Madras High Court
Arulmigu Sri Subramania Swami ... vs D. Kumar Iyer on 2 December, 2022
Author: R. Mahadevan
Bench: R. Mahadevan, J. Sathya Narayana Prasad
WA (MD) No. 1468 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 02.12.2022
CORAM :
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR.JUSTICE J. SATHYA NARAYANA PRASAD
Writ Appeal (MD) No. 1468 of 2022
and
C.M.P. (MD) No. 11819 of 2022
---
1. Arulmigu Sri Subramania Swami Thirukoil
through its Chairman
Board of Trustees
Thiruchendur
Tuticorin District
2. The Executive Officer/Joint Commissioner
Arulmigu Sri Subramania Swami Thirukoil
through its Chairman, Board of Trustees
Thiruchendur
Tuticorin District .. Appellants
Versus
D. Kumar Iyer .. Respondent
Writ Appeal filed under Clause 15 of The Letters Patent against the
order dated 28.11.2022 passed in WMP (MD) No. 20864 of 2022 in WP (MD)
No. 26672 of 2022 on the file of this Court.
For Appellants : Mr. M. Muthugeethayan
For Respondent : Mr. V.R. Shanmuganathan
https://www.mhc.tn.gov.in/judis JUDGMENT
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(Judgment of the Court was delivered by R. MAHADEVAN, J.)
The appellants have come up with this intra-court appeal aggrieved by
the interim order dated 28.11.2022 passed by the learned Judge in WMP (MD)
No. 20864 of 2022 in WP (MD) No. 26672 of 2022.
2. The respondent herein has filed the aforesaid writ petition bearing
No.26672 of 2022 praying to issue a Writ of Certiorari to quash the
proceedings dated 10.09.2022 and 14.11.2022 issued by the second appellant.
3. In the affidavit filed in support of the writ petition, the respondent
stated that he is the President of Sri Subramaniya Swamy Thirukovil Swanthira
Paribalana Sthalathar Sabha. According to the respondent, he belongs to
Thirusuthanthirars as well as Sthalathars. Around 200 families of their sect
were performing religious services in the temple, such as Pooja, Archana,
Kattiyam, Kaiyatchi i.e., handing over of holy jewels to be adorned to the
deity, chanting Veda Parayanam, etc. It is further stated that the Mukkani
Bhramins have contributed to the temple administration by rendering such
religious activities and they are not the servants of the temple administration,
but they are associated with the religious practice and services rendered to the
temple and therefore, the respondent claimed that he is entitled to receive share
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or emoluments for the murai. It is also stated by the respondent that already, a
suit in O.S. No. 157 of 2017 has been instituted before the learned Subordinate
Judge, Tiruchendur for declaration that they are a denominational community
and that, they are entitled to perform the religious services in the temple and
they should not be restrained from carrying out the same. While so, the second
appellant has issued the show cause notice dated 10.09.2022 calling upon the
respondent to explain as to why he had taken four devotees during Uchikala
Pooja on 07.09.2022, despite a ban was in force and the temple employees
having been prevented him from doing the same. According to the respondent,
the notice dated 10.09.2022 impugned in the writ petition, was issued without
any jurisdiction and in an arbitrary manner; and that, as per Section 55 of the
Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (in short,
“the HR&CE Act”), even the persons who receive emoluments and perquisites
from the temple, could be controlled only by the trustees and therefore, the
show cause notice issued by the second appellant is legally not sustainable. It
is also stated that on 14.11.2022, a subsequent order was passed by the second
appellant barring the respondent from entering into the temple and from doing
poojas, etc. for thirty days. Challenging those two orders of the second
appellant, the respondent preferred the aforesaid writ petition.
4. When the writ petition was taken up for admission on 28.11.2022,
the learned Judge has granted an order of interim stay of operation of the
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orders passed by the second appellant. Aggrieved by the same, the appellants
have come up with the present appeal.
5. The learned counsel appearing for the appellants would contend
that despite the oral instruction given by the second appellant, on 07.09.2022,
the respondent accompanied four devotees to worship the main deity at the
time of Uchikala Pooja and based on the report submitted by the Ulthurai
Superintendent, the second appellant issued the show cause notice dated
10.09.2022, thereby calling upon the respondent to submit his explanation, to
which, the respondent submitted his explanation on 16.09.2022. Thereafter,
the first appellant being the Board of trustees of the second appellant temple
and is having control over all the office holders and servants, by virtue of
section 56 of the HR&CE Act, has passed a resolution no.110 dated
11.11.2022, to initiate disciplinary proceedings against the respondent, besides
suspending him from doing poojas, etc, for a period of 30 days, as an interim
measure, which was communicated to the respondent by the order of the
second respondent dated 14.11.2022. Without properly appreciating the same,
the learned Judge has granted an order of interim stay on 28.11.2022, which
would affect the effective and better administration / management of the
second appellant temple and hence, the same needs interference by this court.
It is also submitted that as against the order passed by the second appellant
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dated 14.11.2022, there is an effective and alternative remedy available to the
respondent under section 56(2) of the HR&CE Act before the Joint
Commissioner. Instead of doing the same, the respondent has approached the
writ court and got an interim order in his favour, which is illegal and against
the law.
6. It is also contended by the learned counsel appearing for the
appellants that the appellants are having control over the staffs / employees of
the subject temple, as per section 56 of the HR&CE Act. Placing reliance on
the order dated 30.08.2022 passed by the Full Bench of this Court in W.P.
(MD) Nos. 11817 of 2018 and 6446 of 2022 in R.S. Kalyanasundaram v. The
Commissioner, HR & CE Department, Chennai and others, in which, an issue
relating to Thirusuthanthirars has been dealt with, the learned counsel
submitted that section 23 confers the power of general superintendence upon
the Commissioner of HR&CE Department, over the temples and religious
endowments and the same includes the power to pass any orders, which may
be necessary to ensure that such temples and endowments are properly
administered and that, their income is duly appropriated for the purposes for
which they were founded or exist. Accordingly, the second appellant, who is
functioning under the control of the HR&CE Department, has passed the
orders impugned in the writ petition, against the respondent, who was acting
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against the interest and welfare of the temple and also interfering with the
administration of the temple. The relevant passage of the Full Bench decision
is usefully extracted below:
"19. The Madras High Court held in R.Vijayakumar v.
Commissioner, HR&CE (2001) 2 L.W 667 that the proviso to Section 23
imposes a restriction on the Commissioner from passing any order
prejudicial to any temple or endowment unless the trustees concerned have
had a reasonable opportunity of making their representations. Even
without the said proviso, one can come to the conclusion that without
putting the affected parties on notice, no direction adverse to their
interests can be passed. The principles of natural justice now occupy a
central position in our jurisprudence. We therefore read the proviso as
envisaging that the Commissioner was obliged to hear the stakeholders
and affected parties before passing any adverse order. The impugned
circular clearly proposes to regulate the activities of Thirisuthanthirars.
Thirisuthanthirars are an identifiable group. They have formed societies
under the provisions of the Tamil Nadu Societies Registration Act, 1975.
Nothing stopped the Commissioner of HR&CE from issuing notices to
them before passing the impugned circular (miscalled G.O in the order of
reference). Passing the impugned circular without putting
Thirisuthanthirars on notice at least in a representative capacity is clearly
bad on the ground of violation of principles of natural justice. In State of
Orissa v. Binapani Dei AIR 1967 SC 1269, it was held that a decision
which contravenes the rules of natural justice is a nullity. The learned
Senior counsel appearing for Thirisuthanthirars would strongly contend
that they constitute a denomination by themselves and that their
fundamental rights are at stake. We refrain from going into the said
contention. However, we hold that since their rights are involved, they
should have been heard before issuing the impugned circular. In Udit
Narain Singh Malpaharia Vs Additional Member, Board of Revenue
(AIR 1963 SC 786), it was held that any order made without hearing the
affected parties would be void.
20. We hold that the directions issued in W.P.(MD)No.11817 of
2018 are unsustainable and that the impugned circular issued by the
Commissioner, HR&CE is also invalid. ..........
21. We however make it clear that we are not giving any clean
chit to the Thirisuthanthirars. Nor have we gone into the merits of the
matter. We have interfered with the impugned circular only for the
technical reasons aforementioned. It is open to the Commissioner,
HR&CE to pass an order afresh in accordance with law.”
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With these averments, the learned counsel prayed this court to allow this
appeal by setting aside the interim order passed by the learned Judge in the
writ petition.
7. On the other hand, the learned counsel for the respondent / writ
petitioner submitted that the temple is a public religious institution and the
second appellant has no jurisdiction to treat it as a property belonging to him
and hence, preventing the respondent from entering into the temple is
arbitrary, violative of Articles 25 and 26 of the Constitution and unsustainable
in law. Therefore, the interim order passed by the learned Judge, which is
impugned herein, does not call for any interference by this court.
8. In reply, the learned counsel for the appellants submitted that the
respondent was not prevented from entering into the temple, on the other hand,
was questioned his entry with four other devotees inside the temple for
monetary consideration.
9. We have heard the learned counsel appearing for both sides and
also perused the materials placed on record.
10. The challenge before the writ court is the orders passed by the
second appellant, alleging that on 07.09.2022, the respondent accompanied
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four devotees for worshipping the main deity during the Uchikala Pooja, in
violation of the instructions given by the second appellant. Based on the report
submitted by Ulthurai Superintendent of the subject temple and as per the
resolution passed by the first appellant, the second appellant within the powers
conferred under the HR&CE Act, passed the said orders, suspending the
respondent from doing poojas in the temple, as an interim measure, for a
period of 30 days, besides initiating disciplinary proceedings against him.
Admittedly, such order was passed after issuing show cause notice to the
respondent, in complying with the principles of natural justice. However, the
learned Judge has granted an order of interim stay of the said order passed by
the second appellant, by the order impugned herein.
11. At the outset, it is pertinent to point out that in the decision relied
on the side of the appellants, while upholding the power of the Commissioner
of HR&CE Department to issue any orders for the administration of the temple
and religious endowments, the Full Bench has set aside the orders impugned
therein and decided the issue relating to Thirusuthanthirars, only on the ground
of technicality. For easy understanding, the relevant passage from the
concurring view of M.Nirmal Kumar, J. is extracted hereunder:
“(i) The petitioner in W.P.(MD)No.6446 of 2022 is a Sabha registered
as Society recently with Registration No.39/2018, on 19.04.2018, few months
before the orders passed in W.P.(MD)No. 11817 of 2018.
(ii) The issue got accelerated when one M.Seetharaman filed W.P.
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(MD)No.1700 of 2022 for quashing the proceedings of the Joint
Commissioner/Executive Officer of the Temple on the service subject. The
Writ Petition got enlarged, several orders have been passed thereafter, and
finally, got culminated and disposed of in W.A.(MD)No. 307 of 2022. During
these proceedings, reference was made to W.P. (MD)No.11817 of 2018 and
thereafter, W.P.(MD)No.6446 of 2022 was filed, which lead to this reference.
(iii) It is not in dispute that there are several litigations between
Triswatantras. There are three Sabhas namely, (i) Thiruchendur Shri Jeyanthi
Nathar, Thirisuthanthirar Kaariyasthar Sthaanigar Sabha; (ii) Sri
Subramaniya Swamy Thirukoil Kainkarya Thirisuthanthirargal Sabha; and
(iii) Sri Subramaniya Swamy Thirukoil Suthanthira Paripalana Sthalathargal
Sabha. Arulmigu Subramania Swamy Temple is one of the famous Temples in
the State of Tamil Nadu. Devotees from all over the World are visiting the
Temple for worshipping the Deity, seeking peace of mind. Due to interference
by unauthorized persons, devotees/pilgrims are not able to have a peaceful
darshan in the Temple and mental agony is caused to them. Hence, it is the
bounden duty of the H.R. & C.E. Department and Temple administration to
create a trouble free atmosphere, conducive for peaceful darshan of all
worshippers. In order to create peace ambience and orderliness, system
should be streamlined, put in place. In view of the same, the Commissioner,
H.R. & C.E. Department had issued certain directions. I am reminded that
this Court quashed the Circular bearing No.30738/2018/Z3, dated
01.04.2022, giving liberty to the Commissioner, H.R. & C.E. Department, to
pass order afresh under Section 23 of the H.R. & C.E. Act.
(iv) In the case of the Commissioner, Hindu Religious Endowments,
Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt reported
in AIR 1954 SC 282, the Hon'ble Apex Court held that Section 20 of the
Madras Hindu Religious Endowments Act [Act 2 of 1927], corresponding to
Section 23 of the H.R. & C.E. Act, 1959, does not offend any fundamental
right of the Mahant. Under Section 20 of the Madras Hindu Religious
Endowments Act [Act 2 of 1927], the administration of religious endowments
is placed under the general superintendence and control of the Commissioner
and he is empowered to pass any orders, which may be deemed necessary to
ensure that such endowments are properly administered and their income is
duly appropriated for the purposes, for which, they were founded or exist.
Further, in paragraph 24, it is observed as follows:-
''24. Section 20 of the Act describes the powers of the
Commissioner in respect to religious endowments and they include
power to pass any orders that may be deemed necessary to ensure that
such endowments are properly administered and that their income is
duly appropriated for the purposes for which they were founded.
Having regard to the fact that the Mathadhipati occupies the position
of a trustee with regard to the Math, which is a public institution,
some amount of control or supervision over the due administration of
the endowments and due appropriation of their funds is certainly
necessary in the interest of the public and we do not think that the
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provision of this section by itself offends any fundamental right of the
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Mahant.
We do not agree with the High Court that the result of this
provision would be to reduce the Mahant to the position of a servant.
No doubt the Commissioner is invested with powers to pass orders,
but orders can be passed only for the purposes specified in the section
and not for interference with the rights of the Mahant as are
sanctioned by usage or for lowering his position as the spiritual head
of the institution. The saving provision contained in Section 91 of the
Act makes the position quite clear. An apprehension that the powers
conferred by this section may be abused in individual cases does not
make the provision itself bad or invalid in law.''
Thus, the power of Commissioner to issue Circular and pass
appropriate orders not in dispute. The Commissioner earlier given
administrative instructions to the Joint Commissioner/Executive Officer of the
Temple to streamline the administration and to maintain orderliness in the
Temple to implement the suggestions given by the Committee in R.C.No.
30738/2018/Z2.
.....
(x) The H.R. & C.E. Act is a self contained Act. The purpose of the Act
is to see that the religious trusts and institutions, wherever they exist, are
properly administered and their income is duly appropriated for the purposes,
for which, they were founded or exist. To ensure the religious institutions are
properly administered and its income is duly appropriated,
instructions/Circulars are required to be issued by the Commissioner under
Section 23 of the Act. Of course, the Commissioner, H.R. & C.E. Department,
to take into consideration all the attending facts and circumstances,
thereafter, in the best interest of the Institution, to pass appropriate orders
and issue Circulars.”
12. Temples are holy places of worship, visited by scores of devotees
to attain peace and mental well-being. They show their devotion in a multitude
of ways including donating food, money and performing various acts of
service. Unfortunately, the temples' staff / servants misuse and mislead these
devotees and turn the temples into a platform to generate profit. They must
follow the rules and regulations laid down by temple administration and
cannot be involved in the acts resulting in unlawful gain. The temple staff,
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WA (MD) No. 1468 of 2022
including the archakas / priests / Thirusuthanthirars as in the present case,
have a significant position in temple worship. Not only they are the only ones
permitted into the sanctorum, but also, they act as a bridge to connect the God
to the devotees and vice-versa. By their role, they serve not only the temples,
but also the deities by serving the devotees. Every ritual performed by them in
the temple is as an employee of the temple alone and not in their independent
capacity. Even if it is in their independent capacity, it is only the temple
authorities, who would have the right to determine everything, including the
charges to be paid, etc. Every religious activities and functions within the
precincts of the temple are based on the belief that the performance of the
same, would bring in the blessings of the deity. Such being the position of the
archakas / priest / Thirusuthanthirars as in the present case, they cannot utilise
the same wrongly / illegally / unauthorisedly, to capitalize the faith of devotees
by directing the income of the temple, nay, the rightful property of the deity
itself, to their pockets. These acts must be discouraged and the offenders of
such acts must be penalized for deceiving the devotees, in the opinion of this
Court.
13. At this juncture, the learned counsel appearing for the respondent/
writ petitioner fairly submitted that the respondent/writ petitioner would not
indulge in the act of collecting money for taking the devotees inside the
temple.
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14. The aforesaid submission made on the side of the respondent is
placed on record and the appellants are granted liberty to approach the learned
Judge to vacate the interim order passed in the writ petition, in the manner
known to law.
15. However, considering the nature of the issue involved herein, this
court deems it appropriate to issue the following directions, for effective
administration of the subject temple as well as other temples:
(i)The administration of temple(s) shall take all efforts to prevent the
staff from providing any sort of service to the devotees and collecting monies /
donations / contributions, in the name of the temple(s). If any complaint is
received in this regard, action must be taken swiftly.
(ii)For all the services rendered in the temples across the State, such as
poojas, marriage ceremonies, abhishegam, etc. amount, will have to be
collected only by the administration of the temples and due receipt should be
given to the devotees. In the absence of tickets/receipts issued by temple
authorities, no one should be permitted to perform any religious activities in
the temples. The amounts collected shall be properly accounted and audited by
the authorities concerned. Necessary civil and criminal action must be initiated
against all forthwith for any violation in this regard.
(iii)A systematic, transparent and smooth functioning of the religious
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activities of the temples, have to be devised and that, the procedures preceding
the religious ceremonies in all the temples across the State have to be
streamlined. The Commissioner of HR & CE Department shall monitor the
religious activities performed in the temples and take immediate action, if
there is any illegality in the temple administration.
(iv)The temple administration shall ensure that all the receipts and
expenditures of the said Temple is duly accounted for and that the services of
the temple have to be offered only through an authorised website or in any
other manner as may be prescribed by the Commissioner of HR & CE
Department.
16. This writ appeal stands disposed of, in the above terms. No costs.
Consequently, connected miscellaneous petition is closed.
(R.M.D., J.) (J.S.N.P., J.)
02.12.2022
pkn/rsh
Index : Yes / No
Internet : Yes / No
To
1. Chairman, Arulmigu Sri Subramania Swami Thirukoil
Board of Trustees
Thiruchendur
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Tuticorin District
2. The Executive Officer/Joint Commissioner
Chairman -cum- Board of Trustees
Arulmigu Sri Subramania Swami Thirukoil
Thiruchendur
Tuticorin District
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WA (MD) No. 1468 of 2022
R.MAHADEVAN, J.
and J. SATHYA NARAYANA PRASAD, J.
rk/pkn WA (MD) No. 1468 of 2022 02.12.2022 https://www.mhc.tn.gov.in/judis 15/15