IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:02.02.2009 CORAM: THE HONOURABLE Mrs.JUSTICE R.BANUMATHI W.P.No. 18248 of 2006 and M.P.Nos.1/06, 1/07 M.P.Nos.2/2006 and 1/2008 W.P.No. 18248 of 2006: Sri Sabanayagar Temple, Chidambaram rep. by its Secretary of Podhu Dikshidar, Chidambaram. ... Petitioner Vs. 1. The State of Tamil Nadu rep. by Secretary, Department of Tamil Development, Religious Endowments & Information Department, Fort St. George, Chennai-9. 2. The Commissioner, Hindu Religious Endowments, Nungambakkam High Road, Chennai-34. 4. M.P.Sathiyavel Murugan, Founder/Director, Tamil Vazhipattu Payirchi Maiyam, Adambakkam, Chennai-88. 3. U.Arumugasamy. ... Respondents [3rd Respondent and 4th Respondent are ordered to be impleaded as Respondents in the Writ Petition as per the Orders in M.P.No.2/2006 and M.P.No.1/2008 dt. 02.02.2009. https://hcservices.ecourts.gov.in/hcservices/ M.P.No.2/2006 : M.P.Sathiyavel Murugan, Founder/Director, Tamil Vazhipattu Payirchi Maiyam, Adambakkam, Chennai-88. ... Petitioner/ Proposed Respondent. Vs. 1. Sri Sabanayagar Temple, Chidambaram, rep. by its Secretary to Podhu Dikshidars, Chidambaram. 2. The State of Tamil Nadu rep. by Secretary, Department of Tamil Development, Religious Endowments & Information Department, Fort St. George, Chennai-9. 3. The Commissioner, Hindu Religious Endowments, Nungambakkam High Road, Chennai-34. ... Respondents M.P.No.1/2008 : U.Arumugasamy. ... Petitioner/ Proposed Respondent. Vs. 1. Sri Sabanayagar Temple, Chidambaram, rep. by its Secretary to Podhu Dikshidars, Chidambaram. 2. The State of Tamil Nadu rep. by Secretary, Department of Tamil Development, Religious Endowments & Information Department, Fort St. George, Chennai-9. 3. The Commissioner, Hindu Religious Endowments, Nungambakkam High Road, Chennai-34. ... Respondents https://hcservices.ecourts.gov.in/hcservices/ W.P.No.18248/2006 : Writ Petition filed under Art. 226 of the Constitution of India to issue Writ of Certiorari calling for the records of the 1st Respondent made in G.O.Ms. (D) No.168 dated 09.5.2006 and quash the same. M.P.No.2/2006 and M.P.No.1/2008 : Petitions are filed to implead the Petitioners as Respondent in W.P.No.18248/2006. For Petitioner in Mr. B.Kumar W.P.No.18248/2006 : Senior Counsel and 1st Respondent in for M.P.2/2006 & 1/2008 Mr.K.Chandrasekaran For Petitioner in Mr.R.Gandhi. M.P.No.2/2006 : Senior Counsel for and M.P.1/2008 for Ms.Hemalatha and for R3 and R 4 and Mr.R.Sagadevan in W.P.No.18248/06 For Respondents R1&R2: Mr. R.Ramasamy in W.P.No.18248/2006 Addl. Advocate General and 2nd and 3rd for Respondents in Mr.T.Chandrasekaran, M.P.2/06 & 1/08. Spl.GP [HR & CE] ---- COMMON ORDER Writ Petitioner – Secretary of Podhu Dikshidar challenges the final order passed by the Government dismissing the Revision Petition filed by the Petitioner under Sec.114 of HR & CE Act. The impugned order of the Government confirms the order of the Commissioner, HR & CE dated 31.7.1987 appointing Executive Officer for Sri Sabanayagar Temple, Chidambaram under Sec.45 (1) of HR & CE Act. 2. Administration of Sri Sabanayagar Temple, Chidambaram has been the subject matter of litigation for about a century. Dispute relating to administration of temple has had chequered career. For the understanding of contentious points raised, it is necessary to briefly refer to the earlier litigations and the background. 3. Scheme of Administration & O.S.No.16/1933 ------------------------------------------------- } (1939) II MLJ 11 (i) Arulmigu Sabanayagar Temple (Natarajar) at Chidambaram, Cuddalore District is a Public Hindu Religious Institution, within the meaning of Sec.6 (18) read with Sec.6 (20) of HR & CE Act and all https://hcservices.ecourts.gov.in/hcservices/ the provisions of the said Act are applicable to the above said temple. The erstwhile Hindu Religious Endowment Board settled a "Scheme of Administration" in Board's Order No.997 dated 08.5.1933 under Tamil Nadu Act II of 1927. (ii) Some of the Podhu Dikshidars have filed suit in O.S.No.16/1933 on the file of District Court, South Arcot to set aside the Board's Order on the ground that temple is an absolute private property of Podhu Dikshidars and out side the scope of the Madras Hindu Religious Endowment Act, 1927. (iii) District Court, Cuddalore rejected the Dikshidar's claim of the temple being private and passed a decree modifying the scheme settled by HR & CE Board in O.A.No.73/1932. On appeal filed by Dikshidars in A.S.No.306/1936, High Court confirmed the scheme with some modifications which has been reported in (1939) II MLJ 11. (iv) G.O.Ms.No.894, Rural Welfare Dept. dated 28.8.1951 ---------------------------------------------------------- } G.O.Ms.No.1278, Revenue Dept. dated 21.5.1954 Though the temple had been declared as a public temple, provisions of the Act could not be enforced. Hence, in order to enforce the provisions of the Act, temple was notified under Chapter VI (A) u/s.65 of the Act in G.O.Ms.No.894, Rural Welfare Dept. dated 28.8.1951. The said Government Order was challenged in W.P.Nos.379 and 380/1951 by Dikshidars and the notification was quashed by the Judgment dated 13.12.1951. Challenging the Order in W.P. Nos. 379 and 380/1951, Government have filed C.A.No.39/1953 before the Supreme Court. Meanwhile, by G.O.Ms.No.1278, Revenue Dept. dated 21.5.1954, State Government cancelled the above notification and the Civil Appeal was therefore withdrawn. (v) W.P.No.5638/1982:- Stating that Podhu Dikshidars have failed to carryout the lawful orders issued by the Department and the Management of the temple was unsatisfactory, notice in Rc.No.52754/1982/B6 dated 20.7.1982 was issued to the Secretary of Podhu Dikshidars pointing out several irregularities in the administration of the temple and its properties and the proposal to appoint an Executive Officer. That order was challenged by the Secretary of Podhu Dikshidars in W.P.No.5638/1982 before the High Court, Madras. By the Judgment dated 09.8.1983, High Court directed that the aforesaid notice would be treated only as show cause notice and not as a decision and that it was open to the Dikshidars to putforth their objections that were available to them including the vires of Sec.45 of HR & CE Act. (vi) Pursuant to the direction of the Court, Secretary of Podhu Dikshidars have filed reply on 09.01.1984. Thereafter, enquiry was conducted by the Commissioner. Main contention of Dikshidars was https://hcservices.ecourts.gov.in/hcservices/ that appointment of Executive Officer would be interfering with their rights guaranteed under Art. 26 of Constitution of India. Commissioner has passed an order on 31.7.1987 observing that appointment of Executive Officer is only to look after the administration of the temple and the management of the properties. Commissioner observed that appointment of Executive Officer will not mean interference with the rights of Dikshidars relating to religious practices in the temple. (vii) W.P.Nos.7843/1987 & W.A.No.145/1997:- As against the order of appointment of Executive Officer, again Podhu Dikshidars have filed W.P.No.7843/1987 before the High Court. Executive Officer has assumed charge of the temple on 10.8.1987. High Court has not stayed the appointment of Executive Officer, but stayed only Rule 3 i.e. powers and duties of the Executive Officer. W.P.No.7843/1987 was dismissed on 11.2.1997 which was challenged by Podhu Dikshidars in W.A.No.145/1997. In the Writ Appeal, Court has directed Podhu Dikshidars to file a Revision u/s.114 of HR & CE Act before the Respondents. Further, the Court has ordered stay of Clause-III to continue till the disposal of the Revision. (viii) Consequently, Podhu Dikshidars have filed Revision Petition before the Government under Sec.114 of the Act. Revision was rejected by the Government in G.O.Ms.No.168 TDC & RE Dept. dated 09.5.2006 which is now challenged in this Writ Petition. 4. Opposing the Writ Petition, Respondents have filed counter stating that the appointment of Executive Officer was only to streamline the administration of the temple and not to displace the Podhu Dikshidars from the temple. Stand of the Government is that Petitioner has failed to perform the lawful duties enjoined on them u/s.28 of the Act. It is averred that Podhu Dikshidars have not maintained the accounts and that the offerings to the temple by worshipers have not been accounted for by them and that for effective supervision, better management and administration, appointment of Executive Officer is very much essential. 5. Onbehalf of the Writ Petitioner, Mr.B.Kumar, learned Senior Counsel has made an elaborate submissions inter alia contending that the direction of the Court in W.P.No.5638/1982 to issue fresh show cause notice was not kept in view. Learned Senior Counsel inter alia made the following submissions:- ●Once the Court directed the Government to consider the matter on merits, the Authority should have elaborately enquired into merits of the matter. Neither the Commissioner nor the Government had gone into question of mismanagement. https://hcservices.ecourts.gov.in/hcservices/ ●Before appointment of Executive Officer, Sec.45 does require issuance of show cause notice. Unless there is enquiry and finding, the administration of the temple by Podhu Dikshidars cannot be interfered with. ●As per the decision in 1952 I MLJ 557, the temple is a denominational temple and the Writ Petitioner derived its right from its constitution and Petitioner is entitled to the protection under Art.26 of Constitution of India. ●In view of Sec.107 of HR & CE Act, provisions of the Act are not to affect the rights of the religious denomination. ●Appointment of Executive Officer is an interference with the religious affairs and the same is violative of Art.226 of Constitution of India. 6. Contending that right to administer the property does not mean maladministration of the property, Mr. R.Ramasamy, learned Addl. Advocate General inter alia made the following submissions:- ●Sri Sabanayagar temple is a public temple. ●Podhu Dikshidars do not have separate faith or religious tenets other than that of Hindu faith and therefore, Podhu Dikshidars are not 'religious denomination'. ●Expression used by the Commissioner 'for better and efficient management' cannot be construed that the Commissioner has shifted the basis. ●There had been number of omissions and commissions to mismanagement and mismanagement continues. Executive Officer was appointed to set right the mismanagement, better and efficient management of the temple. ●In 1952 (1) MLJ 557 nowhere it was held that Chidambaram temple is a 'denominational temple. ●After appointment of Executive Officer, his powers and duties are demarcated and Podhu Dikshidars are not completely obliterated from the administration of the temple. 7. Impleading Petitioner Arumugasamy is 79 years old Sanyasi and claim to be a devotee of Lord Shiva, a Sivanadiar living at Kumudimoolai village, Bhuvanagiri Taluk, Chidambaram. I have also heard at length Mr. R.Gandhi, the learned Senior Counsel for the Impleading Petitioner. (i) Grievance of the said impleading Petitioner is that he was not permitted to sing Devaram at Chidambaram Natarajar temple and that impleading Petitioner was beaten and chased away by Dikshidars. In this regard, on 04.07.2000, criminal case was registered by the https://hcservices.ecourts.gov.in/hcservices/ Chidambaram Town Police in Cr.No.318/2000. In Crl.M.P.No.851/2001, the Addl. District Judge/Chief Judicial Magistrate, Cuddalore passed an order on 05.10.2001 dismissing the complaint. Challenging that order, Petitioner filed Crl. R.C.No.528/2002 which was dismissed by the High Court. Challenging that order, Petitioner has filed SLP No.909/2004 and the same is said to have been admitted by the Supreme Court. (ii) Grievance of the said Impleading Petitioner is that he was not permitted to recite Devaram and Thiruvasagam at Thiruchitrambala Medai of Chidambaram temple. Earlier, Petitioner has filed W.P.No.2261/2004 wherein the Court has permitted the Petitioner to go inside the temple and recite Devaram and Thiruvasagam. Jt. Commissioner of HR & CE, Mayavaram rejected the Petitioner's request (12.12.2004). Petitioner filed Revision before the Commissioner, HR & CE in R.P.No.67/2007 wherein the Commissioner set aside the order of Jt. Commissioner and permitted the impleading Petitioner Arumugasamy to recite Devaram and Thiruvasagam at Thiruchitrambala Medai in the Natarajar temple. The order of the Commissioner was challenged by Podhu Dikshidars by filing W.P.No.18424/2007 wherein the impleading Petitioner is arrayed as 3rd Respondent. Writ Petition filed by Podhu Dikshidars [W.P.No.18424/2007] was dismissed on 22.5.2007. Against which Writ Appeal [W.A.No.776/2007] was preferred which was also dismissed on 06.12.2007. (iii) From the submissions of the learned Senior Counsel appearing for the impleading Petitioner, it comes to be known that impleading Petitioner Arumugasamy is a Sivanadiar and is a interested person in the proper administration of the temple. Stating that impleading Petitioner is unable to recite Devaram and Thiruvasagam in the temple in a fear and that he apprehends danger from Dikshidars, Petitioner had filed impleading Petition in M.P.No.1/2008 seeking to implead himself in the present Writ Petition. (iv) According to the impleading Petitioner, he came to know about the Writ Petition filed by Podhu Dikshidars after the Executive Officer had taken charge and management of the temple. Petitioner averred that since Stay was granted, Executive Officer is unable to perform any acts and Petitioner had filed the impleading Petition. (v) Drawing Court's attention to various dates and events, learned Senior Counsel for the impleading Petitioner submitted that the impleading Petitioner was assaulted by Dikshidars inside the temple on various occasions and that Petitioner is a necessary party to be impleaded so as to protect the ancient temple. Learned Senior Counsel also drawn Court's attention to number of criminal cases filed against Dikshidars either at the instance of the Petitioner or at the instance of other devotees. https://hcservices.ecourts.gov.in/hcservices/ (vi) Mr. R.Gandhi, learned Senior Counsel for the impleading Petitioner placed reliance upon G.O.Ms.No.53 Tamil Development Religious Charitable Endowments and Information Dept. dated 29.2.2008 wherein Government has passed an order permitting any devotee can become a Archaga, irrespective of caste and colour. On the basis of the said G.O., impleading Petitioner made an attempt to recite Devaram and Thiruvasagam at Thiruchitrambala Medai and that Podhu Dikshidars had filed suit in O.S.No.176/2006 against the impleading Petitioner. (vii) Learned Senior Counsel for the impleading Petitioner would submit that to implement the said G.O. and to sing Devaram and Thiruvasagam and also for peaceful worship, appointment of Executive Officer was justified. Learned Senior Counsel would further submit that impleading Petitioner is necessary party as he is interested in fighting the worshipping right. (viii) In M.P.No.2/2006, Impleading Petitioner Sathiyavel Murugan is the Founder/Director of Tamil Vazhipattu Payirchi Maiyam functioning at No.12/F1, 11th street, New Colony, Adambakkam, Chennai- 88. (ix) According to the Impleading Petitioner Sathiyavel Murugan he is interested in promoting Tamil Mantrams as per Agamas in various places including Foreign countries with religious affairs and Impleading Petitioner is interested in the subject matter and as such he has to be impleaded as Respondent in the Writ Petition. (x) Onbehalf of Podhu Dikshidars, Mr. B.Kumar, learned Senior Counsel submitted that if at all the impleading Petitioner Arumugasamy had any grievance, he has to approach the HR & CE Board and as such Petitioner cannot be impleaded as Respondent in the Writ Petition. Learned Senior Counsel would further submit that the impleading Petitioner has been instigated to cause disturbance to the worship in the temple and that he is not a necessary party to the Writ Petition. 8. Having regard to the submissions, the following points arose for consideration:- 1) Whether Chidambaram Sabanayagar temple is a denominational temple? 2) Whether Podhu Dikshidars are right in contending that the temple is the denominational temple and that there can be no interference with the administration of its property? 3) Whether Petitioner is right in contending that the alleged mismanagement was in as early as in 1980 and there has been no fresh material to show that the mismanagement continues? https://hcservices.ecourts.gov.in/hcservices/ 4) When the original show cause notice was based on one set of alleged mismanagement, can Commissioner/Government change the basis of mismanagement? 5) Whether the impugned order is vitiated due to alleged paradigm shift in the enquiry as contended by the Petitioner. 6) Whether the appointment of Executive Officer is an interference with the religious affairs and whether the same is violative of Art.26 of Constitution of India. 9. About the temple :- Sri Sabanayagar Temple, Chidambaram is a public temple of Hindu Religious Institution within the meaning of Sec.6 (18) read with Sec.6 (20) of Tamil Nadu HR & CE Act. Chidambaram Temple is a famous Hindu temple dedicated to Lord Shiva located in the heart of the temple town of Chidambaram. Chidambaram Temple dedicated to Lord Shiva (Siva) in His form of the Cosmic Dancer, Nataraja ( eluhrh; ) is a temple complex spread over 40 acres in the heart of the city. Lord Natarajar is the symbolic representation of the supreme bliss or aananda natanam. Saivaites believe that a visit to Chidambaram leads to liberation. 10. Dikshidar, the priests of the temple are also called "Thillaivaazh Andhanar" [jpy;iythH; me;jzh;]. 'Dikshidar', meaning the priests who reside in Thillai and perform poojas/religious rites. Dikshidars are considered the foremost amongst the devotees of Lord Shiva. 11. Settlement / Scheme of Administration:- The erstwhile Hindu Religious Endowment Board settled a "Scheme of Administration" in Board's Order No.997 dated 08.5.1933 under the Tamil Nadu Act II of 1927. The salient features of the above Scheme as per Board's Order are:- (i) All the properties, movable and immovable, which have been dedicated and which will be dedicated to the deity, shall vest with the deity (Clause 3). (ii) The active management should vest in the Committee, consists of 9 members who were to be elected from among the Podhu Dikshidars (Clause 4). (iii) To manage the affairs of the temple and to assist the Committee, the Board shall appoint a Manager, on payment of salary (Clause 5). (iv) The Managing Committee should establish hundials for the deposit of voluntary and compulsory offerings and also to fix a rate for the performance of Archana etc. (Clause 8 (a) and (b). (v) The Manager shall maintain the accounts of the https://hcservices.ecourts.gov.in/hcservices/ temple and registers as per the directions of the superiors (Clause 8 (a) and (b). (vi) He [Manager] shall look after the Court matters. (vii) The Manager shall exercise control over the servants, paricharakams, archakas, and office holders of the temple (Clause 8 (f). (viii) The Managing Committee shall be responsible to put up sheds to let out (for rent) during festival occasions (Clause 10)". 12. In O.S.No.16/1933:- Claiming that the temple is an absolute private property of Podhu Dikshdars and outside the scope of HR & CE Act. Podhu Dikshidars have filed suit in O.S.No.16/1933. District Court, Cuddalore rejected Podhu Dikshidars claim that the temple being private property and passed the decree modifying the scheme settled by HR & CE Board in O.A.No.73/1932. On appeal filed by the Podhu Dikshidars in High Court in A.S.No.306/1936, High Court confirmed the scheme with some modifications. The judgment of the High Court has been reported in 1939 II MLJ 11 [Ponnuman Dikshitar and another v. The Board of Commissioners for the Hindu Religious Endowments, Madras and others]. 13. In the said decision, High Court has recorded a finding that it cannot be doubted that the suit temple is a public institution within the meaning of the Act and not a private temple as contended by Podhu Dikshidars. The observations of the High Court in the said decision read as follows:- " ..... So far as the question of jurisdiction based on the non-applicability of the Act is concerned, the learned counsel, we think, wisely refrained from pressing it because it cannot be seriously doubted that the suit temple is a public institution within the meaning of the Act and not a private temple as contended for. We agree that some of the grounds on which the learned District Judge purported to hold against the plaintiffs may not be valid, but having regard to the character of the temple it seems to us that it would be too much to contend that this is a private temple. So early as 1885 when the question was raised in a suit by the Dikshitars, Muthuswami Aiyar and Shephard, JJ., in their judgment dated 17th March, 1890, in A.S.Nos.108 and 159 of 1888 observed that it was not denied that the institution was being used as a place of public worship from time immemorial and that there was no particle of evidence in support of the assertion that this ancient temple of Sri Nataraja was the private property of the Dikshitars. Even now it is not denied that this temple is held to be very sacred by all the Saivites https://hcservices.ecourts.gov.in/hcservices/ in this Presidency and is resorted to as a place of public worship. ......"[underlining added] 14. Whether the temple is denominational temple:- Before we go into merits of the matter, it is necessary to consider the contention of Podhu Dikshidars that Petitioners are religious denomination within the the meaning of Article 26 of Constitution of India and therefore, the temple is protected under Article 26 of Constitution of India. In the light of the contentions, important question arises whether Sabanayagar temple is a 'religious denominational temple' within the meaning of Article 26 of Constitution of India. 15. Onbehalf of the Petitioners, learned Senior Counsel Mr. B.Kumar, has contended that Petitioners – Podhu Dikshidars are a 'denomination' entitled to the protection under Article 26 of Constitution of India. Placing reliance upon AIR 1999 SC 3567 [Sri Kanyaka Parameswari Anna Satram Committee and others v. Commr. HR & CE Dept. and others] and AIR 1996 SC 1334 [Pavani Sridhara Rao v. Govt. of A.P. and others] and other decisions, learned Senior Counsel has submitted that in view of the decisions of the Supreme Court Petitioners are to be construed as 'religious denomination' enjoining a special status under Article 26 of Constitution of India and therefore, the order appointing Executive Officer is not sustainable. 16. Learned Senior Counsel for the Petitioner further submitted that right of administration to denomination itself subject to such restrictions and regulations as may be provided by law. It was further argued that appointment of Executive Officer would take away the right of administration from the hands of Podhu Dikshidars all together and vest in other authority which would be violative of Article 26 (d) of Constitution of India. 17. Learned Senior Counsel for the Petitioner would submit that Podhu Dikshidars being a religious denomination enjoins a special status under Article 26 of Constitution of India. It was further argued that as religious denomination, the temple and Podhu Dikshidars are enjoined with the complete autonomy in the matter of deciding rights and ceremonies and administration of the property. It was further argued that the impugned G.O. seeking to appoint Executive Officer deprives Podhu Dikshidars and their right to manage Sri Sabanayagar temple at Chidambaram and violative of fundamental rights under Article 26 of Constitution of India. 18. Laying emphasis upon Sec.107 of HR & CE Act, learned counsel for the Writ Petitioner submitted that the provisions of HR & CE Act is not to affect the rights of denomination or any section thereof protected under Article 26 of Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ 19. Sec.107 of T.N. Hindu Religious & Charitable Endowments Act, 1959 reads as under:- 107. Act not to affect rights under Article 26 of the Constitution :- Nothing contained in this Act shall, save as otherwise provided in section 106 and in clause (2) of Article 25 of the Constitution, be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution. 20. In support of the contention that Podhu Dikshidars are denomination and are entitled to protection under Article 26 of Constitution of India, reliance was mainly placed upon 1952 (I) MLJ 557 [Sri Lakshmindra Theertha Swamiar of Sri Shirur Mutt v. The Commissioner, Hindu Religious Endowments Board, Madras]. In the said case, Dikshidars contended that the temple income is their only source of livelihood and that they are 'religious denomination'. In the said decision, Podhu Dikshidars' contention was that appointment of Executive Officer would amount to interference with the religious affairs and the same is violative of Art.26 of Constitution of India. In 1952 (1) MLJ 557, Division Bench held that Podhu Dikshidars are 'religious denomination'. On behalf of the Petitioners, it was contended that Division Bench of this Court has held that Petitioners are entitled to protection under Article 26 of Constitution of India and the finding that Petitioners are a 'denomination' rendered by the Division Bench was under the Constitution of India. It was mainly argued that the above decision was not based on any interpretation of HR & CE Act, but based on the interpretation of Constitution of what 'denomination' means. In Sri Shirur Mutt case [1952 (1) MLJ 557], Division Bench had observed that both Sri Shirur Mutt and Podhu Dikshidars of Sri Sabanayagar temple are 'denomination' and are entitled to protection under Article 26 of Constitution of India. 21. It was further argued that since Government