IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.07.2010 CORAM: THE HON'BLE MR.JUSTICE M.M.SUNDRESH W.P.NO.6423 OF 2010 AND M.P.NOS.1 TO 2 OF 2010 1.R.Sukumar 2.C.Santhanam 3.R.Sathyamurthy 4.N.Raveendran 5.S.Sudhakar ... Petitioners Versus 1.The State of Tamil Nadu Rep.by its Secretary Tamil Nadu Development and Religious and Charitable Endowment & Information Department Fort St.George Chennai – 600 009. 2.The Commissioner Hindu Religious and Charitable Endowment (ADMN) Dept., Nungambakkam High Road Chennai – 600 034. 3.The Joint Commissioner Hindu Religious and Charitable Endowment (ADMN) Dept., Nungambakkam High Road Chennai – 600 034. 4.The Executive Officer Thirusoolanathasamy Temple Thirusoolam, Chennai. 5.K.Anbalagan ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of writ of certiorari, calling for the records relating to the impugned order passed by the first respondent herein issued in G.O.Ms.No.81, Tamil Nadu Development and https://hcservices.ecourts.gov.in/hcservices/ Religious Endowment and Information Department, dated 15.03.2010 confirming the order of appointment of Executive Officer in the aforesaid temple by the learned Commissioner, H.R.&C.E. Chennai issued in Na.Ka.No.12204/2006/L.5 dated 07.06.2008 and to quash the same as illegal. For Petitioners : Mr.W.C.Thiruvengadam Senior Counsel For Respondents-1 to 4 : Mr.T.Chandrasekaran Special Government Pleader For Respondent – 5 : Mr.M.Sundar O R D E R Even though, the interim petitions are listed before me, by consent, this writ petition is taken up for final hearing. 2.The writ petition has been filed challenging the order passed by the first respondent who has confirmed the order of the 2nd respondent in appointing an Executive Officer at Thirusoolanathasamy Temple, Thirusoolam, Chennai. The writ petitioners claim to be the trustees represented by the Community in O.A.No.41 of 1979 by the Deputy Commissioner, H.R.&C.E. Chennai – 600 034. In pursuant to the said scheme, the petitioners are managing the temple. 3.It is the case of the petitioners that the temple is not only a community temple but also a denomination temple. In pursuant to the complaints made proceedings have been initiated under Section 45(1) of the Hindu Religious and Charitable Endowments Act (hereinafter referred as 'Act') by the 2nd respondent seeking to appoint an Executive Officer. After hearing the objections an Executive Officer was appointed and challenging the same, a revision was filed under Section 114 of the Act before the 1st respondent. The 1st respondent has dismissed the revision filed by the petitioners and hence the present writ petition has been filed. 4.Mr.W.C.Thiruvengadam, learned senior counsel appearing for the petitioners submitted that the temple in question is not only a community temple but also a denomination temple. The learned senior counsel further submitted that in as much as the temple is a denomination temple, in accordance with Section 107 of the Act the protection under Article 26 of the Constitution of India will have to be given and therefore without considering the same, the impugned orders having been passed are liable to be set aside. The learned senior counsel also submitted that even assuming that there are any irregularities, the respondents can adopt other methods such as removing the trustees or by inducting other proceedings instead of appointing an executive officer which will be contrary to the https://hcservices.ecourts.gov.in/hcservices/ protection given under Article 26 of the Constitution of the India. 5.In support of his contention, the learned senior counsel has relied upon the judgment of the Hon'ble Apex Court reported in (1999) 7 SCC 666 [SRI KANYAKA PARAMESWARI ANNA SATRAM COMMITTEE v, COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS DEPTT.] and the Division Bench of this Hon'ble Court reported in 1995-2-L.W.213 [K.EKAMBARAM AND ANOTHER v. COMMISSIONER, HR&CE OF ADMINISTRATION DEPARTMENT ETC] and submitted that in view of the protection available under Article 26 of the Constitution of India, the orders impugned will have to be set aside. The learned senior counsel also submitted that the objector namely 5th respondent has no locus- standi to give the objections and therefore the impugned orders passed by the respondents 1 and 2 based upon the said objections for a community temple cannot be sustained. 6.Per contra, Mr.M.Sundar, learned counsel appearing for the 5th respondent submitted that merely obtaining a scheme under Section 64(1) of the Act would not automatically amount to getting a declaration that the temple is a denomination temple. The learned counsel submitted that in order to declare a temple as denomination temple, the three tests as laid down by the Hon'ble Apex Court in 1983 (1) ACC 51 [S.P.MITTAL & OTHERS v. UNION OF INDIA & OTHERS] will have to be followed. The learned counsel further submitted that a factual finding has been given by the respondents 1 and 2 that the said tests have not been complied with and therefore the temple in question is not a denomination temple. The learned counsel further submitted that Section 45(1) of the Act gives a wider power to the 2nd respondent to take action irrespective of the fact whether a temple is a denomination temple or otherwise. 7.According to the learned counsel appearing for the 5th respondent, the allegations have been admitted by the petitioners. Therefore the orders impugned are perfectly justified. The learned counsel also placed reliance upon certain sale deeds said to have been executed by the petitions in the name of the temple. The learned counsel submitted that the said sale deeds having been executed without authority of law and without getting the permission under Section 34 of the H.R.&C.E. Act would indicate that the management of the temple has not been done in the manner known to law. Hence, the learned counsel submitted that the orders impugned will have to be sustained. 8.Mr.T.Chandrasekaran, learned Special Government Pleader based upon the counter affidavit submitted that even a perusal of the scheme framed under Section 45(1) of the Act would clearly show that it is subject to the provisions of the Act. The learned Special Government Pleader further submitted that in any case obtaining a scheme by the exercise of power under Section 64 would not amount to a declaration that the temple is a denomination temple which can https://hcservices.ecourts.gov.in/hcservices/ only be done be a competent civil court. Hence he prayed that the writ petition will have to be dismissed. 9.Heard Mr.W.C.Thiruvengadam, learned senior counsel appearing for the petitioner and Mr.T.Chandrasekaran, learned Special Government Pleader appearing for the respondents 1 to 4 as well as Mr. Mr.M.Sundar, learned counsel appearing for the 5th respondent. 10.Admittedly the scheme framed under Section 45(1) of the Act dated 12.05.1982 is for the management of the temple. A perusal of the said scheme would also indicate that it is subject to the provisions of the H.R.&C.E. Act. Merely by getting a scheme framed under Section 64(1) of the Act, it cannot be contended that the temple is a denomination temple. In order to declare that a temple is a denomination temple the test laid down by the Hon'ble Apex Court in 1983 (1) ACC 51 [S.P.MITTAL & OTHERS v. UNION OF INDIA & OTHERS] will have to be set aside. In the said judgment the Hon'ble Apex Court has laid down the following tests, which are extracted hereunder: "The term religious denomination must satisfy the following three conditions:- (1) it must be a collection of individuals who have a system of beliefs or doctrines which they regard as conclusive to their spiritual well being, i.e. a common faith; (2) a common organisation; and (3) designation by a distinctive name." 11.Therefore until and unless the petitioners approaches the competent Civil Court and get the decree declaring that the temple is the denomination temple, this Court sitting under Article 226 of the Constitution of India cannot give a declaration that the temple is a denomination temple. Hence it is open to the petitioners to approach the Civil Court and get a declaration that the temple is a denomination temple. Till the petitioners approaches the Civil Court and get a declaration it cannot be said that the protection under Article 26 of the Constitution of India would be applicable to the petitioners. 12.The judgments relied upon by the learned senior counsel for the petitioners in (1999) 7 SCC 666 [SRI KANYAKA PARAMESWARI ANNA SATRAM COMMITTEE v, COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS DEPTT.] and the Division Bench of this Hon'ble Court reported in 1995-2-L.W.213 [K.EKAMBARAM AND ANOTHER v. COMMISSIONER, HR&CE OF ADMINISTRATION DEPARTMENT ETC] are not applicable to the present case on hand. The Hon'ble Apex Court in the above referred judgment has remanded the matter to the institution which has been declared as a denominational one which is not the case before us. https://hcservices.ecourts.gov.in/hcservices/ Similarly in 1995-2-L.W.213 [K.EKAMBARAM AND ANOTHER v. COMMISSIONER, HR&CE OF ADMINISTRATION DEPARTMENT ETC] the Division Bench has left the issue open regarding the applicability of Article 26 of the Constitution of India to a community temple. 13.As contended by Mr.M.Sundar, learned counsel for the 5th respondent the power under Section 45(1) of the Act is wider enough to cover any mismanagement or irregularities committed by the trustees in-charge. Therefore it cannot be contended that in view of the protection of Article 26 of the Constitution of India in any given situation an executive officer cannot be appointed. It is no doubt true that in a denominational institution the authorities will have to consider the protection available under Section 26 of the Constitution of India Act vis-a-vis the provisions contained under Section 45(1) of the Act. Since the said situation has not arisen in the present case, this Court is of the opinion that the contention of the learned senior counsel appearing for the petitioners that the temple being a denomination institution the protection under Article 26 of the Constitution of India will have to be considered. 14.There is a difference between a community temple and a denomination temple. As observed earlier for a community temple to become a denomination temple the tests laid down by the Hon'ble Apex Court will have to be satisfied. Therefore the contention of the learned senior counsel appearing for the petitioners that the temple in question being a community temple it should be considered as denomination temple, therefore the protection under Article 26 of the Constitution of the India will have to be given cannot be countenanced. Further the power under Section 45(1) of the Act can be exercised irrespective of the fact that a temple is a denomination or community temple. 15.However, a perusal of the orders impugned passed by the first respondent would show that the objections and the grounds raised in the appeal have not been considered properly. The 1st respondent has merely stated that there were some objections from the general public. The said order has been passed without considering the nature of objections and whether they are true or not. Apart from that the allegations raised in the writ petitions for the first time by the learned counsel for the 5th respondent Mr.M.Sundar even though they have not been raised before the authorities below are quite serious in nature. However this Court can go into the said allegations since they have not raised before the authorities and the petitioners have not been put on notice regarding the same. 16.Hence taking into consideration of the above said facts, this Court is of the opinion that the orders passed by the 1st respondent will have to be set aside and the 1st respondent will have to be directed to go into the merits of the case including the https://hcservices.ecourts.gov.in/hcservices/ grounds of appeal raised by the petitioners in so far as the factual aspects are concerned as well as the allegations made for the first time in the writ petition by the 5th respondent. While considering the said issue, the permission is given to the 5th respondent to raise the said allegations before the 1st respondent and the 1st respondent will have to furnish the allegations raised as well as the documents relied upon by the 5th respondent to the writ petitioners before proceeding to decide the same. 17.The 1st respondent is directed to decide the appeal as well as the objections to be raised by the 5th respondent, within a period of two months, from the date of receipt of a copy of this order and the 5th respondent is permitted to raise all the additional objections before the 1st respondent, within a period of three weeks, from the date of receipt of a copy of this order and the copies of the said objections and the documents will have to be furnished before deciding the appeal on merits. The question of the petitioners right to manage the temple as one belong to the community can also be agitated before the first respondent. 18.The writ petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sri To 1.The Secretary Government of Tamil Nadu Tamil Nadu Development and Religious and Charitable Endowment & Information Department Fort St.George, Chennai – 600 009. 2.The Commissioner Hindu Religious and Charitable Endowment (ADMN) Dept., Nungambakkam High Road Chennai – 600 034. https://hcservices.ecourts.gov.in/hcservices/ 3.The Joint Commissioner Hindu Religious and Charitable Endowment (ADMN) Dept., Nungambakkam High Road Chennai – 600 034. 4.The Executive Officer Thirusoolanathasamy Temple Thirusoolam, Chennai. +1cc to Mr.W.C.Thiruvengadam, Advocate Sr 54138 +1cc to Mr.R.Mahalingam, Advocate Sr 54151 +1cc to Govt. Pleader Sr 54453 +1cc to Mr.M.Sundar,Advocate Sr 54534 AKR(CO) km/3.8. W.P.NO.6423 OF 2010 https://hcservices.ecourts.gov.in/hcservices/