intended to read in the words of Rule 214 afore-quoted, particularly in the words, "The Executive Officer.........by an order under Section 114(3)(a) of the Act prohibit any commercial activity in the premises of Tirumala Tirupathi Devasthanams Temples or Institutions or Choultries, Cottages or other places of pilgrims accommodation", presence of the freedom of commercial activities otherwise unless such activity is not prohibited by an order issued by the Executive Officer under Section 114(3)(a) of the Act. We cannot, however, comprehend how any commercial activity in the premises of the temple be a fundamental right, if the full purport of the contention of the learned Advocate General is realised only because there is no order issued by the Executive Officer under Section 114(3)(a) of the Act prohibiting such activity. No law, muchless a right under the Constitution of India, can be stretched to destroy the very fabric or the essence of the democracy, which includes the guarantees under Articles 25 and 26 of the Constitution of India that all persons are equally entitled to freedom of conscience and the right particularly to practice, profess and propagate religion and to manage its own affairs in matters of religion and to own and acquire movable and immovable property and to administer such property in accordance with law. Ownership of a property is a concept which has received different meanings in the context of the right which is claimed or exercised. There can be a servient right as against the right of a proprietor and there can be a right of easement as against the right of the title holder. One such concept universally acknowledged and Courts in India and Indian laws have always respected is the presumption in favour of the ownership in the person who is in possession of the property and Hindu scriptures have recognised ownership of the idol or the deity for whose benefit dedication is made. Although there is no documentation available as the origin is lost in antiquity, there is no attempt made before us to question the ownership of the Lord Venkateshwara of Seven Hills. This being true and a real concept the Board of Trustees, the Committee or the Executive Officer are only administrators of the property of Lord Venkateshwara. They can have no right of ownership in themselves and they cannot thus decide to do anything against the interest of the right of the owner i.e., in the instant case, Lord Venkateshwara. Once the ownership is resolved and the right to administer is deemed to vest as provided under Article 26 of the Constitution of India in the plurality of the devotees and regulated by the provisions of the Act and Rules framed thereunder, no administrator, whether appointed under the Act or otherwise, can take liberty to destroy the sanctity and Holiness of the Tirumala Tirupathi Devasthanams and domain of Lord Venkateswara, which domain, as we have already held, extends to all the Seven Hills called "Tirumala".
7. Facts afore-mentioned leave no manner of doubt that Board of Trustees attached due regard to the sanctity and Holiness of the Hills and rejected all entities and representations of the third respondent until the Government of the State intervened. Nothing has been shown to us under which the State Government has been assigned either by any provision of the Act or the Rules framed thereunder power to interfere with the affairs of the Board of Trustees of the Devasthanam or the Committee or the Executive Officer. When legislation occupies the filed, the executive Government ceases to have any authority or power unless such authority or power is assigned to it by the legislation. The executive power under Article 162 of the Constitution of India is available only until the field is not occupied by legislation. The Government's interference in the affairs of the Devasthanam or the administration, which Board of Trustees, the Committee and the Executive Officer are required to exercise, is beyond the law and without jurisdiction. Citing the above letter, which is authenticated by the Deputy Secretary to Government, Department of Revenue, there is some attempt to suggest that it was only a request of the Government conveyed to the Executive Officer to consider the representation of the third respondent for permission for shooting the film as requested by him. This, however, does not substantially take away the effect of uncalled for interference of the State Government and with all constrains at our command, we are constrained to reiterate the words of Viscount Haldane held in Shearer v. Shields, (1914) AC 808 "a person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently." We have no hesitation, on the facts of this case, in holding that the Government's act of writing a letter to the Executive Officer on a representation by the third respondent is without any just cause or excuse and it can be assumed on the basis of the same that there was no reasonable or probable cause for the writing of the letter by the Government to the Executive Officer which is an act obviously outside of the law and has the effect of inflicting a serious injury upon the rights of the denomination or the section of Hindus who are the devotees of Lord Venkateswara. We are constrained again to quote oft repeated words of Lord Esher MR. in The Queen on The Prosecution of Richard Westbrook v. The Vestry of St, Pancras, (1890) 24 QBD 371 "if people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion". Going by the above, the second respondent has not exercised its discretion at all and has failed to act in accordance with law. Permission granted by it to the third respondent for the shooting of the film, on the principle as above, is wholly illegal and vitiated on account of malice in law. In S.R. Venkataraman v. Union of India, the Supreme Court has pointed out that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. In the order granting permission, the second respondent has admitted the influence of the letter from the Government of the State. It is thus vitiated by an unreasonable cause and the act of granting permission is unpardonable by the law of the land.
8. Laws aside, however, petitioner has not shown any objection to the third respondent's devotion for Lord Venkateswara and his taking up the life of Annamayya as a subject for a feature film, It is not at all any personal right of the petitioner as Annamayya belongs to entire community and not to any individual or a family. The third respondent has shown high regards for Annamayya's contribution to the society at large and religious denomination or the section of the devotees of Lord Venkateswara in particular. He has stated in clear terms that he has intended to make a movie on the life of Annamayya and to make the people to re-live the time of the great Saint and reformer and along with him the viewers of the film. Since the petitioner does not have any proprietary claim either upon the Keerthanas or songs of Annamayya or upon any biography of Annamayya's life, insistence that script be reviewed before the third respondent is permitted to make the film is not sustainable. Having considered thus the matter on all relevant aspects, we have no hesitation in concluding that the permission granted by the second respondent to the third respondent for shooting the film on the life of Annamayya at any part of Tirumala Hills is illegal. We find no merit in the claim of the petitioner for review of the script before the third respondent is permitted to make the film. In course of the hearing of the application, however, the places at which the third and fourth respondents have intended to have shooting have been critically examined and it is found that, except such areas which form part of the Seven Hills, making of the film at sites other than the Hills, which were visited or frequented by Annamayya, is not likely to affect the sanctity and Holiness of the Seven Hills of Tirumala and will also not be against the public interest.
9. In the result, the application is allowed. The order in Roc.No.PR4/7815/ PRO/TTD/95 dated 3-12-1996 issued by the Executive Officer, Tirumala Tirupathi Devasthanams is quashed. Let a writ in the nature of certiorari accordingly issue. Consequently, let a writ in the nature of mandamus issue to restrain the first and second respondents from permitting the shooting of the film "Annamayya" or any other film at Tirumala Hills, which is meant for commercial use. There shall, however, be no restriction upon the shooting of the film "Annamayya" at places other than the forming part of Seven Hills, including such other places which were visited or frequented by Anammayya. On the facts and in the circumstances of the case, there shall be no order as to costs.