Madras High Court
Aralvaimozhi Sri Nainar Kulasekara ... vs Palavesam Pillai, Thenagaramuthu ... on 10 February, 2003
Equivalent citations: (2003)3MLJ1
JUDGMENT K. Gnanaprakasam, J.
1. The plaintiffs are the appellants herein. The plaintiffs filed the suit for declaration that the plaintiffs' institutions is a denominational institutions and are entitled to protection under Art. 26 of the Constitution of India.
2. The plaintiffs' case is that Vadakoor Aaralvoimozhi is a well defined locality in Aaralvaimozhi hamlet of Thovala Village and Taluk, Kanyakumari District. The vellalas inhabiting in Vadakoor Aralvoimozhi are collection of individuals, having a common faith and are followers of Saivite form of Hindu religion and designated by the distinct name 'Vadakoor Vellala Samudhayam' and this constitutes a denomination by itself. It is stated that the said Vellala Community has got their own peculiar customs and practice in the religious worship of the suit temple. The main deity Sri Nainar Kulasekara Vinayagar is situated in the sanctum sanctorum and in the Ardhamandapam Acharya Vinayagar is situate. Deeparathanai will be done for the main deity in the sanctum sanctorum. There are two Nagars behind Acharya Vinayagar and on the side of the said Ardhavinayagar an idol of Baktha is found. Worship is done to them also. In the Ardhamandapam, a panchaloha Mutharamman deity is found and deeparathanai is done to this deity after deebarathanai is done to the other deities. There is another temple belonging to the Trust. The main deity is Muthuramman. Just in front of the Amman temple, there is an idol for "Ubayan Seravan'. The pooja for Ubayan Seravan will be conducted by Murayan Pillai, a member of the Vellala community and the offerings to this deity will be taken by the poojari. In the month of Karthigai, on each day, each member of the Vellala community would conduct special (Chirappu) pooja and on the last day of Karthigai if it falls on Tuesday or on the first Tuesday, of Markali 'Vilakku Polivu' function will be conducted and the expenses were met exclusively by the members of the Vellala Community. The temple will be closed in the event of death of a member of the Community and there will be a special function called 'Neermalai' by which garland will be given from the temple. Pooja will be done only after the removal of the body. Special function will be held at the time of the marriage of any member of the Vellala Community and Rs. 3/- will be collected for the Trust from the bridegroom. According to the plaintiffs, these institutions are religious denominational institutions and are entitled to acquire properties and to manage them by their chosen representatives and administer them un interfered with by any one. According to them, this right is guaranteed to them under Art. 26 of the Constitution of India. It is stated that the plaintiffs are chosen representatives of the denomination and were duly elected on 15.3.1970. The first plaintiff is the Managing Trustee and others are members of the Trust Board. They were elected for five years. The Hindu Religious and Charitable Endowment Department has no right to appoint trustees to the plaintiff-temple under S. 49 and 47 of the Act. But the 4th Respondent, Asst. Commissioner, HR & CE Suchindram. has chosen to appoint defendants 1 to 3 as trustees to the suit temple and he has no power to do so. Notice under Section 80 CPC was issued. Plaintiffs gave a petition to the Commissioner, HR & CE Board, and the order of the Asst. Commissioner was stayed. HR & CE department has no right to interfere with the administration of the temples run by the plaintiffs community as it is a denominational religious institution and therefore, the plaintiffs sought for a declaration of such right.
3. The defendants 1 to 3 filed a common written statement wherein they have stated that the first plaintiff was appointed as fit person by the 4th respondent in July 1965 for a period of five years to function in the Board of Trustees on the application submitted by the first plaintiff to the fourth respondent on 5.5.1965 and thereby, he was subjected to the jurisdiction of the fourth respondent over the suit institution by submitting periodical returns and other statements to the fourth respondent and he was functioning as a fit person as per the orders of the fourth respondent. The suit institution was being administered as per the provisions of the Tamil Nadu Hindu Religious and Charitable Endowment Act (Act 22 of 1959) and the rules framed thereunder. The suit institution is under direct control of the fourth respondent. Sri Nainar Kulasekara Vinayagar temple is the suit temple and the properties are standing in the names of deities. The H R & C E department has control over the same. The plaintiffs are not the chosen representatives of the plaintiff institution and they were never elected by the members of the plaintiff institution either on 15.3.1970 or on any other subsequent date. The first plaintiff is not the Managing Trustee of the plaint institution; nor the plaintiffs 2 to 5 are the trustees. The plaintiffs are not entitled to function as trustees. On the other hand, the fourth respondent is entitled to have the administrative power over the plaintiffs' institution. The Asst. Commissioner, HR & CE Department, the fourth respondent, has got power to appoint trustees under the provisions of Section 49 read with 47 of the Act. It is further stated that the fourth respondent called for applications for appointment as trustees after issuing proper notice in accordance with the HR & CE Rules and Regulations and the plaintiffs also applied for such appointment of trustees. The defendants 1 to 3 also made applications for appointment as trustees before the 4th respondent. After due enquiry, and after taking into consideration of the relevant merits of the applications, the fourth respondent by his order dated 31.3.1970 appointed the defendants 1 to 3 as trustees. The defendants 1 to 3 as per the direction of the fourth respondent in a special meeting convened by the Inspector of HR & CE Department, elected the first defendant as the Chairman of the Board of Trustees and the same was also approved by the fourth respondent. The majority of the members of the Vellala Samudhayam of the plaintiff institution is supporting their appointments. The defendants 1 to 3 alone are entitled to administer the plaintiff institution. The terms of the office of the first plaintiff had expired on 26.7.1970 and thereafter, none of the plaintiffs have got any right to function as trustees of the plaintiff institution. It is also stated that the first plaintiff is not competent to function as trustee as he was convicted in a criminal case in CC No. 34/1970. The first plaintiff having functioned as fit person under the orders of the fourth respondent and having submitted to the jurisdiction of the fourth respondent, now he is estopped from questioning the authority and power of the fourth respondent in appointing the defendants 1 to 3 as trustees. According to them, the order of the fourth respondent is valid.
4. The trial court framed the following issues among other issues:
1. Whether the suit institution is a denominational institution?
2. Whether the plaintiffs are the elected trustees of the denomination to whom the institution belongs?
3. Whether the Assistant Commissioner H.R. & C.E (Administration) Department has got Jurisdiction and powers to appoint trustees for denominational institutions and whether in the matter of appointment of trustees for Institution in suit he has omitted to keep himself within limits and thereby violated the guarantees under Art. 26 of the Constitution?
5. The first plaintiff was examined as P W 1 and two more witnesses were also examined. Exs. A1 to A27 were marked. The first defendant was examined as DW 1 and one more witness was examined before remand and after remand, three more witnesses were examined. The defendants have marked Exs. B1 to B31 before remand and Exs.32 to B36 after remand. The trial court after taking into consideration both oral and documentary evidence, came to the conclusion that the suit institution is not a denominational institution and dismissed the suit. It appears that the plaintiffs have preferred an appeal in AS No. 92/1980 and the said appeal was allowed. Aggrieved by the same the fourth respondent preferred an appeal before this court in SA 2213/1983 and the said appeal was allowed and remanded back to the lower appellate court to decide the matter on merits. After remand, that appeal was admitted by the District Court, Nagercoil as AS No. 200/1979. Again the parties let in evidence both oral and documentary and an advocate Commissioner was appointed. The Commissioner had also visited the property and filed a report. Then the said appeal was heard by the lower appellate court namely the District Judge, Nagercoil. The lower appellate court framed necessary points for determination and came to the conclusion that the suit temple does not belong to the Vadukoor Vellala community and also held that the fourth respondent and the HR and CE Department have got right to appoint trustees to the suit temple. By holding so, the Appellate Court dismissed the appeal. Aggrieved by the same, the plaintiffs have filed the present second appeal.
6. Heard both sides. Plaintiffs claim that they belong to Vallala Community of Aaralvoimozhi, Vadakoor village. It appears that the plaintiffs and defendants 1 to 3 are also Vallalas. It is the case of the plaintiffs that Sri Nainar Kulasekara Vinayagar Temple, Muthuramman and Muppanthal Easkiamman belong to them and they are denominational religious institutions belonging to the Aaralvoimoshi Sri Naninar Kulasekara Vinayagar Vellala Samudhayam. Aaralvoimozhi is the name of a place and vellala is the community and the Samudhayam is a group of people. All these things if put together the plaintiffs' name Aaralvoimozhi Sri Nainar Kulasekara Vinayagar vellala Samudhayam temple, is derived, which is represented by plaintiffs as its trustees. It is seen that Sri Nainar Kulasekara Vinayagar Temple is situate in Aaralvoimozhi Vadakoor East Street. Plaintiffs claim that these institutions are being managed and administered by that particular community. It is also seen that Poojas in the temples are conducted only by the Vellala poojaris. It is also stated that in the month of Masi, a Kodai festival will be done in the temple for the Muthuramman by the Vellala Community people alone. It is also stated that in the month of Karthigai for all the 30 days, special poojas will be performed only by the members of the said community each day by each vellala. It is further stated that Vilakku polivu pooja will be done by collecting contributions from among the vellalas of Vadakoor Village. During marriages, a fee Rs.3/- will be collected from the Vellala Bridegroom towards temple contribution. All the plaintiffs and the defendants 1 to 3 are Vellalas Varicars Samudhayam. It is their case that the people belonging to their community alone should be appointed as trustees and the fourth respondent has no authority to appoint the trustees to the suit temple. It is their further case that Act 22 of 1959 (HR & CE Act) is not applicable to the suit temples as they are entitled to protection under Art. 26 of the Constitution. According to them, the vellalas inhabiting in Vadakoor Aralvaoimozhi are collection of individuals having a common faith and are followers of Saivite faith of Hindu religion and designated by the distinct name Vadakoor Vellala Samudhayam and therefore, they claim protection under Art. 26 of the Constitution.
7. Sri Nainar Kulasekara Vinayagar Temple of Vadakoor has got special features and it is situate in the sanctum sanctorum and in the Arthamandapam Acharya Vinayagar is situate. A statue of Baktha is also found by the side of the Ardhavinayagar. It is in evidence that there are four car streets in Vadakoor village and originally Vellala community people alone were residing in that area and the same was admitted by DW 1 also in his evidence. That, only in recent times, according to the plaintiffs, persons belonging to other communities also came to occupy some of the houses in the four car streets. It is seen that one Agasthalinga Pillai was trustee in management of the suit temple for about 42 years till 1964. He was followed by the first plaintiff. According to the plaintiffs, the first plaintiff was the Managing Trustee and the other plaintiffs are the trustees of the suit temple. It is the plaintiffs' case that they were all elected by their community people on 15.3.1973 and the fourth defendant appointed defendants 1 to 3 as trustees on 31.3.1971 for the first time. The fact that offers were made to the deities only by the people belonging to Vellala community; that poojas are done only by the people belonging to the Vellala community; that Villakku polivu pooja was conducted only by the people belonging to Vellala community of Vadakoor; that in the case of death of a Vellala, the Poosari would give a garland from the temple in a special pooja called "Neermalai" and that during marriages in the said community a sum of Rs. 3/- would be collected from the Vellala Bridegrom towards temple contribution, are not disputed by the defendants.
8. In Ex.A7 dated 2.7.1966 one Kola Pillai endowed property to Sri Nainar Kulasekara Vinayagar temple of Aaralvoimozhi to conduct festival on a particular day in the month of Purattasi. This document is not disputed and the lower appellate court considered the documents Exs.A2, A3 and A9 and had come to the opinion that one Agasthalingam Pillai was administering the plaintiffs' temple for more than 42 years, i.e., from 1922 and he belongs to the Vellala community. The lower appellate court in para 2 of its Judgment had come to the conclusion that Vellala community is the major population in Vadakoor village and Agasthalingam Pillai belonging to that community is accepted by one and all and therefore he was carrying on the administration of the suit temple. The lower appellate court also came to the conclusion that only members of that community was administering the affairs of the temple. But the lower appellate court has also stated that just because the temple was administered by Vellala community people alone, this court cannot come to the conclusion that the temple was established and administered by the Vellala community alone.
9. In most of the Villages in Tamil Nadu, these Vellala community people reside in group in a particular street in which street, no other community people would reside. In order to have worship of their own Deities temples were constructed, maintained and administered by this community people and the origin of the construction of these temples are not traceable in most of the Villages. But however the fact remains that for several centuries before, these temples were constructed in the streets where the Vellala community people reside and they have been managing and administering the affairs of the said temples. From the evidence of both sides, it is made out that except the Vellala community people, no other community people claim that they were also in the administration of these temples.
10. In this connection it is useful to refer the case in Rajagopalier Vs. HR & CE (DB) 84 Law Weekly 86 wherein it was held -
"Admittedly, there is no direct evidence that the temple in question belongs to the Sourashtra Hindu Community at Madurai as to when and by whom the said temple was constructed. It is significant that none of the other communities living in Madurai Town had at any time chosen to lay claim to the suit temple as their own. It was also the case that the said temple was through out maintained by the Sourashtra Community. Under such circumstances, it was held that the suit temple must be held to be belonging to said community".
In our case also, there is no direct evidence that the temple in question was constructed by the Vellala community, but this community people alone have been managing the suit temple as trustees. It is also not in dispute that the suit temple is a very ancient one. It is also significant to note that none of the other community people living in the suit village had anytime chosen to lay claim to the suit Temple as their own. It is the specific case and claim of the plaintiffs that Vellala community alone have been managing and administering the temple through out. These are the circumstances under which, it is to be held that the suit temple belong to the said community.
11. Article 26 of the Constitution reads as under:
"26. Freedom to Manage religious affairs:
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right:-
(a) to establish and maintain institution for religious and charitable purposes;............"
On the face of this Article, every religious denomination or section thereof shall have the right to establish and maintain Institutions for religious and charitable purposes. A section of Hindu religious denomination is therefore entitled to establish and maintain institutions for religious and charitable purposes and in such management, it may not be proper for the HR & CE department to interfere with the said administration. As already seen in Rajagopalier Vs. HR & CE (1984 Law Weekly 86) it is further held that:
"There is no basis whatsoever for making any surmise that the temple had been built by the entire public constituting all the communities living in Madurai Town out of public contributions. That none of the other communities living in Madurai Town had at any time chosen to lay claim to the suit temple as their own and this circumstance strongly probabilises the contention that the suit temple must have been built only by the members of the Sourashtra Hindu Community. ...................We are also impressed with the circumstances that this suit temple had been managed throughout only by the leading members of the Sourashtra Community who had formed themselves into an Association of their own for the purpose of maintaining and managing the suit temple, apart from other secular purposes."
12. In The Commissioner HR & CE Madras Vs. Sri Lakshmindra Gthirtha Swamiar of Sri Shriru Mutt it was observed:
"As regards Art. 26, the first question is, what is the precise meaning or connotation of the expression "religious denomination" and whether a Mutt could come within this expression. The word "denomination" has been defined in the Oxford Dictionary to mean "a collection of individuals classed together under the sane name; a religious sect or body having a common faith and organisation and designated by a distinctive name" It is well known that the practice of setting up Maths as centres of theological teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankaracharya came a galaxy of religious teachers and philosophers who founded the different sects and sub sections of the Hindu religion that we find in India as the present day."
It was further observed that "Each one of the Sects or sub Sects can certainly be called a religious denomination, as it is designated by a distinctive name."
It is to be noted that under Art. 26 of the Constitution, a religious denomination or organisation enjoys a complete autonomy in the matter of deciding as to what rights are essential according to the tenor of the original intentment and no outside authority has jurisdiction to interfere with their decision in such matters.
13. In Ex.A37, it is stated that arrangements were made for the Muthuramman temple where it is stated that "Ooraga" but whereas in Exs. A.38 to 43 and 53 are vouchers belonging to Sri Nainar Kulasekara Vinayagar Temple Samudhayam Trust. These documents would clinchingly prove that Vellala community who formed a religious denomination have been maintaining and administering the suit temple for which these vouchers have been raised. Ex.A44 dt.21.3.1958 is a receipt for payment of Electricity Consumption charges by Agasthilinga Pillai, the then Trustee of the temple. Exs. A.46 to 51 are receipts wherein it is stated that one Veerabaghu Pillai as the Trustee for Esaki Amman Koil. Ex.A52 is a receipt for purchase of articles for Sri Nainar Kulasekara Vinayagar Temple of Vellala communitry. The observation of the Lower Appellate Court that the name of the Vellala Community is not printed in the receipts and therefore, it cannot be taken for granted that it was for Vellala community, is not acceptable. Exs.A63 to A`67 are sale deeds and they were all purchased in the name of the plaint Vinayagar temple from different persons. The Lower Appellate Court took the view that these properties are purchased out of the money belonging to the temple. But it failed to note the fact that the suit temple had no independent property and all those properties were purchased only by the monies contributed by the members of the Vellala community people and therefore, the said finding is not proper. That apart, one Veerabaghu Pillai gifted the property to the temple under Ex.A2. one Kolappa Pillai gifted property to the temple under Ex.A3 and these documents have not been taken note of which resulted in coming to the conclusion by the Lower Appellate Court that the people belonging to Vellala Community have not given any property to the plaint temple.
14. The Lower Appellate Court also considered the documentary evidence on the part of the defendants. Exs.B1 and B2 disclose that Agasthilingam Pillai had been the trustee for the plaintiff temple for a long time. Under Exs. B3 to B8 and B13 to B16 are applications to the HR & CE Dept. for appointing those persons as trustees to the plaintiff temple and the plaintiffs have also given such applications for appointment and based upon the applications only the defendants 1 to 3 were appointed as trustees under Ex.B17. By that the Lower Appellate Court has come to the conclusion that the suit temple was under the control of the H R & C E Department. It is true that the plaintiffs have given applications for the appointment of trustees to the suit temple but it was at the time when H R & C E Department was attempting to exercise some right over the suit temple. The mere fact that they have given applications for appointing them as trustees to the suit temple would not amount to giving up their rights over the suit temple which according to them is a religious denominational institution to which people belonging to a particular community alone have to be elected as trustees. Ex.B32 is a photo with negative showing a stone inscription in front of Muthuramman temple reveals that the mandapam and the stone flooring were done by Vannan Nallamadan Olimuthu belonging to Washermen community and the same was also accepted by the plaintiffs. Stones are brought for the construction of the Mandapam and the same were laid. The same was not accepted by the Lower Appellate court but accepting the case of the defendants that the stone inscription under Ex.B32 reveals that the Mandapam before the Muthuramman Koil was constructed by Vannan Nallamadan Olimuthu who belonged to Washermen community, would not prove that the suit temple was administered by the entire public at large. Ex. B34 is a certificate issued by Village Officer wherein it is stated that Sri Nainar Kulasekara Vinayagar Temple is situate in Survey No. 74/38 which is a Government poramboke land and the other temple situated in Survey No. 74/6 is also a Government poramboke land. These documents neither help the plaintiffs nor the defendants.
15. From the foregoing discussion, it is made out that Sri Nainar Kulasekara Vinayagar Temple, Aralvoimozhi, Vadakoor was all along managed and administered by the Vellala community people and the Muthuramman and Muppanthal Esakiamman temples were not exclusively administered by the above said community people even though they have acted as trustees for those temples also. The above said view of mine is supported by the documents filed by the plaintiffs Exs.A37 to A43 and A.53 wherein the receipts were only in the name of Sri Nainar Kulasekara Vinayagar Temple but whereas the electricity bills which are Exs.A.44 to 51 stand in the name Muthuramman temple - it states (trustees) and therefore, I am unable to come to the conclusion that these two temples were administered by Vellala Community people. But so far as Sri Nainar Kulasekara Vinayagar Temple is concerned, there are sufficient materials to come to the conclusion that the said community people alone have been administering and managing the said temple. In this connection, it is pertinent to note that no other community people have come forward making any claim that they were also managing and administering the said Vinayagar temple.
16. The learned counsel for the respondents has submitted that the suit temple is a public temple and the plaintiffs have not established that it was a religious denominational institution managed by a particular community people. They relied on the decision in the case of Appasamy Vs. A.V. Sundararajan and others - 1997 (1) M L J 218. That was a case where the plaintiffs who belong to 24 Manai Telugu Chettiar community of Amanakundhi Village, Salem District claim that the temple in question in that case belongs to them and it is religious denominational temple under their management. In the said case, this court held that plaintiffs failed to establish their case as they have stated that they have based their claim only by way of right of purchase and therefore, they are not entitled to claim that their temple is a religious denominational institution within the meaning of Art. 26 of the Constitution.
17. In The Commissioner HR & CE (Admn.) amd another Vs. Krishanasamy and others (2002(1) LW 804) in which the plaintiff filed a suit for declaration that Arulmighu Muthalamman Temple in Vellakarai is a denominational temple belonging exclusively to Vannia community of the Village wherein it was held that "The basic averments are absent in the plaint and evidence is also absent. It is not the case of the respondents therein that the community formed by any Guru that he prescribed common religious tenets or special poojas were conducted exclusively for their community without admitting members of other communities. "
That is not the case herein. In our case, the plaintiffs have pleaded and established that the suit temple was administered only by them and they were also conducting special poojas in the month of Karthigai and in that month for all the 30 days, people belonging to Vellala community alone were performing special poojas daily by each member to the suit temple.
18. The respondents relied upon the case of S. Azeez Basha and others Vs. The Union of India . That case mainly deal with the right of the minority to establish and administer and the Educational institution postulated under Art. 30 of the Constitution of India. Under Art. 30(1) of the Constitution, all minorities whether based on religion or language shall have the right to establish and administer educational Institution of their choice. No one should proceed on the assumption in the present petition that Muslims are minorities based on religion, It is clear that Art. 30(1) proceeds that religious communities will have the right to establish and administer educational institutions of their choice thereby meaning that where a religious minority establishes an educational institution, it will have the right to administer the same. It is therefore clear that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise.
19. A careful study of the entire materials in this case in the background that Agasthilingam Pillai was functioning as a trustee for a continuous period of 42 years and the same was not disputed by the defendants and in the absence of any rival claim by any other community and that the gift deeds are made by Vellala people under Exs.A2 and A3 and also the vouchers Exs.A38 to 43 and 53 are only by the Vellala community people and the various special poojas are conducted on several occasions as set forth in the plaint, I come to the conclusion that the Vellala people of Aaralvoimozhi, Vadakoor Village have been managing and administering Sri Nainar Kulasekara Vinayagar Temple alone and as far as their claim for Mutharamman and Muppanthal Easaki Amman temples are concerned, that is not proved in view of Ex.B32 and therefore I come to the conclusion that the said Vinayagar Temple alone comes under the religious denomination of the plaintiffs community as provided under Art. 26 of the Constitution of India and the defendants 4 and 5 are not entitled to interfere with the management and administration of the said Vinayagar Temple, by the said Vellala community.
20. In the result, the second appeal is allowed in part and the suit is decreed to the extent that the Vellala community of Vadakoor, Aaralvoimozhi alone are entitled to manage and administer Sri Nainar Kulasekara Vinayagar temple and their claim for two other temples - Muthuramman and Esaki Amman temples - is hereby dismissed. No costs.