Madras High Court
Jalakandeswarer Dharmastabanam vs The Government Of Tami Nadu on 19 July, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19 / 07 / 2012
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NO.30690 OF 2008
Jalakandeswarer Dharmastabanam
Rep. by its Hon. Secretary
4/37, Vinayakar Koil Street,
Vellore 632 001. ... Petitioner
Versus
1.The Government of Tami Nadu
Rep. by Secretary
Department of Hindu Religious and
Charitable Endowments
Fort St. George, Chennai.
2.The Commissioner
Hindu Religious and Charitable Endowments
Nungambakkam High Road,
Nungambakkam, Chennai. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, quashing the impugned order passed by the 2nd respondent in his proceedings Na.Ka.No.52980/2008/A1 dated 24.09.2008 directing Arulmigu Jalakandeswarer Temple, Fort, Vellore, to be included in the list of temples under Section 46(iii) of the TN HR & CE Act and publishing it.
For Petitioner : Mr.T.P.Prabakaran
For Respondents : Mr.S.Kandaswamy
Special Government Pleader (HR & CE)
O R D E R
The writ petition is filed by the petitioner claiming to be the Honorary Secretary of Sri Jalakandeswarar Dharmastabanam, Vellore. In this writ petition, the petitioner challenges the order dated 24.09.2008 passed by the second respondent Commissioner, Hindu Religious and Charitable Endowments, Chennai directing Arulmihgu Jalakandeswarer Temple, Fort, Vellore to be included in the list of temples under Section 46(iii) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Shortly "the Act") and for publishing it.
2.When the writ petition came up for admission on 23.12.2008, notice of motion was ordered. Pending the writ petition, an interim stay was granted on 26.03.2009. Aggrieved by the same, the respondent State filed a vacate stay application in M.P.No.1 of 2009 together with supporting counter affidavit dated 16.07.2009 sworn to by the second respondent. However, this Court made the interim stay absolute and dismissed the vacate stay application by an order dated 27.08.2010 and admitted the writ petition on the same day.
3.The case of the petitioner was that he is the Honorary Secretary of Sri Jalakandeswarar Dharmastabanam, Vellore, which is a Society registered under the Registration of Societies Act, 1975 and it is devoted to altruistic aims and noble objectives. It is under the management and administration of Arulmighu Jalakandeswarar Temple situated in Vellore Fort, which is an ancient monument preserved under the Ancient Monuments Preservation Act, 1904, vide G.O.Ms.No.449, dated 23.03.1921. The Vellore Fort has been declared as one of the ancient monuments. It was claimed that during Muslim invasion, the temple, which is situated inside the Vellore Fort, was vandalised and religious worship came to an end. The presiding deity and other deities were removed. At present, the Vellore Fort is under the control and maintenance of Archaeological Survey of India. The deities which were removed from the Fort were kept intact and attempts were made to reinstall the presiding deity in its original place and to revive religious worship within the precincts of the temple. However, those attempts did not fructify and in the year 1981, prominent citizens of Vellore installed the presiding deity, namely Lord Jalakandeswarar at the temple and commenced worship despite stiff governmental opposition. But, in the course of time, worship came to be permitted and the petitioner Society is managing the temple and its affairs. The Archaeological Survey of India has handed over the keys of the temple to the petitioner Society. Further, Mahakumbabishekam was performed in the year 1982. The petitioner Society had installed about 90 idols sculpted in stone and 106 idols made of Panchalokas. The petitioner Society also spent substantial amount towards construction 22 vimanas, silver kavacham and silver ornaments. The Gopurams were adorned with golden kalasams. The petitioner Society purchased gold ornaments for the deities. Number of festivals were celebrated by the petitioner Society. Whenever any shamiana or pandal has to be erected, permission from the Archaeological Survey of India has to be obtained. Since it is under the control of the Archaeological Survey of India, no permanent structure was allowed to be erected by the Archaeological Survey of India.
4.A suit in O.S.No.384 of 1981 was filed in a representative capacity by the worshippers to declare the right of the plaintiffs to offer worship in the temple and for permanent injunction against the State Government as well as the Archaeological Survey of India. The State Government took a specific stand that the Temple is a protected monument and it was the duty of the Archaeological Survey of India to protect the ancient monument. However, the suit was withdrawn.
5.In effect, after the withdrawal of the suit, the Archaeological Survey of India permitted the petitioner Society to manage the temple on 24.10.1989. There are 50 employees in the service of the temple of whom, 20 are Archakars. The salaries of the Archakars and the other employees were paid by the petitioner Society. The Temple is not endowed with any immovable property and it does not have any fixed income. There is no complaint against the petitioner Society in maintaining the temple. The respondent HR&CE Department have not adopted any procedure prescribed by law in notifying the temple under the provisions of the Act. At no point of time, show cause notice was issued to the petitioner Society prior to the notification. It was informed that the Assistant Commissioner, HR&CE Department, vide his proceedings dated 22.05.2003 declared that Sri Jalakandeswarar Temple is a Hindu public temple, which has been brought under the control of the Department and it has to be managed in accordance with the provisions of the Act.
6.It is the case of the petitioner Society that the Department did not bring it under its control and management at any point of time. By another notice dated 20.03.2003, the Assistant Commissioner, HR & CE Department called upon the temple administrators to produce all sorts of accounts and also asked them to show cause as to why Non-Hereditary Trustees should not be appointed to the temple, even though it is under the control of Archaeological Survey of India.
7.The said notice was challenged by the petitioner Society in W.P.No.10434 of 2003 and the writ petition was allowed by this Court on the ground that common notice was given. In the show cause notice dated 22.05.2003, the petitioner Society was asked to show cause as to why a Fit Person should not be appointed for the temple.
8.The show cause notice was challenged in W.P.No.17632 of 2003. While disposing of the said writ petition, this Court directed the respondent Department to decide as to the authority and jurisdiction of the respondent to issue the impugned show cause notice and as to the applicability of the Act before proceeding further in the matter.
9.The petitioner Society preferred an appeal against the said order, in W.A.No.2856 of 2003. The writ appeal was allowed holding that if the temple is notified under Section 46 of the Act and if for any reason, the respondents want to proceed against the appellant, they will issue notice to the appellant.
10.According to the petitioner, the temple do not come within the definition of temple contained in the Act and the provisions of the Act have not been made applicable to the temple. Since it is a protected monument, members of all religions and communities have free access thereto. Besides, Islamic people also visits the temple on occasions in large numbers and the Vellore Fort is getting a tourism attention. When the temple admits members of every religious persuasion without restriction, it cannot be said to be a religious institution meant for exclusive Hindu worship. The petitioner Society receives contributions from members of all religions for the performance of religious and secular functions in the temple. The provisions of the Act are inapplicable to a monument.
11.In the counter affidavit filed by the second respondent, it was stated that Arulmighu Jalakandeswarar Temple, Vellore Town, Vellore District is a public religious institution as defined under Section 6(18) and 6(20) of the Act. The images or idols of deities originally existed in the said temple were said to have been mutilated and removed by foreign invaders during 17th Century. Thereafter, religious practices prevailed at that time, such as daily poojas, festivals and public worship became extinct in the temple for many years. Despite this, the strong structures of the temple alone sustained to stand without getting perished even after passage of several decades as deity. As several historical events known to have been occurred inside the Vellore Fort, in which the temple is situated, the Archaeological Survey of India took the whole Vellore Fort under its control, which includes the temple only as a place of monument and place of historical importance. In due course of time, the local public at large having strong faith in Hindu religion took steps to restore the temple in its original form. They sincerely worked for the same and had installed appropriate images of deities in the temple during the year, overcoming the problems and legal battle with Archaeological Survey Department. Later, amicable settlement was arrived at and the Hindu people consecrated the deities already installed according to Hindu Customs and Usage prescribed in the Agama Shastras. Thereafter, daily poojas are revived and in due course of time, various festivals gradually commenced to be performed and thereby the Hindu people used to visit the temple to perform poojas and worship in the temple.
12.It is at that time the petitioner Society came into picture and inducted itself in the day today administration of the temple, purportedly with the permission of Archaeological Survey of India. The flow of devotees to the temple was increased day by day and voluntary offerings made by the public both in cash and kind considerably increased in due course. Hundials were also installed inside the temple and money valued tickets for the performance of Kodi Deepam, Ghee Deepam etc., were also introduced, besides donation tickets. Even though the day today administration is practically with Sri Jalakandeswarar Dharmasthapanam, it is only maintaining the temple from the contributions of general public collected in various forms. Maha Kumbabhishekam was also performed in the year 1982 by the general public. Since several complaints were received, the Commissioner of HR & CE Department, the second respondent herein, by an order dated 24.02.2003, brought the temple under the control of the HR & CE Department, as the temple is a public temple and it attracts Section 1 of the Act.
13.Following the order dated 24.02.2003 of the Commissioner, the Assistant Commissioner, HR & CE Department, Vellore, who is the competent authority to appoint a Trustee or a Fit Person to a institution not published under Section 46 of the Act, passed an order dated 20.03.2003 calling upon the petitioner Society to show cause as to why Non-Hereditary Trustees should not be appointed. This was followed by another order, by which the Executive Officer of Arulmighu Narayana Reddy Chatram, Thottapalayam, Vellore, was appointed as a Fit Person to the temple, pending constitution of a Trust Board.
14.The said order was challenged by the petitioner Society in W.P.No.10434 of 2003 and the writ petition was disposed on 04.04.2003 by recording that the Department would take further proceedings in accordance with law to appoint a Fit Person, after issuing notice and after giving opportunity to the petitioner Society and thus, the impugned orders were set aside. This Court also held that it is for the authorities to proceed further in accordance with law and till then, the petitioner's right to manage the temple should not be interfered with.
15.As against the said order of this Court, no appeal was preferred and pursuant to the said order dated 04.04.2003, the Assistant Commissioner, HR & CE Department, issued a show cause notice to the petitioner Society asking them to show cause as to why a Fit Person should not be appointed to the temple. It was clearly stated in the show cause notice that an enquiry will be held in this regard as directed by this Court.
16.However, for the reasons best known, the petitioner Society filed a second writ petition in W.P.No.17632 of 2003 against the show cause notice. This was mainly on the ground that the temple is under the control of Archaeological Survey of India and the Assistant Commissioner, HR & CE Department has no jurisdiction to issue such show cause notice. This Court disposed the said writ petition with a direction to the petitioner Society to raise all contentions, including the question of jurisdiction of the respondent to interfere with the affairs of the temple in question, as well as the applicability of the Act to the temple in question.
17.As against the same, the petitioner Society filed an appeal in W.A.No.2856 of 2003. Though the Division Bench initially observed that they do not want to interfere with the order of the learned single Judge, but directed the Department and the writ petitioner to file an affidavit about the income of the temple, since the Division Bench felt that the Assistant Commissioner is not the proper authority to issue show cause notice, as if the income of the temple is more than Rs.10 Lakhs. The other contention regarding the jurisdiction of the Department was rejected by order dated 11.07.2008 and the Division Bench posed the following three questions:
(i)Whether the temple in question was included in the list published under Section 46 of the Hindu Religious and Charitable Endowments Act?
(iii)If it is not included in the list under Section 46 of the Act, what is its actual income?
(iv)The nature of mis-management as alleged against the Society and it must be made specific and not vague.
18.In obedience to the orders of this Court, it was submitted that the temple was not included in the list, as the actual income was not calculated as per Section 92 of the Act and as the petitioner Society was not furnished the accounts to the HR & CE Department. Thereafter, on the basis of the statement filed by the petitioner Society, the Division Bench prima facie found that the income of the temple was more than Rs.10,000/- and it can be more than Rs.2 Lakhs and since the notice was issued by the authority not competent, the respondents were asked to show cause as to why it should not be set aside.
19.Thereafter, a report was submitted on the basis of the questions raised by the Division Bench to the effect that the income of the temple exceeds Rs.10,000/- as per the audit reports and hence, the temple will be published under Section 46 of the Act and thus, the show cause notice issued by the Assistant Commissioner will be withdrawn. Though normally an enquiry will be conducted by the Assistant Commissioner regarding appointment of the Fit Person, pending constitution of the Trust Board, the Department came come forward to file an affidavit before the Division Bench. Since the petitioner Society themselves admitted the income to be around Rs.40 Lakhs in respect of three years ending with 31.03.2005, 31.03.2006 and 31.03.2007, it is suffice to state that income of the temple was more than Rs.10 Lakhs and thus, it falls under Section 46 (iii) of the Act. The operative portion of the order of the Division Bench reads as follows:
"A question is being raised with regard to the jurisdiction of the Assistant Commissioner of Hindu Religious and Charitable Endowments Board, who issued the pre-impugned notice dated 22nd May, 2003. Such question was raised in view of Section 46 of the said Act, wherein only higher officers than the Assistant Commissioner has been empowered to take action, depending upon their annual income of the temple. The appellant was directed to submit a report showing its annual income of last three financial years.
From the report submitted by the appellants, it appears that the annual income of the temple is more than Rs.10 Lakhs per annum. In such circumstances, as prima facie, it was found that the Assistant Commissioner may not have jurisdiction to issue the notice, the 1st respondent sought for time to reconsider the matter.
Today when the case was taken up, the learned counsel appearing for the 1st Respondent filed an affidavit, wherein at Paragraph 3 they have noticed that the annual income of the appellant was more than Rs.40 lakhs and has taken plea that in view of the provision of Section 46 of the said Act, the show cause notice by the 1st Respondent / Assistant Commissioner will be withdrawn as the same will be inoperative after the said publication under Section 46 of the said Act.
In view of the stand taken by the Respondents, we set aside the proceeding dated 22nd May 2003, issued by the 1st respondent / Assistant Commissioner and the impugned order dated 27.6.2003 passed by the learned single Judge in W.P.17632 of 2003 with liberty to the 1st Respondent to proceed in accordance with law. It is made clear that if the temple is notified under Section 46 and if, for any reason, the respondents want to proceed against the appellant, they will issue notice to the appellant. In such case, the appellant may take all the pleas as taken in this appeal and will co-operate with the respondents."
20.Therefore, in the light of the order passed by the Division Bench, there is no impediment for the Department to proceed with the issuing of notification under Section 46 of the Act. Section 6(20) of the Act reads as follows:
"Temple means a place whatever designation known, used as a place of Public Religious worship and dedicated to or for the benefit of, or used as of right by the Hindu Community or of any Section thereof, as a place of Public Religious worship."
21.Therefore, there is no doubt that Arulmighu Jalakandeswarar temple is a public institution covered by the provisions of the Act. It is in the light of this, it has to be seen as to whether the contentions raised by the petitioner can be countenanced by this Court. It is surprising that the petitioner is appropriating and re-appropriating in the matter of coming into the possession of the temple. It is no doubt true that the entire area is under the control of Archaeological Survey of India as a monument. But once when the right of worship is allowed, then it also becomes a religious institution coming under the provisions of the Act and depending upon the income received from the public, the authorities are entitled to include the temple in the list of temples under Section 46 of the Act. Therefore, having two rounds of litigation and having accepted the income, the impugned notification issued by the Commissioner is well within his power. The further contention of the petitioner that people of other religions are allowed inside the temple, does not stand to reason, as the petitioner themselves have admitted that the installation of idols, continuous festivals and poojas are being performed only in the form prescribed in the Agama Shastras. Merely because they were allowed to maintain the temple, as the idols were forcibly brought by them, does not have any jurisdiction to the Management to establish. When public collections are made and the people are allowed to worship and the expenditure is meant from the public funds, there is no illegality in the order passed by the second respondent and the earlier orders passed by this Court are not violated. Therefore, it is for the respondents to proceed further pursuant to the impugned notification and this Court is not inclined to interfere with the impugned order. Hence, the writ petition stands dismissed. No costs.
19 / 07 / 2012 Index : Yes Internet : Yes TK To
1.The Secretary Government of Tamil Nadu Department of Hindu Religious and Charitable Endowments Fort St. George, Chennai.
2.The Commissioner Hindu Religious and Charitable Endowments Nungambakkam High Road, Nungambakkam, Chennai.
K.CHANDRU, J.
TK PRE-DELIVERY ORDER MADE IN W.P.NO.30690 OF 2008 19 / 07 / 2012