Madras High Court
Siva Thanu Chettiar And Ors. vs The Executive Officer/Deputy ... on 8 February, 2005
Equivalent citations: 2005(1)CTC735, (2005)2MLJ113
Author: Prabha Sridevan
Bench: Prabha Sridevan
ORDER Prabha Sridevan, J.
1. The plaintiffs are the appellants and they have sought for interim injunction. The suit was filed by the appellants for declaration and injunction that the respondents are not entitled to charge special fees from the devotees at Sri Devi Bagavathi Amman temple and for a permanent injunction. The respondents resisted the suit on the ground that the suit was not maintainable and that the fee system has been introduced only to facilitate old people, pregnant women and those who cannot stand in the queue for long and that it is not as if the entrance fee is collected from all the people standing in the general queue, who are free to have dharshan without paying any fee, and that a similar system prevails in other famous temples in the State of Tamil Nadu. The trial Court dismissed the suit and the appellate Court also dismissed the appeal and therefore the second appeal has been filed and it has been admitted on 3.11.2004.
2. Caveator took notice and today the interim application for injunction restraining the respondents from collecting any fee by way of ticket or other fee for dharshan in Shri Devi Bhagawathi Amman temple at Kanyakumari District, is listed for hearing.
3. According to the learned counsel for the appellant, under Section 119 of the States Reorganisation Act, the law prevailing in the erstwhile State, from which territories newly added to another State, emerged shall continue to be in force, notwithstanding the change in the territories and formation and Reorganisation of new States. It was submitted that custom and long usage also have the force of law and such custom or usage prevailing in the Travancore, Cochin area cannot be altered merely because the transferred territory now lies in the State of Tamil Nadu. According to the learned counsel, such custom and usage shall continue to be in force as per Section 119 of the State Reorganisation Act. The learned Counsel also submitted that the petitioner's rights are protected by Article 372 which protects the existing laws and their adaptation, which had been in force in the territory of India, immediately before the commencement of the Constitution. According to the learned counsel for the petitioner, Article 256, Article 265 and Article 266 protect the rights of the petitioners. The learned counsel also referred to Section 7 of the Tamil Nadu Transferred Territory Extension of Laws Act, 1957 by which saves the previous operation and all rights, privileges, obligations or liability acquired, accrued or incurred under any corresponding existing law which has been replaced by Section 6. The learned counsel also relied on Section 97(A) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, which gives the Board of Trustees, constituted under Section 47, the power to administer the Devasthanam in accordance with recognised usage. The learned counsel specifically placed stress on the words 'recognised usage'. The learned counsel relied on the judgment of the Division Bench of this Court in T. Mariasingham Chettia v. The State of Madras, 1963 (1) MLJ 365 herein it was held that:
"The proper interpretation of Section 119 of the States Reorganisation Act is that laws prevailing in the erstwhile State from which the territories, newly added to another State, emerged, should continue to be in force, notwithstanding the change in the territories and formation and reorganisation of new States. But in the application of such laws regard must be had to the concept of States as constituted under the Act (XXXVII of 1956). It is not possible to take the view that for the purposes of application of pre-existing laws effect should not be given Incorporated and Unincorporated Devaswam, Suchindeeram (Prabha Sridevan, J.) to the mandatory provisions of the Act which undoubtedly on and from the appointed day creates and reorganises the States. In other words old laws which were in operation in the territories which formed the subject-matter of the reorganisation and reconstitution would apply but only consistent with the changed state of affairs resulting from the operation of the Act (XXXVII of 1956) in the matter of territorial distribution, The only object of Section 119 of Act (XXXVII of 1956) is therefore to keep alive the laws and regulations in the territories taken over and merged into the new State and not to nullify the reorganisation itself by creating a fiction that they still form part of their previous State of origin which in some cases altogether ceases to exist."
4. According to the learned counsel for the petitioner the claim that the special fee is collected only from old people and pregnant women and other persons suffering from some disability is clearly untrue in view of Para 6 of the counter, which refers to the mid day meals scheme newly introduced. According to the learned counsel it was clear that in order to collect funds for noon meal scheme the respondents are seeking to introduce special entrance fee which is a practice not at all in vogue in any one of the temples in Kerala specifically in the erstwhile Travancore Cochin State. The learned counsel for petitioner also submitted that their specific case is that in all the temples of this territory, no discrimination is made between the rich and poor. The respondents though denying such discrimination have stated in the counter that devotees who decide to pay special entrance fee, can pay the same which would indirectly mean that those who 'have' can pay the special entrance fee while the others can wait in the queue. The learned counsel for the petitioner would submit that when admittedly not even in one temple in the Tranvancore Cochin territory such special entrance fees are levied, injunction must be granted on the ground of the balance of convenience prima facie case and irreparable hardship.
5. The learned Government pleader filed his counter and submitted that a custom can be pleaded only, an exception to the general law, and referred to Sri Braja Kisore Devan Garu v. Sri Kundana Devi Patta Mahadevi Garu, ILR 22 Madras 431. When there is no such plea, the petitioner cannot be permitted to say that there was a custom in the territory in which the temple is situated, not to charge special entrance fee. The learned counsel submitted that the suit itself is not maintainable and therefore no interim order can be granted. It is further submitted that though the income of the temple may be sufficient to meet the expenses of Bhagavathi Amman Temple. Actually the income of this temple and three other temples namely, Nagaraja Temple, Nagercoil, Kumaracoil at Velimalai and Bhagavathy Amman temple at Mandaicaud are brought into a common account and from that 473 temples under the incorporated and unincorporated devaswoms are being maintained.
6. The learned counsel for the temple further submitted that when it is not disputed that this temple comes under the jurisdiction of the Tamil Nadu Hindu Religious and Charitable Endowments Act, it cannot be treated specially, and when other famous temples in Tamil Nadu have the practice of collecting special entrance fee, the respondents are entitled to introduce the similar scheme in this temple also.
7. I am informed that in W.P. No. 11584 of 2000 (K. Srinivasa Bhattar and Ors. v. Commissioner Hindu Religious and Charitable Endowment etc.), P.K. Misra, J. held, in the judgment dated 26.2.2003 that "New entrance ticket fee" can be introduced only after giving an opportunity to the persons likely to be affected. This relates to Devarajaswami Tirukovil, Chinna Kanchi. It appears that against this writ appeal has also been filed.
8. D.W.I has admitted that the expenses for the Bagavathi Amman temple is much less than the income. D.W.1 has also admitted that till now no special entrance fee has been collected from the devotees and that there is no practice in the Tranvancore territory for collecting fees for dharshan. In para 2 of the trial Court judgment it was held that;
9. The appellate Court also has held that this custom prevailed in the erstwhile Travancore State which is as follows;
"7. The admitted facts of the case of the appellants is that originally when this district comes under the administration of the Cochin Monarchs for the purpose of worshipping the deities was only free. After India got independence Travancore became Cochin State then also the same custom was prevailed in respect of free dharshan."
10. To the objection of the petitioner that this custom does not prevail in the erstwhile Tranvancore Cochin territory, the only answer given is that the custom prevailing in Tamil Nadu alone can be followed. But the petitioners' claim that the custom prevailing in that area must be protected. It is clear that the petitioner has made out a prima facie case. Further if recognized usage prevailing in the transferred territory must be allowed to continue, then pending second appeal, the balance of convenience is in favour of the petitioner. Most importantly, it is admitted by both the counsel, that the respondents did not collect any fees for special entrance pending suit and even after the suit was dismissed, pending first appeal. The lower appellate Court dismissed the appeal on 19.4.2004 and yet it is admitted that the respondents started collecting such fees only from 24.12.2004. In such circumstances, the petitioners have made out a case for grant of injunction. The position that prevailed pending suit and pending appeal must be allowed -to continue pending second appeal. The second appeal has been admitted on the substantial questions of law relating to the recognized usage, the provisions of Act 27/1957 and also violation of the constitutional rights or the petitioners. In such circumstances interim prayer sought for by the petitioner must be granted and accordingly, injunction is granted in favour of the petitioner.