Madras High Court
Smt. K. Bhuvaneswari vs The Commissioner
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018
THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
10~02~2023 ~02~2023
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
W.P.No.20022 of 2016 and
W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018
Smt. K. Bhuvaneswari ...Plaintiff
vs.
1. The Commissioner,
HR & CE Department,
Uttamar Gandhi Salai,
Chennai 600034.
2. The Joint Commissioner,
Executive Office
Arulmigu Subramaniya Swami Thiru Koil
Tiruttani – 631 209.
3. V. Yema Babu
4. S. Nagarajan
5. G. Subramanian
6. Hariharan ...Respondents
Prayer: Writ Petition filed under Section 226 of the Constitution of India to issue
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W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018
a Writ of Certiorarified Mandamus or any other appropriate writ, order or direction
in the nature of writ calling for the records relating to R.P.No.82/ 2016 D2 on the
file of the 1st Respondent and quash the orders dated 13.05.2016 passed by the 1st
Respondent and to direct the respondents to allow and permit the petitioner to
function as Mirasi Barber in Arulmigu Subramaniya Swami Thiru Koil, Tiruttani –
631 209 and to pay the shares out of the Mudi Kanikai Collections daily.
For Petitioner : Mrs. G. Sumitra
For Respondents : Mr. K. Karthikeyan
Government Advocate [for R1]
Mr.P. Gopalan [for R2]
Mr.S.R. Sumathy [for R3 to R6]
ORDER
This Writ Petition has been filed calling for the records in R.P.No.82/2016 D2 on the file of the 1st Respondent and quash the order dated 13.05.2016 and to direct the respondents to allow and permit the petitioner to function as Mirasi Barber in Arumigu Subramania Swamy Temple, Tirutani and also direct ot pay the shares out of Mudi Kanikkai daily collection.
Page 2 / 16 https://www.mhc.tn.gov.in/judis W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018
2. The case of the writ petitioner is that Arulmigu Subramania Swamy Tirukoil, Tiruttani is one among "Arupadai Veedu". The devotees perform various poojas and offerings including tonsuring of head. The persons belonging to Navithar Community have been hereditarily engaged in the works of tonsuring and snake piping etc.,
2.a. The Petitioner's father was hereditarily Mirasi Barber engaged in the said service. They were doing such service from time immemorial. As the temple was not recognising their Mirasi rights and their share, application in O.A.No.77/1961 was filed. The Deputy Commissioner, HR & CE, vide his order dated 18.07.1963 passed an order recognising the rights and share of Mirasi Barbers and including the petitioner's father as share holder. The Petitioner's father Govindudu was one among the Navithars community. The Petitioner's father had been doing the service and also receiving his share as per orders.
2.b The Petitioner's father died in the year 1983. After his death, her mother enjoyed the right of Mirasi. The temple recognized her right. The Petitioner's mother Lakshmamma was carrying on the services appointing one C.K.Subramani, Page 3 / 16 https://www.mhc.tn.gov.in/judis W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018 her relative by proxy. The said C.K.Subramanian was doing the service of Barber and was paying share to the petitioer's mother who was Mirasi Holder. The temple also had approved it. The petitioner's mother was receiving her share regularly. After the death of the petitioner's mother, petitioner has succeeded the Mirasi Right. The said CK.Subramani who was engaged by the mother of the petitioner has paying share to the petitioner. However, he suddenly he stopped giving share to the petitioner and he continued the said service and also inducted his wife Suguna with the approval of the 2 respondent for the work of Tonsuring human hair of devotees. At present about 35 persons (both Mirasi Holders and Non Mirasi Holders) are doing various services including Hair Removal.
2.c. According to the Petitioner, from the family of Govindudu, she is the only surviving legal heir and succeeded Mirasi right, entitled to do the said work and to receive share. Hence, the petitioner sent a representation, dated 07.05.2015 to the 2nd respondent to consider her request. The 2nd respondent has passed an order dated 21.12.2015 holding that the relief could not be granted in view of the Act 2/1971 and also for the reasons that Navithar Sangam had undertaken the work. The temple is disbursing the share to the Sangam out of the income of Ticket collection for services done and Sangam is also paying shares to Page 4 / 16 https://www.mhc.tn.gov.in/judis W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018 the barbers. Aggrieved against the said order passed by the 2nd respondent dated 21.12.2015, the Petitioner had filed R.P.No.82 of 2016 before the 1st respondent. The 1st respondent also dismissed the claim of the Petitioner. Challenging the same, present writ petition has been filed, challenging the order of the 1st Respondent on the ground that the 1st Respondent has applied the amendment to the Section 55 and 56 of the HR & CE Act errouneously as the same is applicable only to the office of the Archagas and Poojaris and such amendment does not take away the Mirasi Right conferred under Section 63(e) of the Act. The Petitioner is not claiming any salary or any inam from the temple. As such Section 55 of the Act will not be attracted. On the other hand the Mirasi Rights conferred on the petitioner's father cannot be taken away by simply citing Section 55 of the Act.
3.a. In the Rejoinder affidavit filed by the Petitioner, it is stated that the appointment of one C.K. Subamaniam was allowed only to perform `Thaalam` service. His appointment in the place of the petitioner's father Govindudu was done by the mother after the demise of her father to perform Navithar service in the temple. Till her death the petitioner's mother was enjoyed the right of Mirasi and received her share. After her death the Petitioner has succeeded Mirsasi Right. Page 5 / 16 https://www.mhc.tn.gov.in/judis W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018
3.b. The successor are alone given share in the ticket collection. Denying of the fact O.A.No.77 of 1961 was filed by the Mirasi Pipers and Barbers. In view of the compromise between the parties the petitioner's father name was also listed as share holder. No such appointment of Barbar was made by the temple. Those 24 persons were appointed only for performing piping services and not barber service. 5th Respondent has already given No Claim Letter dated 29.12.1983 stating that he has no claim against the Mirasi rights of Govindudu as well as the immovable property left behind him.
4.a. 1st Respondent filed a counter stating that the writ petition is not maintainable in law nor on facts, as the petitioner has got effective alternative remedy under the statute. Further it is stated that in connection with the share of the service holders namely Nathaswaram playing, barbers service etc., in the 2nd Respondent Temple, the share of the service holders and the Temple were determined in O.A.No.77 of 1961 dated 18.07.1963.
4.b. The Petitioner's father was performing the above service in the 2nd Respondent Temple as per the temple records. After the demise of the Petitioner's Page 6 / 16 https://www.mhc.tn.gov.in/judis W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018 father Govindudu on 15.12.1983 in furtherence of the communication issued in Na.Ka.No.2673/83 dated 17.03.1984, one C.K.Subramaniam was allowed to perform the service in the Respondent temple in the place of deceased Govindudu subject to the outstanding amounts payable by the deceased Govindudu to the Temple and also the payment of loan amount due to the Co-operative Society. Thereafter the service holders who were performing service in the 2nd Respondent Temple were taken as employees and they were placed in the time scale of pay. Apart from their share share they were also paid monthly salary. However, due to audit objection, the employees are not entitled to double claim and hence, the payment of share was stopped and they are now paid only monthly salary as per the time scale of pay fixed for them.
4.c. Subsequently, as per the order of the 1st Respondent, in order to accommodate large number of incumbent devotees, the Navidhar Sangam was allowed to perform the service in the 2nd Respondent Temple as per the recommendation of the Trust Board and approved by the Commissioner/1 st Respondent, H.R. & C.E. Dept., Chennai in Na.Ka.35956k/2010/U2 dated 25.09.2011. The petitioner after lapse of 32 years, as though the petitioner is Page 7 / 16 https://www.mhc.tn.gov.in/judis W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018 entitled to make a claim for performing the service in the place of her father, approached the 2nd Respondent for permitting her to perform barber service in the Respondent-Temple and her claim was rejected. Since C.K.Subramaniam was already taken as a regular employee in the post of Navithar in the 2 nd Respondent Temple by fixing time scale of pay and as on date, he is working in the 2 nd Respondent temple, the Petitioner is not entitled to claim Mirasi Right.
5.a. 6th Respondent filed a counter and the same was adopted by the Respoandents 3 to 5, stated that the Petitioner's step brother G. Subramanian was working as Navithar after the death of the Petitioner's father. 35 navithars and their forefathers were offering Navithar services and piper services to the Arulmigu Subramaniyaswamy Thirukoil, Tirutani temple. The HR & CE Department called for willingness from Navithars, whether to confirming as temple staff or as Navithars at that time 22 members opted to confirm as staff of the temple. While so 35 members of the Navithars family opted for receiving “Mudi Kanikai” in the temple. Hence, on 28.09.2011 Commissioner, HR & CE issued orders in favour of 35 members.
5.b. Petitioner's step brother G. Subramanian opted to work as Temple staff Page 8 / 16 https://www.mhc.tn.gov.in/judis W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018 cum piper. Hence the Commissioner appointed Subramanian S/o Gonvindudu as temple staff cum piper. He retired from temple service. His wife Munirathinammal is still working as Navithar and receiving Mirasi share, that was originally received by G.Subramanian Son of Gonvidudu. Hence petitioner being the daughter of Govindu through his second wife Lakshmi should sort out and seek redressal of her grievance among her family members. The Petitioner could not be granted Mirasi Barber rights. Hence oppposed the writ petition.
6. Learned counsel appearing for the Petitioner submitted that admittedly the rights of the Navithar service of the Petitioner's father was recognised in O.A.No.77 of 1961 by order dated 18.07.1963. Till his death in the year 1983 he was doing the service. Hereditary right have been recognised by the authorities as early as 16.08.1961. After his death one Subramaniam was doing the service of the mother of the Petitioner. He has been absorbed only as a temporary staff for 'thalam' service not on the basis of the Mirasi rights which has been recognised in the year 1961. Hence, it is his contention that as far as the Mirasi right, the hereditary right still continuous. The petitioner being the daughter of the original service holder, her hereditary right has already recognised merely on the basis of absorption of the Subramanian to the thalam service, Mirasi rights cannot be Page 9 / 16 https://www.mhc.tn.gov.in/judis W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018 denied. It is his further contention that the said Subramanian himself is given letter of relinquishing all Mirasi rights. The respondent has not considered the above fact and mechanically passed an order on the ground as if the petitioner claiming status of the staff of the temple.
7. Whereas the learned counsel for the Respondents 1 and 2 would mainly submit that the Petitioner has suppressed the material fact, in fact, the Subramanian was none other than the step brother of the petitioner. After the death of the petitioner's mother he was doing the service and since there is some dispute in sharing the amount between the Petitioner and the said Subramanian the petitioner has filed representation. According to them it is purely dispute between the Petitioner and the said Subramanian in sharing the amount. It has to be sorted out in the separate forum.
8. As far as the hereditary right is concerned, the rights have been recognised and some 22 members were opted to become the staff of the temple. Accordingly, they were appointed as temple staff. The said Subramanian also appointed as temple staff . As far as the Mirasi right is concerned now the service Page 10 / 16 https://www.mhc.tn.gov.in/judis W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018 is continued by Navithar Sangam. Said Subramanian wife is also one of the members of the Sangam. Therefore, it is their contention that the Petitioner cannot claim hereditary right.
9. The learened counsel appearing for the 6th Respondent would submit that it is purely dispute between the petitioner and her step brother. The petitioner after so much of delay cannot claim hereditary right. Now, the tonsuring done by the Navithar sangam. There are members from the navithar's family and the Sangam is also now registered at this stage the Petitioner cannot claim any right over the property.
10. I have perused the entire materials.
11. Though the Writ Petition is filed as if one Subramanian third party was nominated to perform the service namely hereditary rights of tonsuring and snake piping etc., Now it came to light that the said Subramaian is none other than the step brother of the petitioner. It is not disputed by the respondents that certain servicces namely the Tonsuring, snake piping etc., were done from time immorial by the particular community and their rights have been recognised in Page 11 / 16 https://www.mhc.tn.gov.in/judis W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018 O.A.No.77/1961. The Petitioner father Mr.M.Govindudu was one such member who was entitled to do the service. He died in the year 1983. Till his death he was doing the tonsuring service in the temple. After his death it appears that his son was doing the said service and sharing the amount with the 2nd wife of the Govindudu, the father of the said Subramanian. After the death of the 2 nd wife of Govindudu namely the mother of the Petitioner, it appears that there are disputes arose between them in sharing the amount. Since the Subramanian was continuing in the service, the Respondents have absorbed some of the service holders, who were performing their service as temporary staff. They have placed in the time scale of pay. Therefore, it is the contention of the respondents that once the service holder has already absorbed in the time scale of pay, the petitioner cannot seek Mirasi right separately. On perusal of records, particularly, the absorption of the Subramnian into time scale, he was appointed as a temporary staff to perform the thalam service.
12. There are two services, one is Mirasi right which relate to tonsuring of head and other one is in respect of performing thalam service. The said Subramanian was absorbed temporarily to perform the thalam service. The said Page 12 / 16 https://www.mhc.tn.gov.in/judis W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018 Subramanian was absorbed temporary appointment on 17.3.1984 only to perform the thalam service. The above makes it clear that his appointment was not in lieu of performance of Barber Service i.e., Mirasi right. Now he also retired. Thereafter, his wife have been inducted in the Navithar Sangam as one of the members to perform the service of Mirasi right i.e., tonsuring the head and snake piping etc., Therefore, this Court is of the view that when there are two different services one is thalam service and another one is Mirasi right, even Thalam service is complete since the Petitioner's brother has already absorbed, the Mirasi right cannot be denied merely on the ground that since Subramaiam wife has already inducted as member in the Navithar Sangam. If really the said Subramanian was appointed in lieu of his hereditary right there was no reason as to why his wife was inducted once again to carry out the service of miracy right i.e., tonsuring. This aspect has not been decided by the authorities.
13. Admittedly, the right of the petitioner's father has been declared in O.A.No.77 of 1961. His son C.K.Subramanian was given a job to perform thalam service by order dated 17.3.1984. As far as the Mirasi right recognised to his father, only legal heirs alone is entitled to continue such right. Such being the Page 13 / 16 https://www.mhc.tn.gov.in/judis W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018 position including the wife of the said Subramanian to perfor such right is certainly not permissible. The petitioner is claiming the right on the basis of the hereditary. Such right can be claimed only by the legal heirs and not the wife or husband of the legal heirs. It is also relevant to note that the said Subramanian also given a letter dated 29.12.1983 stating that he will not claim any right from the temple as far as the right of his father. His letter is also filed in the typed set. It is also not disputed by the 5th Respondent. That apart Will is also executed by the Petitioner's father in favour of the petitioner including his service right. These documents are also not disputed.
14. In such a view of the matter, merely because the society has been registered during the pendency of the writ petition including some 35 members in the Navithar Sangam, the right of the petitioner cannot be denied. Accordingly, the order impugned is set aside and the matter is remanded back to the 1st Respondent to pass a fresh order taking note of the observations made by this Court, within a period of 12 (twelve) weeks from the date of receipt of copy of this order, after giving personal hearing to petitioner.
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15. In the result, the Writ Petition is allowed and the impugned order passed by 1st Respondent is set aside and the matter is remanded back to the 1 st Respondent to pass fresh order after giving personal hearing to the petitioner, within a period of twelve (12) weeks from the date of receipt of copy of this Order. No costs. Connected W.M.Ps are closed.
22.02.2023
Index : Yes/No
Neutral Citation : Yes/No
ggs
copy to:
1. The Commissioner,
HR & CE Department, Uttamar Gandhi Salai,
Chennai 600034.
2. The Joint Commissioner, Executive Office
Arulmigu Subramaniya Swami Thiru Koil
Tiruttani – 631 209.
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W.P.No.20022 of 2016 and W.M.P.No.17258 of 2016 & W.M.P.No.21901/2018 N. SATHISH KUMAR, J.
ggs Order in:
W.P.No.20022 of 2016
22.02.2023 Page 16 / 16 https://www.mhc.tn.gov.in/judis